Last week, the Pennsylvania legislature passed a bill that flies in the opposite direction of a national push for transparency after police-involved deaths.
The legislation, House Bill 1538, would prevent public officials from releasing the names of officers involved in shootings or use-of-force incidents that result in the death or serious injury of civilians for 30 days or until the completion of the official investigation. Officials that break the gag order would be charged with a second-degree misdemeanor.
Amid a year of protests and national scrutiny of police following the fatal shootings of Terence Crutcher and Keith Lamont Scott in September and Alton Sterling and Philando Castile in July, supporters of the bill say it is critical to protect "our protectors," as one state representative told The Morning Call.
But opponents of the law say such legislation would damage the public’s fragile trust in the police and could provide conditions for the type of tensions that produced explosive protests in places like Ferguson, Missouri, and Baltimore, Maryland over the last several years.
"This bill diminishes transparency. The implication here is that police officers who use force have something to hide," Reggie Shuford, the executive director of the ACLU of Pennsylvania said in a statement last year when the bill was first introduced.
Major newspapers across the state, including the Philadelphia Tribune, the Pittsburgh Post-Gazette, and Lancaster’s LNP, along with the Pennsylvania NewsMedia Association, have slammed the bill as “misguided and unnecessary” and said it would “codify suspicion.”
The LNP’s editorial board wrote that Pennsylvania’s Right-to-Know law already allows public officials to withhold public documents, like the release of an officer’s identity, if it would “endanger” the life or safety of that person.
Ex-Philadelphia police commissioner Charles Ramsey called the bill a “huge mistake” last year and told The Washington Post in March that failing to release officers’ identities after incidents “builds mistrust.” Current police commissioner Richard Ross told Philadelphia Magazine that the bill misses “the bigger picture” and would do little to further police-community relations or protect officers.
The executive director of the Pittsburgh Citizen Police Review Board, Elizabeth Pittinger, said the bill would perpetuate “public skepticism and suspicion of government institutions” in a letter sent to the state's governor, Democrat Tom Wolf. The president of the Alliance for Police Accountability in Pittsburgh told the Pittsburgh Post-Gazette that the bill was “hypocritical.”
And the executive director of the Philadelphia Police Advisory Commission, Kelvyn Anderson, told Newsworks that the bill sets “a dangerous precedent.”
The heavy opposition is unlikely to matter. The bill received broad bipartisan support in both houses — the House passed it 151 to 32 and the Senate 39 to 9. The Fraternal Order of Police has come out in favor of the bill, as have police unions in Philadelphia and Pittsburgh. Even if Tom Wolf vetoes the bill, which he has until next week to do, the legislature has the votes to override it, according to the Philadelphia Inquirer.
If enacted, the state will be doing the opposite of what even the Department of Justice has recommended.
The final report from President Barack Obama's task force on policing, published last year, recommended that police create a “culture of transparency” to build public trust, saying that “when serious incidents occur, including those involving alleged police misconduct, agencies should communicate with citizens and the media swiftly, openly, and neutrally."
Tracey Meares, a professor at Yale Law School specializing in criminal law policy, told Business Insider in an email that, if transparency is the goal, HB 1538 is “not a great response,” adding that there appears to be little evidence that the bill’s approach would be effective at protecting officers.
A 2015 DOJ report found that the Ferguson police department's decision to wait six days to release the name of Officer Darren Wilson, as well as doing so at the same time it released video footage indicating Michael Brown had been involved in a robbery, “inflamed tensions and actions” in the city. And the DOJ’s “lesson learned” was that law enforcement should release all information to the public after an incident “as soon as possible,” unless there is a “compelling investigatory or public safety reason” against it.
A further twist in the development of HB 1538: It was introduced by Republican state Rep. Martina White in direct response to a 2015 Philadelphia Police Department policy change. The shift dictated that the department would release the names of officers involved in shootings within 72 hours of the incident. It was made after a Department of Justice report on Philadelphia police’s use of deadly force recommended that departments release information on incidents within 72 hours to combat mistrust.
While neither the White House's report nor the DOJ’s Philadelphia report explicitly recommended disclosing officers’ names, officials involved told The Washington Post that the intent of the recommendations was for departments to release them.
A recent Business Insider investigation into the police department of Albany, New York, similarly found that releasing the names of officers involved in incidents had a positive effect on the public response.
Albany police chief Brendan Cox told Business Insider that, after police killings in Ferguson, Baltimore, and elsewhere, he realized that releasing the names of officers “deescalates” tense situations. When Albany suffered a death at the hands of a police officer in 2015, Cox decided to release the name of the officers involved within 24 hours. He said it helped convey to the distraught community that the police intended to be as transparent as possible.
It wasn't the first time. After an Albany officer shot 19-year-old Nah-Cream Moore in 2011, then-Chief of Police Steven Krokoff released the identities of the officers involved at a press conference the day after the incident, along with as many details as were available at the time. The move, he says, was critical to defusing public anger.
“It’s the vacuum of information that fuels the flames,” Krokoff said.
Not all states or cities operate so transparently. Chicago, New Jersey, and Washington, DC, currently only release officers’ names if they are charged criminally, according to the Post. The Privacy Act of 1974 prohibits federal agencies from releasing officers’ identities unless that person is charged with a crime.
Meanwhile, Arizona, Virginia, and Oregon have tried to pass similar laws as HB 1538 over the last two years but they’ve been either vetoed or tabled to this point, according to the Philadelphia Inquirer. If the bill is enacted, Pennsylvania would become the only state that keeps officers’ identities secret for 30 days following an incident.
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