AP Photo/Jose Luis Magana

Jurors for the case against William Porter were as unclear as many police are about the protocol and obligations of officers.

The trail of Baltimore police officer William G. Porter, one of six cops charged in the death of Freddie Gray in April, ended in a hung jury on December 16. One of the main reasons jurors couldn’t agree on a verdict is because of vagueness around Baltimore police department policies in terms of cops’ responsibilities when they have suspects in custody, according to reporters covering the trial.

Gray was arrested and handcuffed on April 12 and then placed in the back of a cop van where, medical examiners say, his spinal cord was severely injured during a bumpy, lengthy transport. Porter was called in by the police officers driving the van (who also face upcoming trials) and inspected Gray’s condition during a stop. Gray had not been placed in a seatbelt for the ride, and Porter allegedly did not immediately call medics after Gray was seen obviously ailing and had reportedly asked for a doctor.

What stumped jurors in trying to decide if Porter was guilty of involuntary manslaughter, assault, reckless endangerment and/or misconduct was figuring out what the arresting officers legal responsibilities were to Gray according to department policy.  

Baltimore Sun reporters blogging the trial say that prosecutors argued that the policies around seat-belting detainees and when to call medics are clear, while Porter’s defense attorneys said these policies are not well-understood. Decisions in these matters are left up to the police officers , perhaps for lack of clear guidance to do otherwise. As the Sun explains:

Jurors heard conflicting testimony about the responsibilities of police officers, a key issue for the panel when considering whether Porter's actions were legally "reasonable." Prosecutors said officers are trained and duty-bound to act, while the defense countered that situations aren't always clear-cut and officers are allowed wide discretion.

The public has no way of weighing in on whether officers used the correct level of discretion in this situation, however, because Baltimore’s policing policy manual is not readily available to those who aren’t part of law enforcement. While police departments in other cities post their policies and procedures online—including in cities where police-involved deaths have recently occurred, like Chicago and Minneapolis—Baltimore’s does not.

The White House’s Task Force on 21st Century Community Policing has called for police departments nationwide to make their policies available for public review. Former NAACP president Ben Jealous made this exact recommendation for the Baltimore police department in a report he released in October with the grassroots coalition Campaign for Justice, Safety and Jobs. In that report, Jealous wrote:

The people of Baltimore deserve to know the parameters in which police officers are trained to operate. The BPD’s decision to keep its manual private limits transparency and prevents community members from productively engaging with police leadership and elected officials when it comes to advocating for change.

It could be that Baltimore police don’t make these policies publicly available because they are poorly written. Besides the ambiguities in police procedures uncovered during the Porter trial, there have been other recent reports that have alluded to the idea that the department doesn’t provide the best directions. The Police Executive Research Forum released in September an audit of how Baltimore police mishandled riots and protests in the city this past spring after Gray’s death. Among the many things it found wrong was that police were poorly trained and confused about what to do during the unrest. Reads the PERF report:

During the protests and riots in Baltimore, there was not clear direction for officers when arrests should be made and who had the authority to make arrests. In the initial planning for the protests on April 25, it was stated that arrests were not a preferred function. This approach is in keeping with best national practices for demonstrations, which call for an initial “soft approach” by police in order to send a message that the police are not expecting a demonstration to become violent. However, when the protests in Baltimore became violent, some commanders were reluctant to allow arrests, because they were unsure whether the earlier guidance was still in effect.

Many of PERF’s recommendations about how to remedy this involve updating the policy manual and instituting new trainings for police—but they make no mention of whether or how these should be made public for accountability.

There are other dark spots in Baltimore police operations worth looking at:

  • As part of the police department’s deal with the local police union, citizen complaints about police misconduct are erased from officers’ files after three years if found unsubstantiated. This means a cop can be on the force for decades with complaints racking up yearly, but we’d never know about the entire trail of complaints because they’re deleted for reasons that often have to do with a police department failing to fully investigate the claims. In Los Angeles, the city’s police chief just ordered an investigation into his department after finding that it dismissed virtually all bias claims against its officers.
  • Baltimore civilians who settle claims of misconduct with police officers are put under a gag order not to discuss their complaints publicly. As with the item above, this means the public has a harder time identifying which police have a history of abuse because their victims can’t speak about them for the public record. In Philadelphia and Washington, D.C., victims of police abuse are allowed to speak publicly about their ordeals, even if they settle their claims.
  • While it’s commendable that Baltimore police now have body cameras (in a pilot phase), the mayor insists on limiting public access to what those cameras capture—even in incidences where police shoot, hurt, or kill civilians. Making police cam videos public is controversial in many cities, but as seen in Chicago, the withholding of releasing videos like this still can harm public safety.

All of this sheds light on the culture of Baltimore policing that Porter and the five other officers involved in Gray’s death come out of. Many members of the public are demanding guilty verdicts for all six cops in large part out of distrust for the police department, which stems in no small part from the cloud of secrecy police operate under. That cloud seems to keep even the police themselves in the dark about their own polices and procedures. That confusion trickled down to the jurors in the Porter trial, leading to confusion about what exactly Porter should have been found culpable of.

Prosecutors are demanding a retrial for Porter, but it’s not certain that a new set of jurors will have any more clarity on his obligations to Gray. This is not to say that Porter or any of the other five officers deserve to go free because of the climate of disarray found in the department. Gray died while in their care, and someone should be held responsible for that.

But the police department itself should also be held responsible for making sure that its officers have a clear understanding of how to handle suspects, protestors, or whomever is in their custody. The public also deserves to be aware of these policies, and be assured that the police department has ample ways of identifying who problematic cops are so that monitoring and disciplinary action can take place.

As Jealous wrote in his report on improving the Baltimore police department:

No one reform will rebuild broken trust between community members and police officers; rather, there is a need for a broader cultural shift in the Baltimore Police Department and an understanding that officers play the role of guardian, not warrior.

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