Back in 2010, I wrote a column for Reason on the startling lack of transparency among police departments in Northern Virginia.* Despite the state’s reasonably sound open records laws, the state’s largest police agencies have chosen to interpret an exception clause in the law to give them carte blanche to deny information requests. They turn down all open records requests as a matter of policy, even when journalists have attempted to test them by, for example, requesting information that the same agency had already included in a press release.
Virginia journalist Michael Lee Pope—who has done terrific reporting on this issue—updates the story this morning.
ACROSS VIRGINIA, there are almost no details available to the public about crime that happens every day. From petty larceny to murder, Virginia police officials routinely deny access to basic documents such as incident reports. In the case of Hailu Brook, his father Brook Beshah can’t even get a copy of the investigation conducted by Arlington County officials detailing how Fairfax County police officers shot and killed his son — even though the case is closed . . .
Earlier this year, a State Integrity Investigation ranked and graded each of the 50 states on government accountability, transparency and corruption. Virginia got an F, largely because police agencies use an exemption clause in the Virginia Freedom of Information Act to withhold basic documents in all cases, regardless of what the case is about and regardless of whether the case is open or closed . . .
During a hearing conducted by a subcommittee of the Virginia Freedom of Information Advisory Council in 2010, law-enforcement officials from across the commonwealth descended on the capital to oppose any effort to weaken the exemption clause. Even if a case is closed, they said, releasing documents would be a bad idea. Now, two years later, the same subcommittee is set to meet yet again to consider the same legislation.
The state’s police agencies don’t even release information to the families of crime victims . . .
. . . the same Virginia law that allows police agencies to withold information from the public also allows them to deny access to victims of crime and their families. One of those family members was an aunt of the slain teenager who works as a nanny for a prestigious law firm in downtown Washington. Hogan Lovells took the case pro bono and submitted a Freedom of Information Act request. As it does in all cases, the Alexandria Police Department denied access to the documents.
“To be honest, I thought it was some kind of joke,” said Martin Price, an attorney for Hogan Lovells. “It’s just hard to believe you can have a victim’s family completely left in the dark.”
Just to give you an idea of the extent of the hubris from law enforcement officials on this matter, consider the sneering letter to the editor Alexandria, Virginia State’s Attorney Randolph Sengel wrote in response to Pope’s original article in 2010:
Law enforcement investigations and prosecutions are not carried out for the primary purpose of providing fodder for [Pope's] paper. The sacred ‘right of the public to know’ is still (barely) governed by standards of reasonableness and civility . . .
The most offensive theme of this article is the notion that law enforcement agencies decline to release these reports to protect their own, or to conceal corrupt behavior…Believe it or not, the reporter and his colleagues are not the last true guardians of truth and justice, the attainment of which does not hang on unfettered exercise of journalistic zeal. Last time I checked there were multiple safeguards in place to assure the integrity of the criminal justice system. Conscientious and dedicated judges, prosecutors, public defenders, and law enforcement officers work in a system which is as transparent as it needs to be, constrained by reasonable and appropriate limitations which are there for the greater good, not for purposes of playing hide the ball.
These are the words of a man who was elected to enforce the state’s laws. It’s also worth noting that Pope became aware of the agencies’ policy when the Fairfax County Police Department refused to release the name of a police officer who had shot and killed an unarmed motorist.
Meanwhile, over at Reason, Steven Greenhut notes a rare rebuke of police unions in California.
Last week, the Senate Governance and Finance Committee killed AB2299, which would have allowed police officers, correctional officers, prosecutors, and judges to keep their names off of public property records. Approved by the Assembly 68-0, the bill was based on the unproven idea that criminals look up the home addresses of public safety officials and then attack them—even supporters couldn’t come up with examples of this having happened.
Had it passed, the bill would have undermined the public property record system and would have been an open-door for real estate scams. The legislators who voted for this knew better, but they weren’t about to stand up to these unions. Yet sanity did prevail. It also prevailed with AB1275, which would have banned the media from getting copies of transcripts and tapes of 911 calls . . .
In the past, these bills would have moved forward with little scrutiny, but this police-union overreach grabbed wider attention and sparked the dismay of editorial boards across California.
But Greenhut explains that it’s the bill’s defeat that makes the story unusual.
We all know that secrecy is the petri dish for misbehavior, yet the unions continue to push bills that shield their members from oversight. It’s already nearly impossible to learn what actually happened in the many instances where police use deadly force thanks to the peace officers bill of rights and other special protections.
Let’s say we saw the following headlines: “Surge seen in shootings of Sacramento deputies” and “Killings of police in LA County jump sharply.” Everyone in the state would be well aware of this data. The Capitol would rightly be awash in proposals to protect officers from the carnage.
Those headlines are close to accurate, except one word was changed. The real headlines are (from the Sacramento Bee): “Surge seen in shootings by Sacramento County deputies,” and (from the Los Angeles Times), “Killings by police in LA County jump sharply.” There’s a trend here.
Police have broad latitude to use deadly force. Thanks to the above-mentioned peace officers’ bill of rights and the 2006 state Supreme Court’s Copley Press v. San Diego decision, the public and media have virtually no access to allegations of wrongdoing or investigations against police officers. We see only what police agencies want us to see, and only through the civil litigation process do crucial details emerge. The latter is no panacea given that agencies often provide financial compensation in exchange for nondisclosure.
In Sacramento, complacent official attitudes toward police use of force issues may contribute to the problem. District Attorney Jan Scully halted all investigations of police-involved shootings, a shocking dereliction of duty that she blames on budget cuts, but is a sop to police unions.
I’m still a little thrown back when I see laws with names like “the police officer’s bill of rights.” Informal, corrupt deference to cops accused of criminal misconduct is one thing. But the idea that the government agents in charge of enforcing the law would get an official, codified set of rights above and beyond those afforded to the rest of us is really an affront to everything a democratic society is supposed to represent. And we’ve seen how even the slightest violation of a cop’s extended set of rights can excuse even egregious abuses of power.
(*That 2010 article inspired a visit from an Alexandria Sheriff’s Department deputy to what he thought was my home. I had already moved to Nashville. I had no luck trying to find out the deputy’s name or the purpose of his visit.)