Across America, many federal, state, and local law enforcement agencies closely guard information relating to both the government’s use of force and the conduct records (and sometimes even identities) of the officers empowered to wield that force. The appropriate use of the immense powers with which law enforcement agencies are entrusted depends on the public’s ability to hold those agencies accountable, and those agencies can only be held accountable when the public has sufficient access to information.
The push for transparency in law enforcement is a constant struggle involving citizens, police officers, prosecutors, defense attorneys, and judges, the end result of which is a complex patchwork of different policies. There are several ways in which police transparency (or its absence) is manifested in our justice system.
Access to personnel misconduct files
The personnel files of police officers often contain material that is relevant both to people charged with a crime and to the public more generally, but government officials often have powerful incentives to shield that information from public view. While some jurisdictions make citizen complaints of police misconduct open to the public, others bar the disclosure of personnel files — even to prosecutors who have a constitutional obligation to know the information in them.
Police departments espouse concerns about the potential for harassment of their officers if certain sensitive details (medical records, home addresses) were to be released, and police unions often demand privacy protections in collective bargaining agreements. There have even been efforts to criminalize the disclosure of such information. But the personal interests of law enforcement officers must be weighed against the immense interest of the citizenry to have access to information about the men and women policing their communities.
This lack of transparency manifests itself in the ability of police officers with histories of abuse to continue being employed as police officers when their misconduct files fail to follow them into new jurisdictions, or when the public is unable to discover such a track record among the officers exercising power over them. Even in jurisdictions where such information is publicly available, police departments sometimes fail to review it. For instance, the police officer who shot and killed 12-year old Tamir Rice in Cleveland, OH in November of 2012 had previously been deemed “unfit for duty,” immature, and unable to properly handle a weapon by a nearby police department. He was in the process of being fired by that department when he resigned and ended up in the Cleveland Police Department. Cleveland Police failed to access his publicly available personnel file when conducting a background check for his employment, a policy that was changed after Rice’s death.
Whether you’re a criminal defendant whose constitutional rights entitle you to exculpatory evidence, a victim of police brutality who is entitled to know whether your tragedy represents a pattern of misbehavior, or just a member of the public who has an interest in assessing the performance of your police department and the elected officials setting policies, the need for a more transparent catalogue of police misconduct is paramount.
Access to records of settlements and judgments in cases of police misconduct
Many jurisdictions restrict the publication of settlement details in lawsuits over police misconduct. Police misconduct settlements and judgments cost taxpayers millions of dollars every year. But it can be difficult for the public to gain an accurate idea of just how much misconduct is costing them. In some places, simply identifying officers whose conduct is especially costly is denied to the public.
Citizens have a right to know how often their police forces are violating the rights of individuals as well as how much they’re being forced to pay in legal settlements. Some governments, such as that of the city of Baltimore, host public databases of police lawsuits or are in the process of creating them. Other jurisdictions, such as Chicago, make it very difficult to obtain information.
Gag orders imposed on citizens who settle complaints with the police
Even if one is able to sue the government for some abuse suffered at the hands of police, some jurisdictions include language in their settlement agreements that forbids the victim from speaking publicly about the incident. These so-called “non-disparagement” agreements carry steep financial penalties for anyone who speaks publicly or to the media about their complaint.
Again, owing to the complex nature of the police power in a federal system, the use of these agreements differs by jurisdiction. For instance, the city of Baltimore <href=”#page=1″>routinely includes non-disparagement clauses in its settlement agreements while Washington D.C. places no restrictions on post-settlement speech.
Jurisdictions that employ these gag orders argue that they serve an important purpose of preventing citizens with vendettas against the police from spreading false information to the public, but the fact that major departments function without such arrangements raises an obvious question as to their necessity. Public criticism of the government is a fundamental American right, and victims of police brutality should not be pressured to bargain it away in exchange for being made whole by the government that wronged them.
Stonewalling freedom of information requests regarding police use of force
Many law enforcement agencies are overly conservative with respect to reporting police use of force. While federal and state governments keep detailed statistics for a wide variety of violent crimes, there is no mandatory reporting of either police use of force incidents or even police killings.
During one media investigation by the Richmond Times-Dispatch, concluding that police killings in Virginia are woefully underreported by law enforcement, the Fairfax Police Department went so far as to declare that officer-involved killings were “not an actual offense” worthy of reporting to the state. The failure to report police killings is an epidemic across the country, resulting in our collective cluelessness as to how many Americans are killed every year by the police and under what circumstances. Some states, such as Texas, have begun requiring local law enforcement agencies to report police shootings, but a lot of work remains to be done at the state level.
The government exercises no greater power than the power to kill a citizen, especially in circumstances under which “due process” is left to the determination of the officer in the heat of the moment. There is no justification for the public to be kept in the dark about how often this immense power is wielded by the police.
Jonathan Abel, “Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team,” Stanford Law Review 67 (2015): 743.
Erik Luna, “Transparent Policing,” Iowa Law Review 85 (2000): 1107.
Kami Chavis Simmons, “New Governance and the ‘New Paradigm’ of Police Accountability: A Democratic Approach to Police Reform,” Catholic University Law Review 59 (2010): 373.
Andrew E. Taslitz. “Slaves No More! The Implications of the Informed Citizen Ideal for Discovery before Fourth Amendment Hearings.” Georgia State University Law Review 15 (1999): 709.
Prepared by Adam Bates