Baltimore police officers must be mindful that peaceful and orderly picketing or other lawful assembly and/or speech are not prohibited but are in fact constitutionally protected rights and therefore do not fall under the auspices of disorderly conduct. — Excerpted from new orders issued to
By Stephen Janis
Make no mistake about it, the Baltimore Police Department no longer supports the zero tolerance arrest policy that led to tens of thousands of people being busted but released without charges that embroiled the agency in controversy and lawsuits.
New orders distributed to police officers earlier this month as the result of a lawsuit settlement with the ACLU and the NAACP make it clear the days of arresting someone for spitting on the sidewalk, urinating in an alley, or simply loitering may be over.
In fact, the orders urge city officers to avoid arrests whenever possible for minor crimes like loitering, littering, and disturbing the peace, infractions that in the past usually earned residents in poorer neighborhoods a night in Central Booking and an arrest record.
“A verbal warning is preferable to a criminal/civic citation,” states the new orders issued by Police Commissioner Frederick H. Bealefeld 3rd.
“The Baltimore Police Department does not support a policy of Zero Tolerance Policing.”
REVIEWS AND CLARIFICATIONS OF EXISTING LAWS
The orders included reviews of existing laws that determine when littering, loitering, even public assembly on a sidewalk are illegal, along with clarifications of the law in some cases and recommendations of alternatives to the reflexive arrest policy that led to 100,000 arrests per year in the middle of the decade.
The oft-used loitering law, for example, a favored tool of the zero tolerance era, now comes with limitations, the orders state:
“An officer cannot lawfully arrest anyone for refusing to obey an order to move on after he told that person, along with other individuals, that they were loitering in a public place and if they didn’t move they would be arrested.”
For trespassing offenses, the department has raised the bar as well:
“Members must first ascertain whether an individual has any legal right to be on the premises before making an arrest.”
Most intriguing is a First Amendment primer for officers, who in the past have arrested picketers and protesters for disorderly conduct:
“Officers must be mindful that peaceful and orderly picketing or other lawful assembly and/or speech are not prohibited but are in fact constitutionally protected rights and therefore do not fall under the auspices of disorderly conduct.”
DISORDERLY CONDUCT CHARGE HAS BEEN CONTROVERSIAL
Also addressed is the often-evoked disorderly conduct charge, which in the past has been used to move people off sidewalks in drug-torn neighborhoods, but has also been controversial for targeting innocent bystanders.
“Generally one person cannot obstruct an entire sidewalk,” the order states blithely.
One of the most controversial laws used to make thousands of arrests is the charge of failure to obey a lawful order from a police officer, a charge that the ACLU argued has been widely abused. But the new orders say that officers cannot arrest people for failing to obey any order, clamping down on the practice.
“Member must refrain from charging an individual with ‘failure to obey,’” the order states, noting that officers must believe someone is a threat to public peace to make an arrest for failing to respond to an officer’s order.
The city’s zero tolerance policy was instituted at the beginning of the decade by the administration of then-Mayor Martin O’Malley, an extension of the so-called broken-windows theory of policing that urged arrests for petty crimes to discourage more serious infractions.
The policy accelerated in the middle of the decade when police arrested over 110,000 people; meanwhile prosecutors declined to charge up to one-quarter of those arrests.
Under the administration of Mayor Sheila Dixon the police department began to ease up on the policy and to focus more on targeting violent offenders.
Still, in 2006 the NAACP and ACLU sued the city on behalf of a dozen people who had been arrested who claimed their detainment was illegal. This year the city settled the suit for $870,000, admitting that the arrests were in fact illegal.
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