The judge overseeing the Baltimore Police Department’s federal consent decree on Thursday asked what he described as “awkward, and even ugly” question: What about incidents in which police should have used more force, but didn’t?

The tangent came nearly two hours into the first quarterly consent decree hearing of 2023. The Police Department is about to enter its seventh year since the court adopted the consent decree, which follows a 2015 U.S. Department of Justice investigation that found widespread unconstitutional and discriminatory policing in the city, particularly in poor, predominantly Black neighborhoods. The decree has required the department to overhaul its policies and the training of its officers, as well as file regular updates on its progress on issues such as community-oriented policing, using less force and countering implicit bias.

U.S. District Judge James K. Bredar said he wanted to make clear that he was in no way advocating that police use more force, but was persistent in his line of questioning to learn more about incidents when police should have been more “hands-on” but instead chose to de-escalate. He said that he wanted to quantify the answer to that question to help settle the debate on whether the “constraints of the consent decree are a factor in the lack of crime control in the city.”

“That’s a very awkward, even ugly question, but we’re involved in a process here where we’re not afraid of facts, and we’re not afraid of data, and it’s our collective responsibility to assess for all defects,” Bredar said. “I am, by asking the question, not suggesting for a second that I think there is a particular answer or even have a suspicion about that. I just think it’s something that is part of a complete picture.”

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An attorney for the U.S. Department of Justice, who Bredar was questioning when he first raised the issue, responded, “Well, it’s certainly part of the picture.”

Bredar continued: “With all the body worn camera footage that we now have available, is the department monitoring (for instances where police should have used more force)? Is the Department of Justice in a position to answer that question? I would suggest you should be.”

The judge suggested the data would be “pretty powerful” and might show that there were no instances in which a greater level of force should be employed in the situation, but wasn’t.

“I just think it would be quite illuminating for attention to be paid to that issue,” he said.

Baltimore Police Commissioner Michael Harrison said it’s a question that is on the mind of many police chiefs in the country, because they are often asked about it, but he wasn’t aware of anyone specifically researching or assessing that issue in the department.

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Harrison did note that many types of interactions in which force is most often used, such as gun seizures, vehicle stops and serving arrest warrants, had increased by “double digits” last year, while citizen complaints decreased. He also said that if an arrest results in a prisoner escape or an officer or citizen injury, those arrests are investigated by a performance review board, which might find that an officer failed to take action.

The comments by Bredar struck some as tone-deaf, including Heather Warnken, executive director of the Center for Criminal Justice Reform at the University of Baltimore. Warnken, who was a visiting fellow at the DOJ, did an extensive study on the failures and constitutional violations associated with how Baltimore police treated crime victims.

“Even with all of the qualifications he tried to make, I think a danger of Judge Bredar’s question is in perpetuating the harmful narrative on the decree tying the hands of officers or impeding effective policing,” Warnken said. “That untrue narrative is alive and well for some within BPD and some members of the public, and six years in, it is still undermining the efforts of leadership to implement real change.”

Three other takeaways from Thursday’s quarterly consent decree hearing:

  • Judge Bredar says there is blame to go around for lack of progress on the agency’s staffing levels. Although the judge said the Baltimore Police Department has done just about everything in its power to try to incentivize more hiring, he noted his continued frustration that the problem is worsening. “That means there has to be attention paid at higher levels of government to turn around,” he said. “I hope if nothing else comes out of today’s hearing, it is that message, and you would be the primary messenger to carry it back to leadership.”
  • The mayor’s administration has a different point of view. In an interesting exchange, City Solicitor Ebony Thompson, who recently took over the position, underscored that while the city is working on its police staffing levels, it was intentionally relying less on law enforcement than it has in the past. Thompson cited the pilot program of the Group Violence Reduction Strategy and the mayor’s Squeegee Collaborative as two examples. The exchange comes months after Bredar called the police on two squeegee workers who he claimed harassed him and called him racist.
  • The effects of the consent decree aren’t being felt by the city’s most heavily policed communities. Weeks after a similar line of questioning from Councilman Zeke Cohen, Bredar questioned whether people in Baltimore were noticing a difference in the Baltimore Police Department since it entered its consent decree, or appreciated its positive effects on the department. On Thursday, the U.S. Department of Justice gave an answer through one of its attorneys, Tim Mygatt. “I think the short answer to that, your honor, is, not as much as we would like to see,” Mygatt said. “People continue to say, ‘We don’t see it yet. We don’t feel it yet.’”