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Excerpted From: Ash Gautam, Balancing Interests in Public Access to Police Disciplinary Records, 100 Texas Law Review 1405 (June 2022) (153 Footnotes) (Full Document)


AshGautamOn November 22, 2014, a 911 caller in Cleveland, Ohio, reported that a person, who appeared to be a juvenile, was pointing a “probably fake” pistol “at everybody.” The dispatcher failed to convey that the weapon was “probably fake,” and two Cleveland police officers, Timothy Loehmann and Frank Garmback, showed up to the scene to investigate. Loehmann observed what appeared to be a gun next to a Black boy and ordered the boy to “show his hands.” Within two seconds of arriving on the scene, Loehmann shot the boy. By November 23, 2014, the boy, 12-year-old Tamir Elijah Rice, was dead. The murder of 12-year-old Tamir Rice is only one of many instances of fatal police brutality, committed predominantly by White police officers against young Black men and women. Other examples involving Black teenagers include the killing of Laquan McDonald by Chicago police officer Jason Van Dyke and the alleged killing of Anton Black by Greensboro, Maryland police officer Thomas Webster IV.

Beyond representing a tragic trend seen throughout the history of policing in America, these examples have another disturbing commonality. Loehmann, Van Dyke, and Webster all had troubling histories of alleged and proven misconduct that were not revealed or otherwise accessible to the public until well after the deaths of Tamir Rice, Laquan McDonald, and Anton Black, respectively. Loehmann, for instance, was initially a police officer in the small town of Independence, Ohio, where his supervisors had recommended his termination for “insubordination, lying and an inability to emotionally function.” He resigned before he was terminated, and confident that his record of misconduct and discipline would remain private, he was able to get a job with the Cleveland police department. Loehmann retained his job with the Cleveland police department for nearly three years after killing Tamir Rice, before ultimately being fired not for his use of force but for failing to disclose the aforementioned disciplinary records before taking employment. Similarly, Webster was only fired from the Greensboro police department when disciplinary records from his previous job as an officer with the Dover, Delaware police department surfaced and revealed that nearly thirty use-of-force complaints had been filed against him. Van Dyke's record of misconduct, which included “eighteen prior civilian complaints for incidents ranging from excessive force to racial slurs,” was publicly revealed a year after he killed Laquan McDonald.

Had these records been publicly available and scrutinized before the officers committed these fatal, irreversible acts of misconduct, would their respective departments have adequately punished them to deter use of force, or even fired (or refused to hire) them to ensure they would not be in a position where they could harm civilians? Could public pressure have motivated these departments to hold their officers accountable? While murder is the most serious form of brutality, police brutality takes many forms. Many other officers in these departments might have serious histories of misconduct and escape adequate punishment because those histories have not (yet) culminated in fatal, unjustified use of force. Perhaps a department-wide survey of disciplinary records will reveal trends common to the misconduct histories of these officers. Do instances of misconduct disproportionately affect people of certain racial or religious backgrounds, and do they tend to occur in certain unique contexts, such as domestic violence or immigration law enforcement? If we can identify such trends, we can refocus efforts and design solutions better targeted towards the particular policing needs of our communities and not only root out “bad apples,” but help heal the “rotten tree.” And by investigating these disciplinary records, we might even find that many departments do take accountability seriously and consistently and adequately punish officers guilty of misconduct, and thereby bolster our faith in the procedural fairness of law enforcement and trust in the police. But despite the many benefits of transparency, in many states, these records are simply not accessible to the public.

Transparency has long been touted as a potent tool in the regulation of public conduct. Many scholars and legislators have likewise prescribed transparency as a key cure needed to police the police. Others argue that the “transparency cure” has been overhyped and that proponents of transparency fail to sufficiently address both police and public interests in confidentiality. This Note looks at transparency and confidentiality interests in the context of police disciplinary records disclosure and agrees with the latter camp that interests in confidentiality should be taken more seriously but argues that the balance of interests in public access to police disciplinary records should ultimately favor transparency. Nonetheless, limited public access is preferable to complete public access because a limited public access regime better addresses interests in confidentiality, while still accruing most of the benefits found in a complete public access regime.

Part I first defines police disciplinary records and discusses the sort of content included in, and the variety of sources that inform, these records. It then lays out the current statutory approaches to police disciplinary record disclosure taken by states. States generally can be described as either authorizing essentially no public access, limited public access, or essentially complete public access to police disciplinary records. States that limit public access generally do so in one of two ways: by either expressly qualifying the sorts of records that can be accessed or subjecting public access to a general privacy rights exemption.

Part II makes the case for transparency. First, greater transparency leads to greater public trust in the police, which in turn boosts the legitimacy of police and improves public safety by increasing public compliance and cooperation with law enforcement. Second, transparency would incentivize departments to hold their officers accountable, and holding officers accountable may more frequently reduce misconduct. Firing (and refusing to hire) police officers with histories of severe misconduct ensures that they are not in a position to harm the public. Adequate punishment short of firing could also deter officers from engaging in future misconduct. Creating an atmosphere of accountability within a department might also deter other officers in the department from engaging in misconduct. Third, access to more data would allow advocates, scholars, and legislators to design and administer more effective policy by better targeting troubling trends seen in their communities and police departments.

Part III then reviews the case for confidentiality and argues that a balancing of interests in public access to police disciplinary records should ultimately favor transparency. First, police officers' privacy interests do not justify opacity for records covering on-the-job misconduct, but a limited public access regime should be designed to accommodate legitimate officer privacy interests in minor infractions with little relevance to the public interest. Second, a limited public access regime should be responsive to the potential for abuse of the complaint-making process, distortion of information disclosed in records, and public misunderstanding of information disclosed in records that cause undeserved reputational harms to officers and departments. Third, proponents of transparency must account for potential police retrenchment and design disclosure regimes to limit incentives for unwarranted leniency. Fourth, disclosure of records might make it easier for disaffected parties to identify, locate, and potentially harm, the officers who they believe wronged them. Though there are essentially no data substantiating physical harms to officers from disciplinary record disclosures, many officers have reported targeted harassment, vandalism, and threats of physical harm, and a limited public access regime should be designed to limit such threats to officer safety.

Part IV argues that limited public access is preferable to essentially complete public access because the former better addresses interests in confidentiality while accruing substantially the same transparency benefits as the latter. Some general measures under both limited public access and essentially complete public access, such as simplifying and clarifying records and redacting identifying information, can help address officer reputation and safety concerns. But limited public access shows a willingness to compromise with police interests that more effectively limits the potential for police retrenchment. Furthermore, the general privacy exemption and express qualifications approaches both have unique benefits that address officer concerns while also permitting public access where the public interest in transparency outweighs interests in confidentiality. Case-by-case adjudication under general privacy exemptions allows courts to examine the relevance of contested information to the public, and more consistently strike a fair balance between officer concerns and the public interest. Police officers might also view accountability measures taken by judges more favorably than those taken by legislators or the public at large, limiting retrenchment. Under the express qualifications approach, qualifying disclosure based on seriousness of conduct--for example, permitting public access for serious conduct such as use of force and prohibiting access for minor infractions such as lateness--ensures public access only where the conduct is relevant to the public interest and poses more than a de minimis threat to public safety.

[. . .]

Recent instances of police brutality have inspired many to call for greater transparency in policing generally, and greater public access to police disciplinary records in particular. These calls are justified by the many benefits of transparency, including greater public trust in police, greater accountability and deterrence against officer wrongdoing, and the potential for more policing data to inform and refine reform efforts. However, greater public access to police disciplinary records also raises concerns about officer privacy rights, undeserved reputational harms, physical safety, and the potential for police retrenchment. By addressing officer concerns without surrendering substantial transparency benefits, limited public access regimes best balance these competing interests in transparency and confidentiality.

Associate Editor, Volume 100, Texas Law Review, J.D. Candidate, Class of 2022, The University of Texas School of Law.

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