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 reference to two common exemptions: the “investigative record” and “privacy right” exemptions. The investigative record exemption can be invoked even after an investigation is completed.

Strong arguments can be made against both exemptions.

The Investigative Record Exemption. The police units that investigate accusations of misconduct are called “internal affairs” or something similar. But are such accusations an internal, private matter rather than one of compelling public interest? The question becomes more urgent when the alleged misconduct is criminal or involves the violation of constitutional protections such as the right to due process.

When anyone is given a gun and broad authority to use it in public, that same public needs to know if the gun and the authority are being misused. The public also needs to know the particulars of how abuse accusations are being investigated. For example, has a particular police department established such a high burden of proof that virtually no accusation against an officer can be sustained?

This compelling public interest is usually overridden by the argument that releasing information would have a “chilling effect” on law enforcement. In the essay “The Public’s Right of Access to Police Misconduct Files,” attorney Lynne Wilson comments, “A number of federal courts have seriously questioned the empirical basis for a finding that public disclosure of internal disciplinary files causes a ‘chilling effect’ on law enforcement. One judge said that ‘if the fear of disclosure . . . does have some real effect on officers’ candor, the stronger working hypothesis is that fear of disclosure is more likely to increase candor than to chill it.’”

The Privacy Right Exemption. The police are tax-supported public servants with the authority to violate your privacy rights. As such, officers should expect to receive a public review of their performance while on duty. The intent of the privacy exemption in FOIA is the preservation of “personal” privacy, such as sexual preference, that is not of legitimate concern to the public. But in its use by police departments, the privacy exemption closes off examination of the professional behavior of public servants.

“[I]t would be difficult to imagine a subject-matter of more legitimate concern to the public than how its police departments are managed,” Wilson writes. “At least one state court has held that police officers have no privacy rights in misconduct records because the records, by definition, ‘involve events which occurred in the course of public service . . . matters with which the public has a right to concern itself.’”

In short, on-duty police conduct is not an internal or private matter but one of overriding public concern.

Everyone is vulnerable to police misconduct. Drivers can be arbitrarily pulled over; anyone can be stopped on the street and questioned. If you encounter the police, being “within the law” will not protect you against an overzealous or hostile officer who does not like your attitude. Making officers accountable for their actions is your greatest protection. Police Disclosure Laws are part of what appears to be a continuing attempt by police to avoid accountability.

Reprinted with permission of the publisher. © Copyright 2010, Foundation for Economic Education.