Californians are now paying a great deal of attention to policing. While protesters march in the streets and community leaders call for change, lawmakers in Sacramento and Washington, D.C., are trying to find policy solutions.
While there’s broad agreement that change is needed, no consensus has emerged about what should be done. That’s because the challenges we face are too big for one or two quick fixes. The solutions offered so far are important but fall far short.
Federal legislation to track officer-involved killings is long overdue. But the version enacted last month collects only minimal information, and excludes all information about the officers involved and any specific facts about the encounter, such as a subject’s mental illness or language barriers. Knowing the total number of people killed by police each year is important. But if we are actually going to take steps to prevent police killings, we need to know much more.
Having independent prosecutors make decisions about when police officers should be criminally charged for misconduct also makes sense. Those decisions shouldn’t be made by district attorneys who work on a daily basis with officers. But it’s also not enough. While the criminal system can protect against the most egregious violations, we need to improve accountability for the much more frequent violations of policies or legal standards that don’t rise to the level of criminal prosecutions.
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Body cameras for police hold significant promise for improved transparency – letting the public know what really happened, so we can tell whether the system effectively holds officers accountable. But what good are body cameras if the public doesn’t have access to video of questionable encounters? Or if the public never knows whether officers were disciplined? Unfortunately, current California law likely allows police to keep that important information secret. That’s one broad problem we should address.
California has one of the nation’s most restrictive laws for public access to information about police officer misconduct. State law bars disclosure of all police personnel records – a restriction that prevents the public from finding out which officers have engaged in serious misconduct. What’s more, courts and police agencies have interpreted that confidentiality broadly to cut off public access to nearly all information that might be used in personnel decisions, including internal affairs investigations and hearings on civilian complaints.
Under California law, civilians who file complaints against officers find out little about what happens next. To avoid violating state law, departments often don’t disclose even whether the officer was found to have violated policy, much less exactly what policy the officer violated, what kind of discipline resulted, or any explanation of why the department reached the result it did.
Laws in most other states allow much more transparency. In Florida, Kentucky, Texas and Utah, records are public when the department determines that an officer violated policies or engaged in misconduct. Other states – including Connecticut, Georgia, Louisiana, Michigan, Minnesota and Washington – make records of all misconduct investigations public regardless of the outcome.
Even in California, disciplinary records for public employees who are not peace officers are generally public. So are allegations of misconduct, so long as the alleged misconduct is not trivial and there is reasonable cause to believe the accusation is well-founded. Only when it comes to police is everything about an employee’s conduct secret.
Police officers interact with the public, are paid with public funds, and, occasionally, receive complaints from the public. The public should have a right to know about these complaints, as there is for all other public employees.
In addition to transparency, we also need to address the racial disparities endemic in our criminal justice system – including the higher rates at which African Americans and Latinos are stopped, searched and subjected to force; and the significantly higher rates at which they are incarcerated. California law nominally bans racial profiling, but under such a convoluted definition that the law has limited use.
The state should bar the use of race in all discretionary police decisions, other than describing suspects, consistent with new federal standards. To enforce that ban, we should require uniform, statewide tracking of police stops – information on who is stopped, when, where and by which officers, and what happens during the stop (whether evidence is discovered or someone is cited or arrested, plus detailed information on use of force). And we must analyze that data to let the public know what disparities exist and to help police departments reduce them.
For all Californians to have faith in law enforcement, we need to know that allegations of serious misconduct are appropriately addressed and that departments are actively working to end racial disparities.
Peter Bibring is director of police practices at the American Civil Liberties Union of Southern California.