Testimony before the U.S. Commission on Civil Rights, Briefing on Police Practices and Use of Force

United States Commission on Civil Rights

There are many facets to addressing police violence in communities. Fatal police encounters do not happen in a vacuum. Police interact with the public in many different ways and fatal incidents are at one extreme on the spectrum of interactions. How police officers conduct their daily interactions with the public and handle misconduct when other officers cross the line in those interactions is vital to establishing trust in the community. The best way to build this trust is to make officer discipline public, transparent, and effective. The focus of my testimony is on the legal regimes that hinder transparency regarding police misconduct and how to address them.

Police officers and departments are not perfect. Incidents of misconduct will happen, but how any given department handles that misconduct is of utmost importance. As Maurice Punch wrote in his book, Police Corruption: Exploring Police Deviance and Crime:

“[P]olice agencies are not held to be irredeemable when found to have committed offences but are assumed to be capable of reform and of having public confidence in them restored. In this process, the crucial test for policing in a democratic system is accountability… .For without genuine accountability, there can be no legitimacy; and without legitimacy the police cannot function effectively in democratic society.”1

But as the recent #BlackLivesMatter activism demonstrates, there is a perception of a lack of accountability all over America. Establishing accountability at all levels of police interaction with the public is imperative to restore police legitimacy and increase public safety.

The Data We Don’t Have
FBI director James Comey recently made a speech about the hard truths America must face about policing. Specifically, he mentioned that data on officer-involved shootings is unreliable because reporting is voluntary and, consequently, inadequate for accurate national measurement.2 Data on other uses of force and misconduct are even more difficult to glean due to various policy and legal hurdles to information.

The National Police Misconduct Reporting Project is an effort by the Cato Institute to gather reports of credible allegations of police misconduct so policymakers (and others) can make informed assessments of the nature and circumstances of police misconduct. At PoliceMisconduct.net, we publish summaries of the reports to provide some context and provide updates as the cases make their way through the adminsitrative and judicial processes. We rely primarily on local media outlets to do the legwork of combing police blotters for arrests, tracking local police press releases, and covering court proceedings through their final resolutions. Our data too is incomplete, but we do not often lack troubling stories to put on the website nearly every weekday.

Other watchdog groups, citizens, and journalists compile information that is available to them that provide insight into problems that reoccur in many jurisdictions. These people provide a valuable public service. Particularly in incidents of violence or misconduct against civilians caught on cell phone camera or other video, public outcry may force police leadership to respond to excessive force much faster than typical police disciplinary actions.3

Unfortunately, all but a handful of states have considerable restrictions on access to police disciplinary files. In some states, even prosecutors, who naturally rely on police testimony to make their cases, either cannot review those files or must overcome substantial evidentiary hurdles to do so. At least one author4 has questioned whether these restrictions violate the affirmative prosecutorial duty to provide defendants with impeachment evidence demanded by Brady.5

The ideal way to get more data is to expand the access to police disciplinary files. This expansion, however, will be difficult as many of the legal barriers to disciplinary information are state laws that prevent disclosure sans court order. Even then, sometimes the information can only be viewed in camera and in discrete cases.6 In the absence of federal litigation attacking disciplinary records protections because they violate Brady or some other due process right of defendants, these changes will primarily need to come legislatively on a state-by-state basis.

Nevertheless, federal entities that wish to encourage more open state government could look to states with publicly accessible disciplinary files and develop best practices guidance or model legislation to that effect.7 The good news is that there are several states with fully public or nearly fully public access to police disciplinary files from which to draw models and practices.8

The Data We Have
Even in states like New York that withhold personnel records from public view,9 alternative data can reveal problems waiting to happen. For example, in New York City, there is a group — a rather small minority — of officers that exhibit behaviors that could be detected and addressed by early intervention strategies.10

According to an investigation of New York City’s Civilian Complaint Review Board records, about 40 percent of the 35,000 NYPD officers have never received a civilian complaint, but roughly 1,000 officers have more than 10 complaints on file.11 One officer has over 50 complaints but retains his position.12

Institutionally, the NYPD knows these 1,000 officers are repeat offenders several times over. Multiple complaints against a single officer over a period of months or years implies the officer must, at times, operate too close to the line of impropriety. Those 1,000 officers represent fewer than three percent of NYPD officers but can damage the reputation of the rest of the department. Clearly, some portion of these 1,000 officers are abusing their authority, and the NYPD is unwilling or unable to remove these officers from duty. And because the public can’t know their names and records, we cannot measure how effectively the NYPD addressed these incidents with any given officer.

Outside of the personnel records and complaints office, there is another metric to determine which officers are more likely abusing people with whom they come in contact. Criminologist Jerome Skolnick noted that police supervisors sometimes look at resisting arrest statistics to determine which officers are crossing the line most often.13 The thinking goes: if an officer wants to mete out punishment for disrespect, a resisting arrest charge can justify a night in jail. It can be used to explain why a suspect came in with a few bumps and bruises, or worse.

Just as the civilian complaint numbers revealed a small minority responsible for a disproportionate amount of complaints, it appears that a small percentage of the force generates the most resisting arrest charges in the NYPD. The WNYC study found that roughly five percent of NYPD officers account for 40 percent of all resisting arrest charges since 2009, and 15 percent of officers account for nearly 75 percent of them.14 In a legal regime in which their personnel records were public, the names in each of these groups could be cross-referenced. Public pressure could force the department to take appropriate action against specific officers to correct the behavior if possible, or move for termination. However, the officers’ disciplinary records remain off-limits and their questionable behavior continues to be tolerated in precincts around the city.

Of course, accountability problems are not limited to New York. In February of this year, one officer was pulled from regular duty when it came to light that he had 40 complaints filed against him during his nine-year tenure with the Denver, Colorado Police Department. Nearly half of those complaints cited “excessive force, using profane language and threatening to arrest people for no reason.”15 Although his previous actions cost the City $1,000,000 in civil suit awards, he was never disciplined for those actions.16 Indeed, he had only been disciplined once in his career, when he “manhandled” a woman in 2010.17

Obstacles to Legislative Reform
Police unions and other law enforcement organizations staunchly support the laws that protect officers from scrutiny. The professional reasons officers covet their disciplinary anonymity are clear: officers who are deemed untrustworthy lose their value as witnesses and information gatherers to prosecutors. Officers with a history of complaints or sanctions for excessive force may become liabilities as their actions may come into question in a given case or result in a civil settlement by the city. These organizations have a reasonable fear that one mistake could prove damaging to a career, and they naturally want to mitigate that.

However, some police advocates argue that the records should be confidential citing right-to-privacy concerns.18 These arguments are unpersuasive for two main reasons. First, the several states that provide public access to police discipline records have done so for years without serious constitutional problems. Second, and more importantly, there is no reasonable expectation of privacy when an officer is acting in public in his official capacity.19 By definition, actions in official public capacity cannot be construed to be private or personal and sensitive, the hallmarks of privacy law.20

However, police organizations have a lot of influence with elected state and local officials.21 Reformers will have to work with law enforcement organizations to find solutions that protect due process rights of officers while providing more transparency to the public to restore the trust that is lacking in many communities today.

Alternatives to Legislative Reform
Passing meaningful legislation in all 50 states is going to take years of grassroots effort and campaigning. In the meantime, citizens, journalists, governments, and lawyers can compile data that is publicly available and use it to shine light on misconduct in their jurisdictions.

In New York, the Legal Aid Society is compiling a database of misconduct allegations against NYPD officers to act as a clearinghouse for defense lawyers.22 A database like this warehouses publicly available information from court proceedings so it can be used in future cases as Brady material. This sort of database could also be used in jurisdictions, where applicable, to convince a judge that there is sufficient reason to review an officer’s file to look for Brady material.

After a six-month Sun investigation showed how much money police brutality lawsuits had been costing the city, Baltimore started its own publicly searchable database of civil suits and publishing the results of those cases.23 The city should go further by removing the non-disclosure clause it typically attaches to settlements that prevent plaintiffs from discussing the facts of the case after accepting the settlement.24

Websites like PoliceMisconduct.net are available for anyone to look up misconduct in their cities, counties, or localities. Interested citizens and journalists can go through our archives and find out if their local law enforcement has had a little or a lot of legal trouble over the years. Given the paucity of public data, our efforts can only provide a snapshot of the state of police misconduct, but we hope to provide a valuable public resource to disseminate information about the often overlooked problem of police misconduct nationwide.

Americans cannot effectively address police use of deadly force without first addressing police violence. And we cannot hold police accountable if we cannot even measure how often they are acting inappropriately.

Policies and laws that shield officers from consequences of inappropriate violent behavior or abuse of authority produce a culture of tolerance — if not encouragement — of that behavior. Data indicates only a small minority of officers repeatedly abuse their authority, but laws that provide those officers anonymity make them indistiguishable from the majority of law-abiding officers. This minority’s tolerated presence in the ranks tarnishes the reputation, legitimacy, and authority of their fellow officers and their departments. For these reasons, making police discipline more transparent and more effective across the board is in law enforcement’s interest and the public interest alike.

Thank you.

1 Maurice Punch, Police Corruption: Exploring Police Deviance and Crime. p. 9. Taylor and Francis (2001). Kindle Edition. (emphasis in original)
2 James B. Comey, “Hard Truths: Law Enforcement and Race,” before Georgetown University Law Center, February 12, 2015. Available at http://www.fbi.gov/news/speeches/hard-truths-law-enforcement-and-race
3 See, e.g., Joel Currier, “Officers from St. Ann, Glendale off the job after actions during Ferguson protests,” St. Louis Post-Dispatch, August 29, 2014. Available at http://www.stltoday.com/news/local/crime-and-courts/officers-from-st-ann-glendale-off-the-job-after-actions/article_4e9f0ee5-a8ab-5cc8-ab1a-5e8be57612ca.html
4 See Jonathan Abel, “Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team,” 67 Stan. L. Rev. (Forthcoming 2015). Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487340
5 Brady v. Maryland 373 U.S. 83 (1963).
6 Abel, supra.
7 For case law summary that describes the public interest in open records versus the putative privacy rights of police officers acting in their official capacity, see Steven D. Zansberg and Pamela Campos, “Sunshine on the Thin Blue Line: Public Access to Police Internal Affairs Files,” 22 Comm. Law. 34 (2004-2005).
8 Abel, supra, at 20. “Florida is the flagship for the public-access [states], which include[] Texas, Minnesota, Arizona, Tennessee, Kentucky, Louisiana, and South Carolina.”
9 N.Y. CVR. LAW § 50-a : NY Code - Section 50-A: Personnel records of police officers, firefighters and correction officers. Available at http://codes.lp.findlaw.com/nycode/CVR/5/50-a#sthash.WlCCiUhy.dpuf
10 See, generally, Samuel Walker, “Early Intervention Systems for Law Enforcement Agencies: A Planning and Management Guide,” Community Oriented Policing Services, USDOJ, 2003. Available at http://www.cops.usdoj.gov/html/cd_rom/inaction1/pubs/EarlyInterventionSystemsLawEnforcement.pdf
11 Robert Lewis and Noah Veltman, “Can the NYPD Spot the Abusive Cop?”, WNYC.org, December 5, 2014. Available at http://www.wnyc.org/story/can-the-nypd-spot-the-abusive-cop/
12 Id.
13 Jerome Skolnick, “Code Blue,” The American Prospect, December 19, 2001. Available at http://prospect.org/article/code-blue
14 Lewis and Veltman, supra.
15 Keith Coffman, “Denver policeman accused repeatedly of excessive force taken off streets,” Reuters, February 27, 2015, available at http://www.reuters.com/article/2015/02/27/us-usa-denver-police-idUSKBN0LV2PR20150227
16 Id.
17 Id.
18 See generally, Zansburg and Campos, supra.
19 Zansburg and Campos, supra, at 35.
20 Id.
21 Mark Puente and Justin George, “Baltimore mayor pushes to toughen state law on police misconduct,” Baltimore Sun, February 4, 2015. Available at http://www.baltimoresun.com/news/maryland/politics/bs-md-batts-questions-20150204-story.html.
22 Leon Neyfakh, “The Bad Cop Database,” Slate.com, February 13, 2015. Available at http://www.slate.com/articles/news_and_politics/crime/2015/02/bad_cops_a_new_database_collects_information_about_cop_misconduct_and_provides.html
23 Luke Broadwater and Mark Puente, “Baltimore to create online database of police brutality lawsuits,” Baltimore Sun, November 13, 2014. Available at http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-settlements-database-20141113-story.html#page=1. Database available at http://ca.baltimorecity.gov/law/
24 Mark Puente, “Baltimore settlements on police brutality more restrictive than other cities,” Baltimore Sun, December 27, 2014. Available at http://www.baltimoresun.com/news/maryland/bs-md-settlement-confidentiallity-20141227-story.html#page=1