Pennsylvania: A State of Secrecy

By Crystle Craig, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

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Pay attention, because Pennsylvania lawmakers are on a path to decimating already delicate police-community relations. House Bill 1538 and Senate Bill 1061 mean to take decision-making power from local leadership, blanket law enforcement in a veil of secrecy, and keep the public ignorant to the actions of those who serve it.

Transparency is undeniably vital to any government, such as ours, that wishes to hold the trust and consent of its people. Yet, Pennsylvania is set to veil itself in secrecy in an attempt to shield its law enforcement officers from public accountability. In a time when police chiefs, governors and congressman across the country are calling to open the practices of police to public scrutiny, Pennsylvania’s bills take a tragic leap in the wrong direction.

Pennsylvania House Bill 1538 and Senate Bill 1061 would prohibit local leadership from identifying officers involved in use of force incidents against the people. Police chiefs, district attorneys, and mayors would be barred from disclosing such information until the completion of an official investigation. Under this language, the public could be left waiting virtually into perpetuity. If the investigation is prolonged for years, we would not know the names of potentially dangerous officers for years. If the investigation never closes, as some may be wont to do, the information could never be released. In other words, there is no limit upon the time under which dissemination may be prohibited. And Senate Bill 1061 goes even further by imposing criminal punishment against local leaders who decide to identify their officers, regardless of whether the disclosure was done for the public good and safety.

But the absence of logic is most troubling. In fact, nothing but baseless assumptions abound in these bills. Our lawmakers assume that Pennsylvanians are unreasonable and unstable. They imply that Pennsylvanians just cannot be trusted to do the right thing, as if we will only use disclosure for nefarious purposes rather than for accountability, healing, and peace of mind. In the eyes of our lawmakers, we can do the right thing when electing them, but we are just too emotionally unstable when seeking truth and justice. They assume this without being able to point to any known instances of officers being targeted after the disclosure of identifying information under Freedom of Information Act/ Right to Know Requests or at the discretion of local leadership.

Our lawmakers assume that our police chiefs, district attorneys, and mayors cannot act in the best interests of their officers and communities. Currently, local leadership has the ability to judge the circumstances within the community. They have the discretion to either disseminate information for the public good or to withhold it if the release of such information would put officers or public safety in jeopardy. But, our lawmakers want to ignore the fact that local leadership is in the best position to make judgment calls for their communities, not the detached politicians at the Capitol. They would substitute their inexperience and assumptions for the reasoned judgment of the local leadership who make decisions in consideration of the immediate realities of the local environment.

Evidently, our lawmakers have faith in no one but themselves.

But we must not forget that all departments of government, law enforcement especially, are accountable to the people. The trust of the people must be earned, not taken for granted. That requires transparency. Transparency encourages trust, serving as a vital check against power prone to corruption. Police power certainly is not immune to corruption, but “sunlight” acts as the best disinfectant for deterring and responding to corruption within any government agency. Police chiefs know this. Mayors know this. Governors understand it. And the people demand it.

Achieving a lawful police force is a never-ending task. A government of checks and balances is not enough without transparency, particularly within law enforcement. Police officers are given the unique power to detain and use force against the people, but, when doing so, they must adhere to the rules of law. The people must be able to know if the checks and balances are functioning; the people must know who can and cannot carry-out the demanding responsibility of upholding our laws so that good officers may be praised and the bad officers discarded. As John Adams wrote centuries ago, “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.” This wisdom is wholly applicable to law enforcement today.

Transparency and public awareness are crucially important forces for maintaining fair, humane and lawful police forces. Chicago, Baltimore, Philadelphia and Ferguson all stand as undeniable parables to this end. Let us not forget their lessons as Pennsylvania lawmakers seem to have done with these “secret police” bills; let us speak up and against the veil of secrecy.

Crystle Craig is the 2015-16 Larry Frankel Legislative Fellow and a 2015 graduate of the Dickinson School of Law in Carlisle.

Invasion of Privacy or Public Safety Measure?

By Paul Anderson, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

Police Body Camera

The recent tragedies in Ferguson, Staten Island, Cleveland, Los Angeles and now Madison have thrust questions of how law enforcement interacts with members of the public into the national spotlight. One issue of specific focus has been available technologies that would—ideally—allow for greater oversight and accountability of officer interaction with the public. Body-worn cameras that record interactions made during an officer’s shift have advocates from both the police and civilian worlds. Members of the public believe that recording of encounters will better document potential police misconduct and provide greater transparency over state actors, and some parties in law enforcement envision body cameras can be valuable tools to increase public trust in the police.

Police body cameras are an admittedly thorny issue for the ACLU because of the potential for placing two equally compelling interests on a direct collision course. The aforementioned desire for greater accountability of state actors is offset by privacy interests of individuals who are recorded. Any body camera policy, whether imposed by the General Assembly or implemented at the municipal level, must delicately balance these interests.

At the outset, the police should have a near-zero discretion policy in turning off the cameras during encounters with the public. The only exceptions should be for conversations involving crime victims or witnesses. Too much latitude in powering off the cameras will inevitably lead to manipulation by some officers, as shown in a recent excessive force lawsuit in St. Louis.

In addition, all subjects should be made aware that their interactions with police are being recorded, but higher standards should govern in certain circumstances. For example, a recording inside a person’s home should be permitted in a non-emergency situation only with the consent of the residents or pursuant to a valid search warrant. Similarly, policies should accommodate crime victims and witnesses who request that a camera be turned off before divulging sensitive information.

The actual recording of encounters is not the only aspect of body cameras that raises significant privacy concerns. Storage policies must also be especially sensitive of individual privacy interests. Retention policies, like all other components of a comprehensive policy, should be directed to promote government oversight or other public interest. The interest in holding the state accountable is much lower when there is no evidence or accusation of police impropriety. Therefore, videos without any public or investigatory interest should be deleted as soon as is feasibly possible. Recordings that either involve significant police escalation or involve an incident that a civilian complains about should be retained longer, even if they are not being used in any criminal proceeding. The social interest in these recordings is much higher, meaning they should be retained and made available, in redacted form if necessary.

Finally, it is important to remember that use of body cameras is, at bottom, designed to permit greater public oversight of government behavior, not vice versa. Therefore, any legislation should include sweeping prohibitions against the use of body cameras as a general surveillance tool. The potential for misusing cameras to secretly record First Amendment activity- such as political protests or religious activity- is significant enough to create a demand for policies that explicitly disavow this type of monitoring.

Body cameras are not a panacea. In the Staten Island incident, a bystander captured video evidence of an officer using a chokehold on Eric Garner that was in violation of NYPD policy. Even though the coroner ruled Garner’s death was a homicide caused by compression of the neck and chest, a grand jury still declined to indict the officer responsible. Given deeper questions of structural inequality underscoring the current policing landscape, it is unlikely that increased recording of encounters alone will sufficiently restore public trust. However, body cameras can provide a potentially useful additional level of government oversight, as long as any legislative or administrative policies are developed with a clear and principled balancing of two crucial—and occasionally competing—interests.

Paul Anderson is the Larry Frankel Legislative Fellow at the ACLU of Pennsylvania and a third-year student at Penn State Dickinson School of Law.