Police Transparency Watch

Monday, June 25th, 2012

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.)

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20 Responses to “Police Transparency Watch”

  1. #1 |  Burgers Allday | 

    Semi-related:

    You may remember that there were riots in England late last summer. These were (at least partially) in protest of the police shooting of a fellow named Mark Duggan. The suspicion is that police shot him because: (i) he had previously acquired a gun (specifically a “converted starter’s pistol); and (ii) he tried to run when his cab was stopped. Even under UK law, this is probably not enough for the police to legally shoot a suspect.

    Back in March, the authorities said that there may not be an inquest into the Duggan shooting because of a newish law shielding certain details of police investigations from public scrutiny. On October 23 they are having a hearing to decide if they can have an inquest into Duggan’s death.

    To me, this is the biggest anti-transparency shocker of the year. So, like, make a note to break out your Clash records on October 23. They may become relevant again.

  2. #2 |  Dana Gower | 

    Especially in the case of a death, why doesn’t somebody file a civil suit? There is a difference between an FOI request and the legal response required in answering a lawsuit. If law enforcement agencies faced being sued for every single questionable response (not just deaths), they may find it expedient to make at least some information public.

  3. #3 |  marco73 | 

    “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. ”

    Virginia State AG Sengel should be very careful about relying on men and not laws. What would he do if this system turned on him?

    I love the whole “greater good” line – has Sengel ever googled the source? It’s from the freakin Communist Manifesto, and the concept has been used to justify all sorts of tyranny:

    “History calls those men the greatest who have ennobled themselves by working for the common good; experience acclaims as happiest the man who has made the greatest number of people happy.” — Marx, Letter to His Father (1837)

  4. #4 |  Burgers Allday | 

    Especially in the case of a death, why doesn’t somebody file a civil suit?

    Civil complaint, plus opposition to motion to dismiss on the pleadings (based on qi and/or Iqbal), plus discovery request, plus motions to enforce discovery requests equal many, many thousands of dollars worth of effort.

    People can do this themselves (that is, no lawyer, pro se), but they seldom want to spend the time and energy learning how (it would be a full time job for a year or so).

    If they want to go the lawyer route then they are probably going to need to spend $20K to $50K, which a lot of people either don’t have, or else don’t want to spend on attorney (Americans tend to loath atty’s and their fees).

    Contingency fees are an option, but it can be tough to get a contingency lawyer to take the case without knowing enough of the evidence to know that there is some chance of a big win. This is probably the primary reason that VA police go so far to hide all evidence in every single case. Specifically, in the cases at the margin where a contingency atty might (or might not) be presuaded to take the case, the police don’t want enough data out there for the contingency attys to rationally make that judgement. By hiding the data in any and all cases, they don’t have to make special excuses in that sub-set of cases where the police report or police audio recording or physical evidence would make the difference between the contingency atty saying (a-la Harvey Birdman), “I’LL take the case!” as opposed to the contingency atty saying, “too many unknowns here — I’ll pass.”

    By the way, the police in the West Memphis Three case are now making valiant efforts to hide all the physical evidence in that case. The problem there is that if the public starts fisking the evidence, then they might be able to prove that police did a lousy investigation in the first place (or, worse yet, had actual reason to know who th real killer was). Compounding the problem is that if one of the families did the murders then they presumably will destroy any physical evidence that is relinquished to them.

  5. #5 |  Deoxy | 

    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.

    Apparently, “reasonable and appropriate limitations” is “every single time, EVER”. That logic error alone makes the whole letter a joke… the rest is just gravy (and there’s plenty of it!).

  6. #6 |  Dante | 

    This story (and the many others just like it) continues to highlight the fact that the police are nothing more than a well-funded, self-serving criminal gang with great retirement/health benefits. They do not keep us safe, they do not “save the children”, they do not benefit the communities which pay for them. They are widely regarded as lazy, corrupt, dishonest, deranged and downright lethal to dogs. There are hundreds of web sites (like this one) which document the daily parade of verifiable police misconduct, and yet the police continue to insist they are of the highest moral fiber and completly incapable of any and all wrong doing.

    As the old saying goes, who are you going to believe? The police, or your lying eyes? (Not to mention all the cell phone videos)

    Protect & Serve (Themselves!)

  7. #7 |  Boyd Durkin | 

    All this is happening at the same time peasants are allowed less-and-less privacy. Fuck the wealth gap. The special rights chasm is a gaping maw of ever-widening despair.

    PS: Another big win for public service unions! (bring it!)

  8. #8 |  SP | 

    The police – professionally trained and well paid – are held to a lower standard than an ordinary civilian when it comes to using deadly force. It is the only profession that I am aware of that is given that treatment. A doctor is held to a higher standard than a lay person based on his training and knowledge. A CPA is held to a higher standard than a regular accountant. But the police are held to a lower standard. It seems that the police have been quicker to draw their guns and shoot people at the slightest provocation, lately. They shoot innocent people while raiding the wrong house – no problem (qualified immunity). They have been elevated above the rest of us ordinary citizens. They wonder why they are held in such low regard. They should look in the mirror or listen to themselves when they talk about us civilians; they berate and belittle those who pay their salaries. And let’s get this straight – cops as a whole are not heroes. A few may be, but the majority are just punching a time clock to collect a pension. Dangerous job – nope, check the bureau of labor statistics; not even top ten.

  9. #9 |  David | 

    “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…”

    CHORUS: The greater good.

  10. #10 |  Bob Mc | 

    Whenever I see a County vehicle around here with their motto: ‘The noblest motive is the public good’ emblazoned on it, I always chuckle to myself and wonder if ANYBODY actually believes the person driving it is motivated by some ideal of “the public good”, rather than by a gold plated pension, (free) Cadillac health plan, higher than average salary, and the kind of job security that only comes with working for the Government.

    I doubt any of them are so motivated to do “the public good” that they would volunteer their time, absent the pay and perks their GovJob brings them.

  11. #11 |  Charlie Potts | 

    I’m a CPA and I very rarely use deadly force. It kind off pisses off the client for some reason.

    Maybe if the police actually felt that they were working for and being paid by the public they wouldn’t shoot so many of us? Or maybe if their pay was partly determined by public feedback? Yeah, I know, crazy talk!

  12. #12 |  AlgerHiss | 

    And my favorite:

    Why in the Hell do we call these people these silly, made up names when all they are are freak’n employees, just like most folks?

    Take your phony, laughable moniker and cram it: I ain’t impressed.

  13. #13 |  AlgerHiss | 

    Corrected…to make sense.

    “Officer”

    “Agent”

    “Federal Agent”

    And my favorite: “Special Agent”

    Why do we call these people these silly, made up names when all they are are freak’n employees, just like most folks?

    Take your phony, made-up moniker and cram it: I ain’t impressed.

  14. #14 |  Wade | 

    Speaking of silly titles, there is no such thing as a “Virginia State’s Attorney”. The horrible Mr. Sengel is the Commonwealth’s Attorney for the City of Alexandria. He is elected by the residents of that city. He is what many other jurisdictions call a “District Attorney”.

    He’s still a pretentious buffoon, but let’s make sure that a search for Randolph Sengel, Commonwealth’s Attorney for the City of Alexandria lands on this post.

  15. #15 |  Personanongrata | 

    Sic semper tyrannis except when constrained by reasonable and appropriate limitations which are there for the greater good and to cover the asses of the commonwealth’s civilservants.

  16. #16 |  Vic Kelley | 

    I read the thread and every comment. This site is still the most troubling web site I go to. Reading this stuff makes me want to leave. Just don’t know which country to go to. Even in third world countries that are corrupt the people are happier and face less of a threat from their own government. America’s a dangerous place. Having an encounter with an American law enforcement official is the most dangerous thing you can do.

  17. #17 |  Police Transparency Watch; UPDATE: Alexandria VA. Sheriffs Dept “visits” home of Reason Magazine writer Radley Balko… « When Tennessee Pigs Fly | 

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  19. #19 |  Jon Folz | 

    No More Details
    Fairfax and Arlington reject requests by Virginia Citizens Coalition for Police Accountability.

    http://www.connectionnewspapers.com/news/2012/aug/09/no-more-details/

    Please read the above article.

    I too have read each of the posts and several other stories and posts from both sides of the issue. At the end of the day, the legitimacy of any government service is earned through that agency’s or department’s interactions with the public. An agency which utilizes legislation to be less than transparent with the public, erodes its own legitimacy. I find myself in the very unpleasant position of agreeing with many of the posts I find here. Much like Kosmo Kramer wished to opt out of receiving his US Mail, I find myself in the position of beginning think some of us ought to opt out of county services whose agents have the apparent legal authority to kill its citizenry and then refuse to share the results of their “internal investigations”. While I understand the needs of the federal security infrastructure to withhold certain intelligence gathering techniques for instance, I fail see how that type of logic, in anyway, shape of form conveys to my county provided protective services.

    Look, it’s called “TRANSPARENCY”. Transparency breeds trust and may help actually lead to FCPD regaining some of trust and legitimacy I and others once bestowed upon it. In the absence of the highest degree of transparency, I am unable to disagree with many of the points made in the above posts and therefore find the providers of what are suppose to be protective services to have lost their legitimacy.

    I am greatly troubled by this. Though I was less than 10 years old, I still remember the Watergate hearings and I remember the lesson:No one; not even the President, is above the law. Those who would hide behind the law to conceal the methods they use to enforce it, are clearly placing themselves in direct conflict with the Commonwealth’s sacred motto and with the hand that feeds them. Sic semper tyrannis…It’s not just a good idea for Virginia’s citizenry, it’s a good idea for the law and regardless of the FOIA loopholes VA’s law enforcement agencies may have lobbied into existence; the constant use of it, even to conceal information from victims and their families, is nothing less than tyrannical.

    Come on. This goes to the very core of our Nation’s value system. I agree, I am far more concerned with any interaction with our state’s law enforcement agents than I am with our state’s citizenry. I shouldn’t feel this way and I certainly should not pay to feel this way.

    Just do the right thing and share the investigative records of the citizens who have died at your hands…really at our hands as we are paying you to provide these services; and just answer the question: Why?

    Thanks to The Virginia Citizens Coalition for Police Accountability, Inc. / The Executive Director of the CCPA, Nicholas Beltrante and the Mount Vernon Gazette for asking all the right questions. Eventually, we will get the answers and when we do, it will be good for everyone, especially for law enforcement.

  20. #20 |  NoVa’s Secret Police – Bearing Drift: Virginia's Conservative Voice | 

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