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The same day that New York repealed 50-a, Houston’s district attorney concluded that Gerald Goines, a narcotics officer with the Houston Police Department, likely lied about a drug deal for which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.