Thursday, August 11, 2016

The Department of Justice "Discovers" that the Baltimore Police were Operating Under Jim Crow Era "Black Codes"

I am writing something longer about the Department of Justice's disturbing report on the Baltimore Police Department. I will also be on the Big Picture with Thom Hartmann this evening to discuss the report's findings. But for now, I urge you read the actual report and the details of the rampant police thuggery, violence, and violation of the human rights of the African-American community in Baltimore. You can find the report at this link.

In a long list of crimes committed by the Baltimore police against the black Americans they are supposed to "serve and protect" the following examples of needless escalation and violation of basic civil rights of speech, association, and use of public space were especially troubling:


BPD detains and arrests individuals for speech perceived to be rude, critical, or disrespectful. These arrests—described by the officers in their own words in incident and arrest reports—violate the First Amendment. For example, an officer in downtown Baltimore in 2011 “felt . . . that it was reasonable” to order a young African-American man to leave the area because he “had no respect for law enforcement” and was “making idle threats towards a uniformed officer.” As the young man walked away accompanied by a friend, the two made additional comments mocking the officers and the BPD; 15 minutes later, the officer again spotted the two men in the same area and placed both under arrest for failure to obey. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” City of Houston v. Hill, 482 U.S. 451, 462–63 (1987) (striking down municipal ordinance that made it illegal to oppose or interrupt a policeman as constitutionally overbroad under the First Amendment). 115 By ordering the young men to leave, and then arresting them for their comments, the officer violated their First Amendment right to peacefully and verbally criticize or oppose law enforcement officers without actively interfering with the officers’ lawful performance of their duties.

In another incident from 2011, BPD officers arrested a man for disorderly conduct after he refused to leave a public area following an order issued without just cause, and yelled “fuck you” repeatedly at the officer. This arrest was also unlawful, as individuals may not be punished for using vulgar or offensive language unless they use “fighting words,” that is, words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Use of profanity alone is not sufficient to rise to the level of inflicting injury or inciting a breach of peace...From our review of their reports, some BPD officers appear to believe that use of vulgar or profane language provides probable cause to arrest or grounds for ordering a person to leave a location. 

Indeed, in another case, an officer patrolling the inner harbor on the Fourth of July complained that a man, “Nicholas,” bumped his shoulder while walking past. As Nicholas continued walking, the officer said, “Hey, you ran right into me,” to which Nicholas replied “fuck you” and continued walking. Although no crime had been committed, the officer pursued Nicholas and demanded his identification. Nicholas continued to walk away from the officer, who attempted to grab his arm. Nicholas swore at the officer again and continued to pull away, at which point the officer informed him he was under arrest. According to the officer’s report, after attempting to place the man under arrest, the incident ended in a physical altercation between officers, Nicholas, and his brother, with the brother eventually being tased. Though Nicholas made repeated attempts to walk away peacefully, the officer pursued him and escalated the encounter. According to the officer’s report, he believed that Nicholas’s attitude and actions indicated “he was purposely looking for a confrontation with law enforcement[.]” However, Nicholas made no obvious threats or aggressive movements toward the officer. His use of profanity did not rise to the level of “fighting words” and was protected by the First Amendment. The officer’s pursuit, detention, and eventual arrest was an unlawful exercise of government power to exact personal vengeance for a perceived slight. 

BPD officers also violate the First Amendment by arresting individuals who question the lawfulness of their actions. In one reported use of force, an officer described the arrest of a man who approached him during a traffic stop to ask why the officer had stopped his friend. The proffered justification for the arrest was that the man refused to leave the area when ordered to do so by the officer. Nothing in the officer’s report indicates that the man physically interfered with the officer’s duty or was otherwise committing a crime. He was arrested merely because he continued to stand “near” the officer. Arrests for failing to leave a crime scene are also unlawful. The man had a right to “voice his objection to what he obviously felt was a highly questionable detention by a police officer.” Norwell v. City of Cincinnati, Ohio, 414 U.S. 14, 16 (1973); see also Wilson v. Kittoe, 337 F.3d 392, 402 (4th Cir. 2003) (officers lacked probable cause to arrest an attorney who did not obey officers’ orders to leave the scene of the arrest of another person, and that the subsequent arrest of the attorney unlawfully infringed upon his First Amendment rights). The man sustained an injury to his head while struggling during the course of being taken into custody following the unlawful arrest. Despite a clear lack of probable cause, supervisory review found that the officer had acted properly and within policy. 

In a similar incident from 2014, BPD officers arrested a man for disorderly conduct because he was shouting at the officers. The man believed they had assaulted his nephew and stolen from him while detaining him on suspicion of “gambling.” When he approached the officers, demanding to know which of them had punched his nephew, a crowd gathered, and he was placed under arrest. The man was within his rights to question the officers’ actions, and the arrest unlawfully suppressed his speech. Officers arrested him for objecting to their actions and for making vocal inquiries into their conduct. 116 In making these arrests, BPD officers violated these individuals’ right to question and criticize police actions. See Norwell, 414 U.S. at 16 (speech protesting officers’ actions is protected even if “loud and boisterous” or “annoying” to officers). Although one officer later told a supervisor that the man had adopted a “fighting stance” before the decision to arrest, this was not corroborated by other officers or civilian witnesses on the scene, who reported that the man merely refused to leave and made repeated demands to know who had assaulted his nephew.

BPD uses unreasonable force to retaliate against individuals who engage in protected speech critical of law enforcement, in violation of both the First and Fourth Amendments. 117 City of Houston, 482 U.S. at 461; Hartman v. Moore, 547 U.S. 250, 256 (2006) (“the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.”). We reviewed a number of troubling incidents where BPD officers appeared to use force against individuals simply because they did not like what those individuals said. In one case from 2011, officers tackled and used a taser to drive-stun a young black man who was, in their view, “loitering” near a market during business hours in downtown Baltimore. When told to move, the young man refused and swore at the officers, who then tackled him. Nothing indicated the man was armed, violent, or presented a danger to the officers or others. Supervisors who investigated and approved the incident failed to recognize that the force appeared to be retaliatory, even though the man, when interviewed, told them he believed he was tackled because he cursed at the officers.

Furthermore, we have reviewed many incidents in which BPD officers believe they are justified in using force or arresting a person, based solely on profane or insulting words. We reviewed an incident, for example, in which an officer tased a young man who, according to the officer’s report, had removed his shirt and was yelling at club patrons and staff. The officer justified using the taser on the basis that the man approached the officer in an aggressive manner while swearing. Although the report is not altogether clear on what the officer meant by “aggressive,” the report does make clear that the man’s “mouth”—his words—constituted the weapon or means of attack: Indeed, this report appears to indicate the officer felt he was justified in tasing an individual—a high level of force—for this reason. Moreover, the report noted that the individual’s “trademark” was “[e]xplicit word this place.” If this was in fact the officer’s justification for tasing this individual, it is grossly insufficient, and it would violate both the First and Fourth Amendments. Although we make no finding about this specific incident because of the vagueness of word “aggressive” in the report, it is notable that the officer’s direct supervisor signed off on the report, and a review of the use of force found it to be justified without need of clarification. We reviewed a number of substantially similar incidents where BPD officers only resorted to force after an individual swore at them. These uses of force in retaliation for protected speech violate the First and Fourth Amendments, and they undermine public confidence in the BPD.


These laws and practices have their origins in the Black Codes of the postbellum South and Jim and Jane Crow. A black man may be President of the United States but the ugly nightmare of American Apartheid continues to hang over the country. This contradiction feels like madness.

These finding are not a surprise. Black and brown folks have been telling the truth about police thuggery for centuries and most (white) Americans do not care. Reactionaries support fascist programs such as "hate crime" protections for police and rally under slogans such as "Blue Lives Matter" and "All Lives Matter" while the country's law enforcement agents maintain a classist and racist regime of terror.

Where is the outrage? Or are too many, on both sides of the color line, just numb, and accept brutality against black and brown people as a type of transaction and bargain that comes with living in the world's "greatest democracy?"

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