Podcast: Data Gaps in Policing

Following the release of “Policing in America: Closing the Data Gap,” policy analyst Julia Baumel had the chance to speak with Rachel Moran, a law professor at the University of St. Thomas whose research focuses on police accountability, police reform, and public access to police misconduct records, to learn more.

The New Center · Policing in America: Closing the Data Gap – Interview with Rachel Moran

Interview Transcript

JB: One reason why we can’t come to a consensus on police reform is that we don’t have enough good data on how it is actually conducted across the country. Can you talk about why that is the case, and what the consequences are?

RM: Yeah. Well I’ll call it partly a matter of political will. I think until the past, I would say six years dating back to the death of Michael Brown, there has been from the at least from the majority of people in the United States a lack of interest in, or lack of concern about, issues relating to police misconduct, police accountability. Police unions, law enforcement unions are a powerful political force and so many of our political players have little interest in sort of irritating them or doing anything that would suggest they don’t agree with law enforcement. You’ve got a strong, consistent voice from many communities of color who have been raising concerns about police misconduct for decades. But there has not been a lot of attention to it until the past few years. And so the lack of data is part of that. There are very few rules regulating police—how they record information, how they report that information, whether it’s accessible to the public. And my particular area of specialty which is records pertaining to police misconduct—most states in fact have laws protecting that information from the public.

JB: Right. It’s interesting you mention police unions—they’re typically the main opponents of making misconduct records public. What do you make of this opposition?

RM: Sure. I mean the first thing I’ll say is in some ways police unions are not that different from other unions. Their job as they perceive it is to protect their constituency, the other rank and file police officers. Police unions have been a source of power for I’d trace it back to at least the nineteen sixties, in terms of their role in denouncing or protesting laws that could allow the public access to misconduct records. In New York and California in particular, there were laws that until very recently, pretty draconian laws that prevented release of information to the public. Those laws were both enacted largely at the behest of police unions, who were frustrated that defense lawyers in criminal cases were getting access to those records and using it to impeach officers. So that’s sort of the historical genesis of some of this resentment. But it’s not surprising that unions would want to prevent access to these records or that the patrol officer on the street would not want the public to have access to information about complaints against that officer. But many of the justifications that unions cite are not substantiated by data.

I recently did a study on this where I actually surveyed law enforcement administrators. And so the administrators are largely police chiefs and sheriffs on the question of whether their department has been harmed by public access to misconduct information. And the results were very interesting. There’s a lot more divide on this topic than the unions would suggest. There’s very little data to suggest that officers actually are harmed by disclosure. There’s also not a lot of data to prove that disclosing this kind of information has a causal effect on law enforcement misconduct. So I’m not suggesting that this is an open and shut case, but that the stance that unions take is not substantiated by data.

JB: I see, that’s super interesting. So you mention some of the draconian police privacy laws, and I’m assuming you’re referring to section 50-a in New York?

RM: Exactly, yes. Which was just recently repealed and is already the subject of lawsuits.

JB: Got it. And following the killing of George Floyd, have any other states or cities made similar reforms?

RM: Not that I’m aware of. On the issue of access to misconduct information, I’m not aware of any states passing reforms in this area. California did about a year before, a little more than a year before Mr. Floyd’s murder. So there is substantial change in the way California handles disclosure of misconduct records. I’m in Minneapolis right now, and it’s an issue that Minnesota is discussing, but the legislature has not been able to agree on any changes.

JB: I see. Hopefully there will be some progress made there soon. In addition to misconduct records, would you support more transparency in other areas, for example, requiring police departments to submit comprehensive use of force data to the government?

RM: Absolutely, I think that it’s a matter of transparency, but it’s also a matter of record keeping, as simple as that. There are a lot of police departments that don’t even keep anything close to accurate records on how often their officers use force or how often their officers are involved in incidents where a civilian was physically harmed. There’s not even terribly reliable national data on how often police officers kill people, so we are operating at a real dearth in terms of regulations surrounding record keeping and disclosure, both. So, yes, I would support transparency. But transparency only goes so far if you don’t have accurate data to begin with.

JB: Of course. Are there any states or localities you think provide a really good example of what police transparency and accountability should look like nationwide?

Well, there are approximately 12 states that have laws that favor disclosure of records, so I would point people—and I say approximately because it’s a little bit confusing when you really get down into the details of the laws and what they require disclosure. But generally speaking, most people knowledgeable in this area would agree that there are 12 states that presumptively allow disclosure of at least some misconduct records. That, of course, leaves a whole lot of states that don’t. And those states also vary in terms of how someone might overcome a presumption against disclosure or what kinds of records. What if there’s a limited subset of records that can be disclosed, but some of the most open states, for example, you could look at—so the study I did on this is called Law Enforcement Perspectives on Public Access to Misconduct Records. It’s a long title, but you could look at some of the states cited in that study- Georgia and Florida are two states, Ohio, Washington, Arizona—conservative states that favor open access to information, open records laws generally, and then more recently it has been you’re hearing more Democratic voices, generally speaking, calling for police reform. And so you get this really interesting mix of perspectives on the issue of public access to information about police misconduct.

JB: What are some specific things you’d like to see the U.S. Congress and the Department of Justice do not just to enhance the collection of data from police departments, but to enhance it in a way that is accessible and helps policymakers make better decisions?

RM: That’s a tough question in part because a lot of this is fairly local, there are so many thousands of police departments across the country that tend to be regulated on a municipal level, really, not even a state level, let alone federal.

But certainly, I mean, if you’re talking really low-hanging fruit, the Department of Justice during the Obama administration had at least a somewhat robust—the civil rights division set of investigations into police departments that had what they call patterns and practices of misconduct or abuse. Some of those investigations resulted in federal court oversight of police departments in New Orleans and Cleveland and Seattle, Ferguson was the subject of investigation, Chicago was beginning to be the subject of investigation.

The Department of Justice under—well, initially under—Jeff Sessions dramatically pulled back on those investigations after Trump was elected. I don’t think those investigations—I want to be clear—I don’t think that they are the be all, end all of police misconduct or anything remotely close to that. But I do think that they were important in collecting information about the breadth and depth of misconduct in some of these departments and in publicizing that information. The Ferguson report is just one example that has been cited many, many times by scholars and journalists and others.

So I think Congress could incentivize states to require better data and to disclose it. But I don’t actually put a lot of faith in federal oversight as the primary driver of change.

JB: Sure, that makes a lot of sense. So before I let you go, is there anything you’d like to add about this topic that I might have missed?

RM: I think actually most people don’t have much understanding of this issue at all, and they are upset, they are surprised and upset when they find out that they would not be able to look up a local police officer and find out if that person has a history of complaints filed against them. I think that they’re surprised when they find out someone like Derek Chauvin, the officer who killed George Floyd, has a lengthy history of complaints against him and that they can’t find much information about what those complaints, the subject of those complaints or why they were resolved with no discipline against Mr. Chauvin. It’s an area that people are upset about when they find out what they don’t know nearly enough about. It’s not been the subject of much discussion. So I appreciate that you’re trying to raise awareness about this.

JB: Yeah, I think it’s a really important issue, and I appreciate your willingness to talk to me about it.