An archive of previous Code 3 columns
By Jim Newton
There always will be rare instances where records related to allegations of police misconduct will need to be withheld from the public. There are cases, for instance, where revealing those records might compromise important criminal investigations, or where the identities of police informants might be disclosed, causing them danger.
That’s why public records laws have exemptions – to address those unusual circumstances that violate what is otherwise the norm: that all records and meetings of public agencies, those supported by taxpayers and charged with performing the public’s work, should be available to any member of the public.
What is emphatically not justified are blanket provisions that withhold whole classes of records, just because a group of public employees would prefer not to be accountable. And that’s precisely what police unions are attempting to secure for officers in response to a new California that they don’t like.
As the California Legislature was winding down its session last year, the Assembly and Senate both passed SB 1421, which for the first time made clear that records of police shootings and other uses of force that resulted in serious injury were matters of public record. It also opened up records of cases where officers were investigated for dishonesty or sexual assault.
But not all records and not all the time. Importantly, the bill included exemptions to protect some arguably private information regarding those officers – personal phone numbers, names of family members and the like. It also specifically exempted information that might compromise informants and authorized delaying the release of any information regarding ongoing investigations. The bill even allows for records to be redacted, when in the opinion of a judge and “on the facts of the particular case, the public interest served by nondisclosure clearly outweighs the public interest served by disclosure.”
In short, the law created a general presumption of openness, while specifically recognizing that individual cases may fall outside it. That is a sensible balance between the public’s right to examine its police and the recognition that sometimes other rights come into play, too.
Although those exemptions were carved out in deference to the privacy interests of police officers, the resulting compromise nevertheless agitated California’s police unions, which unsuccessfully lobbied against the bill and then unsuccessfully tried to get Gov. Jerry Brown to veto it. They tried, but lost – a rare setback for a lobby used to getting its way in Sacramento.
Having failed to win on the merits, those unions now are trying a novel – and intellectually dishonest – end run to get back what they lost with two branches of government by trying to snooker the third. In court cases up and down California, lawyers for police unions are maintaining that the law only applies to new records created after the law took effect, not to existing ones. If successful, that argument would mean that almost no records already in possession of California’s police agencies would be affected.
Imagine, for a moment, that the logic of the police union challenge was applied to other laws that create open government in California or elsewhere. The Freedom of Information Act was first passed in 1966 and then substantially strengthened after Watergate led to Richard Nixon’s resignation in 1974. FOIA allows any American to request information being held by his government, and FOIA requests have allowed historians to examine the nation’s history with new insights into old decisions. I used FOIA to review the FBI’s monitoring of Earl Warren, governor of California and later chief justice of the United States, as well as to explore previously classified decisions of the Eisenhower Administration and to look at the FBI’s monitoring of alleged subversives at Dartmouth College.
Other scholars and historians have examined old tax records, histories of environmentally sensitive areas and the work of agencies from the Justice Department to the Park Service. FOIA has allowed for important histories of civil rights, the Vietnam War, Ronald Reagan, John Lennon, civil disobedience, government surveillance and many other eras and events. Those records were created before FOIA, and were released to historians and others after the law’s enactment.
The unions contesting SB 1421 like to say that they are contesting whether the act can be “retroactive,” but that’s a deliberate misuse of that term. No one is suggesting writing new laws for police conduct and then retroactively examining that conduct: If an officer used force on a suspect last year and authorities elected not to charge him, this statute won’t affect that one bit. It will only affect what the public knows about the actions of the officer and those who judged him, based on records already in an agency’s possession.
Kelly Aviles, a lawyer who represents news organizations, is a determined and effective advocate for public openness, and she’s played a leading role in fighting off this ill-advised union effort. SB 1421, she said last week, was not about securing some right in the future. It was specifically “intended to remedy the lack of access to police records now.”
To make matters even worse, some cities have anticipated SB 1421’s debut by destroying old records, at least implicitly acknowledging that the law reaches material already in their possession, but thwarting the public’s right to get at it. Which raises a significant question about those city governments: Exactly who do they represent when they destroy public records? How is it in the interests of their residents, as opposed to the union representing their police, to have documentation of possible police abuse shredded? Such records may well result in lawsuits against police departments, but how about the price paid by a city government that deliberately protects wayward officers from accountability?
There are close calls in the area of accountability, and all sides should be wary of absolutes. That’s why intelligent laws in this area attempt to anticipate issues and allow for individual exemptions when the facts warrant it. Blanket attempts to shield records – and deliberate misreading of a law’s purpose – do not fit the definition of “individual exemptions.” They are an effort to change law and history to suit only one purpose: the protection of officers and unions with something to hide.
By Jim Newton
Cameron McLay knows what it’s like to guide a police department emerging from life under a federal consent decree. He took over the Pittsburgh Police Department in 2014, assuming responsibility for an agency that was the first to be governed by a consent decree – and whose experience in its aftermath had lessons for both advocates and critics of such decrees. The question raised by Pittsburgh’s experience, McLay said recently, was one of “sustainability of impact.”
In 1996, Pittsburgh was facing complaints of excessive force by its police department. These complaints in the city drew the attention of the US Department of Justice. DOJ had recently gained new power under a 1994 law giving the Justice Department the ability to investigate a “pattern or practice” of police unconstitutional misconduct. DOJ also was granted authority to sue cities or other governments to enjoin unconstitutional policing. Often, cities would settle these lawsuits by negotiating a written agreement with DOJ to institute and maintain widespread police reform. When countersigned by a federal judge, the agreement became an order of the court known as a consent decree. The federal judge retained jurisdiction to enforce progress until the police department achieved full and effective compliance with the letter and spirit of the consent decree and maintained it for two years. Pittsburgh’s consent decree was the first in the nation, launching a new era in police reform.
During the period that the decree was in effect, Pittsburgh leapt forward in modernizing its police. Officers received improved training and new technology – prior to the decree, the department lacked even rudimentary computers and was stuck in a 1950s-level of paperwork. Officers welcomed some of those improvements and balked at others, including requirements that they keep track of the race and gender of those who they stopped and cited for traffic and other offenses.
By the time the decree was lifted in 2002, all sides seemed pleased.
Twelve years later, McLay arrived in Pittsburgh to find that the progress of the 1990s had largely halted when the decree was lifted. By 2014, Pittsburgh had moved from the lead in police agencies to a far-behind trailer.
“An awful lot of the systems that had been state-of-the-art no longer were by the time I got there,” McLay said in a recent interview. Data that the department had begun to collect in the decree era – including the racial and gender composition of those stopped by officers – continued to be gathered, but the department had fallen four to six months behind on reporting it. Officer flagged as potential problems were interviewed, but the interviews, McLay said, were “more superficial than remedial.” The department continued to collect information regarding problems, but failed to act on them, effectively documenting its own incompetence rather than fixing problems.
In short: “Internal accountability had collapsed,” McLay said.
Pittsburgh struggled in the aftermath of its experience with federal oversight, but other cities, notably Los Angeles, absorbed their decrees with more lasting effect, largely because U.S. District Judge Gary Feess would not let the city and the LAPD out from under the decree until he was convinced that the reforms were accepted as the right way to police, a cultural shift that took 12 years to attain. In the decree era for the LAPD, the police department became far more diverse – what was once considered a white, male, “occupying army” now is roughly as diverse as Los Angeles itself – and systems for monitoring and disciplining officers were refined and, eventually, accepted by the rank-and-file. It helped to have two consecutive chiefs, William Bratton and Charlie Beck, who thoroughly supported the reforms mandated by the decree and had time to implement them and sell them to the department’s ranks.
Pittsburgh was let out from the decree far too soon, before the reforms became part of the bedrock undergirding the Pittsburgh PD. The police union led the charge to return the PD to its pre-consent decree days. Correctly perceiving that Chief McLay was not going to abide this, the union set about to drive McLay out of town. After tussling with the union for two years, McLay was out. Thereafter, reform sputtered, and those opposed to it gained back some of the ground they lost during the decree period.
The jury is still out on the Pittsburgh PD. Still, a woefully retrograde police department undeniably improved, and though it backslid, it has not returned to where it was before it attracted the attention of the federal government.
What are the secrets to making the most of federal oversight? That question occupies McLay, who was recently hired to help push forward reform in the Seattle police department. The key, he believes, is not technology or systems, but rather a shift in attitude. Those departments that benefit most from federal oversight, McLay said, are those that use the decree experience to change their thinking from compliance with orders from a federal judge to a desire to improve and professionalize their work. Or, as he puts it, shifting “to developmental rather than punitive.” In other words, the police department needs to undergo a cultural shift toward seeing the consent decree reforms not as punishment but as the right, proper, safe, and lawful best practices for 21st century policing, as occurred in the LAPD.
This suggests that judges with pending consent decrees should hold out for that lasting cultural change. They may be the last best hope for reform in the face of the Trump Administration’s near implacable hostility to consent decrees.
BY JIM NEWTON
In one of his last acts as Attorney General, Jeff Sessions did his best to paralyze beyond hope of recovery the Justice Department’s programs to fight unconstitutional practices by local governments, especially in the area of policing. His seven-page memo, signed as he was wrapping up business, purported to offer guidance to the department as it weighed future litigation and consent decrees to enforce federal law. In fact, the memo’s requirements would strangle future decrees in their cradle. That will have profound ramifications for the department’s role in addressing police abuse, and, as ProPublica reported last week, may constrain the department in other areas – from fighting pollution to enforcing voting rights.
In the area of law enforcement, those decrees typically require police departments to adopt certain reforms – tracking officer behavior, reporting and analyzing each non-trivial use of force and each stop-and-frisk, controlling the use of all lethal and less than lethal force options like shotguns or Tasers, requiring documentation of civilian complaints and other such requirements. Those demands, Sessions has said, “reduce morale of the police officers” and, even worse, allow crime to flourish: “Every place these decrees, and as you’ve mentioned some of these investigations have gone forward, we’ve seen too often big crime increases.” Emphasizing, he added: “I mean big crime increases. Murder doubling and things of that nature.”
That would present a difficult debate: What if consent decrees, by introducing federal oversight, improved the constitutionality of local policing but did so at the expense of officer morale and crime? That would be a challenging choice for government officials.
But is that the case?
Let’s start with officer morale. It’s true that these decrees initially annoyed rank-and-file officers. As a reporter for the Los Angeles Times in 2000, I visited Pittsburgh, the first city to agree to a consent decree that imposed federal oversight on its police department. Officers there were mad. One kooky union leader greeted me at his apartment full of pistols and knives with his throaty opposition to the consent decree. One officer told me she was so afraid of repercussions that the only way she would do a traffic stop “is if some guy blew a red light with a baby tied to the bumper.”
But that was 18 years ago. More recently, I spent time visiting LAPD divisions and was struck by how thoroughly the spirit of the consent decree had infused itself into that organization. The signs at the front desk at one division greeted visitors in three languages; officers boasted of making arrests without complaints or incidents; commanders touted their understanding of housing projects rather than only emphasizing their ability to suppress violence in those communities. These were officers who had joined the LAPD during the years of its consent decree and had absorbed its requirements into their work.
Far from suffering from the decree, they were bolstered by it.
How about crime? It would, of course, be a terrible price to pay if, as Sessions and Trump maintain, putting police departments under federal oversight allowed crime to take over communities and forced residents to suffer. It would suggest that liberal demands regarding police conduct put poor and vulnerable people at risk.
Los Angeles offers a perfect test case. It is the biggest police department ever forced to accept a decree, and the decree there extended over 12 years, so there is a long time period over which to evaluate its effects. If one accepts the Trump/Sessions analysis, those must have been miserable years indeed for those poor residents.
The decree in Los Angeles was entered in 2000. There were 50,132 violent crimes committed in the city that year, including 548 murders. It was a frightening time, especially in poor, largely minority neighborhoods. Violent crimes dropped the year after the decree took effect, but that could just have been a quirk of history; crime does bump up and down without regard to policy. But five years after the decree was entered, the number of violent crimes had dropped to 30,492, with 490 murders. That’s significant progress, and certainly not evidence of things getting worse.
But there’s more. Los Angeles’ decree had been assigned to Judge Gary Feess, and the expectation was that it would last about five years. But Feess would not let the LAPD free of its mandates until he was convinced it had genuinely reformed. Because of that, what had been imagined as a five-year experiment did not end until Feess lifted the decree in May 2013.
By that time, the trend in crime was hard to ignore. For 2012, the final year that LAPD worked under the requirements of the decree, Los Angeles residents experienced 18,293 violent crimes. In that year, 298 people were murdered in Los Angeles.
To recap: Under the decree, violent crime in Los Angeles declined from more than 50,000 incidents a year to under 19,000, and murders dropped from 548 to 298. How does that square with Sessions’ analysis – his contention that “every place” that has been placed under a decree has experienced “big crime increases”?
Consent decrees have not always been welcome in the jurisdictions where the Justice Department has pursued them, but they have improved police behavior and made communities safer. Sessions’ parting shot demonstrates a malign indifference to people of color and other minorities. And it reflects a view of history that is so false it can only be called a lie.
BY JIM NEWTON
Largely because of the effectiveness of its fabled SWAT team, the Los Angeles Police Department rarely kills a hostage or an onlooker, even in confrontations with armed and often disturbed suspects.
But Michel Moore, the department’s new chief, had barely settled into his job this summer when his officers shot, not one, but two bystanders in separate incidents. On June 16, a man held a knife to the throat of a homeless woman in Van Nuys; officers fired, killing both the assailant and the woman. Then, on July 21, a suspect, allegedly fleeing a shooting, led police on a car chase, careened into a utility pole at a Trader Joe’s market in Silver Lake, and fled inside the convenience store; officers exchanged fire with the suspect, killing a store manager.
This tragic pair of events raised concerns about the department, which once was considered a dangerously violent and sometimes racist agency. It is impossible, of course, to judge an organization as large and complex as the LAPD by such a small number of incidents, but I have reported on and written about the department over the years, and I would offer two thoughts.
One concerns intent.
What tarnishes the LAPD’s history have been allegations that some of its officers not only have done harm, but that they did it on purpose – that officers in the Rampart Division in the late 1990s, for instance, who robbed a bank and reportedly stole drugs and threatened suspects, did so to enrich themselves and to brutalize the suspects; there was nothing said to have been accidental about it.
Similarly, among the most shocking aspects of the Rodney G. King beating in 1991 was not only that officers repeatedly struck and kicked King, who had led them on a chase after refusing to be pulled over for speeding, but also that so many other officers watched and did not report any wrongdoing. That suggested a broken police culture, not just some wayward cops.
There is no suggestion that the officers in these shootings intended any harm to the bystanders.
Second is the question of official response.
In the King case, then-Chief Daryl F. Gates at first criticized the officers involved, who had been caught on videotape. But when the LAPD fell under sharp criticism, he defended the department. That sent mixed signals, and Gates, who was combative (he once challenged me to a fist-fight) struggled to toe a straight and consistent line. Mayor Tom Bradley, frustrated and hamstrung by civil service rules that limited his ability to discipline Gates, convened what would come to be known as the Christopher Commission, named for its chairman, attorney Warren Christopher, who would become secretary of state under President Bill Clinton. It was the Christopher Commission that finally showed Los Angeles how to repair its police department.
When details of the Rampart scandal were reported, the city’s leadership waffled between pursuing the wrongdoers and arguing that the outrage was isolated and unique. The U.S. Justice Department bore down, insisting that Rampart was part of a larger LAPD failing and that only federal oversight could fix it. The oversight became a major part of the LAPD’s recovery, but the city’s confused response early on was evidence of deep trouble at the department and with the city leadership.
This time, Chief Moore has sent encouraging signals. He released bodycam and other video and audio recordings that captured the moments leading up to this summer’s two shootings. Some critics suggested the release was self-serving because it showed the stressful situations the officers faced and helped explain their actions. But that’s beside the point. Of course, videos of officers shooting bystanders will demonstrate that the officers were under pressure. No officer wakes up in the morning hoping to shoot a bystander. Such shootings are rare precisely because they are the last thing any police officer wants to be involved in.
In addition, the LAPD made public the names of the officers involved in these incidents, albeit quietly and seemingly with some reluctance. Releasing names is a good practice. For a while, the department had been pulling back from the timely and routine release of officers’ names, an unfortunate departure that did little for officer safety and much to undermine public confidence. Moore’s actions do not suggest an enthusiastic embrace of such releases, but at least the department did what was necessary.
There is a tendency in police accountability for participants to debate in clichés. Police unions defend “officer safety.” Reformers and news reporters demand “transparency.” As this summer’s shootings demonstrate, there is room for both. Officers deserve respect and empathy for the dangerous situations they confront, and the public is entitled to insight into their actions – including their names and evidence that shows why they did what they did. Moore’s first brush with those challenges as chief suggests reason for hope.