Montgomery County Council Bill Keeps the Foxes in Charge of the Henhouse

By requiring that investigations into police killings be conducted by law enforcement from a neighboring county, the Montgomery County Council has demonstrated that it does not understand the severity of the problem.

The Montgomery County Council has introduced a bill that they believe will restore confidence in the judicial process in the aftermath of the police killing of Robert White. But it’s just another way for conflict-averse councilmembers to defer responsibility and avoid dealing with the harsh realities of an abusive, unaccountable police culture.

Robert White was killed by a Montgomery County police officer on June 11, 2018. Because of the refusal of the Howard County State Attorney’s office to bring charges against the police officer who killed White, the Montgomery County Council has decided to step in and attempt to remedy the situation the only way they know how.

Montgomery County Councilmember Will Jawando’s Bill 1-19 begins with what seem to be inarguable remedies to the conflicts of interest that arise whenever prosecutors are asked to prosecute or investigate police officers:


Bill 1-19 would:

  1. require an independent investigation of an officer involved death;
  2. establish qualifications for an independent investigator of an officer involved death;
  3. require the independent investigators to submit a final written report to the State’sAttorney; and
  4. make the written report public under certain circumstances.

On the surface these are good things to require. Investigations into police misconduct should be independent, their investigators should be qualified, and whatever result they come to should be public. However, some problems are immediately identifiable in this preamble.

Bill 1-19 continues the Montgomery County Council’s obsession with “expertise.” The bill’s preamble emphasizes that whoever is assigned to investigate police violence must be qualified, but the Council’s definition of qualified is only explained in the text of the bill. The bill forbids County employees and the State’s Attorney from being made “independent investigators” whenever a police killing must be investigated. However, Bill 1-19 still requires that the “independent investigators” be law enforcement officials, albeit from an adjacent county or a federal agency like the FBI.

By requiring that investigations into police killings be conducted by law enforcement from a neighboring county, the Montgomery County Council has demonstrated that it does not understand the severity of the problem. Police are only required to meet a standard of “objective reasonableness” when it comes to determining if their use of violent force against somebody is justified. In the 1989 Supreme Court case Graham v. Connor, the Court held that all judgments of police use of force must be based upon what would be reasonable for an officer on the scene, not what was reasonable in hindsight.

In practice, this means that any investigation into police use of force, including police shootings, requires that the investigator show that a use of force is unreasonable. A law enforcement officer is obviously going to be more sympathetic to a police officer’s claim that they feared for their life than they would be toward a victim of police violence. Sometimes this is due to a genuine empathy for their fellow officers, and other times they simply fear that allowing police actions to be scrutinized could lead to social/career consequences.

The only solution to the problem of police violence in Montgomery County is to establish an Independent Civilian Review Board in Montgomery County that can investigate claims of police abuse while maintaining distance from the existing law enforcement apparatus. Civilian Review Boards frighten law enforcement because they remind them that they are accountable to the public they are supposed to serve. They are absolutely necessary if the Montgomery County Council wishes to restore public trust in the Montgomery County Police.

Right now, the foxes are guarding the henhouse. The Montgomery County Council needs to come up with a better solution to the problem than deputizing some foxes from one county over.

by Frank Dalca

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