Create state law to ensure there is a mechanism for the public to obtain access to civilian complaints and police misconduct records.

State level.

Priority states:

  • Delaware
  • New Jersey

We’re looking for a statute that eliminates state law confidentiality protections for police officer misconduct and civilian complaint records. Legislation should apply retroactively to allow for the release of records created prior to the bill’s enactment, provide for a minimum retention period, and provide public access to unsubstantiated complaints.  

Specifically, we’re looking for statutes that include some or all of the following components:

  • A generally expansive definition of what types of misconduct should be available to the public, but most crucially access to records of incidents where officers engaged or allegedly engaged in conduct that harmed a member of the public, including:
    • use of force incidents;
    • discrimination, including racial bias or racial profiling as well as discrimination on the basis of national origin or immigration status;
    • improper stops and searches;
    • job-related dishonesty;
    • sexual assault, including sexual harassment of co-workers.
  • Access to a broad range of record types, including:
    • unsubstantiated and exonerated civilian complaints;
    • substantiated civilian complaints;
    • disposition of disciplinary proceedings;
    • opinion or reasoning supporting disciplinary decision.
  • Mandatory access to records; NPAP opposes transparency legislation that would make the release of police misconduct documents discretionary or would require members of the public to obtain a judicial order for disclosure.
  • Retroactive access to explicitly include access to records created prior to the enactment of the transparency legislation.
  • To the extent that state freedom of information laws do not already include attorney’s fees for the requester, transparency legislation should provide for them.

NJ S2656


 

 

Interested in advancing police accountability legislation where you live?

Contact Lauren at legal.npap@nlg.org

Frequently Asked Questions

  1. Why would we need to know about complaints that were found to be unsubstantiated?
  2. Couldn’t an unsubstantiated or exonerated claim unjustly damage an officer’s reputation if publicly released?
  3. Does releasing internal police records pose an issue of privacy and threaten due process?
  4. What about protecting the civilians who issue complaints or whose sensitive information is included in records?
  5. What about police retaliation against civilians who file misconduct complaints?
  6. How does increased transparency relate to broader institutional changes in policing?
  7. If police department policies and disciplinary procedures are publicly available, why is it necessary to know about individual instances of misconduct?

 

1. Why would we need to know about complaints that were found to be unsubstantiated?

An unsubstantiated complaint doesn't mean the incident didn't happen or that the officer was exonerated. It means that there was not enough evidence to prove or disprove it. Moreover, misconduct investigations are severely restricted by union contracts and law enforcement officer bill of rights (LEOBOR) laws which limit interview techniques and the duration of investigations. The same contracts and laws also often impose a high evidentiary standard to reach a substantiated finding. As a result, the vast majority of civilian complaints are found to be unsubstantiated even if a violation did occur.

Unsubstantiated and exonerated complaints can also reveal weaknesses in internal affairs procedures and can help identify officers who are repeatedly making members of the public feel unsafe or disrespected, even if those actions do not rise to the level of a rule violation. These records shed light on patterns of police misconduct and give communities the resources they need to evaluate whether law enforcement agencies are conducting fair investigations into citizen complaints. The way a department handles allegations of officer wrongdoing gives people information about whether agencies are conducting fair investigations.

 

2. Couldn’t an unsubstantiated or exonerated claim unjustly damage an officer’s reputation if publicly released?

While reputational concerns are understandable, these can be mitigated by the fact that other information will be released including the fact that the officer was cleared by internal affairs and the reasons why the person was cleared. 

Moreover, the risk to public safety that is posed by not releasing this information certainly outweighs any personal reputational and privacy concerns an officer may have.

 

3. Does releasing internal police records pose an issue of privacy and threaten due process?

First, it is important to note police officers do not have a federal legal right to privacy or due process in most police misconduct records. No court has found that a public employee has a federal constitutional privacy interest in their disciplinary history at work. While there may be information, like medical information, in records that should be legally protected from disclosure, it can be redacted. Similarly, courts have consistently declined to recognize a due process right to prevent the release of police misconduct records, including the disclosure of unsubstantiated civilian complaints. 

Absent special state constitutional protections, there are no legal reasons that states cannot give the public access to police records. Instead, concerns about privacy and due process are rooted in the belief that police officers are entitled to unique protections. When civilians engage in misconduct, information about the incident becomes a public record as a matter of course unless the person is a minor. Even unproven allegations of misconduct are generally revealed to the public. 

Moreover, any government interest in withholding police misconduct records is trumped by the benefits of disclosure. Broad public access to misconduct information supports community empowerment, accountability, and informed policymaking. It also benefits the government by building much needed trust with the community. As law enforcement organizations have themselves noted, government transparency about officer misconduct will lead communities to be more cooperative with the police, making it easier for them to solve and prevent future crimes. 

In all, concerns justifying confidentiality of police records lack a legal foundation, can be addressed through redactions, and are trumped by the significant benefits of transparency and public disclosure.

 

4. What about protecting the civilians who issue complaints or whose sensitive information is included in records?

Police departments are responsible for redacting these records before they are made public. 

 

5. What about police retaliation against civilians who file misconduct complaints?

Some states allow for anonymous complaints to be filed. In others, retaliation is a real concern, but concerns about further abuse of power committed by law enforcement is no reason to hide past injustices. Permitting the disclosure of misconduct records will ensure that civilians can identify dangerous police officers and apply public pressure on their employing agencies to take corrective action.

 

6. How does increased transparency relate to broader institutional changes in policing?

Over-policed communities, policymakers, and advocates are essential stakeholders in ending police abuse, but they cannot meaningfully participate in reform if information about police misconduct is kept secret.

Departmental responses to allegations of officer wrongdoing can expose problems with internal affairs investigation procedures as well as issues with department leadership. For instance, if a complaint is found unsubstantiated but the records reveal key witnesses were not contacted, advocates would know they need to focus their energy on improving the department’s investigatory process. Similarly, if a police supervisor imposes light discipline for racial profiling, the public would know to question the current police chief’s commitment to racial equity and develop an advocacy plan accordingly.

Moreover, police departments are often responsible for the civil rights violations committed by their officers. Even though police misconduct is frequently attributed to a moral failing by an individual officer (i.e the bad apple narrative), it is many times the result of their employer’s failure to train and guide their employees to take appropriate action. In order to sue a police agency for a civil rights violation, a plaintiff has to show their injury was the result of a departmental practice, custom, or policy. Unconstitutional policies are usually not committed to writing and can only be demonstrated through evidence of repeated acts of misconduct. When these acts of misconduct are made confidential, plaintiffs will be unable to include information in their complaint that will help them hold cities accountable. Another way that plaintiffs can show municipal liability is ratification by police leadership. Without access to disciplinary records, victims will be in the dark about whether the police agency approved of their mistreatment and should be held accountable for their suffering.

Access to police records is essential to evaluate case strength and prepare pleadings that will survive a quick dismissal. Accordingly, legislation that creates greater transparency will help those harmed by police violence seek justice and promote legal accountability for police agencies that have created a culture of misconduct.

 

7. If police department policies and disciplinary procedures are publicly available, why is it necessary to know about individual instances of misconduct?

Even if their written policies are not objectionable, a department’s response to an incident of excessive force or a suspicionless search can expose its true customs. An officer that receives little or no discipline for objectively unconstitutional conduct likely works in a department that is at the very least indifferent to harmful policing practices. It can also provide insight into the quality of departmental training. When recidivist officers are regularly assigned additional training as corrective action but never improve their behavior, there is reasonable concern that the training is ineffective.

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