Yesterday afternoon, I told an audience of American University law students that although Attorney General Jeff Sessions had signaled he would pull back from systemic reform of police departments, I didn’t expect he would abandon the consent decree in Baltimore. The pattern of unconstitutional policing was too glaring, the consensus on the need for reform too strong, and the judicial process too far along.  Reversing course after negotiating and signing the agreement, and doing so just days before a federal judge was to consider entering it as a court order, would be brazen and unprecedented. 

Oh, how naïve I was.

At 7pm last night, DOJ lawyers filed a motion asking the federal court to postpone this Thursday’s fairness hearing for 90 days.  A fairness hearing is a proceeding during which a judge considers whether the proposed settlement meets the legal standard for the court to enter it as a consent decree and exercise continuing jurisdiction over the matter. (Specifically, the court must conclude that the settlement is “fair, adequate, and reasonable and is not illegal, the product of collusion, or against the public interest.”  US v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999)).  DOJ, the City of Baltimore, and the Baltimore Police Department filed a joint legal brief on January 12 explaining why the agreement meets that standard.  The court has now received almost 50 written comments from community groups and individuals, and is set to hear oral statements from members of the public at Thursday’s hearing.  It could approve the consent decree as early as the end of that hearing—assuming, of course, that it does not bump the hearing back by three months. 

DOJ’s eleventh-hour motion asserts that the Department needs time “to assess whether and how the provisions of the proposed consent decree interact with the directives of the President and Attorney General,” referring to recent executive orders and memoranda about violent crime and unauthorized immigration. The motion attaches a March 31 memorandum from Sessions ordering the review of all consent decrees to ensure that they comport with certain enumerated principles, which echo familiar themes of local control over policing, officer morale, and the unfairness of painting a whole department with the acts of a few bad apples. 

The motion and the memo could hardly imply more clearly that the new AG does not want a court-enforceable reform agreement in Baltimore.  The motion asserts that Baltimore “has made progress toward reform on its own and, as a consequence, it may be possible to take these changes into account where appropriate to ensure future compliance while protecting public safety.” Translation: we don’t think Baltimore needs a consent decree after all. 

DOJ’s motion to postpone the hearing is opposed by BPD, the mayor, and the city council.  Mayor Catherine Pugh’s statement declared she “strongly oppose[d] any delay in moving forward,” called reform “long overdue,” and chided DOJ for threatening “the trust that we are working hard to establish.”   BPD released a similar statement, noting that the decision to seek a delay was “made solely by the DOJ.” Today, Commissioner Kevin Davis said he was “disappointed” in DOJ’s action.  In other words, the defendants want the consent decree.

This gives the lie to the notion that DOJ’s reversal is about local control.  Sessions isn’t deferring to local officials.  He thinks he knows better than them.

Luckily, there is a bulwark against DOJ’s upending the reform process in Baltimore: U.S. District Judge James K. Bredar, who is assigned to the case.  Like in so many other areas where the Trump Administration is pushing for radical and dangerous change—the Muslim Ban, the effort to strip federal funds from sanctuary cities, this administration’s utter disregard for the Constitution’s prohibition on presidential conflicts of interest—the public must rely on the courts as the last guarantor of the rule of law.   As DOJ’s motion itself notes, the hearing schedule may be modified “for good cause and with the judge’s consent.”  A political calculation that—despite finding a pattern of constitutional violations after an exhaustive 14-month investigation, and despite signing a settlement to correct those violations—the department would rather not have a consent decree now is not “good cause.” Judge Bredar should therefore deny consent, hold the long-awaited hearing, and enter the consent decree so that the people of Baltimore can move forward together toward the policing they deserve.

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