[Balko] Trust Me: You Can Trust Us

by Radley Balko
August 30, 2010

In April I wrote a column about the secretive habits of three large police departments in Virginia's Washington, D.C., suburbs: Fairfax County, Alexandria and Arlington. As Connection Newspapers reporter Michael Pope showed in a series of reports that began in March, they are among the least transparent departments in the country, having interpreted Virginia's Freedom of Information Act in a way that allows them to turn down nearly all requests for information.

Recently legislators and organizations have attempted to make Virginia's law enforcement agencies more transparent. As I reported in June, Nicholas Beltrante, an 82-year-old former cop and Navy medic, started the Virginia Citizens Coalition for Police Accountability. And in January, state Sen. John Edwards, D-Roanoke, introduced a bill that would force police to turn over public records in cases where the investigation is complete.

Michael Pope's initial attempts to obtain information, even about mundane cases or arrests the department was highlighting in press releases, met with astonishing disdain. Police were not only stingy with information, they were smug and arrogant about it. When asked why she couldn't release the name of a Virginia police officer who shot and killed an unarmed man last November, Fairfax County police spokeswoman Mary Ann Jennings replied, "What does the name of an officer give the public in terms of information and disclosure? I'd be curious to know why they want the name of an officer."

After Pope's first article on the lack of disclosure, Alexandria Commonwealth's Attorney Randolph Sengel, the city's elected chief prosecutor, responded with a sneering, condescending letter to the editor brimming with contempt for outsiders who try to hold law enforcement agencies accountable. "Last time I checked there were multiple safeguards in place to assure the integrity of the criminal justice system," Sengel wrote. "Conscientious and dedicated judges, prosecutors, public defenders and law enforcement officers work in a system which is as transparent as it needs to be. ...The sacred 'right of the public to know' is still (barely) governed by standards of reasonableness and civility."

Meanwhile, the elected officials who are supposed to oversee law enforcement in these jurisdictions told Pope they saw nothing wrong with all the secrecy. "I am in the corner of trusting our police department," Arlington County Board Member Barbara Favolasaid.

The Virginia Freedom of Information Advisory Council, a state agency that advises lawmakers and government officials, considered Edwards' bill at a hearing last week. The council is a partial response to such attitudes. If enacted, the bill would make Virginia's police departments a bit more transparent, although they would still have the power to routinely deny requests for information about open cases.

In response to fierce opposition from law enforcement, Edwards amended his bill to require that people seeking information about closed cases ask a judge for an order requiring police departments to turn over public documents. But as Pope reported this week, the change did not appease the bill's opponents. Instead of requiring police departments to provide a compelling reason for withholding public records, the latest compromise plan would put the burden on the petitioner to convince a judge that the records should be released. Even that isn't enough for the bill's critics, who prefer that police departments have complete discretion to withhold department records.

Pope reported that police chiefs, prosecutors, and sheriffs from across Virginia "spoke against Edwards' bill" at last week's hearing, complaining that "incident reports were raw and unedited documents full of accusations and opinions that would reveal police operations to criminals." They also warned that releasing such documents would "create a chilling effect on victims and witnesses," discouraging them from "coming forward to share information." These worries are red herrings. Nearly every other police department in the country releases police reports to the public without compromising investigations, public safety or the security of witnesses. Sensitive information such as the identity of police informants or the names of witnesses can be redacted.

The real motive for the current policy seems to be preventing watchdogs and journalists from scrutinizing police reports for accuracy and consistency or examining the history, training and temperament of officers involved in shootings. Consider the case of Jonathan Ayers, a pastor who undercover narcotics officers killed during a botched drug sting in Lavonia, Ga., last year. Ayers, who was counseling a prostitute and low-level drug offender, was unarmed, had no drugs on him and appears to have done nothing wrong. An internal investigation and a Georgia Bureau of Investigation inquiry cleared the officers involved in Ayers' death of any wrongdoing. But months later, a local TV station and attorneys for Ayers' widow discovered that Billy Shane Harrison, the officer who killed Ayers, not only hadn't received proper training in the use of lethal force but wasn't legally permitted to carry his service weapon. In fact, under state law, he wasn't even permitted to be a police officer. If Harrison had killed Ayers in Virginia, we might still not know his name, much less that he had no business wearing a badge that day.

Alexandria Commonwealth's Attorney Sengel, who insists that the criminal justice system does fine on its own without intrusion by nosy outsiders, attended last week's hearing on Edwards' bill to reiterate his opposition to greater transparency. "Other than people out there who want to write books like Truman Capote, I don't think we've heard a compelling need for this," Sengel said, according to Pope's report on the hearing. "It's designed to address a problem that really doesn't exist, and it would create a situation that's much worse than what we have today."

We could just take Sengel's word for it. But the truth is that we don't know if there are problems inside Northern Virginia's police departments, because Northern Virginia's police departments refuse to release any information to the public. When Sengel investigates a business in Alexandria for fraud, he doesn't let its executives off the hook as long as they give him their word that everything is on the up and up. Yet Sengel would have us believe that law enforcement officials are incapable of corruption, collusion, and deceit--because they (and he) say so.

Law enforcement officials are as fallible as the rest of us. The major difference between them and us is that they are entrusted with the most direct and dramatic power we give the government: the power to arrest, to detain and to kill. Their failures can rob people of their freedom or their lives. That's more than enough reason to hold them at least as accountable as any other government official. And it's more than enough reason to take back their power, their office and their paycheck when they refuse to make themselves answerable to the people they serve.


Radley Balko is senior editor of Reason magazine where this column originally appeared. The JFP Daily features his column every Tuesday.

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