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Crime & Justiceby Todd H. Oppenheim2:25 pmMay 7, 20180

Blocking the roadway to police reform

OP-ED: BPD’s history of discriminatory stops is key to understanding the confrontation between police and the chair of the consent decree oversight panel

Above: Community Oversight Task Force chairman Marvin McKenstry repeatedly refused to give police his license and registration during a traffic stop last month. (Baltimore Police Department)

The Baltimore Police Department just cannot avoid controversy even amid the implementation of a federal consent decree ordered in the wake of a scathing Department of Justice report detailing BPD’s illegal and discriminatory practices.

Marvin McKenstry Jr., an employee at the Mayor’s Office of Employment Development, clashed with a BPD officer who carried out a traffic stop, refusing dozens of requests for his license and registration and implying that the stop was invalid.

The fact that McKenstry was then chairman of the Community Oversight Task Force, charged with improving civilian oversight of the police, made the encounter especially interesting.

The 50-minute incident, captured on BPD bodyworn camera footage, provides a “real-world” window to view the state of city policing.

As a Baltimore public defender, I constantly review police encounters with suspects, witnesses and fellow officers on body cam footage and through other case preparation. Please take a look at the video.


Legal, but Arbitrary

Was the stop legal? Probably.

The bodycam footage doesn’t show us the initial encounter between the officer and McKenstry, who had parked in the middle of an East Baltimore street to let out a passenger following an oversight task force meeting.

We don’t know exactly when the passenger got out of the car or how long the officer was sitting at the scene (to create probable cause triggering a legal stop).

It was plain to see that McKenstry’s car was in the middle of the road during the encounter, but we don’t get to see what precipitated the officer’s decision to approach the car.

Putting on your hazard lights does not permit you to sit in a roadway. That gives an officer the right to stop a vehicle. So does a cracked windshield. Or having no light to illuminate your rear license plate. Or having an inoperable middle third brake light.

People are generally unaware that such equipment issues or minor moving violations can get them pulled over.

On the flip side, the police have the discretion to not effectuate a stop and can orally warn a driver to correct a minor infraction, like sitting in the street.

They can make an allowance for a driver to drop someone off closer to a residence. They could also pull someone over and give a written warning rather than issuing actual tickets, which generate points and fines on driving records.

Do as I say, but . . .

What’s ironic about McKenstry’s offense of blocking a roadway is that the police themselves do it all the time.

Everyone sees it. Cops responding to a crime or an emergency is one thing, but leaving their car in the street to run into court or pick up lunch is another. Parking rules in general seem to be suspended for police.

Remember, traffic stops are often not just traffic stops. They double as pretexts to look for evidence of other crimes, most notably drugs and guns.

To my dismay, courts have generally deemed pretextual stops as constitutional. Let’s make no bones about it, when we talk pretext, we’re talking about discriminating by race.

The DOJ report told us that 26 out of every 27 BPD pedestrian stops yielded no criminal activity, and African Americans are three times more likely to be stopped than others.

Let’s make no bones about it, when we talk pretext, we’re talking about discriminating by race.

Minor traffic infractions are enforced no differently. Cops note the appearance of an individual, and they look for a violation. The police don’t care if citizens are inconvenienced, nor do they care about the targeting of certain demographics.

Noncompliance v. Condescension

McKenstry’s stop was on Aisquith Street. It could have easily gone down the same way in Sandtown or Berea, but is much less likely in Roland Park or Locust Point, especially if the driver was white.

And that’s the problem that remains unaddressed in our city.

Cops are trained on using pretexts – and black people are raised on recognizing them – so the interaction between McKenstry and Sgt. Terrence McGowan should be viewed with an understanding that two subjective mindsets clashed.

McKenstry was expressing the distress of a person who’s been stopped or harassed when they feel that their skin color was most likely a factor in the stop.

McGowan was audibly frustrated at McKenstry’s noncompliance and that’s understandable, too. But he was also condescending and aggressive for such a minor incident.

His tone wasn’t exactly one for the dinner table at grandma’s house. McKenstry’s non-compliance never amounted to danger, either. He was wearing a bow-tie, for crying out loud.

Remember the History

Did this really have to end with $500 in tickets?

Police have a choice in what they charge. There’s no doubt that because of McKenstry’s attitude, every last offense was cited here. The cop essentially called a personal and a technical foul.

There’s no doubt that McKenstry got emotionally carried away. But the cop, too, let his emotions and sense of entitlement get the better of him.

That’s why there’s a consent decree in place in Baltimore. There’s a history behind this kind of stop – and this type of clash. A better trained officer would have had that history in mind and had kept the situation from escalating.

Obviously, McKenstry should have simply handed over his license on demand because, as I advise my clients, you’re never going to win an argument with an officer. Even name dropping and calling supervisors can backfire. The law always has the upper hand.

But what makes no sense was how the police further clogged up the street with their own cars. At least three more BPD vehicles pulled up to the scene, obstructing traffic.

If the offense itself was extremely minor, enforcement of it was arbitrary and made matters worse.

In typical fashion, the Baltimore Fraternal Order of Police demanded an apology from McKenstry and asked for his resignation. (Earlier today, McKenstry did resign as oversight chairman, but will remain on the nine-member panel.)

Meanwhile, citizens of this city are still waiting for the police and the FOP to own up to decades of discriminatory practices. More reflection and less knee-jerk posturing on both sides could prevent future incidents like this.
Todd H. Oppenheim is a veteran attorney in the Felony Trial Division of the Office of the Public Defender. His twitter is @Opp4Justice.

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