Police Misconduct and Public Accountability
McElroy, Wendy, Freeman
Why is it difficult to prosecute police officers for criminal misconduct even when the abuse is severe and unequivocal?
A February news item from WSVN-TV in Miami/ Ft. Lauderdale points to one reason:
A homeless man's attorney said surveillance video shows deputies used excessive force in his arrest. Gerald McGovern, 58 [said he] did not attack them, as charged. Instead, they attacked him. The public defender's office said the surveillance video clears McGovern and implicates BSO [Broward Sheriff's Office]. ... A witness, Roberto Aguilara, backed up McGovern's claim.
Note the omission. The news report names the alleged victim, the witness and (elsewhere) the lawyer but not the accused deputies. Nor do their names appear in subsequent stories about an official investigation into allegations that the deputies used excessive force.
Few people outside law enforcement are familiar with Police Disclosure Laws (PDLs), which in most states, including Florida, block the release of information about an officer's alleged misconduct until internal investigations are completed. Even then, the laws are often broadly interpreted to block such release. Some states do not make information public unless criminal charges are filed or the officer is dismissed. Other states leave the issue entirely to the police department's discretion.
The declared purpose of restrictive PDLs is to protect accused officers. With sympathetic courts ruling in favor of PDLs, police unions staunchly defend the practice of granting officers more privacy than others who are criminally accused. A news story from the New Orleans Times- Picayune offers a glimpse into the vigor of their defense:
Police unions trying to block news organizations' access to internal police investigations of New Orleans officers also are waging a campaign in the civil and criminal courts to keep such records out of the hands of the city's public defender's office. Steve Singer, general counsel of the Orleans Public Defenders, said his office has filed public records requests for the New Orleans Police Department's Public Integrity Bureau files of arresting officers in the cases of more than 50 defendants. The office also has sought subpoenas through Criminal District Court to obtain some of these records.
Critics argue that PDLs obstruct justice. The laws allow police officers to violate rights because they can avoid both transparency and accountability. The laws deny victims information that may be necessary to sue or otherwise press a legal case against officers. And by shielding important aspects of accusations - for example, whether the unnamed officer has been similarly accused in the past - the laws discourage the reporting of police abuse, especially by the media, for whom a significant delay in obtaining information makes a story grow cold. In turn, the lack of coverage encourages the public to believe misconduct is rare; thus those abused by police are doubly victimized by having their accounts dismissed out of hand.
On what legal basis do police departments refuse public access to information on misconduct by their officers?
Almost every state uses the federal Freedom of Information Act (FOIA) as a model for its own statutes on the public disclosure of government records. FOIA was intended to give the public a general right of access to information held by government agencies. Nevertheless, the nondisclosure about police misconduct is generally justified by referenee to two common exemptions: the "investigative record" and "privacy right" exemptions. The investigative record exemption can be invoked even after an investigation is completed. …