NC and US DOJ again say data on in-custody deaths is secret; key lawmaker disagrees

As communities across the nation continue to grapple with high-profile police killings, North Carolina officials have again refused to release information on the deaths of people who died in custody, citing guidance from the U.S. Department of Justice.

The congressman who wrote the law requiring states to collect that information says both North Carolina and the U.S. DOJ are getting it wrong.

Since late 2019, federal law has required states to collect details on deaths during interactions with law enforcement. That includes deaths in county jails and state prisons, as well as killings by local police. States submit their collected data to the U.S. Department of Justice, which is required by law to report its findings to Congress.

The program created by the Deaths in Custody Reporting Act is the most comprehensive effort to date by the United States to track how many people die during interactions with law enforcement, the demographics of those killed and the causes of death.

But since the DCRA was signed into law, the federal government has yet to provide any of its findings from the data collection effort – despite police killings that have shaken communities from Elizabeth City, N.C., to Minneapolis.

That clamp-down on information, federal officials say, should extend to the states as well.

North Carolina officials told the N.C. Watchdog Reporting Network earlier this year that a federal confidentiality statute prevents them from releasing the information collected under the DCRA – specifically, the forms detailing each death collected from local law enforcement. But Virginia, Georgia and South Carolina, in contrast, released all or part of their own in-custody death data in response to nearly identical public records requests.

This prompted North Carolina officials late last month to reach out to U.S. Department of Justice lawyers for additional guidance. “Given the fact other states are providing information collected on the (DCRA form) or the entire unredacted document to various media outlets upon request, I am writing to confirm your office’s position as to whether DPS is properly declining to provide these forms,” Jane Ammons Gilchrist, general counsel for the N.C. Department of Public Safety, wrote on March 26.

The reply from Office of Justice Programs General Counsel Rafael Madan came five days later, confirming North Carolina officials’ interpretation of the federal confidentiality statute.

Specifically, Madan wrote, the law “would forbid the North Carolina Department of Public Safety” from revealing information from the collected forms.

U.S. DOJ cited that same statute in its denial last week of a federal Freedom of Information Act request from the Watchdog Reporting Network for the same data.

And in an email this week, the Governor’s Crime Commission, the North Carolina agency responsible for collecting data under the federal law, again said it was prohibited from releasing its own version of the information – regardless of format.

“Information regarding deaths in custody of local law enforcement is not collected or maintained by GCC independently of the DCR-1A or BJA spreadsheets,” commission spokesperson Margaret Ekam said in an email. “Therefore, we do not have any public documents responsive to your request.”

The interpretations barring disclosure have not yet been challenged in court.

Experts say gathering and publishing such data is crucial to understanding and preventing deaths in custody, whether it’s a suicide in a county jail or a police shooting in the street. And the secrecy is counter to the legislative intent, according to U.S. Rep. Robert C. “Bobby” Scott, D-Virginia, who introduced the DCRA in 2013.

“This position taken by the Department of Justice (DOJ) is completely counter to both the letter and the spirit of the Death in Custody Reporting Act,” Scott said in a statement. “As the chief author of the law, I will continue to push DOJ to implement the law the way Congress intended.”

‘Little tidbits’

Last month was the second time state officials asked the U.S. DOJ for advice on how to respond to a request for data collected under the federal program.

In February 2020, Charlotte attorney George Laughrun II asked state officials for a copy of the DCRA form related to the death of 41-year-old Harold Easter.

An investigation would later reveal that Easter ingested crack cocaine after he was stopped by the Charlotte-Mecklenburg Police in January 2020. Although officers saw him eat the drugs, they shackled him in an interview room without calling for medical attention. Video from the room where Easter was held showed he fell unconscious, had a seizure and lay on the floor alone for eight minutes before police found him.

Easter was hospitalized and died three days later.

Several officers lost their jobs after the department found they violated policy by not seeking medical assistance immediately after learning Easter had ingested drugs.

Laughrun, who regularly represents police officers in such cases, didn’t know all that at the time, and he set out to gather as much information as he could on the case. So he asked the state for the DCRA that would have been prepared on Easter’s death.

“We were just looking for little tidbits,” Laughrun said.

He doesn’t remember his request going anywhere. But behind the scenes, it was enough to prompt state officials to reach out to U.S. DOJ.

Follow-up emails show N.C. DPS and U.S. DOJ officials noted a specific federal statute that would keep the information confidential, much as they did when the Watchdog Network asked for these forms. An attorney for the state offered his interpretation of the law, that North Carolina couldn’t share the DCRA form. His federal counterpart didn’t disagree.

“We cannot reveal the information ‘for any purpose other than the purpose for which it was obtained,’” N.C. DPS Assistant General Counsel Sammy Said wrote to DOJ in April of last year. “I believe the purpose it is being obtained is to provide the information to you guys in order to furnish your report to Congress.”

“That all makes perfect sense,” Peter Brien, U.S. DOJ Office of Justice Programs general counsel, replied.

The Governor’s Crime Commission cited the same statute a few days later when it responded to Laughrun.

“In summary, the information you requested is part of this federal reporting requirement and not available from the GCC,” Caroline Valand, executive director of the commission, wrote to Laughrun on May 1. “Requests for this data must be requested directly to the submitting agency.”

So Laughrun would have had to turn to the CMPD for information on Easter’s death. And anyone trying to analyze statewide data has to request the information from each of the state’s more than 600 law enforcement agencies – in effect, recreating the database the state is already required to maintain.

Although he doesn’t remember the state’s response, Laughrun said he thinks the forms shouldn’t be secret. Transparency, he said, helps both law enforcement officers and the communities they serve.

“If you’ve got a document generated by a public agency – unless there’s some doctor-patient privilege, priest-penitent privilege, sort of HIPAA issues – I think that the public ought to have a right to know, and see these documents,” Laughrun said.

This story was jointly reported and edited by Laura Lee and Frank Taylor of Carolina Public Press; Tyler Dukes and Dave Hendrickson, of The News & Observer; Nick Ochsner of WBTV; Michael Praats of WECT; Travis Fain, of WRAL; and Jason deBruyn of WUNC.