During a CNN town hall in Cincinnati, Ohio, this month, President Joe Biden called for use of a tool long touted by police reform advocates: access to police disciplinary records.
“We have to have rules where you can be able to determine what the background (is), how many times a cop has violated the rules, and be able to have access to what's going on in police departments so the Justice Department can get involved in whether or not they have to change their pattern and practices,” Biden said.
The fight for access to police personnel records has picked up urgency recently, as calls for police accountability have renewed in the wake of George Floyd’s death last year, as well as other high-profile killings of Black Americans by police. Derek Chauvin, the police officer convicted of murdering Floyd, had 18 complaints filed against him during his 19 years with Minneapolis police. Chauvin used force or was involved in an incident in which force was used during eight instances.
And Chauvin is just one example in a larger trend in which officers can keep working despite continued misconduct.
According to an investigation from USA TODAY in 2019, more than 85,000 police officers have been investigated or disciplined for misconduct in the past decade and 30,000 officers were decertified by state oversight agencies.
The George Floyd Justice Policing Act of 2021, introduced originally in 2020, would create a federal registry of police misconduct complaints and disciplinary actions. The bill passed through the House on mostly party lines in early March but has met gridlock in Senate.
But the move to make the records public is more difficult than it seems, experts say. Here’s why.
Policing is local
America has long emphasized the importance of state and local autonomy, and police forces are no different. There are around 18,000 police departments across the United States, including about 15,400 local police departments, according to the Department of Justice.
Each has its own rules, responsibilities, and powers, including the processes by which they discipline their officers and record data on their employees. Most don’t collect the same kinds of information, making the process of crunching police conduct data into one uniform database difficult and time-consuming, says Maira Kwhaja, director of public strategy at the Invisible Institute.
“What we’ve learned in just doing this in Chicago, that the way that the city government maintains and creates data changes from almost year to year. Every few years they move to a different database.... Even being sure that an officer is the same person from year to year is very tough,” said Kwaja.
If an officer moves departments, tracking their conduct can become nearly impossible.
“There's no unique identifier for each individual officer in the country, so if an officer gets fired or resigns, they can easily move to another jurisdiction and start working, and there's no real way to track that throughout the country,” said Kwaja.
Despite difficulties, organizations have attempted to create public databases of police misconduct records.
The Invisible Institute, where Kwaja is the director of public strategy, maintains the Citizens Police Data Project, a database that includes records of misconduct of Chicago Police Department officers. The database allows users to search officers by name and includes profiles on each, detailing civilian and officer complaints and use of force reports.
The New York Civil Liberties Union maintains the New York Police Department Misconduct Complaint Database, which includes public record complaints made at the Civilian Complaint Review Board, an oversight agency board that investigates complaints against NYPD.
Some projects seek to include records from a broader area, like USA TODAY’s database, which was first launched in 2019. The database contains records of at least 200,000 incidents of alleged misconduct and details of 110,000 internal affairs investigations from police departments and state agencies nationwide. The database also has records for more than 30,000 officers who lost their law enforcement certification, which were obtained by filing requests under open records laws.
Some projects haven’t used public records requests to build their databases.
The Law Enforcement Work Inquiry System, or LEWIS, will be a national database documenting officers who have been fired for their conduct. The system will use news reports and press releases to gather information on officers nationwide.
The University of Southern California’s Safe Communities Institute, which houses the LEWIS Registry, will use the data to examine patterns to identify predictive indicators of misconduct.
Dr. Errol Southers, the director of the Safe Communities Institute, said he hopes the research will then be used to shape departmental policies to combat those indicators. Southers is a member of USA TODAY’s Opinion Board of Contributors, a group of writers with a broad range of expertise and views who span the political spectrum.
The registry will be available to the public in October and will show data from the last three to five years. Currently, the registry has information from 40 states and includes 287 fired officers.
“We are only using publicly available open source information for two reasons. Number one, we want to make sure that we get it from the right sources, and we can vet that. Number two, we want to make sure that we’re not compromising a former officer’s safety or the safety of his family,” said Southers.
Unions resist, citing officers’ due process
Communities have been calling for public access to police disciplinary records for decades, but police responses have been mixed, says Dr. Tracie Keesee, senior vice president of justice initiatives and co-founder of the Center for Policing Equity, a think tank that researches policing practices.
Partly to blame for those mixed results are powerful police unions.
“The [police] chiefs have told us most of the pushback is union, where they might want to engage in this as a department, the union will tell them it’s not in their best interest,” said Southers.
The unions’ concern, says Southers, is all about due process—making sure officers get fair treatment when being investigated for misconduct. Unions believe making an officer’s records public could influence the process of an investigation.
“A police officer might suffer undue scrutiny from family members, friends, neighbors and even co-workers, when this information is released,” wrote Dean Angelo, the then-president of the Fraternal Order of the Police Lodge No. 7, in a newsletter to the police union’s membership following the Kalven v. the City of Chicago ruling. The case made police complaint and disciplinary files public in the state of Illinois in 2014.
On June 5, 2020, just days before New York Gov. Andrew Cuomo signed a bill making police records easier to get, a coalition of New York law enforcement unions released a memo condemning lawmakers for rushing to pass “anti-police bills.”
“Opponents of [Section 50-a] favor release of all complaints, even those that have not been fully investigated and substantiated and where the law enforcement officer has not had a chance to be heard. These types of claims are not reliable or fair indicators of an officer’s conduct, and would not be used to impugn any other person. The release of such records, however, would expose the accused officer to serious safety concerns as well as unavoidable and irreparable harm to reputation and livelihood,” the memo reads.
The Fraternal Order of the Police did not immediately respond for comment.
When a complaint is lodged against an officer, an investigation is completed either internally by the department or externally by a third party, depending on that department’s policy. If found to be true, the officer is disciplined, although how that discipline is determined varies widely from organization to organization, said Keesee, who worked for the Denver Police Department for 25 years.
But others say that access to these records is important when it comes to identifying what needs to be changed in policing.
“When people face misconduct at the hands of the police, oftentimes they think that they are alone or they’re unique or they made a mistake. What these misconduct complaints can show the public is that it’s actually not some anomaly,” Kwaja said. “What that allows us as a society to do is to identify patterns and advocate for different laws and practices that can change the shape of policing.”
Even when the laws mandate disclosure, records are hard to get
Last year, New York Gov. Andrew Cuomo signed a bill repealing a law that had been used by the police for years to shield personnel files, especially disciplinary records, from the public. The repeal of Section 50-a, as the law is known, has allowed for members of the public to file open-records requests with police departments across New York.
In the year since the measure was signed, at least 11 lawsuits have been filed across the state regarding the law, some from police unions seeking clarification on just how much police departments are required to share.
In 2018, California Gov. Jerry Brown signed a law allowing public access to internal police investigations. Previously, California had some of the country’s most secretive laws surrounding police misconduct records.
Less than five months after the law came in effect, Santa Rosa police officials refused to disclose past misconduct records on their officers, saying they was waiting for the law to be clarified under a state Supreme Court case.
And in Illinois, police misconduct complaints became public in 2014 after a seven-year legal battle. The Invisible Institute, the nonprofit that won the court decision, has taken on filing public records requests to create its database.
Despite some of the most transparent laws in the nation in Illinois, the Institute is in a constant battle with the city of Chicago to receive underlying documents, like victim’s testimonies related to allegations, said Kwhaja.
Advocates and lawmakers in each of these states fought years-long battles to make the records public and still face roadblocks when requesting the records.
Thirty-five states still don’t allow access to their records, according to a 2021 report from the Associated Press.
Southers says making police records accessible to the public will continue to be difficult.
“It’s going to be really difficult to make public human resource files, whether it be policing or anything else in America. I’m not saying it wouldn’t be helpful. I’m going to say that’s going to be really challenging going forward.”
This article originally appeared on USA TODAY: Biden wants openness for police disciplinary files. That's hard to do.