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Protests Over Police Brutality and Racism Lead to Gains in Transparency

By Steve Zansberg

In the month following the shocking murder of George Floyd by Minneapolis police, hundreds of thousands of people have taken to the streets across America (and abroad) demanding major reforms in police practices. At this writing, Congress continues its partisan squabbling over competing Senate and House police reform bills, both of which call for greater transparency in police discipline matters. Compare H.R. 7120 and S.3985. In the interim, several states and cities have announced measures that radically overhaul police practices, including banning "choke holds," see, e.g., https://www.cnn.com/2020/06/10/world/police-policies-neck-restraints-trnd/index.html, restricting other use of force, removing qualified immunity, and mandating greater transparency of police records (disciplinary files, body-worn camera recordings, and public registries of past officer offendors).

The Impetus for Greater Transparency

Former police officer Derek Chauvin, who has been charged with Floyd's murder, was the subject of eighteen prior complaints that were investigated by Minneapolis Police Department's Internal Affairs Unit. See http://www2.minneapolismn.gov/www/groups/public/@mpd/documents/webcontent/wcmsp-224705.pdf The fact that he and other so-called "bad apples" remain on duty despite being the subject of numerous such investigation highlights the inability of the police to "police their own." As a result, several lawmakers and other government leaders seized the opportunity to lift the veil on that system's cloak of secrecy, see, e.g., https://www.law360.com/articles/1282501/protests-fuel-push-for-increased-access-to-police-records; https://www.vice.com/en_us/article/k7qzma/dcs-bad-cops-list-is-shrouded-in-secrecyand-could-be-impacting-criminal-cases, and to require the use of body-worn cameras and make those recordings available to the public.

Colorado Quickly Enacts Sweeping Police Accountability Legislation

Following a 10-week hiatus prompted by the COVID-19 pandemic, Colorado's General Assembly resumed its 2019-2020 session on May 26, 2020, the day after George Floyd's murder. The State Capitol immediately became the site of massive Black Lives Matter demonstrations during which the Capitol building was defaced with graffiti and vandalized. On Tuesday, June 2, Senate Bill 217, entitled "Enhance Law Enforcement Integrity" was introduced. The bill mandates sweeping reforms in police practices statewide, including barring chokeholds and the shooting of fleeing suspects. In one week, the bill passed all three readings in the Senate with bi-partisan support. The House of Representatives passed the bill on June 12 and Governor Jared Polis signed it into law on June 19.

In addition to its far-reaching reforms to police practices, the new law requires that all police officers and sheriff's deputies wear body-worn cameras which must be activated whenever an officer interacts with a member of the public (or the officer faces sanctions, up to and including termination). Furthermore, the failure to record such an interaction will give rise to an adverse inference of police misconduct in any subsequent court proceeding. The bill requires the unedited video recordings of those interactions to be made available to the public within 21 days of the filing of a complaint regarding the police conduct at issue.

The new law thus complements and adds upon the dramatic change in Colorado law in 2019, when a coalition of public interest groups succeeded in passing legislation mandating the public release of completed internal affairs investigations files in all cases involving police interactions with members of the public. See https://coloradofoic.org/polis-signs-legislation-that-opens-records-on-police-internal-affairs-investigations/

New York Repeals Decades Old Statutory Exemption for Police Disciplinary Files

Following a week of sometimes violent protests, including numerous calls for greater transparency, on Saturday, June 6, Governor Andrew Cuomo announced his support for a measure to repeal Section 50-a of New York's Civil Rights Act – the provision stating that "all personnel records used to evaluate performance toward continued employment or promotion [of police officers, corrections officers and firefighters]... are confidential and not subject to inspection or review" except by court order. See https://www.newsday.com/news/new-york/protests-george-floyd-nyc-1.45392395. That provision had been on the books since 1976, and had withstood several past repeal efforts.

A day earlier, on June 5, the Metropolitan Black Bar Association called for the repeal of Section 50-a, urging the legislature to move forward immediately on either of the two pending bills that would do so. On June 7, the Reporter's Committee for Freedom of the Press sent a similar letter. On June 8, some 750 recording artists (and the RIAA) sent an open letter to Governor Cuomo and legislative leaders in Albany, urging the repeal of Section 50-a. "We must hold accountable those who violate the oath to protect and serve, and find justice for those who are victim to their violence," the letter stated. "An indispensable step is having access to disciplinary records of law enforcement officers. New York statute 50-A blocks that full transparency, shielding a history of police misconduct from public scrutiny, making it harder to seek justice and bring about reform. It must be repealed immediately."

On June 9, the New York Coalition for Open Government and the City Bar of New York lent their voices to the growing chorus calling for Section 50-a's repeal. Also on June 9, a number of media outlets, law firms, and free press groups (including, inter alia, the MLRC, SPJ, RTDNA, National Press Club, National Press Photographers Association, and the New York Newspaper Publishers Association) calling itself the "Coalition in Support of the Repeal of Section 50-a" sent a similar letter to Governor Cuomo and the state legislature.

Only two days later, on June 11, Governor Cuomo signed a package of bills that prohibit the police from using chokeholds in New York State and appoints the State's Attorney General as independent prosecutor for all fatal shootings of civilians by police. See https://twitter.com/NYGovCuomo/status/1271483024337702916.One of the bills Governor Cuomo signed, S8496, repeals Section 50-a.

While the change in the law is a long overdue advance in police transparency in New York, questions remain about how much access will be provided under the new legal regime. Under the FOIL, New York's courts have generally found that records concerning alleged government wrongdoing where no violations have been found are properly withheld from disclosure under the "unwarranted invasion of personal privacy" exemption applicable to "personnel files." Thus, some have posited that this regime will incentivize New York police departments to find no violation of departmental policy in order to justify withholding the records of the internal affairs investigations. See, e.g., https://www.syracuse.com/state/2020/06/unmasking-cop-discipline-in-ny-does-albanys-celebrated-police-reform-live-up-to-hype.html

However, on June 18, New York City's Mayor Bill DeBlasio announced that starting this month, records of some 1,100 pending discipline cases against NYPD officers will be posted online, in a way that is "easy to access," including the officers' names, the charges against them, hearing dates, and any other formal actions taken against the officers. The Mayor promised that records of past internal affairs investigations will be posted in the months to come. DeBlasio also announced that all NYPD body-worn camera footage capturing use of deadly force against a civilian must be released (and uploaded to the web) within 30 days. Utica and Rochester have also committed to posting their police disciplinary files online.

Other Jurisdictions Move Toward Greater Transparency for Police Files

In addition to the major legislative reforms in Colorado and New York, several other state and local jurisdictions have adopted or are considering similar measures.

Actions Taken:

On June 15, 2020, New Jersey's Attorney General Gurbir S. Grewal signed AG Law Enforcement Directive No. 2002-05 which directs all state law enforcement agencies to publish, by December 21, 2020, a report disclosing the names of all officers "sanctioned for serious disciplinary matters," meaning "termination of employment, reduction in grade or rank, and/or suspension greater than five days." Previous such reports were limited to a minimum suspension of ten days and the names of the sanctioned officers were redacted. The Attorney General concluded that "[t]he likelihood [that an officer breaches the public's trust and dishonors the entire profession] increases when officers believe they can act with impunity; it decreases when officers know their misconduct will be subject to public scrutiny."

On June 15, Connecticut Governor Mark Lamont signed an Executive Order barring state police from using chokeholds and imposing limitations on use of force. The Executive Order also requires that every State Trooper be equipped with a body camera, and every state patrol car be equipped with a dashboard camera, by January 1, 2021. Governor Lamont said he also wants state police to release bodycam video within four days of incidents. See https://www.nbcconnecticut.com/news/local/gov-lamont-announces-new-executive-order-on-police-accountability-and-transparency/2288429/

On June 16, the Memphis City Council unanimously passed a resolution requiring that "that the [City's] Public Safety data portal be expanded to include all complaints of excessive force and misuse of body worn cameras[,] outlining the details of each complaint and a timeline for the investigation of the complaint."

Actions Under Consideration:

In Hawaii, a previously-stalled bill (HB 285-S2), that would eliminate the exemption in the state's public records law for misconduct records of suspended police officers was passed by both houses and is awaiting the Govenor David Ige's signature. https://www.civilbeat.org/2020/07/hawaii-legislature-removes-police-exemption-for-misconduct-cases/

On June 10, Democratic legislators in Oklahoma, led by State Representative Monroe Nichols, announced a series of proposed bills, dubbed the March for Reform initiative, to overhaul the civilian review process for holding police officers accountable, including establishing a state registry of officers who either resigned or were terminated for sustained findings in internal affairs investigations.

On June 11, two bills entitled "An Act Relative to Saving Black Lives and Transforming Public Safety" were simultaneously introduced in the Massachussetts State Senate (SD-2968) and House (HD-5128). If enacted, the bills would declare "that records describing the disposition of law enforcement misconduct investigations shall not be exempt from disclosure" under the state records law's "personnel files" exemption. Also "[n]ot later than 30 days after an officer-involved injury or death, the law enforcement agency employing the officer involved in the incident shall complete and submit to the attorney general a report using the uniform protocol," and that report must be posted, within 5 days of completion, on the websites of the subject law enforcement agency and the Attorney General.

Vermont's Attorney General T. J. Donovan and the State Secretary of Public Safety Michael Schirling have declared they are open to amending the exemption in that state's public records law that shields disciplinary records of State Patrol from disclosure, when the state's legislature reconvenes in August. See https://www.reformer.com/stories/state-police-discipline-records-may-become-public,606617

Several Black legislators in Virginia have called for opening up police internal investigation files to public scrutiny. Sen. Jennifer McClellan (D-Richmond) said in a statement "We must create and enforce methods of review and transparency in investigations of misconduct at all levels." See https://vpm.org/news/articles/13885/black-lawmakers-call-for-more-oversight-of-police

On June 18, the City of Dayton, Ohio announced that five City Commission working groups will study potential reforms to police practices. One group will examine ways to "[i]ncrease transparency in the process to report suspected police misconduct and strengthen the Citizen Appeal Board made up of community members."

The Path Forward

The killing of George Floyd has prompted people of all colors and from all walks of life to demand dramatic changes in police practices and in society as a whole. One positive development in the current historical moment is the growing awareness and recognition – by citizens, legislators, governors, mayors, and even police chiefs – that there can be little or no public trust, a necessary foundation of effective law enforcement, without both accountability and transparency.

Steve Zansberg is a Senior Counsel in the Denver office of Ballard Spahr, LLP, and the President of the Colorado Freedom of Information Coalition. Steve has long advocated for public access to police internal affairs files and body-worn camera footage. See, e.g., https://coloradofoic.org/wp-content/uploads/2019/04/Segment-001-of-fall041.pdf; https://www.denverpost.com/2010/08/24/to-restore-public-trust-denver-must-let-the-sun-shine-in/; https://www.americanbar.org/content/dam/aba/publications/communications_lawyer/summer-2017/cl-v33-1-summer17.pdf; https://www.governing.com/gov-institute/voices/col-police-body-camera-recordings-transparency.html; https://www.doj.state.wi.us/sites/default/files/policebwcrecordings.pdf.

 
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