There is an ongoing public discussion of the nature of the Baltimore Police Department’s status as a governmental agency — both historically and going forward. I write in the hope of shedding some useful light on this seemingly mundane but substantively important question.

The Baltimore Police Department was made a state agency in 1860 for historically interesting reasons having to do with the General Assembly’s strong desire to separate our local police agency from the vicissitudes of local political control. The legislature was "disappointed" with the consequences of that local control. The police department continued to be largely funded by the city, and over the years the power to appoint the commissioner migrated to the mayor, where it now firmly resides. The appointment power and the prohibition against local political control over the operations of the department are embodied in public local laws that can only be amended by the General Assembly.

Over the century and a half since 1860, Maryland’s appellate courts have repeatedly held that as a consequence of these local laws and the placement of the budgetary and appointment powers in the hands of local officials, the police department is and remains a state agency. That line of cases began in 1860 and has continued uninterrupted into the current century. This structure and the judicial decisions flowing from it provide important protections to the city and the efficacy of policing within its boundaries. The status of the BPD as a state agency has appropriately kept recoveries against the city government from skyrocketing and, as a result, diverting funds away from improvements in policing and into the pockets of plaintiffs and their counsel.

On Oct. 23, 2014, to the dismay of the City Council, the Baltimore City Law Department discussed this history in some detail and concluded that the council’s mandated deployment of police worn body cameras violated this long string of legislative and judicial decisions. The law department also pointed out that the Baltimore City Charter Code states that "no ordinance of the City or act of any municipal officer … shall conflict [with], impede, obstruct, hinder or interfere with the powers of the Police Commissioner." In the months and years that followed, the law department also advised the mayor that while she had and retained budgetary power (shared with the council) and the power to hire and fire the commissioner, the same principles prevent the mayor from "supervising and directing" the affairs and operation of the department.

Accordingly, after then Mayor Rawlings-Blake vetoed the council’s body camera ordinance, she and the department moved forward with a police worn body camera task force and detailed acceptance and deployment of such devices, but they did so in a collaborative manner that produced a program jointly advocated by the mayor and commissioner and reflecting input from the public and the council. The prohibitions of the public local laws and the charter against political micro-managing of "on the ground policing" have assured that policing of our community is guided by constitutional limitations and professional judgments of effective policing. Our elected officials retain their overall controls by the budget process and the mayor’s power to hire and fire the commissioner subject to constraints carefully reflected in the applicable local laws.

The recently negotiated consent decree agreed to by the U.S. Department of Justice and the city and the police department is framed against the background of the BPD as a state agency and an entity separate from the mayor and City Council. To suddenly change the nature of the police department from to a city agency would complicate carefully crafted provisions. It would be unwise to rearrange this tripartite governmental structure in the middle of the delicate consent decree process without a great deal of thought being given to the consequences of altering the settled status of the parties.

A governmental structure in this complex and sensitive area is not perfect just because it has been in existence for 157 years. But it has served us well and provides good checks and balances. It should not be cast aside without a great deal of very careful thought.

George Nilson was Baltimore city solicitor from 2007 to 2016; he was previously Maryland deputy attorney general from 1976 to 1983. His email is George.Nilson219@gmail.com.

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