Kansas could make it a felony to report unfounded allegations of police abuse

A pretty awful new bill (PDF) in the Kansas legislature would require anyone filing a complaint against a police officer to swear an affidavit before the complaint will be investigated. If any portion of the complaint is later shown to be false, the complainant could then be prosecuted for perjury.

That’s bad enough. But the bill also has a couple other troubling provisions. First, it lets officers who are the subject of complaints avoid answering questions until they’re given the complaint with all documenting evidence in its entirety. No respectable police detective would conduct an investigation this way. Any police interrogator will tell you that you never let a suspect know everything you know about the allegations against him. A good cop will have a true story that exonerates him, regardless of what’s stated in the complaint or how the complaint is revealed to him. A bad cop who is given the entire complaint can construct a narrative informed by everything the investigators know, safe in the knowledge that there is no additional information that could later contradict him.

Second, the bill would prohibit any police agency from investigating a complaint against an officer if another police agency has already found the complaint to be without merit. In practical terms, that means a sheriff’s department or the state police couldn’t investigate the possibility that a city or town police department was covering up misconduct. It doesn’t happen often, but on a few occasions that sort of investigation has exposed corruption and patterns of misconduct. (This case from Kansas City is instructive, though it occurred on the Missouri side of the border.) Once an officer’s own police agency clears him of wrongdoing, he’s home free.

So you’re welcome to file a complaint. But the cop you’re complaining about will be investigated by his colleagues — and only his colleagues. If they find that he did nothing wrong, as they nearly always do, you could then be arrested for a felony.

I’m sure that people file false complaints against police officers quite often. This bill will almost certainly discourage that. But it will also almost certainly prevent legitimate victims of police abuse from coming forward, too.

The watchdog site Kansas Exposed offers some more commentary on the bill:

People in Wichita are already afraid to file complaints against the WPD, because the department has a well-known reputation for retaliating against those who do, and this bill would render such retaliation legal. Furthermore, the bill clearly prevents an outside agency, such as the Kansas Bureau of Investigations, from opening an investigation into an allegation that the WPD has already ruled upon.

According to the Racial Profiling Advisory Board, the WPD denied 100 out of 100 claims of racial profiling, ruling that each was a “false report”. If this bill had been law when those reports were made, everyone of those 100 people could have potentially faced a felony charge, and no other law enforcement agency would be permitted to investigate the allegations.

The Kansas legislature’s Web site is unclear as to who is sponsoring the bill.

I was in Kansas City a few weeks ago. I met with several people from Kansas who claimed to be the victims of police abuse and misconduct. Some of the allegations were pretty serious, and many of them were already afraid to come forward, fearing retaliation. Maybe some of them were lying, or exaggerating. I doubt all of them were. And I doubt this bill will make it any easier for those who were telling the truth to come forward.

Oddly, this bill comes as the same legislature is considering a reform bill. As I reported a few weeks ago, the Kansas legislature is also considering a bill that would allow more access to search warrant affidavits. That proposed law is the result of a botched police raid on former CIA employees Robert and Adlynn Harte. In Kansas, search warrant affidavits are presumptively sealed. You have to get a judge to release them even if you were the subject of the search.

That can get expensive if the police agency in question doesn’t want you to have those documents. The Hartes have spent around $25,000 trying to get the police to release the documents related to their case And now that we know, it’s easy to see why the police wanted to keep those documents secret. The raid on the Hartes’ home was based on a state police officer spotting Robert Harte with his kids at a hydroponic store (he was buying supplies to start a tomato and squash garden with his son) and a search of the family’s trash which turned up “marijuana seeds and stems” that turned out to be Adlynn Harte’s looseleaf tea.

As I pointed out in my previous post, the bill the Hartes are backing is really a pretty minor reform that would only put Kansas in line with most of the rest of the country. Yet it is aggressively opposed by Kansas prosecutors. (Unfortunately, it is also opposed by the state’s defense attorneys.)

Last week, the Kansas Senate judiciary committee held a hearing on the bill. That hearing was . . . odd. The Hartes have a compelling and infuriating story about what happened to them. But they couldn’t really tell it. They were limited to just three minutes of testimony. There was also an odd clash between the bill’s sponsor and the chairman of the committee.

The good news is that the bill the Hartes are backing has already passed the Kansas House by a wide margin. The bad news is that state Senate may water it down. And that the same legislature is considering a separate bill that would put yet another barrier to holding bad cops accountable.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · March 18