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Amid national law enforcement debate, Md. attorney general condemns police profiling

08.25.2015

By Kevin Rector and Michael Dresser -- Baltimore Sun

Maryland Attorney General Brian E. Frosh plans to issue first-of-their-kind guidelines Tuesday to police departments throughout the state that explicitly condemn the arbitrary profiling of certain races, ethnicities and other minority groups, and restricting the circumstances under which police officers can consider those characteristics during interactions with the public.

Some restrictions on profiling, such as using race or ethnicity as the sole factor for stopping a motorist, already exist under state law, and many police departments have their own policies of "unbiased policing," a spokesman for Frosh said.

Still, Frosh writes in a memorandum, "the time has come for these principles to be transformed into uniform practice" across the state — covering not just race and ethnicity but also national origin, religion, gender, gender identity, sexual orientation and disability.

"Experience has taught us that improper profiling by police exacts a terrible cost, discouraging cooperation by law-abiding citizens, generating bogus leads that turn attention away from bona fide criminal conduct, and eroding community trust," Frosh writes.

The new guidelines come a day after Baltimore police officials detailed a new training initiative to encourage department recruits to discard stereotypes in favor of "situational awareness," and legislators, law enforcement officials and reform advocates met to debate proposed changes to a controversial state law designed to protect officers accused of misconduct.

The deaths of Michael Brown in Ferguson, Mo., Freddie Gray in Baltimore and other young black men elsewhere have sparked a national debate around policing.

But he also addresses the troubled relationship between Baltimore and its police department.

"Unfortunately, many today do not appreciate the brave and important work of police," he writes. "Frustration and misgivings have weakened the unspoken trust that once existed between law enforcement and the communities they serve. Correcting this will not happen overnight, but the end of discriminatory profiling — a practice that has long molded the views of groups who have been singled out — is essential to restoring that trust."

The guidelines do not create new law, Frosh's office said. But the memorandum "makes clear that discriminatory profiling is inconsistent with our state and federal constitutions and antidiscrimination laws." And if local police departments adopt the guidelines into their general orders, they can enforce violations.

Under the guidelines, police may not consider race or other personal characteristics when "conducting routine police activity unconnected from an investigation of a specific crime, organization, or scheme."

They may consider such characteristics only if they are "in possession of credible information that makes the defining personal characteristics directly relevant."

"Ending discriminatory profiling does not require law enforcement to ignore or reject bona fide leads and credible intelligence" such as an eyewitness describing a shooter as being of a certain race, Frosh writes. But there are limits to such information, he writes, and "[b]road targeting of specific groups of individuals may raise constitutional concerns, and always raises serious fairness concerns."

Interim Baltimore Police Commissioner Kevin Davis called the guidelines "an important step forward" that all departments should follow.

"I'm committed to making sure that the standards being released today are part of our practices — for the benefit of our officers and our community," he said in a statement.

Gerald Stansbury, president of the Maryland State Conference of the NAACP, said his group is pleased Frosh decided to follow the Justice Department in issuing state guidelines.

"African-American communities have been victims of profiling for far too long, and this is another step that we can build on to ending the practice in Maryland because we know that good policing can be done without improper and discriminatory police tactics," Stansbury said in a statement.

Critics of the law, known as LEOBR, say its procedural protections make it difficult to hold officers accountable for wrongdoing.

Frank Boston III, legislative counsel for the state Fraternal Order of Police, said the current law is fair and has been working well to protect the public and officers.

"It weeds out the bad police officers, the bad actors, and it serves to protect the good officers who are only doing their jobs," he said.

Still, he said, the union was "not here to be adversarial" and would work with the panel.

Representatives of the state's police chiefs and sheriffs said the 40-year-old law needs to be updated, and signaled that they are sympathetic to some changes suggested by the NAACP and ACLU.

The period was intended to give an officer time to retain a lawyer. But critics say the officers don't need nearly that long to find counsel, and the 10-day rule makes it easier for police to collude on a cover story.

FOP representatives say collusion doesn't occur. They rejected any need to change the rule.

The police chiefs and sheriffs staked out a middle ground. Their witnesses said the rule doesn't impede them significantly because their internal investigators seldom want to interrogate officers until they have thoroughly investigated the case.

But they signaled that they're willing to see a change if it allays public suspicions about the process.

"If the perception from the public is that this is so important to our jobs, let's make it three days or five days," said Phil Hinkle, chief of staff to the Charles County sheriff's office. "We have a perception problem that we don't fire bad cops, but we do fire bad cops."

Baltimore police officials, meanwhile, said they had hired a cognitive neuroscientist to train new recruits in a repetitive mental exercise intended to improve their performance in stressful situations and prevent them from making split-second decisions based on their own biases.

The effort is aimed at improving police interactions with the public.

The program was developed by Jonathan Page, a professor at Dickinson College in Pennsylvania who studies brain function under stress and the implications of those processes for law enforcement.

The training has been piloted elsewhere and proved successful in clinical trials, Page said, but the Baltimore Police Department is the first to fully adopt the curriculum.

At the core of the training are six words the recruits are encouraged to run through their minds both on the job and off, while out on patrol or cruising the grocery aisle: breathe, scan, cover, threat, distance, escape.

By conditioning themselves to think through the list — remembering to breathe to keep your heart rate down, scan surroundings for context or potential victims — officers can avoid such dangers of stressful situations as tunnel vision or not hearing someone screaming at your side, Page said.

"The words that were developed are just a way to kind of create an architecture in the brain to help you see and understand situations, take in information very rapidly," Page said.

Paul Banach, the police academy director, said the exercise should improve officer interactions with the public.

Officer Trainee Andrew Definbaugh, one of the 36 recruits, said it would help him on patrol.

"Now I'm not going with those preconceived notions of what I see immediately. I'm trying to understand the situation," he said. "And I owe it to the community to try to understand what they are going through before making my judgment on what it is."