In her news conference Wednesday, State’s Attorney Marilyn Mosby blamed the legal system for her inability to convict any of the six police officers charged in the Freddie Gray case.
"Without real substantive reforms to the current criminal justice system, we could try this case 100 times and cases just like it, and we would still end up with the same result," she said.
But at the same time, she said, there has been some progress. Baltimore’s police department has a new use of force policy that emphasizes "the sanctity of life accentuates de-escalation and requires that officers intervene if fellow officers cross the line."
The policy, issued a little more than a year after Gray’s death in police custody and the riots that followed, demonstrates that the department is trying, at least on paper, to repair its damaged relationship with Baltimore communities. But how, exactly, does the new policy compare to the old?
The first item says that the department holds the sanctity of human life paramount, the same as the 2003 policy. But later it says that "members will only use the degree of force that is objectively reasonable, necessary under the circumstances, and proportional to the threat or resistance of a subject," and goes on to elaborate on each of those elements.
That’s a large expansion from the 2003 document, which only stated that force must be “reasonable and no more than necessary to affect a lawful purpose.”
There are many additions to the old policy; the new document is eight pages longer than its predecessor. It orders officers to de-escalate situations when possible, to provide medical assistance to the injured, and to prevent the use of excessive force by other officers. All of those things were partially or wholly absent from the 2003 policy.
It also greatly expands the number of actions considered "reportable force."
To prevent the snowballing of minor incidents into violent confrontations, the policy advises officers to try to reduce the tension in situations and avoid using force if possible.
"Members may be justified in using force at one moment," the policy reads, "but not justified in using force several seconds later due to the changing dynamics of a situation."
Officers are reminded that people may be suffering from mental illnesses or be under the effects of drugs and alcohol. Officers must now provide immediate medical assistance to the injured and call a medic to the scene.
Under the 2003 policy, this was the duty of the supervisor, and even then the policy only required the supervisor to “attend to the well-being” of any injured civilians. This addition can be linked to Gray’s death.
State’s Attorney Marilyn Mosby filed criminal charges against three of the officers in that case at least in part because they failed to call for a medic to aid Gray.
The policy requires officers to intervene to prevent the use of excessive force by fellow officers and report the incident to a supervisor. Failure to do any of these things can result in disciplinary action for any witnessing officer.
This directive also seems geared to prevent a situation like the one that led to the death of Freddie Gray, wherein six officers were involved with the arrest. The policy dramatically expands what it regards as “reportable force” and groups it into three levels of seriousness:
• Level 1: A confrontation that does not produce an injury. For example, threatening someone with a firearm or conducted electrical weapon (CEW), otherwise known as Tasers. It could also involve physically restraining someone or bringing someone to the ground.
• Level 2: A confrontation in which a person is injured.
• Level 3: A confrontation that leads to the death or serious injury of a civilian, discharging of firearms (whether bullets strike anyone or not), more than three uses of a CEW, or striking vital areas with a weapon.
The 2003 policy did not include firearm discharges, the protocol for those being in a separate order. This change streamlines use of force policy for all incidents.
Officers involved in a Level 1 or Level 2 incident are required to immediately inform a supervisor and document the case in an administrative report. The supervisors conducts an investigation and submits a “Use of Force review” to their commanding officer with their opinion on whether the officer’s actions were consistent with department policy. It is then up to the commanding officer to decide whether to investigate further.
An officer involved in a Level 3 use of force, however, is required only to inform a supervisor. The supervisor immediately calls in the Special Investigation Response Team (SIRT), which takes over the case.
SIRT was created in the wake of Gray’s death to provide a specialized team to examine cases of possible serious officer misconduct, i.e., those resulting in serious injury or death. The department created SIRT to assure Baltimoreans it took civilian deaths seriously, and that it would punish officers who stepped over the line.
The document includes a “Use of Force Model,” a diagram that officers can use to see which level of force is appropriate for a specific situation. For instance, the diagram shows that when a subject is offering “passive resistance,” which the department defines as “not physically cooperating…but he/she is not assaulting the officer or trying to escape,” the officer can use Level 1, force.
Officers can use "deadly force" only when someone is engaged in "aggravated aggression," (i.e., threatening someone with death or serious injury) or when a suspect is fleeing and immediately risks killing or seriously injuring someone.
David Rocah, an attorney for the American Civil Liberties Union of Maryland, criticized the policy because officers involved in Level 3 use of force incidents are not required to file their own reports. And Michael Wood, a retired Baltimore police sergeant, wrote in an op-ed in The Baltimore Sun that many of the new rules already existed. They just weren’t in writing.
Commissioner Davis said in a news conference the day the new policy went into effect that use of force complaints are down 40% from the same time last year. The department registered 378 use of force complaints in 2015.