Encircling protesters and targeting journalists undermine right to assemble
The right to assemble is as American as apple pie. It is written in the First Amendment — “the right of the people to peaceably assemble.” The American Revolution followed high-spirited protests in the colonies.
But legal experts say that police tactics at mass demonstrations are threatening the right to assemble. Kettling protesters, spraying them with chemicals, mass arrests, targeting journalists — all are tactics that have become commonplace.
They happened in St. Louis during the September, 2017 protests after a former police officer was acquitted of murder. They happened in the blocks around Lafayette Park across from the White House during the Black Lives Matter protests after the murder of George Floyd. They happened too in the Bronx, Brooklyn, Charlotte, Portland, Chicago and Dallas.
In 2002 D.C police used the kettling tactic on anti-war, anti-globalization protesters; in 2003 Chicago police kettled 800 anti-war protesters; in 2011 New York police surrounded Occupy Wall Street protesters; in 2017 and 2021 Portland police surrounded protesters and snapped photos of all of those trapped within the kettle. (Kettling is a police tactic for controlling large crowds in which a large formation of police contain a crowd in one area.)
Picture the scene of the typical big city protest: Hundreds of protesters march through the streets and shout, sometimes yelling obscenities at public officials and the police officers. Police officers, often from tactical units wearing militaristic uniforms, stand at the ready.
Then comes the moment when police decide to declare an illegal assembly — the moment at which a constitutionally protected right suddenly becomes a crime.
Police have the authority to declare an assembly illegal if there is lawbreaking — if the protesters are blocking highways, breaking windows, burning shops or cars, or throwing rocks and water bottles.
But police have to make sure the crowd hears the declaration of an illegal assembly and that people have a chance to leave before police close in.
Kettling tactics employed in big protests in St. Louis, Washington, D.C. and New York didn’t adequately inform protesters or allow people to leave the area as police moved in, according to official reports and court documents.
Journalists targeted in Portland
Over the past year, Maranie Staab has been repeatedly roughed up by specific officers who targeted her at Portland protests.
Over that time, the independent photo-journalist has seen some amazing things through her lens, such as a pro-Trump demonstrator pointing a gun at her from a passing car. She has been shot by rubber bullets and tear-gassed. And she was told by Jan. 6 insurrectionists in D.C. that she and other reporters were communists and scum.
When Staab arrived in Portland on July 26, 2020, she was a seasoned journalist. But her experience had not prepared her for this experience.
She went out on the streets the night she arrived. “I was tear gassed immediately…it’s horrific,” she said in an interview. “It acts as a chemical weapon. It is banned in international warfare. It is not a matter of toughness…..I was rendered unable to function. I couldn’t see or breathe. It was terrifying.
“I’ve been covering protests for years whether in Pittsburgh or Syracuse…Usually I would just dress normally. Now standard attire is a helmet, eye protection, long sleeves, a press vest so I’m clearly identified…..Protesters carry umbrellas or home-made shields. Now I will not go to a protest without a gas mask…..I didn’t wear a press vest when I first came. It’s now always on.”
Staab’s complaint that journalists and court observers have been targeted by law enforcement, has been confirmed in federal court. The 9th U.S. Circuit Court of Appeals last fall imposed an emergency order directing federal agents to stop retaliating against journalists exercising their First Amendment rights.
The decision cited attacks by federal agents on three photojournalists – Jungho Kim, Amy Katz and Daniel Hollis. All wore large letters identifying them as press. Kim and Hollis were shot with less-lethal projectiles. Katz was shoved away by agents when she tried to photograph the arrest of a demonstrator who had been pushed down a flight of steps by agents.
A fourth journalist, Brian Conley, presented film footage showing federal agents spraying pepper spray into the faces of peaceful demonstrators at point-blank range.
The four were among 45 journalists who testified in federal court about the attacks by federal agents. The appeals court said their testimony was compelling proof of what it called a “shocking pattern of misconduct” retaliating against journalists exercising their First Amendment rights.
Here are the footnotes from the court’s opinion, which describe what happened to each of the journalists exercising their First Amendment free press right to cover the demonstrators who were exercising their First Amendment right to assemble. The descriptions are the court’s:
On July 29, plaintiff Brian Conley was wearing a photographer’s vest marked “PRESS,” a helmet marked “PRESS,” and was carrying a large camera with an attached LED light and telephoto lens….Conley was filming a line of federal officers moving down the street pepper spraying peaceful protesters—including spraying a woman in the face at point blank range who was on her knees in the middle of the street with her hands up—when, without warning, a federal officer pepper sprayed Conley at point blank range.
On the night of July 19, Jungho Kim, a photojournalist, was wearing a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” on the front and rear. The district court found that Kim was standing alone, about 30 feet from federal agents, taking photographs, when suddenly and without warning, Kim was shot in the chest, just below his heart with a less-lethal munition. A photograph submitted with Kim’s declaration shows that he was shot where the word “PRESS” was printed on his vest.
On the night of July 26, Daniel Hollis, a videographer, was wearing a press pass and a helmet marked “PRESS” in bright orange tape, and carrying a large, professional video-recording camera. Hollis was filming a group of federal agents massed outside the federal courthouse. “Almost immediately,” the federal agents shot at him, striking him just left of his groin. He turned and began to run away, but was shot again in the lower back.
On July 27, Amy Katz, a photojournalist, was wearing a hat and tank top marked “PRESS” and carrying a camera with a telephoto lens while covering the protests. Katz was photographing a federal agent who pushed a man down a flight of stairs while arresting him. Another federal agent physically blocked Katz and tried to stop her from photographing the arrest. Katz stepped to the side to continue photographing the arrest, and the federal agent physically shoved her away.
Ferguson: First Amendment applies at night, too
John Inazu, a Washington University law professor, has written about the diminishing protection in America today for the freedom of assembly.
He argues that “contemporary understandings of unlawful assembly cede too much discretion to law enforcement” while ignoring the way the law traditionally treated assemblies.
Inazu cited the 2014 arrest of Antonio French on Aug. 13, 2014 as an example. French was a leading citizen journalist during Ferguson and one of the most active and accurate sources of news from the protest. One evening he joined a protest that soon faced police with armored vehicles, high-powered rifles and a helicopter flying overhead. (The St. Louis County police had bought its military equipment using money seized in asset-forfeiture stops, heavily criticized by civil libertarians.)
Missouri law, Inazu points out, states that a person commits unlawful assembly “if he knowingly assembles with six or more other persons and agrees . . . to violate . . . the criminal law. . . with force or violence.” But police arrested French “without even bothering to specify what offense he had allegedly conspired to commit or the identities of his alleged co-conspirators.
“Nor did they suggest that French was planning to use force or violence to break the law,” Inazu wrote. “There was, in other words, little indication that police had sufficient evidence that French had met the material elements of unlawful assembly necessary to arrest him for that crime.”
Inanzu added that, “Antonio French is not the only casualty of these laws. In fact, unlawful assembly restrictions target citizens across the political spectrum, including civil rights workers, antiabortion demonstrators, labor organizers, environmental groups, Tea Party activists, Occupy protesters, and antiwar protesters.”
During the Ferguson protests, police used an array of tactics that violated constitutional rights of protesters and journalists. They banned nighttime protests until a judge told them they couldn’t. They required protesters to keep moving, until U.S. District Judge Catherine Perry said that wasn’t constitutional. They set up a pen for journalists, far removed from the protests, and arrested a Getty photographer who strayed. They arrested two journalists in a McDonalds.
Lee Rowland, senior staff attorney for the ACLU, summarized it this way: “Tear gas, rubber bullets, and assault weapons; free speech zones, gags, and press pens…. Some of these tactics are physical. The other ones—all the more pernicious for their quiet coercion—impose a veil of silence over the actions of law enforcement. And each of these weapons has been unleashed on the people of Ferguson, Missouri, since the killing of Michael Brown.”
Kettling and the acquittal of Jason Stockley
Downtown St. Louis — within blocks of the Old Courthouse where slaves were sold and Dred and Harriet Scott sought their freedom and within sight of the place where Francis McIntosh was burned by a mob for killing a policeman — was the scene of vigorous Black Lives Matter protests in Sept., 2017 after former St. Louis Officer Jason Stockley was acquitted of murder in the killing of a fleeing suspect.
St. Louis Police kettled protesters in a city block and arrested them. Also a group of white officers beat an Black undercover colleague after exchanging texts expressing excitement about beating Blacks. The white officers had not realized they were beating a fellow officer.
Mario Ortega, who was a Washington University scientist at the time, was one of those arrested. He said he was watching the protest when he got caught in a “kettle” police used to trap protesters in a block near the intersection of Washington Ave. and Tucker Blvd. He said in a lawsuit that he was pepper sprayed, punched, kicked, dragged and slammed into a building.
A 2021 federal court decision in Ortega’s case graphically describes what happened. Here’s Ortega’s description of the scene.
“…a line of officers extended across the street and sidewalk on Washington one block west of Tucker. Another line of officers extended across the street and sidewalk on Tucker one block north of Washington. A third line of officers extended across the street and sidewalk on Tucker one block south of Washington. All three lines of officers wore military-like tactical dress, including helmets. They carried long wooden batons and full-body riot shields. A fourth line of officers extended across the street and sidewalk on Washington one half block east of Tucker. The four lines began to approach Washington and Tucker.”
Ortega said that “without instruction or warning, officers surrounded residents, business patrons, protestors, observers, and members of the press, cutting off all exits, and preventing the people inside the area from leaving. As they approached, officers began banging batons against their riot shields and the street. Citizens approached officers and asked to be let past. Officers responded by screaming, “Get back!”
Magistrate David C. Noce, who was hearing Otega’s case, continued the account in his opinion: “The officers trapped everyone who was within a one-block radius of Washington and Tucker. This is a tactic known as ‘kettling.’ Officers kettled a wide variety of innocent citizens, including self-admitted protestors, residents who live in the area, people visiting businesses, reporters, documentarians, and homeless persons. The officers even grabbed an African American male who was outside of the kettle and threw him into the kettle.
“Individuals in the kettle approached the line of bicycle officers with their hands up. The bicycle officers jabbed at the individuals, using their bicycles as battering rams. Some supervisors, including Sgt. (Matthew) Karnowski and Lt. (Bill) Kiphart, used pepper spray against peaceful citizens who were complying with police orders, to the extent any orders were given. Their actions caused plaintiff Ortega to be very fearful.
“At the start of the kettle, a few people in the crowd peacefully stood with their hands up in front of the officers. Sgt. Karnowski used pepper spray against them. At no time was Sgt. Karnowski in any danger because he was standing safely with a line of bicycle officers between him and the citizens. All of his actions were documented on a video camera strapped to his helmet. Sgt. Karnowski’s actions gave tacit approval to other officers to engage in the same behavior. This created a domino effect of the use of force on Ortega and others arrested that evening.
“Almost instantly after being pepper sprayed, individuals in the kettle put their hands in the air as a sign of peaceful surrender. Many laid prostrate on the ground. Others sat down. Those who could not sit down, because of how many people were inside the kettle, got as close to the ground as possible. Video evidence shows none of the individuals inside the kettle acted violently or aggressively, and yet, officers repeatedly doused them with chemical agents without warning.
“Lt. Kiphart attacked a journalist holding a camera with pepper spray from a ‘fogger’ which he also sprayed indiscriminately into the crowd. Moments later, Officer (Matthew) Burle deployed another fogger blast towards the same journalist and those sitting near him, hitting the journalist in the face with pepper spray.
“Sgts. (Randy) Jemerson and (Brian) Rossomanno, and other supervisors, were within arms-length of officers pepper spraying and beating peaceful and compliant citizens. Rather than instructing those officers to stop, they took control of the situation and directed the officers’ actions. Officers used hard, plastic zip ties to arrest all of the individuals. Months later, individuals continued to suffer from pain and numbness in their hands due to the tightness of the zip ties.
“Over 100 people were arrested that night. During and after the arrests, officers were observed high-fiving each other, smoking celebratory cigars, taking selfies on their personal phones with arrestees against the arrestees’ wills, and chanting, ‘Whose Streets? Our Streets!’ An anonymous person posted a celebratory photo of police officers on Twitter that night.
“…The next day, Lt. Col. O’Toole, the SLMPD Acting Chief, reinforced the City’s ratification of the defendants’ actions when he said, ‘I’m proud to say the City of St. Louis and the police owned the night,’ while standing next to St. Louis Mayor Lyda Krewson. Mayor Krewson further validated the defendants’ actions when she thanked the officers ‘for the outstanding job they have been doing over the last three days.’ She added that she fully supported the actions of the officers.”
New York investigation criticizes 2021 kettling
The New York Police Department was not prepared for the widespread protests that occurred in multiple parts of the city after the murder of George Floyd, according to an after-action report by the independent Department of Investigation.
Partly as a result, the department relied on mass arrests often following kettling tactics – or encirclement tactics as the NYPD prefers to call them.
The report concluded: NYPD’s use of force on protesters—encirclement (commonly called “kettling”), mass arrests, baton and pepper spray use, and other tactics—reflected a failure to calibrate an appropriate balance between valid public safety or officer safety interests and the rights of protesters to assemble and express their views. The inconsistent application of the curfew similarly generated legitimate public concerns about selective enforcement. NYPD use of force and crowd control tactics often failed to discriminate between lawful, peaceful protesters and unlawful actors, and contributed to the perception that officers were exercising force in some cases beyond what was necessary under the circumstances.”
The report said that rather than concentrate on facilitating First Amendment expression, the department focused on managing crowds and fell back on mass arrests to do it.
The report pointed out that the department relied on its Strategic Response Group team, which is composed of 700 highly trained officers designed as a counterterrorism squad.
The after-action report said that when the SRG was created in 2015, there was “internal discussion within NYPD as to the propriety of using SRG, a unit specially trained for serious disorder and counterterrorism, to respond to First Amendment activity such as protests. Nonetheless, the SRG has since been a primary resource for the NYPD’s response to large-scale protests.”
The New York Civil Liberties Union leaves no doubt about what it thinks about using the SRG on First Amendment protests. It wants to disband the group, saying: “The SRG is a notoriously violent rapid response unit. Despite promises from the department that the unit would not be deployed at protests, the SRG has consistently threatened, attacked, and arrested protesters. Time and time again, when SRG arrives on the scene, officers escalate situations and injure New Yorkers who are exercising their First Amendment rights.”
That’s what happened on June 4, 2020 when SRG strictly enforced the 8 p.m. curfew in the Bronx, even though it had not been enforced strictly in other parts of the city. Here is how the report describes what happened.
“Shortly before the 8:00 p.m. curfew took effect, NYPD Strategic Response Group (SRG) bicycle squad officers blocked the path of the protest group at Brook Avenue and East 136th Street. Simultaneously, another group of NYPD personnel approached from behind the protest group to enclose a larger portion of the group on a block with parked cars lining either side. Many protesters at the scene reported that officers blocked their movements leaving no opportunity to exit or disperse voluntarily. At around 8:00 p.m., officers began executing mass arrests for curfew violations, which were accomplished in part by using physical force against protesters, including striking them with batons. Among those arrested were identified legal observers, mainly from the National Lawyers Guild, and identified “medical volunteers.”
The report expressed surprise that top brass in the department had not learned lessons from the protests. “When DOI asked NYPD officials whether, in retrospect, the Department could have done anything else differently and made any further changes to improve its response to the protests, with few exceptions, officials offered none. While some difference in views is to be expected, the wide gap between the apparent views of the Department’s most senior officials and the views of members of the public who participated in the protests is troubling.”
William H. Freivogel is publisher of GJR, a professor of media law at Southern Illinois University Carbondale and a member of the Missouri Bar.
Editor’s Note: This article was first published Dec. 22, 2021, in the print edition of GJR.
Post-Ferguson police reform stalls among racial divisions
ST. LOUIS – Ferguson became the Selma of the 21st century after Officer Darren Wilson killed Michael Brown seven years ago. Protests transformed Black Lives Matter from a hashtag into the nation’s leading civil rights movement and forged a potent political coalition that elected Black reformers to top St. Louis offices, from prosecutor to congresswoman to mayor.
Yet Ferguson reforms have faltered and Missouri is moving backward. This summer, Missouri became the only state since George Floyd’s murder to enact a “Law Enforcement Officers’ Bill of Rights.” The passage of the law, drafted by a lawyer for state police unions, got scant public notice. But it ties police accountability in knots, closes police misconduct records and allows courts to block the kinds of police budget cuts proposed by St. Louis Mayor Tishaura Jones.
Even as the nation was consumed by Floyd’s murder in Minneapolis and the killing of Breonna Taylor in Louisville, Kentucky, St. Louis paid little attention to similar deaths that occurred here involving “prone restraint” and mistaken “no-knock” warrants.
Nicholas Gilbert died of asphyxiation in a St. Louis police holdover in 2015 under prone-restraint, with six officers on top of him while he was handcuffed and his legs were shackled. And Don Ray Clark, a 63-year-old Army veteran, was killed in 2017 during a SWAT team’s no-knock raid on his Dutchtown home based on a warrant application painting him as a criminal even though he had never been charged with a crime.
The City of St. Louis has continued to defend these police actions in court, even though the killings are similar to the Floyd and Taylor killings criticized publicly by city officials.
But that may be changing. When Jared Boyd, the mayor’s chief of staff, was asked to explain the disconnect between the city’s legal position and the mayor’s public statements, he told St. Louis Public Radio that Jones is appointing a new city counselor who will reconsider the city’s legal position in police cases. And the mayor appointed Sheena Hamilton, who became the first Black female city counselor in September.
The change is part of a larger police reform in the works in which the mayor is proposing an Office of Public Accountability that would employ civil service investigators with subpoena power to investigate serious allegations of police wrongdoing. The civilian investigators would “wall off” the police from involvement in these probes, Boyd said.
The proposed reform is intended, he said, to address weaknesses in post-Ferguson reforms.
Here is evidence the Ferguson reforms have fallen short:
St. Louis police kill more civilians per capita than any other big city department, yet no St. Louis-area police officer has ever been convicted of murdering a civilian.
St. Louis-area officers killed 132 people between 2009 and 2019, according to an ArchCity Defenders report. Yet few of the names of the officers involved in the killings were reported in the media or released publicly.
Three-fourths of the 79 St. Louis-area police officers known to have killed people between 2009 and 2017 were never publicly identified in the media or by police. Almost half remain active as police officers, according to state records.
The St. Louis Civilian Oversight Board, set up as a post-Ferguson reform, didn’t review any of the 21 police killings in the City of St. Louis from 2016 through 2019, nor has it heard 96% of non-lethal police abuse cases filed by citizens.
The post-Ferguson creation of the Force Investigation Unit in the St. Louis Police Department has resulted in less, not more, public information about police killings. Officers’ names aren’t released nor are details. And there have been no prosecutions.
Circuit Attorney Kim Gardner, elected by Ferguson reformers, has not issued prosecutorial judgments on the score of police killings on her desk, civil rights lawyers say.
Racism has infected police misconduct. White officers badly beat a Black colleague at a Black Lives Matter protest in 2017 in downtown St. Louis because they thought he was a protester. The officers sent racist texts to each other before and after the assault expressing their enthusiasm for beating Black people and their racial hatred for Gardner, the Black prosecuting attorney. Only one officer was convicted by a jury — partly because the federal criminal civil rights law has an especially high level of proof: a prime roadblock to police accountability.
At the same 2017 protest, white officers “went rogue”, the city admits, and illegally “kettled” 125 Black Lives Matter protesters and downtown residents by closing them into a city block, spraying them with pepper spray and arresting them in what a judge found to be a violation of their rights.
Gardner has identified about 60 officers who are not honest enough to testify in trials, yet the police union defends them.
The police unions still are effectively segregated, with the predominantly white Police Officers’ Association warring against the city’s first Black prosecutor, while the Black Ethical Society of Police defends her.
Officers forced out by the St. Louis and St. Louis County police departments for wrongdoing wander to suburban departments such as St. Ann, where they often reoffend.
Elections don’t translate into reforms
The killing of Brown on a suburban Ferguson street in the summer of 2014 transformed #blacklivesmatter from a hashtag into the nation’s most visible civil rights movement and created a potent political coalition of young Black people and white progressives.
No one predicted either outcome when Brown crashed onto the pavement of Canfield Drive after Ferguson’s Officer Wilson fired 10 shots at him.
Four Black leaders have won top offices with the backing of the reform coalition born on the Ferguson streets and led by Ferguson protest leaders such as Kayla Reed. Gardner became the first Black prosecutor in St. Louis in 2017 — one of the first of a nationwide group of progressive prosecutors stretching from Boston, Philadelphia and Baltimore to St. Louis, Kansas City and Chicago and on to San Francisco and Los Angeles.
Then Wesley Bell pulled off a political miracle defeating Bob McCulloch, the St. Louis County prosecutor and slain police officer’s son who decided not to prosecute Wilson. Rep. Cori Bush ended the father-son dynasty of William and Lacy Clay in North St. Louis last November and Jones won the election this spring as St. Louis’ first Black female mayor, with police reform at the top of her agenda.
After Brown’s death in 2014, police reform made modest advances. But for every step forward there have been two back.
The Justice Department’s pattern-or-practice investigation in Ferguson found entrenched unconstitutional policing and negotiated a consent decree requiring reforms.
The Missouri Legislature and Supreme Court discouraged municipalities from using traffic stops to fund their treasuries.
But ironically, a series of post-Ferguson reforms intended to bring more accountability in the City of St. Louis — the Force Investigation Unit, Civilian Oversight Board, and Gardner’s review of police killings — have brought less accountability.
The Force Investigation Unit has released far less information about police killings than police released before it was created. The Civilian Oversight Board has investigated none of the 21 police killings from 2016 to 2019. And Gardner’s office hasn’t made any prosecutorial determinations.
But this spring, when Jones became the first Black female mayor, it became clear how ineffective the Civilian Oversight Board had been. Jones’ Executive Order No. 1 required the police department to begin using the joint complaint form that had been intended to make sure the Civilian Oversight Board would see all complaints.
The executive order was necessary because the police department had sidelined the Civilian Oversight Board, using old complaint forms that weren’t forwarded to the board. An investigation by the Missouri Independent and Reveal from The Center for Investigative Reporting found the board had received just 125 complaints while the police department had received 3,000. That means only 4% of all complaints were actually reported to the board.
None of the 27 deaths of civilians shot by police since 2015 had come before the Civilian Oversight Board. In a report this spring, the board blamed a bureaucratic maze for blocking its investigations.
Part of the post-Ferguson reform created that maze: a multi-layered review process that delays shooting investigations for years as they wend their way from a Force Investigation Unit to a review in Gardner’s office, then back to the police department’s Internal Affairs Bureau, on to the police chief and finally the Civilian Oversight Board.
Less transparent, not more
When St. Louis Police Chief Sam Dotson unveiled the Force Investigation Unit in 2014, he said that a mandatory review of all cases by prosecutors would ensure impartiality. He also promised that the name of every officer involved in a shooting would be publicly revealed, once it was considered safe to do so.
But a review of media coverage and department incident reports found that officers’ names were less likely to be made public following this post-Ferguson reform.
Emanuel Powell, a lawyer with ArchCity Defenders, confirmed in an interview that the unit created “a more secretive system,” making it more difficult for the public to access information related to police killings.
Before the unit was created, incident reports would include an approximately eight-paragraph-long police narrative detailing what happened before, during and after a police killing. Since then, incident reports have been only one or two sentences long, and most no longer include officers’ names.
Between 2015 and 2019 nearly 30 St. Louis Metropolitan Police Department incident reports omitted the names of officers who killed civilians on the job, a review of those reports disclosed.
The Force Investigation Unit commented in an email that it withholds the names of police shooters before a charging decision just as it does the names of civilian shooters.
The investigation from the Force Investigation Unit goes on to Gardner for a prosecutorial determination, but Gardner has yet to make a single determination. The Intercept reported this spring that more than 20 police shooting cases have not received a final legal determination from Gardner’s office, including a controversial 2019 case in which Cortez Bufford was shot to death by an officer in a gangway in the Carondelet neighborhood after a police chase.
Some blame Gardner for the holdup. They say Gardner is herself a Ferguson reformer who has failed, as her poorly managed office fails to act on police shootings and holds prisoners in jail for months before trial.
Gardner counters that investigations by the Force Investigation Unit have been inadequate for making prosecutorial decisions and she has not received the funds necessary for her reviews. She also points out that she has been the target of an all-out assault from the police union and the white power structure — a racial assault she unsuccessfully challenged in a Ku Klux Klan Act lawsuit last year.
Boyd, Mayor Jones’ chief of staff, says the mayor’s plan for an Office of Public Accountability is directly aimed at addressing the weaknesses of the Force Investigation Unit and Civilian Oversight Board. The mayor’s office has been working with senior members of the Board of Aldermen’s Public Safety Committee to come up with new legislation, he said.
ArchCity’s Powell, who has been working with the families of those killed, says relatives of the dead civilians say “the whole system is bad.” Ferguson reforms have done more harm than good, he says.
St. Louis’ complicated process is at odds with the best practices for police shootings in big cities — based on the recommendations of the national Police Executive Research Forum. It recommends simultaneous administrative and criminal reviews.
“Rogue” police actions with racist overtones
Two high-profile prosecutions of St. Louis officers have faltered since Ferguson and continue to reverberate today with racial overtones. The story of these two entwined cases illustrates additional legal roadblocks to police accountability and the racist policing found in St. Louis law enforcement.
In 2017 a state judge acquitted Jason Stockley, a former St. Louis officer who, according to prosecutors, said during a car chase that he would kill the fleeing suspect, Lamar Smith. “Going to kill this mother… don’t you know it.” Stockley killed Smith at the end of the chase, claiming Smith had pulled a gun. No prints from Smith were found on the gun, just Stockley’s.
But Circuit Judge Timothy Wilson bent over backwards to accept Stockley’s story, writing that his threat to kill Smith might have been “a means of releasing tension” and that his 30 years on the bench caused him to doubt that a heroin dealer like Smith wouldn’t have had a gun.
On Sept. 17, after the verdict, frustration boiled over among Black Lives Matter protesters on downtown St. Louis streets — in the shadow of the Old Courthouse where Dred and Harriet Scott once sued for their freedom and where, in 1836, Francis McIntosh became St. Louis’ first official lynching victim.
A group of white police officers — who the city later admitted “went rogue” — beat Black undercover Officer Luther Hall, whom they mistook for a demonstrator. In the words of a federal court, the “text messages between abusive officers revealed a plan to beat protesters and suggested that if they had beaten a real protester rather than an undercover detective, they would not be in any trouble.”
The police department’s initial injury report — which hasn’t been widely published — is reminiscent of the misleading police report initially filed in Minneapolis in the Floyd murder, obfuscating police responsibility with the use of the passive voice. The Hall report said, “As officers were making arrests, Officer Hall was knocked to the ground, striking the concrete.” Actually, police brutally beat Hall, leaving a hole in his lip and severe head and neck injuries.
A few hours later and a couple of blocks away, dozens of other abusive officers used what a federal judge found to be unconstitutional “kettling” techniques to surround a group of about 125 protesters and residents in the middle of downtown, moving in from the edges to arrest, pepper spray and beat the crowd.
U.S. District Judge Catherine Perry was convinced by 18 witnesses that demonstrators did not hear the police declare an illegal assembly and could not exit the block that the police closed off before arresting and macing them. All the charges against the protesters were dropped.
Two St. Louis police officers pleaded guilty to violating Hall’s civil rights. Two others were found not guilty by a federal jury. Another, Dustin Boone, was convicted in a second trial.
The difficulty of winning convictions illustrates another legal roadblock in criminal federal civil rights cases — the difficulty of proving “willful intent.” In other words, proving beyond a reasonable doubt that the officer meant to take away a clearly protected constitutional right.
One reason Boone may have been convicted in the second trial but not the first is that federal prosecutors introduced racist texts from Boone and others at the second trial. The officers also sent racist text messages before, during and after the brutal beating. Those texts helped prosecutors prove “willful intent.”
Boone wrote a few months before the attack, “There r n—— running wild all across the city and even if/when we catch them… they don’t get in any trouble because there are plate lips running the CAO!” CAO is a reference to the Circuit Attorney’s Office, run by Gardner, St. Louis’ first Black prosecutor.
Boone attached a video camera to his uniform so he could livestream the beating of Hall to his girlfriend, now wife, Ashley Marie Ditto, who texted back, “That was SOOOOOO COOL!!!!”
Christopher Myers texted fellow officers “let’s whoop some a–,” two days before the beating. Boone texted on the night of the beating, “A lot of cops gettin hurt but its still a blast beating people that deserve it.” He called protesters “animals.”
Boone, the only officer convicted by a jury, was sentenced in November to a year and a day by U.S. District Judge E. Richard Webber, even though prosecutors asked for the 10 years called for in federal sentencing guidelines. Boone’s own lawyers suggested 2 years, painting him as a victim of a department “where being cavalier about violence, particularly racial violence, was far too prevalent.”
Racism runs through it
There is also a strong racial element to the battle between Gardner, the first Black prosecutor, and Jeff Roorda, the business manager of the St. Louis Police Officers’ Association, who himself lost a police job in Arnold, Missouri, for alleged dishonesty. Roorda said about Gardner, “This woman needs to go, she’s a menace to society,” adding that she must be removed “by force or by choice.”
The St. Louis Police Officers’ Association blames Gardner for high crime rates, just as the Philadelphia Fraternal Order of Police blames that city’s reform prosecutor, Larry Krazner. (Krazner grew up in St. Louis.) The St. Louis Association put it this way: “This is a prosecutor who has declared war on crime victims and the police officers sworn to protect them. She’s turned murderers and other violent criminals loose to prey on St. Louis’ most vulnerable citizens and has time and time again falsely accused police of wrongdoing. The streets of this city have become the killing fields as the direct result of Gardner’s actions and inaction.”
The Police Officers’ Association is the bargaining unit for all St. Louis officers, but it is controlled by white officers. Black officers have long relied upon the separate Ethical Society of Police, who believe Roorda and the main union group have engaged in racial discrimination against Gardner.
Gardner has put 60 to 70 officers of the St. Louis department on the “Brady list” of officers she will not call to the stand because of past dishonesty, criminal convictions or racist statements on social media. Brady v. Maryland is the 1963 Supreme Court decision requiring the government to turn over evidence that might help clear a defendant.
Seven years after Michael Brown’s killing, St. Louis has pro-reform public officials firmly in place, but police accountability is weaker than ever with the failure of post-Ferguson reforms and new barriers to accountability posed by the Law Enforcement Officers’ Bill of Rights.
Two centuries after the Missouri Compromise, Missouri remains divided by race and living with unhappy bargains.
William H. Freivogel is the publisher of Gateway Journalism Review. Orli Sheffey is studying political science at Washington University in St. Louis.
Editor’s Note: This story was first published Dec. 21, 2021 in the print magazine.
Most St. Louis police officers who kill civilians are hidden from the public eye
Most of the 79 St. Louis area police officers who killed people in recent years have escaped public scrutiny, going unnamed both in media and department incident reports. Nearly half of them still are active officers today.
In addition, public knowledge of police killings has significantly decreased, despite increased attention to police killings nationwide. In the City of St. Louis, almost all details of police killings are inaccessible to the public.
Those are the findings of a Pulitzer Center on Crisis Reporting investigation based on public records and documents that ArchCity Defenders obtained and made accessible to the investigation. ArchCity is a nonprofit civil rights law organization that gained national attention during and after the Ferguson protests.
The St. Louis Metropolitan Police Department kills more people per capita than any big city police department in the country, according to an ArchCity report. The department declined to comment on this finding.
Three-fourths of the 79 St. Louis area police officers known to have killed people between 2009 and 2017 were never publicly identified, according to a review of media reports and court records.
In 2010, SLMPD officers Marc Wasem and Joseph Busso attempted to arrest Normane Bennett, a 23-year-old Black man they believed possessed drugs. When Bennett tried to escape, Wasem fatally shot Bennett seven times, according to the department’s incident report. Although Wasem and Busso were named in the department’s incident report, they were not named in media reports until two years later when Bennett’s father filed a federal lawsuit against Wasem. Wasem and Busso are both still employed as SLMPD officers.
Some of the officers who were not publicly identified at the time of their first fatal shooting went on to kill civilians in later confrontations. In 2009, SLMPD officers Chris Lovelady-Armstrong and Kyle Chandler fired six shots and killed Antonio Hogans, a 40-year-old Black man who may have believed he was firing a shot at an intruder. After they killed Hogans, the media referred to “two police officers.”
Chandler went on to fire the fatal shot that killed Black 18-year-old Mansur Ball-Bey in 2015 after Ball-Bey allegedly pointed a gun at officers executing a search warrant. Chandler’s name again was not included in media coverage at the time of killing, although he garnered media attention when Circuit Attorney Jennifer Joyce announced that he would not face charges and when Ball-Bey’s father filed a wrongful death lawsuit nearly three years later.
Approximately 60 St. Louis area police officers from 2009 to 2017, whose names were obtained through incident reports or court records, went unnamed in the media immediately following killings. Six of those officers — Matthew Karnowski, Kyle Chandler, Rich Berry, Jason Chambers, Charles Woodcock and Mark E. McMurry — killed more than one person. Karnowski and Woodcock are still employed by the SLMPD.
According to a media analysis of 115 St. Louis Post-Dispatch articles from 2009 to 2019, only eight articles named the officers in coverage immediately following police killings. The articles covering police shootings in 2019 and 2020 do not appear to name a single officer.
The St. Louis Metropolitan Police Department wrote in a statement to the Pulitzer Center that officer names will not be released unless criminal charges are brought against the officer, but “the age, gender, race, and years of service for the officer involved in the incident are provided for public release, as well as a brief synopsis of the incident.”
Before 2015 most officers were not named in the media, but officers were named in SLMPD incident reports, which are accessible under the Sunshine Law.
This was true in the case of Jordan Walls, a 19-year old Black man who was killed in 2012 by a group of six SLMPD officers: Matthew Wieczorek, Franklin Derby, Thomas Mayer II, Ryan Murphy, Mark McMurry and Charles Woodcock. Responding to a call of a shooting by someone allegedly driving a gold car, the officers chased down Walls and another man. When the six officers saw that the two men were armed, the officers, saying they feared for their safety, started shooting, killing Walls and injuring the other man in the car. All of the involved officers except McMurry work at the SLMPD today.
The six officers were not named in the media following the killing of Walls. Avoiding public scrutiny, two of the six officers went on to be involved in other killings.
In 2013, McMurry joined five SLMPD officers in killing 34-year-old Damon C. Hall; the officers said they feared for their safety after Hall pointed a weapon at them.
The same year, Woodcock joined another officer in shooting 37-year-old Terence Anderson several times before Anderson fatally shot himself. Anderson had been fleeing the scene after killing his estranged girlfriend and wounding her daughter, according to the incident report.
The two officers were again not named in the media in connection with the killings. But they were named in the SLMPD incident reports and details such as the officers’ names, badge numbers and a timeline of events were included. Based on the Pulitzer review of incident reports on file with ArchCity, these details were commonly included in department records prior to 2015.
But in 2015, the reports’ police narratives were reduced from several paragraphs to one or two sentences. Instead of detailing what happened, the reports simply mentioned that an “Officer Involved Shooting” occurred, omitting the officers’ names.
For example, in the police killing of 33-year-old Jaime Robinson in his home in 2017, the incident report simply said “On Friday, May 26th, at 11:00 p.m., the Force Investigation Unit (FIU) was requested to [Robinson’s address] relative to an ‘Officer Involved Shooting.’”
Nearly 30 reviewed incident reports, acquired by ArchCity and made available to the Pulitzer investigation, had a similar one or two sentence police narrative, with five reports having no narrative included at all.
Although officers were named in incident reports prior to 2015, SLMPD Public Information Officer Evita Caldwell wrote in a statement to the Pulitzer Center that “names of officers involved in officer-involved shootings are not released unless criminal charges are issued for the incident.”
“This is the same protocol as with any other shooting incident in which a suspect is not named/identified until charges are issued by the Circuit Attorney’s Office,” Caldwell wrote.
While the public can still request incident reports under the Sunshine Law, SLMPD incident reports no longer include the names of officers’ or the details of the fatal interaction.
Instead, the details are included in FIU investigative reports, which are more difficult to obtain. Investigative reports are automatically closed to the public until the investigation is complete, per the Sunshine Law, and investigations have been staying open for years.
Powell said that the lack of details in incident reports is “wrong” and prevents the public from holding officers accountable.
“What we’re seeing isn’t a redaction of names; there’s just literally no information,” Powell said, adding that it is “a more secretive system.”
Orli Sheffey studies political science at Washington University in St. Louis.William H. Freivogel is the publisher of GJR.
Editor’s Note: This story was first published Dec. 21, 2021 in the print magazine.
Police misconduct records secret, hard to access
Police misconduct records are either secret or difficult to access in a majority of states — 32 of them including Washington, D.C. But the breeze of openness is blowing. Seven big states have opened records in recent years — California, New York, Illinois, Colorado, Massachusetts and Maryland.
Nineteen states now have laws that allow these records to be mostly available to the public — up from 12 a few years ago.
Legal experts say transparency of police misconduct records is one of the keys to police reform. David Harris, a law professor at the University of Pittsburgh, put it this way: “One thing that has changed is greater transparency. We have seen a number of jurisdictions enhancing and changing the way police misconduct records have been handled. You can’t have real accountability with the public unless you are willing to share information.”
The modest uptick in openness is the result of a combination of court decisions and reform laws passed since the murder of George Floyd. New York, Massachusetts, Colorado, Oregon and Maryland enacted laws in the past year opening records that were previously closed. California passed a law opening some records in 2018 and came back with a broader open records law this past fall.
In Illinois, the Invisible Institute won a court decision in 2014, Kalven v. City of Chicago, granting public access to misconduct records by striking down exemptions law enforcement agencies had claimed when denying public record requests.
New York state repealed Section 50-a of the state’s civil rights law last year and this year made more than 300,000 police misconduct records public. Indiana passed a bipartisan police reform bill last month that publishes the names of officers decertified for misconduct.
However, there are still tall barriers to accountability, even in some of the states that have begun to open up.
In Illinois, a widely touted police reform law passed this year included a provision that closed the state Professional Conduct Database of officers who resigned, were fired or were suspended for violating department policy. Not only are the names withheld but also the supporting documents. To get statewide records, a person would have to contact each of the almost 900 police departments and request these misconduct records individually.
In Pennsylvania, Gov. Tom Wolf signed a bill into law in 2020 that created a database to track police misconduct statewide and force agencies to check the database before hiring an officer. But the legislature closed the database to the public.
Indiana’s bipartisan law passed this spring required an online listing of the names of all officers disciplined, but closed the much more plentiful investigations that don’t end in punishment. Colorado opened records but its law was not retroactive. Oregon created a database of officers disciplined but did not open records of investigations that didn’t lead to discipline.
In New York the repeal of 50-a seemed to throw open the window to a new era of transparency. But police departments and police unions — with the assistance of local judges — have been slamming the window shut again.
Police departments across New York have maintained that unsubstantiated complaints of misconduct — in other words complaints that can’t be proven true or false — should be closed records because their release would violate officers’ privacy. Most complaints of misconduct fall in the unsubstantiated category.
Police departments and police unions also have argued that the repeal was not retroactive, so all misconduct records from before the official date of the repeal in June, 2020 are closed, they claim.
And there are other bureaucratic hurdles to release. The public records group MuckRock filed a public record request for police misconduct records from the Town of Manlius Police Department and was told to pay $47,504 to see them.
Beryl Lipton, former projects editor at MuckRock said, “In New York the police unions have done solid work of trying combat the release of materials, with many agencies refusing to release records while those court battles played out; still others have claimed that the law does not apply retroactively to existing records, and the courts have landed on either side of that point.”
Last April, state Supreme Court Justice Ann Marie Taddeo issued an order agreeing with the Brighton Police Patrolman Association that the repeal of Section 50-a was not retroactive.
Then in May the Onondaga County Supreme Court ruled that the Syracuse Police Department’s could limit the misconduct records it released to those where charges were sustained – closing most records. The New York Civil Liberties Union appealed that decision last month.
On Long Island, Nassau and Suffolk County police departments have refused to turn over complaints that were not sustained and Nassau redacted much of the information it turned over to Newsday. Newsday is suing.
The New York Police Department also has limited the release of misconduct information to sustained cases and the New York Civil Liberties Union is suing the department.
Nationwide, the majority of law enforcement agencies still close records or make them hard to obtain. They claim they are personnel matters, privacy violations, or ongoing investigations that could be compromised. They are backed by strong law enforcement unions and the Law Enforcement Officers’ Bill of Rights that protect the privacy rights of officers over the public’s right to know.
The National Decertification Index published by the International Association of Directors of Law Enforcement Standards and Training compiles 30,257 decertifications from 45 state agencies, but the names are closed to the public.
Sam Stecklow, a journalist with the Invisible Institute — a nonprofit journalistic group focused on public accountability — said it has become easier to request records in Illinois and New York. Nebraska, Hawaii, Kansas and Virginia are closed to the public.
“There are some states that we haven’t even been able to work at all in because they … require you to be a resident to make a request,” Stecklow said. “So we just haven’t really tried there. That includes Tennessee and Delaware and Virginia as well.”
Stecklow said many more states release the names of officers only in the rare instances when complaints are sustained. Much more frequently, the department decides not to punish the officer.
“I think it’s important to make a distinction regarding sustained versus not sustained cases,” Stecklow said. “Many states will allow the release of records about a case in which discipline is imposed, but that is a very small minority of police misconduct investigations.”
Stecklow said if state legislatures wanted to settle the question of requesting misconduct records, they could easily do so.
“They could very easily amend the Freedom of Information Act (FOIA) and explicitly say you know a record that either contains an allegation of police misconduct, or an investigation into an allegation of police misconduct or a disciplinary record regarding misconduct is always public,” Stecklow said.
In Florida, one state that has been known for keeping records of police misconduct open, two officers who shot and killed suspects in Tallahassee recently won court decisions to keep their names secret. They argued they should be protected by a new “Marsy’s law” that withholds the names of victims of crimes. The officers successfully argued that the men they had killed had threatened them and for that reason they were crime victims.
Virginia Hamrick, a lawyer for the First Amendment Foundation of Florida, said, “It just allows law enforcement officers to go around without any accountability. And it just makes it harder for public oversight of policing and specifically deadly force.”
Nineteen states have open or mostly open police misconduct records. Thirty-two states, including the District of Columbia, have closed or restrictive laws that keep most police misconduct secret. This nationwide roundup is based on an analysis of statutes and court opinions as well as interviews with experts. To stay up to date with the rapidly changing laws, visit the bill tracking database of the National Conference of State Legislatures.
Police disciplinary records are available to the public, but agencies can require that requesters state the reason for their request.
A 1995 opinion by then Alabama Attorney General Jeff Sessions opened the door to agencies withholding documents, said Sam Stecklow, a journalist with the Invisible Institute, a nonprofit journalistic group focused on public accountability.
Under the opinion, agencies can deny requests because the release of the records “could reasonably be expected to be detrimental to the public safety or welfare, and records the disclosure of which would otherwise be detrimental to the best interests of the public.” Stecklow also points out that the law does not address release of misconduct records where there is no punishment.
Alabama enacted a law this spring to create a statewide database of police misconduct to help police departments avoid hiring officers with problems. But the law closes the database to the public. The legislature also failed to fund creation or maintenance of the database.
A recent Alabama Supreme Court decision closed access to investigatory files of police criminal investigations, and it also could have an impact on internal investigations of officers.
ALASKA: MOSTLY CLOSED
Police misconduct records in Alaska are generally not available because state employees’ personnel and disciplinary records are exempted from the Alaska Public Records Act (A.S. 39.25.080). There is also no database that tracks shootings or use of force in the state.
The Alaska Supreme Court ruled last year that disciplinary records for Alaska State Troopers are confidential. Alaska has come under fire from local media organizations and the Reporter’s Committee for Freedom of the Press for this exception.
When a police department fires or disciplines an officer for serious misconduct, it must report the discipline to the Alaska Police Standards Council. If the disciplined officer does not contest the action, the information is confidential. If the officer contests the action, there is a public hearing process.
Dozens of police officers with criminal records have worked in Alaska’s cities, despite a state law that should have disqualified them, an investigation by the Anchorage Daily News and ProPublica found. One of these officers was Nimeron Mike, a registered sex offender who spent six years in prison and was convicted of assault, domestic violence and other crimes.
ARIZONA: MOSTLY OPEN
Police misconduct records are generally available to the public as long as any investigation concerning the misbehavior has been completed, according to Arizona Statute 39-128. Local Arizona TV station ABC15 compiled “Brady lists” from all the counties: lists of officers not considered honest enough to testify in court. The lists totaled 1,400 officers. The station found that prosecutors often failed to disclose that an officer was on the list.
The Arizona House passed a bill this year, supported by the Phoenix Law Enforcement Association, that would have closed the list. It hasn’t passed the Senate.
Another investigation conducted by the Arizona Republic discovered that Phoenix police frequently purge officers’ records to keep police misconduct a secret.
Arizona also provides an “integrity bulletin” to the National Decertification Index on the International Association of Directors of Law Enforcement Standards and Training’s website but it doesn’t disclose the names of officers disciplined in the bulletin. Arizona is one of 11 states that provide this public bulletin.
Police misconduct records are not available to the public unless one can prove a compelling public interest, and they deal with an officer’s official suspension or termination. Personnel records are not eligible to be requested to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy, according to Arkansas Code § 25-19-105. Only records relating to proven misconduct are released.
CALIFORNIA: MOSTLY OPEN
In 2018 the state’s legislature passed SB 1421, The Right To Know Act, which grants access to certain instances of excessive use of force, any incident where an officer fires a gun at a person and records relating to sexual misconduct. Before this, most law enforcement misconduct records were closed and typically could not be obtained by the public or the court system for criminal proceedings.
The legislature expanded on the 2018 law by passing SB 16 in the fall of 2021, opening records of sustained findings of use of excessive force, failure to intervene when other officers use excessive force, engaging in racist or biased behavior and conducting illegal searches or stops.
Instances where the public can access police misconduct records under 1421 include:
● An incident regarding the discharge of a firearm.
● An incident in which use of force by an officer resulted in death or serious injury.
● An incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.
● An incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation or prosecution of a crime; or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying or concealing of evidence.
A law passed in Colorado in 2019 — HB 19-1119 — opens some police misconduct records that hadn’t previously been opened, but the narrow wording restricts its effectiveness.
Stecklow points out the new law initially was limited because “it is not retroactive and has language that currently requires requesters to know of specific instances of misconduct, rather than allowing requests for records in general.”
The law opened records “related to a specific, identifiable incident of alleged misconduct involving a member of the public” while the officer is on duty. Denver and Aurora have made misconduct files available but many other departments have not, claiming requests are too vague, says Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition.
But a Colorado Supreme Court ruling in June, 2021, gave the law a broader interpretation, holding that people seeking information did not have to identify a particular incident.
Colorado also is developing procedures to make public the names of police officers on so-called “Brady” lists because of past failures to disclose exculpatory evidence to defendants. But the attorney general has refused to disclose decertification data on problem officers.
Additional police conduct information will be made public under Senate Bill 20-2017, the state’s criminal justice reform bill, which goes into full effect in 2023.
Agencies will be required to release unedited audio and video footage from body and dash cameras of any incident where misconduct is alleged.
“Other transparency provisions in the bill include the public reporting, in an online searchable database, of extensive information on use of force by law enforcement officers that results in death or serious injuries, and the reporting of interactions between officers and the public,” according to the Colorado Freedom of Information Coalition.
CONNECTICUT: MOSTLY OPEN
Police misconduct records in Connecticut are generally public because of the precedent set by the state Supreme Court in 1993 in Perkins v. Freedom of Information Commission, which stated records could be withheld only if they did not pertain to matters of public concern. However a new contract with state troopers limits the access to misconduct records by only making them accessible if a complaint is sustained. Most complaints are not sustained.
According to a study compiled by the ACLU of Connecticut, many departments make it difficult to file a misconduct complaint against an officer. Forty-two percent of the departments in the state surveyed by the ACLU suggested they are not complying with state law requiring public access to complaint policies.
Connecticut is one of 11 states that provide an integrity bulletin to the National Decertification Index, which makes the names of these officers public.
However, this integrity bulletin doesn’t provide 100% transparency and an investigation by the ACLU of Connecticut found that none of the prosecutors had “Brady lists” of dishonest cops.
WASHINGTON, D.C.: CLOSED
Police misconduct records are mostly closed in Washington, but activists, including the DC Open Government Coalition, are pushing for reform.
The Washington City Paper reports that the district government regularly invokes the “personal privacy” exemptions in Section 2-534(a)(2) of the D.C. Freedom of Information Act. Strong police unions advocate keeping the records private.
Police misconduct records are closed and exempt from public disclosure in Delaware by both the Delaware Freedom of Information Act and under Section 12 of the state’s Law Enforcement Officers’ Bill of Rights. A bill that would open more records is pending in the legislature.
According to the Reporters Committee for Freedom of the Press, law enforcement organizations in Delaware are sometimes willing to provide general statistics but are usually unwilling to provide specific records in response to information requests.
“Fifteen states have versions of a Law Enforcement Officers’ Bill of Rights (LEOBOR) statute, but only Delaware’s statute makes internal police investigation records completely confidential forever,” said the ACLU of Delaware.
FLORIDA: MOSTLY OPEN
Law enforcement misconduct records in Florida are generally available under the state’s Freedom of Information Act/Sunshine laws (Florida Statute 119) if the investigation is closed. All active investigations are exempt from public information requests until they are closed or completed.
Misconduct records in Florida are sent to a database that is maintained by the state’s Criminal Justice Standards and Training Commission and this is open for public inspection.
Florida is one of 11 states that provides an integrity bulletin to the National Decertification Index. It bulletin lists offending officers’ names are public.
A law passed by voters in 2018 could remove the names of some police officers from reports on police shootings. “Marsy’s law” allows victims of crimes and threats to have their names removed police reports. Two police officers who shot and killed suspects have won court orders to remove their names from public reports because their dead suspects had threatened them before the officers killed them.
GEORGIA: MOSTLY OPEN
Under the Georgia Open Records Act, law enforcement misconduct records are available to the public unless the investigation into the misconduct is active and ongoing.
After years of closing records on police misconduct, a new law amending Hawaii’s public record laws passed the state legislature in July 2020. But it allows disciplinary records older than 30 months to be destroyed and denies the release of some misconduct complaints when there is lesser or no discipline.
The new law requires county police departments to disclose to the Legislature the identity of an officer who is suspended or discharged and requires law enforcement departments to provide a yearly update regarding misconduct. It also allows public access to information about suspended officers.
A September, 2021 decision of the Hawaii Supreme Court required the release of an arbitration decision that a Honolulu police sergeant had tried to keep from the public. Restaurant video had captured Sgt. Darren Cachola in a physical altercation with a woman. Sergeant Cachola was fired, but reinstated with back pay after taking the case to arbitration. The Civil Beat newspaper filed a request for the arbitration decision. The high court ruled the arbitration record had to be made public because the public interest outweighed the officer’s privacy interests.
The most detailed versions of the disciplinary records of the Honolulu Police Department are destroyed after 30 months, says R. Brian Black, executive director for the Civil Beat Law Center for Public Interest. “The department does get rid of its more detailed disciplinary documents after 30 months, but it retains a notecard in the file with a summary sentence about the discipline and the nature of the misconduct.”
For lesser punishments — those below firing and suspension — the 2020 law balances privacy against the public interest. Privacy considerations often prevail and close records.
IDAHO: MOSTLY CLOSED
Law enforcement misconduct records are closed under Idaho’s Freedom of Information Act, according to Section 74-106 of the Idaho Public Records Act. Idaho police departments also routinely ignore a 1996 court decision that made “administrative reviews” of police shootings public.
ILLINOIS: MOSTLY OPEN
Most law enforcement misconduct records in Illinois are available because of the precedent set in 2014 with Kalven v. City of Chicago.
Law enforcement agencies in Illinois must provide a “misconduct registry” detailing general information about what an officer was cited for.
In June 2020, in City of Chicago v. Fraternal Order of Police Chicago Lodge No. 7, the Illinois Supreme Court ruled that misconduct records must be preserved and cannot be destroyed every five years, as the Chicago Fraternal Order of Police advocated.
There is a Professional Conduct Database maintained by the state board responsible for certifying and decertifying officers. Local police departments must report to the database when an officer resigns, is fired or is suspended for violating department policy. However, a police reform law passed this year closes the database, including supporting documents. To get statewide records, a person would have to contact each of the hundreds of police departments.
The Indiana Legislature passed a bipartisan police reform law this spring, signed by Gov. Eric Holcomb, that provides publication of the names of decertified officers on the website of the Indiana Law Enforcement Academy. But Stecklow says the law allows police agencies to close cases where there was no discipline.
Stecklow says “there is a lot of inconsistency. Some agencies claim an ‘investigative records’ provision in the records law allows them to withhold misconduct records, but there have been rulings that the investigative records exception only applies to criminal records. Still other agencies deny the records saying they are ‘deliberative records.’”
The Indiana Law Enforcement Training Board has revoked 45 licenses since 2007, with only five in the past two years.
Indiana is one of 11 states, providing an integrity bulletin to the National Decertification Index. Those bulletins disclose the names of the officers disciplined.
IOWA: MOSTLY CLOSED
Law enforcement records in Iowa are closed except where officers were fired, according to Iowa Code § 22-7-11.
However, even when records should be public under Iowa’s law, law enforcement agencies can find ways to deny them. Newspapers have taken cases to the Iowa Supreme Court because agencies have refused to turn over names and records relevant to the public.
KANSAS: MOSTLY CLOSED
Law enforcement misconduct records are closed under the Kansas Open Records Act (Kansas Statute 45-221). Kansas Senate Bill 270 would make certain law enforcement disciplinary/misconduct records available to the public and prevent the hiring of officers with a history of serious misconduct allegations. It is still in the state’s Senate Judiciary Committee.
Kansas is one of 11 states that provides an integrity bulletin to the National Decertification Index, but it does not disclose the names of officers disciplined.
The Kansas City Star has been fighting these exemptions to obtain records from the Overland Park severance agreement with former officer Clayton Jennison, who shot a 17-year-old to death in 2018 while making a “welfare check” on the youth.
KENTUCKY: MOSTLY OPEN
Access to police misconduct records through the Kentucky Open Records Act is limited and up to the discretion of the law enforcement agencies or departments involved.
Departments can use KRS § 61.878(1)(a) to claim a general exemption for the records because of privacy concerns for the employee or officer. However, the Kentucky Attorney General has ruled that for the most part, misconduct records should be made public, as in the Linda Toler v. City of Muldraugh case of 2004 (03-ORD-213).
More recently, in March of this year, the Kentucky Supreme Court ruled that the University of Kentucky had to turn over records of a sexual harassment investigation it had conducted of a professor who was allowed to resign without a final determination of his conduct. The Supreme Court ruled that “where the disclosure of certain information about private citizens sheds significant light on an agency’s conduct, we have held that the citizen’s privacy interest must yield.”
An investigation by the Louisville Courier-Journal uncovered that police concealed and lied about as many as 750,000 documents in an investigation of sexual misconduct by officers in the Explorer Scout program, where police were abusing minors. The Courier-Journal sued to uncover these records, and a small portion was released. The FBI has since opened an investigation into the Explorer program.
LOUISIANA: MOSTLY OPEN
Law enforcement misconduct records are generally public and are not an exception to the Louisiana Sunshine laws, but some departments may try to deny them based on the state’s privacy protections. In one such case, the city of Baton Rouge tried to deny records to the Capital City Press and the paper appealed the decision.
While misconduct records in Louisiana are mostly public, an investigation by the Southern Poverty Law Center found serious gaps in the collection of other police data by law enforcement agencies, including data dealing with racial profiling.
Law enforcement misconduct records in Maine are available to the public if an investigation is completed or closed. However, investigations that don’t result in discipline or that have findings that are not sustained are not made available to the public.
An investigation conducted by the Bangor Daily News and the Pulitzer Center found that these records often hide misconduct and lack transparency by not fully describing the incidents in question. Maine only requires that the final findings of an investigation be public, not the internal investigations leading up to a disciplinary decision.
One example cited by the Bangor Daily News is the case of Matthew Shiers, whose public records show that he was fired. They exclude the fact that the internal investigation was prompted by charges against him of aggravated assault, domestic violence and cruelty to animals after fighting with his girlfriend.
MARYLAND: MOSTLY OPEN
In April 2021 the state’s House and Senate passed Anton’s Law, which will expand access to police misconduct records and increase the use of body cameras in the state. Previously, law enforcement investigations and misconduct records were sealed to the public in Maryland. The law, passed despite the governor’s veto, also repealed the Law Enforcement Officers’ Bill of Rights.
The public will now have access to misconduct records.
Since passage of the law, some Maryland law enforcement agencies have tried to get around it by withholding the names of officers or by charging large record reproduction fees.
MASSACHUSETTS: MOSTLY OPEN
A new law opens law enforcement misconduct records in Massachusetts, where they had previously been mostly closed. Even before the new law some police records had been released under a court opinion stating that internal affairs investigative records were not the kind personnel records that could be withheld from disclosure.
Police misconduct records are not explicitly secret in Michigan. However they are often denied and considered an unwarranted invasion of privacy under the state’s Freedom of Information Act, Section 15.243.1(a).
Michigan’s Attorney General Dana Nessel called for the creation of a database that would track police misconduct statewide through the Michigan Commission on Law Enforcement Standards.
The database has not been created.
Some law enforcement misconduct records are open to the public under Minnesota’s public record laws. But the law limits disclosure to those cases that go to discipline.
Minnesota is one of 11 states, providing an integrity bulletin to the National Decertification Index. Those bulletins disclose the names of the officers disciplined..
MISSISSIPPI: MOSTLY CLOSED
Law enforcement misconduct records are closed and inaccessible to the public.
MISSOURI: MOSTLY CLOSED
On the last day of the session on May 14, 2021, the Missouri Legislature adopted and sent to the governor Senate Bill 26,which closes misconduct records and adopts a Law Enforcement Officers’ Bill of Rights, making it hard to discipline officers. The bill, expected to be signed by the governor, states that the full administrative record of an investigation into misconduct “shall be confidential and not subject to disclosure under Sunshine Law, except by lawful subpoena or court order.”
The bill also requires local law enforcement to report use of force data to the federal government but redacts the officers’ names by stating, “the personally identifying information of individual peace officers shall not be included in the reports.”
Law enforcement misconduct is usually kept secret in Missouri, but in 2015, a Missouri court ordered the release of police misconduct records relating to police abuse of World Series tickets in Chasnoff v. St. Louis Board of Police Commissioners. The court said police had no right to privacy of these records. Stecklow explains, “The Chasnoff decision hinged on whether the allegations being investigated could have a criminal element or not; if yes, the records should be released.”
The state’s POST Commission does not disclose the names of officers who were decertified, although it responds to requests for information, Stecklow says. Information also becomes public if an officer contests decertification and appeals to a hearing board.
In the past, police misconduct records in cases that went to discipline were generally public, but a state supreme court opinion states that even in cases going to discipline an officer may have a privacy interest that justifies keeping the record closed.
Montana Code § 2-6-102 and Article II, Section 10 of the Montana Constitution lay out a right of privacy. The phrasing is as follows: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” This allows police departments to argue that most public disclosures of police records do not have a good enough public benefit to justify harming an officer’s individual privacy. However, in some cases, judges have ruled in favor of records being disclosed under Section 9 of the Montana Constitution.
Montana is one of 11 states that provide an Integrity Bulletin to the National Decertification Index, but the bulletins do not disclose the names of officers decertified.
NEBRASKA: MOSTLY CLOSED
Law enforcement misconduct records are secret in Nebraska.
A proposed bill that was introduced in the state’s Legislature Jan. 20, 2021, would create a police misconduct database, but it has yet to be voted on.
Law enforcement misconduct records are restricted in Nevada and it is up to the discretion of individual law enforcement agencies if they are disclosed.
NEW HAMPSHIRE: RESTRICTED
Law enforcement misconduct records historically were closed in New Hampshire under a personnel exemption to public record requests, but a series of state court decisions limited the use of the personnel exemption in the state Right to Know law. The personnel exemption had been used to keep police misconduct records closed.
A pending state supreme court case is being closely watched to see if the court will require the Canaan Police Department to turn over an investigation of Officer Sam Provenza, who is alleged to have pulled a woman out of her car by her hair during a traffic stop and injured her leg.
A compromise law passed by the legislature in 2021 provides for the gradual release of Laurie’s List of 270 officers who have been accused of dishonesty. Before those officers’ names are released, each has a chance to go to court to challenge placement on the list. Names are expected to begin to be released in late 2021.
NEW JERSEY: RESTRICTED
Law enforcement misconduct records have historically been closed in New Jersey, but the attorney general won a court decision last year that would open records of officers who faced discipline for the most serious misconduct. A pending bill would open more records.
NEW MEXICO: RESTRICTED
Police departments have routinely used New Mexico Statute 14-2-1 (A)(3) to withhold records from the public. The statute states that some records are matters of opinion and not subject to public release. It closes “letters or memorandums, which are matters of opinion in personnel files.” A 1970s state supreme court decision held that “disciplinary action” and other “matters of opinion” could be withheld. But a 2009 state attorney general’s opinion and a 2010 state court decision Cox v. New Mexico Department of Public Safety found that citizen complaints against officers should generally be open, even if the department’s disposition of those complaints were closed as matters of opinion.
NEW YORK: MOSTLY OPEN
Law enforcement misconduct records became public in New York in August 2020 following nationwide protests after the death of George Floyd at the hands of police.
New York’s police unions strongly opposed this change and five of them united and sued the state when it passed.
They were unsuccessful in preventing the release of records and a database revealed more than three decades of complaints.
Police departments across the state — from Nassau and Suffolk counties on Long Island, to New York City, to Syracuse and Brighton have spent the past 18 months limiting disclosures. They argue that only substantiated complaints are open, leaving out the much greater number of unsubstantiated complaints. The Town of Manlius Police Department attempted to charge the nonprofit organization MuckRock the prohibitive price of $47,504 to access their records.
NORTH CAROLINA: MOSTLY OPEN
Law enforcement misconduct records are kept secret in North Carolina. If an officer is dismissed, demoted or suspended, the disciplinary action and date are publicly available but not the reason. (North Carolina G.S. § 153A-98 and § 160A-168.) A pending bill would open more records.
NORTH DAKOTA: MOSTLY OPEN
Law enforcement misconduct records are available to the public in North Dakota.
OHIO: MOSTLY OPEN
Law enforcement misconduct records are available to the public in Ohio.
OKLAHOMA: MOSTLY CLOSED
Law enforcement records can only be publicly accessed if they involve an officer losing pay or being suspended, demoted or terminated. (Title 51, Oklahoma Statute §24A.8.)
OREGON: MOSTLY CLOSED
Law enforcement misconduct records are mostly closed in Oregon and are often denied if there was no discipline involved, according to Stecklow.
Decertified police officers in Oregon are tracked in a statewide online database maintained by the agency responsible for law enforcement certification. This database was created during a special legislative session in 2020 that called for more police accountability. Oregon does release the names of officers who have been decertified in the state. It began doing this after the death of George Floyd in 2020.
Oregon is one of 11 states that provide an integrity bulletin to the National Decertification Index, but it doesn’t disclose the names of officers disciplined.
PENNSYLVANIA: MOSTLY CLOSED
Law enforcement misconduct records are mostly closed in Pennsylvania and their release is up to the discretion of the law enforcement agency, according to Stecklow.
Under the state’s Right to Know Act, the following are secret and exempt from public record requests: a performance rating or review; all documents relating to written criticisms of an employee; grievance material; documents related to discrimination or sexual harassment; information regarding discipline, demotion or discharge contained in a personnel file; arbitration transcripts and opinions; most complaints of potential criminal conduct; and investigative materials, notes, correspondence, videos and reports. (Section 67.708(b) of Pennsylvania’s Right-to-Know Law.)
If an officer is discharged or demoted, this will be made public, but not the reason for the disciplinary action.
In 2020 Gov. Tom Wolf signed a bill into law that created a database to track police misconduct statewide and force agencies to check the database before hiring an officer. Like Illinois, this database is confidential and off limits to the public.
RHODE ISLAND: MOSTLY CLOSED
Attorney generals’ opinions apply a balancing test that weighs the public interest against an officer’s privacy interest. If a document can be released in redacted form without violating privacy interests it will sometimes order the release. In a case this year, the attorney general’s opinion ordered the release of 14 of 17 documents requested, but in redacted form.
SOUTH CAROLINA: MOSTLY OPEN
The public has restricted access to law enforcement misconduct records in South Carolina.
South Carolina police departments have kept records from being released based on South Carolina Statute 30-4-40, which states the release of certain information is a violation of officers’ privacy. This was pushed back against in Burton v. York County Sheriff’s Department, which said that public interest often outweighs privacy interest in police officer cases. In certain instances, records can be released with the personal identifying information of the officer involved redacted.
SOUTH DAKOTA: MOSTLY CLOSED
Law enforcement misconduct records are kept secret in South Dakota.
TENNESSEE: MOSTLY OPEN
Law enforcement misconduct records are fairly accessible, according to the Tennessee Code. In certain cases however, such as Contemporary Media v. Gilless, departments have been able to hold records by arguing that they were part of ongoing or recent criminal investigations. If personal information of an officer is included in requested reports, the officer must be notified.
However, an investigation by WREG in Memphis found that some departments are using an outdated, paper-based system that makes it nearly impossible to receive the requested data, or charges the requester excessive fees.
According to the WREG investigation as of July 2020: “In January, WREG asked for records of excessive force and firearm discharge from 2015 to 2019. We were told that would cost nearly $7,500 because there were 24,000 pages of documents and it would take 88 hours to retrieve and redact information. On Feb. 6, we narrowed the timeline to just six months. Now almost six months later, we’re still waiting.”
TEXAS: RESTRICTED, DEPENDING ON CITY
According to research conducted by WNYC radio, “Texas Government Code § 552 generally renders police disciplinary records public. However, many cities in Texas are also covered by Local Government Code § 143, which requires police departments to maintain civil service personnel files on each police officer. Those civil service files are available for public inspection and contain records of disciplinary actions, but only if the officer received at least a suspension or loss of pay. If the only discipline was a ‘written reprimand,’ the records are instead placed in a confidential internal file.”
Law enforcement records are public in Utah, unless their release would interfere with an active investigation.
Utah is one of 11 states that provide an integrity bulletin to the National Decertification Index, but it doesn’t disclose the names of the officers disciplined in this bulletin.
“Only cases that result in discipline are always public,” Stecklow said. “The rest are subject to a balancing test weighing privacy and public interests, and which can often come down on the side of privacy.”
Vermont keeps the names of officers about whom complaints are filed a secret unless a state board decides to impose discipline, in which case the names and details are public.
Records containing the names of officers who engaged in misconduct should be released if public interest outweighs the privacy interest of the officer, the state courts ruled in Rutland Herald v. City of Rutland. In this case the court ordered the release of the names of officers who had viewed pornography on departmental computers.
Vermont is one of 11 states that provide an integrity bulletin to the National Decertification Index, and it makes the names of these officers public.
A pending bill would open up most records in Virginia.
WASHINGTON: MOSTLY OPEN
Law enforcement misconduct records are available to the public in Washington.
Washington is one of 11 states that provide an integrity bulletin to the National Decertification Index, and it makes the names of decertified officers public.
WEST VIRGINIA: RESTRICTED
Similar to Vermont and South Carolina, police departments can withhold records if they would be against privacy interests (Freedom of Information, Statute 29B 1-4, Exemptions), but often courts will rule that public interest outweighs the privacy interests of officers.
Charleston Gazette v. Smithers set the precedent that conduct of police officers while they are on the job is public record. This rule is now in the West Virginia Code 29B.
Law enforcement misconduct records are kept secret and hidden from the public in Wyoming.
Kallie Cox is the editor-in-chief of The Daily Egyptian, the student newspaper of Southern Illinois University Carbondale and can be reached at Kcox@dailyegyptian.com or on Twitter @KallieECox. William H. Freivogel is a professor at Southern Illinois University and a member of the Missouri Bar. Zora Raglow-DeFranco, a law student at Case Western, contributed to this report.
Abusive police officers evade punishment through an array of legal roadblocks to accountability
Police officers who abuse citizens usually escape punishment because of an array of legal doctrines that stack the law in an officer’s favor.
That was true before the murder of George Floyd and killing of Breonna Taylor and it’s true after the uprising that those events caused.
The guilty verdict and stiff sentence for Derek Chauvin, Floyd’s murderer, felt like a watershed moment to many Americans. President Biden called the verdicts a “giant step toward justice” and the 22.5 year sentence “appropriate.”
But a look at police accountability nationwide shows that little has changed. In most places, the long-standing legal roadblocks to police accountability remain unaltered.
In the past 18 months, 35 states have defeated bills to eliminate or weaken qualified immunity — a big legal roadblock — and 33 states still allow no-knock raids like the one that led to Taylor’s killing.
The George Floyd Justice in Policing Act of 2021 — which would have eliminated many roadblocks — died in Congress. A few states and cities passed limited police reforms, but most reform bills failed. Some states, such as Missouri, went the opposite direction and erected new legal roadblocks to accountability. “Defunding the police” became the political poison that hurt Democrats in the 2020 election and resulted in the big defeat of a Minneapolis ballot measure to replace the police department.
“There has been change since Ferguson but some of the fundamentals remain stuck,” says David A. Harris, a law professor at the University of Pittsburgh and expert on law enforcement.
Consider the welter of legal impediments to accountability:
Qualified immunity. Willful intent. Objective reasonableness. The Law Enforcement Officers’ Bill of Rights. Union arbitration. Closed misconduct records. An ineffective and closed national database of police misconduct. “Wandering cops” who misbehave and move to a new department where they will often offend again. A “blue wall of silence” where officers refuse to testify against one another. Union arbitration that protects abusive and untruthful officers from punishment.
All are escape hatches that allow the portion of officers who are abusive to keep their badges despite sexual assaults, excessive force, false reports, cover-ups and perjury.
At times an abusive officer gets the benefit of the doubt, on top of the benefit of the doubt, on top of the benefit of the doubt.
Here are some of ways the legal system helps abusive police officers:
The Law Enforcement Officers’ Bill of Rights allows an accused officer to get his story straight before questioning, which gives police rights that citizens don’t have.
The “objective reasonableness” standard that applies in most cases of abuse requires the jury to see the facts through the officers’ eyes rather than second-guessing them.
Qualified immunity means thateven when an officer is found to have violated a citizen’s rights, the case is almost always thrown out. If the violation has not been clearly established in the law — which it almost never has been — the case is dismissed.
Police unions fight accountability. If a police department disciplines an officer, police friendly arbitrators often throw out the punishment — as they have done in Chicago and Philadelphia. Union negotiated contracts in some cities automatically expunge records of misconduct.
Willful intent makes it hard for the Justice Department to win criminal civil rights convictions against officers because prosecutors have to prove that the officer acted with “bad purpose.”
Most of these special rights for police are not required by the Constitution. Judges, legislators and union negotiators have created them, stacking the deck in favor of accused officers and against abused citizens.
Some judicially created doctrines run counter to the laws they interpret. A post-Civil War Congress passed the Ku Klux Klan Act, now codified as Section 1983, to protect newly freed slaves from the violence of officers acting under color of law. But qualified immunity and objective reasonableness give the officer the benefit of the doubt over the victim the law was written to protect.
COURTS ALLOW DEADLY POLICE PRACTICES
Dangerous police policies — which the International Association of Chiefs of Police (IACP), Police Executive Research Forum (PERF) or Justice Department recommend against — continue to be commonplace and are upheld in the Supreme Court:
High-speed police chases. One person dies every day as a result of a high-speed police chase, even though most chases start with minor traffic stops, and one-third of those killed are innocent civilian bystanders. At least 13,000 people were killed during pursuits between 1979 and 2017. The Supreme Court has supported police in chase cases, but the IACP recommends against high-speed chases for traffic violations.
Chokeholds. Across the nation, 134 people have died from “restraint asphyxia” over the past 10 years, even though the Justice Department warned 26 years ago that bound suspects could die if not rolled off their stomachs.
No-knock raids. 94 people were killed during no-knock raids from 2010 to 2016. The Justice Department recommends against no-knock raids unless an officer’s safety is at risk. It would halt no-knock raids that are based solely on the prospect that drugs could be destroyed after a knock.
Shooting at moving cars. The Supreme Court allows police to shoot into moving cars even though the IACP recommends that police should almost never shoot at or from a moving vehicle.
Failing to de-escalate. The Supreme Court does not require police to de-escalate confrontations that could become deadly. But the IACP and the Justice Department recommend de-escalation. The IACP recommends “taking action or communicating verbally or nonverbally during a potential force encounter in an attempt to stabilize the situation and reduce the immediacy of the threat.”
Shooting at mentally ill suspects. One-fourth to one-third of the 1,000 people killed by police every year are having a mental crisis or are emotionally disturbed. Many officers are poorly trained for these situations. Police typically get 58 hours of firearms training contrasted to 8 hours for de-escalation tactics and 8 hours for handling medical emergencies.
Seizing millions in cash on the nation’s highways. Police regularly seize tens of thousands of dollars from cars they stop on the road, even though the motorist is not arrested for a crime. Police departments keep the money taken in these civil asset forfeitures.
Misconduct leading to false convictions. Coercive interrogations, faulty identification techniques and failure to turn over exculpatory evidence have led to false convictions and long jail sentences served by people who were wrongfully convicted. About 1,000 of the 2,900 people exonerated since 1989 had been wrongfully convicted based on police misconduct.
FEW PROSECUTIONS, FEW CONVICTIONS
Abusive police are seldom prosecuted and those prosecuted usually aren’t convicted. Police kill about 1,000 people each year, according to a Washington Post database, but few go to prison or lose their jobs.
Philip M. Stinson, a cop turned criminal justice professor at Bowling Green State University, keeps the statistics. Since 2005, 121 officers have been charged with murder or manslaughter in nonfederal cases involving killings on-duty. Of the 95 cases that have concluded, fewer than half — 44 — resulted in convictions and then often to lesser charges.
Federal prosecutions and convictions for violating a citizen’s civil rights also are rare and often unsuccessful because of a high burden of proof — “willful intent” to violate a citizen’s constitutional right.
In recent years, federal prosecutors declined to file charges in the deaths of Eric Garner in Staten Island, Michael Brown in Ferguson and Tamir Rice in Cleveland.
One of the Justice Department’s most prominent prosecutions this year ended badly for the government despite strong evidence. A group of white officers brutally beat a Black undercover officer during Black Lives Matter street protests in St. Louis in 2017. Two of those involved turned state’s evidence. And racist emails showed the officers relished the opportunity to beat Black protesters.
But defense lawyers portrayed the federal prosecutors as carpetbaggers from Washington. After two trials only one officer was convicted by a jury and he was sentenced to only a year and a day in prison — even though federal sentencing guidelines called for 10 years and his own lawyers recommended two. In an attempt to drum up sympathy for their client, the defense lawyers portrayed their client as a victim of a department “where being cavalier about violence, particularly racial violence, was far too prevalent.”
During the Trump administration, the Justice Department refused to use one of its most potent legal weapons against police misconduct, pattern-or-practice suits. After the Rodney King beating in 1991, Congress gave the Justice Department the power to conduct investigations of local police departments to look for patterns of unconstitutional policing. When they found them, as they did in Ferguson in 2015, they entered into consent decrees to force reform. President Obama’s Justice Department initiated a record number of 25 pattern-or-practice cases.
But former President Donald Trump and former Attorney General Jeff Sessions strongly opposed that kind of federal interference into local law enforcement. There was only one such case during his entire administration. “There was probably no stronger opponent in Congress to this tool than Sessions,” says Harris, the law professor and police expert at the University of Pittsburgh.
Attorney General Merrick Garland reversed the Trump policy in announcing after the Chauvin verdict that he was starting a pattern-or-practice investigation of the Minneapolis police and would revitalize that legal tool in other cities.
A year-long investigation of police misconduct sponsored by the Pulitzer Center on Crisis Reporting employed a team of 15 college journalists who filed dozens of Freedom of Information requests nationwide. They found:
Most states — 32 including D.C. — keep records of police misconduct secret or difficult to access, although the number of states opening records has increased recently with New York, California, Massachusetts and Illinois opening up.
A national database that keeps track of about 31,000 officers who have lost their badges doesn’t release the information to the public.
In Illinois, 81 Chicago police officers lost their badges in the past two decades, but only after they were investigated for 1,706 prior complaints — 21 per officer on average.
In New York, the repeal of a law blocking access to past complaints opened records to a whopping 323,911 complaints of abuse over the past 35 years.
In Philadelphia, two-thirds of the 170 officers the police department wanted to fire for misconduct in recent decades stayed on the force through union arbitration. Former Police Commissioner Charles Ramsey said, “I’ve had people that I’ve had to fire more than once” because union arbitration got them rehired.
In St. Louis, the police unions are effectively segregated, white officers have gotten away with assaulting black colleagues, police used unconstitutional “kettling” techniques to trap and assault demonstrators and misbehaving officers often get jobs with forgiving suburban departments that welcome aggressive tactics like high-speed chases.
In Portland, a federal court found that federal agents targeted journalists and court observers last summer in what it described as a “shocking pattern of misconduct” that violated First Amendment rights.
In California, an investigation found that 630 people who had been officers since 2008 had been previously convicted of a crime. The convictions of these and other officers were not known because California did not decertify officers for misconduct until a reform law passed over union opposition this fall. Meanwhile, in Los Angeles, a new progressive prosecutor is reviewing more than 340 police killings over the past decade.
In Florida, considered a model of police accountability, about 1,500 officers are on the street each year despite having been fired previously by Florida agencies. These officers are more likely than rookies to offend, according to a Yale Law Journal article on wandering officers who misbehave in one place and get hired in another.
A FEW BAD APPLES?
Police are popular and police unions stress that only a few bad apples abuse citizens.
Wayne C. Beyer, a national expert on civil rights suits against police, says a tiny fraction of police stops and arrests ends up in a successful civil rights lawsuit.
There is only one successful civil rights lawsuit out of every 1,000 arrests and every 23,000 calls for service, he says.
Of all citizens stopped, 60 percent say the stop was justified and 81 percent say the police behaved properly. Of U.S. residents who had contact with police, 5.2 percent of Blacks said use of force was threatened, while 2.6 percent of whites said it was threatened.
“This idea of widespread police misconduct is misleading,” said Beyer.
But reformers say that databases show that bad apples are counted in the tens of thousands, especially when counting officers who stand by silently during brutality.
When New York’s misconduct records finally were opened to the public this spring, the database included 323,911 records involving 81,550 current or former New York Police Department officers. About 20,000 had five or more substantiated cases. Yet only 12 of the 20,000 were forced out of the department.
In addition, the national database of officers who lost their badges is 31,000-plus, although the names are secret.
Harris, the Pitt law professor, says the release of police misconduct records is a key to reform. “You can’t have real accountability with the public unless you are willing to share information with the public,” he said.
DEFUNDING AND ABOLITION BACKFIRE
During the summer of 2020, after the deaths of Floyd and Taylor, Black Lives Matter protesters and civil rights advocates called for defunding or abolition of the police.
Police reform proposals that had emerged from Ferguson were suddenly too moderate. Campaign Zero apologized for not going far enough. Brittany Packnett, a Ferguson leader, said at the time, “Divestment from the institution of policing — and reinvestment in Black communities — is the necessary central strategy of this moment.”
But the defund/abolish movement backfired politically when Trump used defunding as a political cudgel against Democrats. Exit polls showed the attack was effective. The crushing defeat of the Minneapolis “defunding” proposal in 2021 illustrated that calls for defunding or abolition of police departments had lost support.
Efforts to end qualified immunity — the big legal roadblock to accountability — failed almost everywhere. 35 bills to end qualified immunity lost in state legislatures over the past 18 months. New Mexico, Connecticut, Massachusetts and Colorado passed bills initially written to restrict qualified immunity, but once unions finished lobbying, only Colorado’s actually accomplished that purpose.
The most successful police reforms passed since the Floyd and Taylor cases have been restrictions on police chokeholds and no-knock raids, says police expert Beyer.
Before Floyd’s murder, only Tennessee and Illinois had bans on hold techniques. Now 17 states have enacted laws that ban or restrict holds and 48 cities have implemented changes in the use of neck restraints — including Los Angeles, Sacramento, San Diego, Denver, Washington, Miami, Boston, Minneapolis, New York, Austin, Dallas, Houston, Salt Lake City and Seattle.
In addition, the Biden Justice Department issued a new policy on September 13, prohibiting “chokeholds” and “carotid restraints” unless the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” But the policy applies only to federal law enforcement officers – not the cop on the street.
Meanwhile, five states passed laws prohibiting or restricting no-knock warrants – Oregon, Florida, Virginia, Utah, and Maine.
In addition, 15 cities, including Orlando, Louisville, Santa Fe, and Indianapolis have passed no-knock warrant bans or severe restrictions.
Still there are 33 states that allow no-knock warrants either by law or court decision, Beyer says.
The Justice Department announced on September 13, 2021, that federal law enforcement agents would be required to limit the use of “no-knock” entries. “[A]n agent may seek judicial authorization to conduct a ‘no-knock’ entry only if that agent has reasonable grounds to believe at the time the warrant is sought that knocking and announcing the agent’s presence would create an imminent threat of physical violence to the agent and/or another person. . . .”
This means federal agents can’t justify no-knock raids based solely on the possibility that evidence, like drugs, will be destroyed by knocking.
In other important reforms, Illinois passed a law ending cash bail and increasing accountability for repeat police offenders. Massachusetts and California overcame police union opposition to pass police decertification laws that could take badges from misbehaving officers.
In addition, four states gave their attorneys general the power to investigate patterns or practices of police misconduct, much like the Justice Department does. Those states are Illinois, Colorado, Virginia and Massachusetts.
Pro-police measures passed in some redder states. Florida has stiffened penalties for crimes during demonstrations, such as mob intimidation and defacing property and monuments. Iowa, which unanimously restricted the use of chokeholds after Floyd’s death, is considering a Law Enforcement Officers’ Bill of Rights and Missouri passed one.
The U.S. House passed the Floyd bill but it died in the Senate when negotiations between Sens. Tim Scott, R-S.C., and Cory Booker, D-N.J., broke down this fall.
Harris, the Pitt police expert, said “that bill would be extraordinarily good across the board. It beefs up what the government can do with pattern or practice. It cuts into qualified immunity that really has to go because it lets really cruel police actions go unpunished when there hasn’t been a prior court ruling about that particular cruel practice.”
But Harris adds, “There can be change even if it’s not national.” If Congress can’t pass a federal law, he says, it will be up to state and local governments to pass reforms that limit police use of force, increase transparency and improve accountability.
In the Chauvin trial, Minnesota required the jury to apply the tough “objective reasonableness” standard that makes it hard to convict officers. That standard requires a judge or jury to see the police action “from the perspective of a reasonable officer on the scene.” They can’t second-guess a decision made in the heat of the moment.
That objective reasonableness standard comes from the 1989 U.S. Supreme Court decision Graham v. Connor. What many people don’t realize is that states and municipalities can adopt new use of force standards that hold police to a higher standard of conduct. A few jurisdictions have done that in the past year but not many.
One thing states and cities can do is “raise the bar for the use of force,” Harris said in an interview. “What people forget is that the Supreme Court set a minimum standard for the protection of citizens from state action by police. While states can’t give citizens less protection, they can create more. In the last year we’ve seen some movement in that direction.”
As long as the objective reasonableness standard remains in place, says Harris, few officers will be convicted. “At the end of the trial, the jury is told the officer feared for his life, the suspect was reaching for a gun and don’t second guess him,” says Harris. “And it takes only one person to hang the jury.”
PROGRESSIVE PROSECUTORS V. UNIONS
Police unions became common and powerful in the 1970s in reaction to the civil rights movement, which often targeted police brutality. The police unions have argued that the nation’s 700,000 police should have due process protections when they are accused of wrongdoing; only few “bad apples” abuse citizens, they say, but the honest officer often suffers from frivolous complaints.
One big victory for the police unions in New York was passage of a 1976 provision of the New York Civil Rights Act, 50a, which closed records of police misconduct. The argument was that the law protected the civil rights of police officers by shielding them from harassment for frivolous complaints.
In another victory in 1973, Maryland became the first of 16 states that adopted a Law Enforcement Officers’ Bill of Rights, extending procedural protections to officers that made it difficult to discipline them. Typically these bills of rights delayed internal investigations, expunged old records of misconduct and required that officers instead of civilians investigate complaints. The bill of rights was blamed for hindering the 2015 investigation of the death of Freddie Gray who suffered a spinal injury in police custody in Baltimore.
Both New York’s 50a and the Maryland Law Enforcement Officers’ Bill of Rights were repealed after the Floyd murder.
Harris says one impetus toward police reform is the election of so-called “progressive prosecutors” around the country, from Philadelphia, Baltimore and Boston to St. Louis, Chicago and Kansas City, Missouri, to San Francisco to Los Angeles.
“What they want to do,” says Harris, “is limit using cash bail, reduce prosecution of minor offenses like drugs and sex work, increase the use of diversion programs and establish conviction integrity units” to uncover wrongful convictions.
Many of these progressive prosecutors have ended up in pitch battles with police unions, often controlled by white officers.
One practice in particular has led to conflict — the so-called Brady lists of officers whose prior conduct and untruthfulness in investigations prevent them from testifying. St. Louis has a list of 55. Baltimore’s list of problem officers is about 300.
Philadelphia’s District Attorney Larry Krasner found a “damaged goods” file of tainted officers when he took over four years ago. Now the DA’s Conviction Integrity Unit Police Misconduct Disclosure Database has 750 officers, many of whom prosecutors will not call to testify.
Krasner has complained that the Police Department has failed to turn over important documents on misconduct and redacts some of them so they are impossible to make out. Last summer he went to court asking that the department be held in contempt for withholding the information. “The only people being helped by the system are the small number of dirty cops,” he said.
The head of the Fraternal Order of Police in Philadelphia complained of “lost wages, damages to reputation and professional harm” when prosecutors release names of officers they will not call to the stand. “Are they going to be vilified forever, are they going to be blackballed forever?” asked John McNesby, the union president. McNesby referred to Krasner supporters as a “lynch mob” of criminals. Krasner won re-election this year despite stiff union opposition.
In St. Louis, Police Officers Association business manager Jeff Roorda has called progressive St. Louis prosecutor, Kim Gardner, the worst prosecutor in the country. He said she should be removed either “by force or by choice.” St. Louis police who beat demonstrators during a 2017 protest sent each other texts with highly offensive racial slurs directed at Gardner and the demonstrators.
In November, one of the progressive prosecutors, Jean Peters Baker in Jackson County, Missouri, won Kansas City’s first conviction of a white officer for killing a Black citizen. A judge found Eric DeValkenaere guilty of second degree involuntary manslaughter and armed criminal action for shooting Cameron Lamb in his pickup truck as he backed out of his garage. DeValkenaere did not have a search warrant to confront Lamb in his home, the judge said.
“Justice was gotten today,” Baker said.
Another progressive prosecutor, St. Louis County Prosecuting Attorney Wesley Bell, also had a success in November using a “restorative justice” approach to settle a prosecution of a Ladue, Missouri, police officer who accidentally shot a suspected grocery store shoplifter in the back in 2019. The officer, Julia Crews, said she meant to use a taser but pulled her pistol instead. Crews apologized on Zoom to Ashley Hall, who forgave her and accepted a $2 million payment from the city. Prosecutor Bell dropped the felony assault charge against Crews.
Bell imported the increasingly popular restorative justice approach from Washington, D.C., which has used it in 150 cases. Said Bell, “This is an example of accomplishing the ideal, which is healing and justice.”
The initial batch of a dozen progressive prosecutors has grown to about 70, according to Fair and Just Prosecution, a national legal group supporting their reforms. Some prosecutors have boldly reopened investigations of police shootings where their predecessors had cleared officers of wrongdoing.
Los Angeles District Attorney George Gascón, elected in 2020, promised to reopen four police shooting cases during his campaign. Now he has brought together legal experts, community leaders and law students to review more than 340 police killings over the past decade where his predecessor had cleared police of wrongdoing.
José Garza, the elected district attorney in Austin, Texas, was a public defender before he was elected as prosecutor. He has obtained indictments in two recent police killings from 2019 and 2020, including the death of Jose Ambler II, who died after having been repeatedly tasered after fleeing a traffic stop.
Not all reviews end up in prosecution, however. Bell, the St. Louis County prosecutor who replaced veteran law-and-order prosecutor Bob McCulloch, reviewed the Ferguson shooting death of Michael Brown and decided — as McCulloch and federal prosecutors had — that there wasn’t enough evidence to file criminal charges against former Officer Darren Wilson.
Bell put it this way: “Although this case represents one of the most significant moments in St. Louis’s history, the question for this office was a simple one: Could we prove beyond a reasonable doubt that when Darren Wilson shot Michael Brown he committed murder or manslaughter under Missouri law? After an independent and in-depth review of the evidence, we cannot prove that he did.”
Pulitzer student reporting fellows Kallie Cox, Sojourner Ahebee, Felicia Hou and Karen Kurosawa contributed to the reporting. Cox, from Southern Illinois University reported on Illinois. Ahebee, Hou and Kurosawa, from Stanford University, reported on Philadelphia, New York and California.
Editor’s Note: This story was first published Dec. 21, 2021 in the print magazine.