Police, Privatization and Public Data on the Use of Force: A Response to Ferguson

By Pacey Foster.

Recent events in Ferguson, MO, have generated a national discussion about the growing militarization of the police and their accountability to the public for potential abuses of power. While Massachusetts does not have the worst national reputation in this regard, we do have deep and historical reasons to be concerned. Recent claims that some Massachusetts law enforcement agencies are in fact private corporations, and thus exempt from public reporting requirements, should only add to growing public concern.

Consider two local cases.

In 1989, Charles and Carol Stuart were the apparent victims of a carjacking in Roxbury that led to the death of Carol and injuries to her husband, Charles. In a case that captured national attention, Charles claimed that the assailant had been African American, which led to door-to-door and street searches of a largely African American housing project as well as numerous reports of excessive use of force and the arrest of an innocent African American suspect, Willie Bennet. Despite this fact, according to a Human Rights Watch report, “disciplinary sanctions against officers were light”. A subsequent investigation by the St. Clair Commission pointed out that “Physical abuse of citizens by a police officer is among the most serious violations of the public trust possible.” Strangely, the full text of this report is not currently available to the public via standard web searches.

In the end, Carol’s own husband Charles was accused of the murder but jumped to his death from the Tobin bridge before a trial could be conducted. This case, and more importantly, the police reaction to it, inflamed racial tensions in a city that continued to struggle with racial tensions and divisions going back to the busing crisis of the 1970s and before.

For a more recent example, consider the case of Chris Faraone’s investigative reports on the Boston Police Patrolman Association’s Newsletter the Pax Centurion, which he found to be “full of screeds against minorities, women, progressives, gays, Muslims, and even crime victims.” Coincidentally, the very day that the Boston Phoenix published his investigative report on the same in September 2012, the PDF archives of the site, which had until then been publically available, mysteriously disappeared. Luckily, the Boston Phoenix still maintains the archives of the publication, but shouldn’t the BPPA be required to do so since their newsletter is a publicly funded publication? If the public paid for this newsletter, why should we not be able to read it and see for ourselves what those who are meant to protect and serve us say when they are speaking to each other? Indeed, shouldn’t there be a significant consequence for removing such information from public view, apparently in response to legitimate concerns about its content that have been raised by both the media and the public?

In case you are wondering what specific kinds of content we are talking about here, consider but one of the many comments that speak directly to the potential abuses of power we have seen in Ferguson.

In the January/February 2006 issue, Kevin Doogan wrote:

“It still amazes me that people are shocked when individuals are mistaken as gang bangers and shot in the street. Families rant and rave how these were good kids, how could this have happened? Well if you allow your loved ones to dress like a gang member, strut like a gang member, hang out in gang areas, and go strolling through gang strongholds hooded up then what do you expect?”

For a selection of similarly offensive comments read “The Worst of Pax” which is still available at the website of the now defunct Boston Phoenix.

Until we start demanding accountability from our public officials and agencies, how can we expect changes to occur? Unfortunately, obtaining the very data needed for such accountability seems to be more difficult than it should be.

In a very disturbing trend, SWAT teams, which represent the most militarized end of increasingly militarized local police forces, are arguing that because they are private corporations, they are not subject to open records laws. According to a recent Wall Street Journal article, the American Civil Liberties Union received such a reply from Massachusetts SWAT teams who were sent an open records request for a report on the militarization of U.S. police forces being prepared by the ACLU. Apparently, many SWAT teams are run by regional LACs (Law Enforcement Councils) which, although they are funded publically (via membership fees paid by local police departments) and governed by executive boards made up of police chief’s from member departments, are claiming that as private corporations they are exempt from public reporting laws.

Lest this come as a shock, it is but a recent example of a long standing challenge in obtaining reliable data on police use of force. A brief investigation into the history here suggests a long trend of obfuscation at worst, or at least abdication of Congressionally mandated data collection and reporting requirements.

As the famously paraphrased George Santayana aphorism goes, “those who cannot learn from history are doomed to repeat it.” To prevent this, the current national debate should be placed in a slightly longer historical context.

In the wake of the beating of Rodney King (and subsequent LA riots) in 1991, we went through a similar national discussion about the need for more public accountability among police departments. In response, Congress passed a law in 1994 requiring the Attorney General to collect annual data on excessive use of force by law enforcement. The relevant portion of the Violent Crime Control and Law Enforcement Act of 1994 reads as follows:

“(a) The Attorney General shall, through appropriate means, acquire data about the use of excessive force by law enforcement officers. [Italics added]

(b) Data acquired under this section shall be used only for research or statistical purposes and may not contain any information that may reveal the identity of the victim or any law enforcement officer.

(c) The Attorney General shall publish an annual summary of the data acquired under this section.”

As far as I can tell, only a small handful of reports were ever published and those were plagued with data collection and other basic research problems. According to a Human Rights Watch Report from June 1998 which reviewed the first two (and only?) DOJ reports in 1996 and 1997, these reports relied on non-representative samples of citizens and voluntary reporting from departments, and also seemed to explicitly avoid the study of excessive use of force as mandated by Congress.

“In sum, the preliminary reports have avoided the crucial question that Congress asked the Justice Department to answer. We call on the Justice Department to refocus its efforts, reallocate its research grants, and produce a report responsive to its mandate on this issue. Without the information requested by Congress, and more, it is extremely difficult, if not impossible, for governments and police departments to craft enlightened policies that balance the importance of public order with the absolute requirement that the state protect anyone in its jurisdiction from human rights abuses at the hands of police officers.”

It seems well past time to renew this call and demand that the U.S. Attorney General’s office fulfill its legal responsibility to provide an annual report on excessive use of force by national law enforcement agencies. The fact that there are significant challenges in both definition of terms and data collection should not be used as excuses for not fulfilling Congressional mandates. Nor should law enforcement agencies be allowed to hide behind thinly veiled claims of “privatization”, as Massachusetts SWAT teams are apparently trying to do.

As the Latin goes, Scientia est Potentia (“knowledge is power”). Without it, we the people will remain both powerless and misinformed.

 

References

St. Clair Commission, Report of the Boston Police Department Management Review Committee, January 14, 1992

 

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2 thoughts on “Police, Privatization and Public Data on the Use of Force: A Response to Ferguson

  1. The privatization (and militarization) of police (at least the SWAT teams mentioned here) via these Law Enforcement Councils seems like a giant loophole to avoid public oversight and reporting duties – do you have other sources on this? From Hobby Lobby decision (see previous OSC post) to Citizens United, it seems that the corporate form is used to shield companies from public responsibilities, and now public authorities from accountability!

    • Great post, and an important point about the need for public reporting on the use of excessive force by police. The SWAT team loophole is incredibly disconcerting— I just read this article in The Sentinel written by Alexi Worley (http://www.thesentinel.com/mont/index.php?id=707%3Acounty-swat-team-activities-bring-fear&Itemid=766&option=com_k2&view=item) that details some of the concerns associated with using SWAT teams in Maryland. MD passed a bill in early 2009 that required public reporting from every law enforcement agency that used SWAT teams (this bill just expired as of June 30, 2014). Similar to the inadequacy of the DOJ reports you mentioned, the information offered by MD law enforcement agencies omitted major details like descriptions of the crimes that led to search warrants, whether or not firearms were found, and the race of individuals involved. Once reporting is mandated, how might public officials combat whatever combination of laziness/shadiness/etc. that causes this poor reporting?

      Lastly, the article revealed another disturbing factoid: “Asset forfeiture laws enable officers to seize property they believe was involved in a crime. In Maryland, the government only has to prove that it is more likely than not that the property was involved in the crime, according to the Institute for Justice. Seizing this property can be profitable for law enforcement. According to the Institute for Justice, Maryland state law enforcement received more than $50 million in forfeiture revenue between 2002 and 2008” (Worley, 2014). There’s a monetary incentive for law enforcement agencies to keep the details about these search and seizures by SWAT teams vague. Another massive lack of transparency, and ambiguity FTW as far as law enforcement agencies in MD are concerned.

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