Police officers have no constitutional ‘right of privacy’ in records of their official misconduct

Should be pretty obvious, I think, but it had to be litigated. From Chasnoff v. Mokwa (Mo. Cir. Ct. June 11, 2014), an excerpt of the findings of fact:

1. Wendell Ishmon, Thomas Kranz, Phillip Menendez, Joseph Somogye, [NAMES OMITTED], Michael Deeba, Daniel Disterhaupt, Philip Edmond, Michael Ehnes, Edward Kuntz, and Joseph Spiess are or were at all times material hereto commissioned police officers employed by the Board of Police Commissioners of the City of St. Louis.

2. During October 2006, the baseball World Series was played in St. Louis. The Ishmon plaintiffs were assigned to, or supervised, a special detail deployed to prevent ticket scalping, i.e., the sale of World Series tickets at prices above their stated price.

3. Several persons arrested for ticket scalping filed complaints that the arresting officers appropriated the arrestee’s money and World Series tickets. These complaints induced the Police Department to conduct an “internal affairs” investigation. The investigation disclosed that a number of World Series tickets seized from arrestees were utilized by other persons and then placed in the evidence storage area of the vice/narcotics division….

6. The [Internal Affairs Division] interviewed each of the Ishmon plaintiffs in the course of investigating the World Series ticket complaints. The IAD investigators presented each officer with the “advice of rights” quoted above, which is based on Garrity v. New Jersey, 385 U.S. 493 (1967), and the subsequent interviews are known in the Police Department as “Garrity statements.” Each Ishmon plaintiff signed the advice of rights form. Some, but not all, of the Ishmon plaintiffs were represented by counsel during the interviews. None of the interviewees invoked his right to remain silent….

8. Although the recorded interviews in this case vary, the Court finds that at no time did the IAD investigators promise or represent that the so-called Garrity statements would not become public record or would not be disclosed for legitimate purposes. The Ishmon plaintiffs understood that the statements were being obtained for “internal use only,” but in actuality, the consistent representation was only that the statement could not be used in any subsequent criminal prosecution. The oral statements of the IAD investigators regarding the potential use of the Garrity statements did not vary materially from the written “advice of rights” form, which makes no representation that the Police Department will treat the recorded statement as secret. Notwithstanding the evidence of the custom regarding use and disclosure of “Garrity statements” within the Police Department, the Court finds that, in fact, no promises of secrecy were given in this case.

9. As a result of the IAD investigation of the World Series ticket complaints, 16 Ishmon plaintiffs were disciplined, with the penalties ranging from written reprimand to varying suspensions and demotions in rank. It does not appear from the record that any officer contested the discipline imposed. The findings of the IAD investigation were that the officers in question failed to observe rules for proper handling of evidence, engaged in conduct unbecoming an officer, or violated department procedures. No officer under investigation was charged with giving false information to the IAD. The Court finds that the officers were forthright in their statements to the IAD concerning the improper use of the seized World Series tickets….

And here’s an excerpt from the court’s legal analysis:

On the whole [given the precedents], the Court is unable to conclude that there is in reality an overarching constitutional right to privacy of employment records of public employees. Any right of privacy of public employees would at most extend to purely personal facts (e.g., health history).

Assuming that there is a constitutional right to privacy of employment records of public employees, “[t]o the extent a Constitutional right of privacy has been recognized, that right has been extended to protect an individual’s interest in preventing disclosure of personal matters.” The Court concludes that information regarding a police officer’s performance of official duties, including discipline imposed for misconduct involving citizens, is not a personal matter subject to constitutional protection. On the contrary, an officer’s performance of official duties is one of the most important subjects for public knowledge and scrutiny and to attempt to fashion such a right to conceal may well raise First Amendment issues. The idea that police disciplinary matters, involving mishandling of evidence seized from citizens, are subject to a constitutional right of privacy finds no support in any case that the parties cite or that the Court can unearth….

Even assuming that public employees such as the Ishmon plaintiffs have a common law right of privacy in their employment records, it is evident that, in this case, the public’s legitimate concern in the records at issue precludes deployment of that right to conceal those records from the public….

[N]o common law right of privacy can trump the statutory policy declared by the Sunshine Law and expressly recognized by [Missouri Statutes] § 109.180: “except as otherwise provided by law, all state, county and municipal records kept pursuant to statute or ordinance shall at all reasonable times be open for personal inspection by any citizen …” The Court construes the use of the phrase “except as otherwise provided by law” to refer to statutory law and not common law. Thus, only if a statute authorizes closure, can a governmental entity withhold official records from the citizen. That is not the case here….

Even if the custom and practice of the Board was to preserve “Garrity statements” as confidential, this custom and practice does not create any enforceable rights in the Ishmon plaintiffs. The law of Missouri is found in the statutes and decisions of the courts and not in police department administrative customs. Likewise, the Court categorically rejects the Ishmon plaintiffs’ argument that individual public employees have a right to enforce closure of the Board’s records because the Board at one time treated them as closed. As noted above, the Sunshine Law imposes no mandate on governmental entities to close any record, and there is no other mandate for closure to be found in any other applicable statute.

In sum, public employees have no federal or state constitutional right of privacy to compel closure of governmental records pertaining to their performance of their official duties. The procedure prescribed by Garrity v. New Jersey for handling statements obtained by compulsion from public employees creates only a limited evidentiary privilege to prevent use of such statements in criminal prosecutions and recognizes no constitutional right to prevent disclosure of such statements to the public. There is no other statutory or common law right of privacy that would be infringed by release of the investigative records at issue in this case, as the investigation and discipline of the Ishmon plaintiffs for misconduct in putting seized evidence to personal use is a matter of public interest….

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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