The secret police: Officer misconduct exposes holes in public accountability

By Frank LoMonte

When a government official is accused of wrongdoing, there’s a compelling public interest in knowing everything about the case: What’s the substance of the accusation, was it investigated thoroughly, were any appropriate penalties imposed fairly?

But when the government official carries a badge and a gun, that presumption often turns on its head.

“Secret police” are the stuff of spy novels. But in many U.S. jurisdictions, poorly drafted open-government laws, unjustly narrow court rulings, and aggressively negotiated union contracts deny the public information about how officers use their authority. Violent behavior by police officers across the country, including this week’s attacks on unarmed demonstrators and journalists, is provoking calls for greater transparency.

A 2015 study by public radio’s WNYC found that the public has a clear legal entitlement to see records of complaints made against police in only 12 states. Records are categorically off-limits in 23 states, while the law is gray in 15.

In the vast majority of states, the public never sees complaints dismissed as “unsubstantiated” — which means there is no way of telling whether the internal-affairs process within law enforcement agencies is throwing out well-founded cases and giving bad actors, like accused murderer Derek Chauvin in Minneapolis, a get-your-badge-back-free card.

Since the WNYC investigation, California and Colorado have enacted laws entitling the public to see at least some subset of police disciplinary cases. But in California, law enforcement agencies greeted the news with a contemptuous shredding party, destroying archival files so that, when the law took effect, there’d be nothing to see.

Other states, under the influence of police-union lobbying, have been unwilling to go even that far.

New York has one of the broadest police-secrecy laws in the country, providing that “all personnel records used to evaluate performance toward continued employment or promotion” are regarded as “confidential and not subject to inspection or review” unless the officer waives confidentiality (which never happens).

In 2018, BuzzFeed News sued to get access to transcripts of New York Police Department misconduct hearings. They lost the case — but then obtained a tranche of previously-withheld police disciplinary records from a leaker, anyway. The results were grimly revealing: More than 300 officers had been found culpable of firing-level misconduct (including perjury and beating up innocent people), yet remained on the force.

Access to complaints against law enforcement officers has enabled journalists and social-justice advocates to shine a spotlight on systemic failings in police oversight.

Sarasota’s Herald-Tribune won awards for a groundbreaking 2011 series cataloging the complaint history of every Florida officer, showing that some were allowed to keep their badges after multiple instances of domestic abuse, drunk driving, and questionable use-of-force decisions. After successfully suing for access to complaint files, the nonprofit Invisible Institute built an interactive database allowing Chicagoans to click a map and see, neighborhood by neighborhood and precinct by precinct, where excessive-force complaints are clustered.

It should not take a caught-on-video homicide to provoke legislators to modernize antiquated secrecy laws — but it has. And there are signs that, after decades of little progress, change may come rapidly.

In New York, Gov. Andrew Cuomo signaled willingness to revise the state’s police-secrecy law, and state Senate Democrats are coalescing behind a transparency bill to open at least some subset of police misconduct cases to public inspection.

In New Jersey, the state attorney general announced a wave of reforms in a state notorious for both secrecy and overzealous police tactics. They include instituting state licensure for police and creating a statewide database tracking how officers use force.

In Colorado, senators are proposing a raft of transparency initiatives as part of a comprehensive police-reform bill. Among the changes would be creating a database to track instances of reported racial profiling, and requiring body-cams with publicly accessible footage.

These are momentous concessions in a very short time, but much more remains to be done. A start would be for police chiefs to track down the uniformed perpetrators of more than 100 unprovoked attacks on journalists in Minneapolis, New York, Louisville and throughout the country, and make sure none ever works in law enforcement again.

Attorney Frank LoMonte teaches media law at the University of Florida, where he heads the Brechner Center for Freedom of Information.