January 12, 2021 HUMAN RIGHTS

Crime Without Punishment

by Rebecca Brown and Cynthia Conti-Cook

There are many reasons why the murder of George Floyd by Minneapolis Police Officer Derek Chauvin sparked unprecedented global protests and, in New York, the political will to finally repeal a law, 50-a, that hid police misconduct for decades. Floyd’s death was obviously brutal, and both Floyd’s vulnerability and Chauvin’s cruelty were unquestionably broadcast around the world in the video that captured the murder. But it wasn’t just the existence of video footage or Chauvin’s particular sadism as he callously pinned Floyd’s neck to the ground with his knee that finally forced America to face the truth about police violence. It was also the immediate public access to Chauvin’s history of complaints from other Minneapolis residents and the paucity of the Minneapolis Police Department’s response. This was only possible because police misconduct records in Minnesota are publicly accessible, unlike in most of America, where we rely on leaks for such information. In the face of Chauvin’s publicized misconduct history, the overwhelming sentiment around the world was that George Floyd’s blood was not on Chauvin’s hands alone, but on the entire apparatus of the justice system that not only tolerated but enabled Chauvin’s brutality. 

Many states still have laws, either privacy laws or exceptions to public access, that hide police misconduct.

Many states still have laws, either privacy laws or exceptions to public access, that hide police misconduct.

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Like Minnesota, Illinois law also allowed—to a limited extent and only after prolonged litigation—access to police misconduct records so that, in 2015, when a video of Laquan McDonald’s execution was released publicly, his records were newly available on the then brand-new website the Citizens Police Data Project, published by the Invisible Institute. Like in Floyd’s death, the headlines in Chicago exposed not just the officer’s guilt, but also the city’s. The Chicago Cook County prosecutor, police chief, and mayor all succumbed to fallout from how McDonald’s death was covered up.

But consider also Jon Burge, a Chicago detective and area commander, who, along with his subordinates, were known as “the Midnight Crew,” “Burge’s Ass Kickers,” and the “A-Team.” Burge and his team coerced countless confessions—many of them false—from suspects through beatings, suffocations, mock executions at gunpoint, sexual assault, and the use of electroshock machines on suspects’ genitals, gums, fingers, and earlobes. They directly participated in or approved the torture of at least 118 Chicagoans, most of whom were Black. Through these abusive tactics, Burge and his officers contributed to many wrongful convictions that have since been overturned, leading the city of Chicago to pay out nearly $60 million to survivors of their abuse. Yet, because of exemptions written into Illinois’s Freedom of Information Act, the disciplinary records of some of these officers are still being withheld from the public. Despite the centrality of police misconduct information to the responsibility the state holds for people killed by police, many states still have laws, either privacy laws or exceptions to public access, that hide police misconduct, and other government official misconduct, from public view.

This secrecy causes harm. Consider what happened in New York State prior to the repeal of 50-a. Compare the Minneapolis and Illinois headlines with the headlines following Eric Garner’s death, also captured on video, where the New York Police Department (NYPD) leaked Garner’s arrest history immediately following his death both to smear his innocence during the police stop that led to his death and to devalue his life. It took a series of failed attempts at forcing the city to disclose Daniel Pantaleo’s misconduct history through litigation over 50-a’s scope (by the author, Cynthia Conti-Cook, and prior to 50-a’s repeal) and a leak by the New York City Civilian Complaint Review Board rogue staffer to publicly air Daniel Pantaleo’s prior unlawful stop and frisks years later. While Garner’s death similarly resulted in protests across the country, there was no indictment, conviction, or meaningful police reform following Garner’s death. It was only five years later that Pantaleo became the only NYC employee who lost their job as a result. The withholding of Pantaleo’s misconduct via 50-a didn’t protect Pantaleo; it protected top city officials from being held accountable for their responsibility for the foreseeability of his death.

Although high-ranking officials enjoy the most protection from secrecy statutes, the arguments made publicly for laws like 50-a always focus on the protection they afford individual officers from invasions of their privacy. Recently, police have described disclosure of their misconduct history as “doxing,” a term usually reserved for when private information is released maliciously. Privacy law is generally designed to protect people from “doxing” or having personal information, for example, residential, family, financial, or medical information, reported publicly without consent. When courts have analyzed whether police officers have privacy interests in disciplinary records becoming public under the federal constitution, the balancing test courts use considers the personal nature of the information with the public interest and consistently conclude that a uniformed officer’s disciplinary record is not the type of personal information warranting a constitutional safeguard. Even when courts analyze an officer’s claim to information under privacy exemptions to state public access laws, the outcome is the same.

In fact, in 1975, the year prior to 50-a passing, a Southern Tier New York judge held that disclosure of on-duty police misconduct information was not an invasion of privacy under the public access law exemption. Where constitutional or statutory protections don’t apply, sometimes other privacy torts, like public disclosure, arguably might. But even under these common law civil protections, the central question is whether the information disclosed is highly offensive or considered intimate to a reasonable person and has no legitimate concern to the public. These inquiries obviously also produce the same results as the constitutional and statutory analyses.

Privacy statutes specifically stretching privacy protections to police officers aside, privacy law generally just does not protect public officials from misconduct by virtue of its relevance to the public’s ability to hold its government accountable, a cornerstone of an informed democracy. Privacy concerns are, of course, a pretextual argument police and government officials make to hide police misconduct. The real protection they seek is not privacy at all; it is a categorical code of silence and anonymity within which all police can “do their jobs,” including committing violence and perjury, without accountability or transparency to the communities they serve. The anonymity police aspire to with secrecy laws like 50-a serves to obtain authority through dominance rather than trust.

As a result of 50-a dominating New York for decades, when a person was killed by police, their family could not officially learn the results of any related discipline or whether the officer involved had a history of violence prior to killing their loved one. Communities where police violence occurred would be terrified that the officers remained armed and present, free to continue abusing their power. Transparency of police misconduct records is not an abstract benefit to an informed democracy in these circumstances; its absence fundamentally harms the ability for members of the public, including family members of those harmed by police violence, to hold state actors accountable for their use of violence in the Black community and other historically oppressed communities in America. As a result of the NYPD’s choosing to maintain authority by domination rather than by public trust, the public had no faith in the NYPD’s ability to police itself, and, by extension, no faith in the criminal justice system generally.

In addition to eroding public trust in the administration of justice in criminal courts, secrecy of police misconduct records also obstructs justice. The National Registry of Exonerations reported in September 2020 that “official misconduct played a role in the criminal convictions of more than half of innocent people who were later exonerated.” Official misconduct contributed to the false convictions of 54 percent of defendants who were later exonerated. Concealing exculpatory evidence—the most common type of misconduct—occurred in 44 percent of exonerations. Police officers committed misconduct in 35 percent of cases. They were responsible for most of the witness tampering, misconduct in interrogation, and fabricating evidence—and a great deal of concealing exculpatory evidence and perjury at trial.

Following local news media, public information demands for police misconduct information collected by local New York City prosecutors in the past year, we learned that prosecutors were able to withhold decades of police misconduct from thousands of people accused of crimes without consequence because the accused were unable to leverage information they did not have and could not get under 50-a’s regime. Prosecutors not only withheld a lot of the information they captured about police misconduct from people accused of crimes and their defenders; prosecutors withheld that information from the department itself. They would dismiss their cases and move on, leaving that officer out in the world, operating with the same licentiousness and no reason to believe that her actions have consequences, nor any supervisor who had any reason to believe anyone was watching whether they corrected officer behavior.

Despite the harm police secrecy promotes and the lack of real privacy concerns disclosure of police misconduct presents, access to misconduct records is rarer than we think. Across the United States, more than 20 states have laws similar to New York State’s former 50-a law, which completely shielded police misconduct or discipline records from public view. These include states like Delaware, Virginia, and Pennsylvania. In more than a dozen other states, there is restricted access to police misconduct histories. For instance, in some states, how law enforcement responds to public access inquiries varies due to ambiguities in the law or case law interpretations of the guiding statute. In other states, like Texas, only records of major discipline that led to a suspension or termination can be made public. In some places, police are achieving greater secrecy; in Buffalo, New York, where the world watched an officer shove an elderly activist causing his skull to crack on the pavement, officers can now remove their names from their badges.

Again, police secrecy not only harms public trust in police, but it also obstructs the administration of justice generally. Consider former detective Roger Golubski’s misconduct, which led to the wrongful conviction of Lamonte McIntyre in Kansas City, Kansas. McIntyre spent nearly a quarter century behind bars for a double murder he did not commit and though he has since been compensated by the state of Kansas for his wrongful conviction, restitution has provided little solace to McIntyre and his community. Golubski terrorized countless people in the north end of Kansas City for decades, planting drugs on suspects. He would then use the “discovery” of these planted drugs to coerce residents into having sex, according to over 100 interviews conducted by lawyers from Centurion Ministries, which took on McIntyre’s case along with the Midwest Innocence Project. To this day, police disciplinary records remain exempt from disclosure under Kansas’s Open Records Law, meaning that the records of officers like Golubski are not public, and the full extent of their misconduct is still unknown.

The same day that New York repealed 50-a, Houston’s district attorney concluded that Gerald Goines, a narcotics officer with the Houston Police Department, likely lied about a drug deal for which he arrested George Floyd in 2004 and for which Floyd was convicted and incarcerated for 10 months. Goines, who is also charged with lying to obtain the search warrant that led to a deadly raid last year, is now the subject of a larger investigation into thousands of  cases he worked on as part of the narcotics squad. Many cities in Texas like Houston are governed by a local code that only allows for the public inspection of disciplinary actions if the disciplinary action led to suspension or loss of pay. Otherwise, patterns of misconduct remain hidden in a confidential file, inaccessible to members of the public, investigators, reporters, and people fighting for the life and liberty of those accused of crimes by police.

In addition to policy secrecy laws, law enforcement officers’ “Bill of Rights” laws add several layers of privilege on top of the confidentiality protections. These include officers’ receiving “cooling- off periods” before having to answer questions about an alleged incident that must take place at a “reasonable period” and at a “reasonable hour.” Some laws allow police to view evidence, including witness statements and video footage, before giving statements. And police protections aren’t limited to laws or statutes; they are also embedded in union contracts, some of which even allow law enforcement facing misconduct allegations to access witness statements or video footage before they are interrogated. Some even allow for an accused officer, after threatened with punishment, from having anything they say following that threat being used against them. When a police officer is fired by a police chief, the officer can sometimes be reinstated as a result of union-mandated appeals through an arbitrator paid for by the union (and sometimes they even receive back pay for the time they were suspended). Finally, in some states, police convicted of felony crimes—including the murder of innocent civilians—can still collect taxpayer-funded pensions. All of these entitlements that police have are built to protect even their criminal conduct from having consequences and must be dismantled.

In the wake of the public’s outcry, several state houses have called special sessions to address police transparency and accountability, yet these efforts have been varied, and none offer a fully comprehensive approach—one that would require the unraveling of a web of laws (e.g., police discipline secrecy laws and Law Enforcement Officers’ Bill of Rights statutes), the reform of union contracts that maintain the secrecy of misconduct and establish roadblocks to authentic accountability, requiring officer decertification protocol, and the rejection of the legal doctrine of qualified immunity. Despite a piecemeal approach, several states have begun to make sizable reform. For instance, the state of Colorado enacted a comprehensive police reform package, which includes a state civil action for the deprivation of rights, thus circumventing qualified immunity. Connecticut passed legislation in July 2020 that overrides a section of the union’s collective bargaining agreement that previously banned the disclosure of police disciplinary records under the state’s Freedom of Information Act. (Disciplinary matters and alleged misconduct, even if deemed unsustained or unfounded, can now be a matter of public record.) Maryland and New Jersey have introduced legislation to repeal the current shield on police disciplinary records in their Freedom of Information laws. Lawmakers in Maryland are considering reforms to the secrecy provision in its Law Enforcement Officers’ Bill of Rights law that must also be changed in conjunction with the Public Records Act. Oregon lawmakers are working on legislation to repeal exemptions in open records law for police personnel files and develop a public database of disciplinary records so the public not only knows of officers with long histories of misconduct, but they can also see whether and how those officers are held accountable.

Other states have gone in the opposite direction. This past summer, the Georgia legislature chose to enact regressive “reform” by passing a Peace Officers’ Bill of Rights that made police misconduct information private for the first time. This new Georgia secrecy law will prevent the public from holding police officials, like former Chief Rusty Grant, accountable for failing to discipline officers who used a coin-toss app to determine whether someone should be arrested. Grant resigned, and several other officers were fired, only after local investigative reporting made an internal report documenting widespread misconduct public in 2019.

Comprehensive police accountability reform remains elusive; however, lawmakers would do well to ensure that any legislation they enact includes provisions to ensure the public availability of police misconduct information and refuse to limit those proposals to sustained findings. Failing to include all complaints of police misconduct, along with outcomes, would deprive the public of information about the patterns of alleged misconduct, investigatory blind spots, bias, and the integrity of the investigatory process. In Chicago, the Invisible Institute’s full database of complaints, regardless of outcomes, was analyzed to determine bias among investigators; Black complainants’ complaints were less likely to be sustained than white complainants’. This insight would simply not have been possible without access to the full data set of reported complaints.

Transparency of all complaints might also prevent wrongful convictions because officers who might otherwise have engaged in years of misconduct would be rooted out early. For instance, for years, including during the time of the Central Park jogger case, sustained—and unsustained and unfounded—police disciplinary records remained hidden from view because of police protections offered by 50-a. Once 50-a was repealed, the New York Civil Liberties Union published the full database of NYPD officer misconduct reports held by the New York City Civilian Complaint Review Board (CCRB), the independent agency that investigates complaints about police abuse of civilians, including more than 320,000 misconduct complaints dating back to before 1985.

One of the primary detectives in the case of the Exonerated 5 had a total of 43 civilian complaints lodged against him since 1994, when the agency became independent and 11 of them had been substantiated. It is likely these numbers do not capture the entirety of the allegations against this particular detective because this database only includes complaints placed at the CCRB (there are likely more in Internal Affairs files). Until just a few months ago, none of us had access to these disciplinary records, but it stands to reason that had this information been public, the history of misconduct alleged by this officer would have been available and sufficiently significant to sow doubt in the prosecution’s case. This would have at least opened the door to accountability and could have possibly prevented the lives of five young boys from being destroyed for decades.

Similarly, many other highly publicized tragedies, and the uprisings that followed, may have been prevented. In addition to officers involved in killing Eric Garner, George Floyd, and Laquan McDonald having histories of misconduct, so have the officers involved in killing Breonna Taylor and Rayshard Brooks. On balance, there appears to be little true justification in maintaining the status quo—the availability of police misconduct records is a foundational reform; no true accountability can flow from an incomplete picture of an officer’s history. States that continue to allow for black box treatment of misconduct are enabling rampant police abuse to remain unchecked and perversely rejecting the very basis of the criminal justice system by permitting, and even enabling, criminal conduct with absolutely no accountability.

Rebecca Brown

Director of Policy, Innocence Project

Rebecca Brown joined the Innocence Project in 2005 and directs its federal and state policy agenda, which seeks to prevent and reveal wrongful convictions and ensure compensation for the wrongfully convicted upon release from prison. Her team has successfully lobbied the passage of more than 200 laws at the state level. 

Cynthia Conti-Cook

Civil Rights Lawyer

Cynthia Conti-Cook is a civil rights lawyer and researcher on topics of law, policing, and technology, currently on sabbatical from New York City’s Legal Aid Society. She co-created the Legal Aid Society’s Cop Accountability Project database of police misconduct and worked closely with grassroots organizations in New York to repeal 50-a.