Maryland is among about 20 states that prohibit the release of police disciplinary records, meaning the public cannot find out whether an officer has been the subject of complaints or faced punishment for misconduct.
For years, some Maryland legislators have pushed bills to grant the public more access. They have been stymied largely because of opposition from police unions, which say disclosing such records would invade officers’ privacy, impede their employment opportunities and invite unfair smears or harassment against them.
This year, after George Floyd’s police killing sparked national demands to overhaul policing, Maryland legislators who would like to see more transparency appear to have the wind at their backs.
A Goucher College poll released in October found that 87 percent of Maryland residents support creating a record of police misconduct cases that would be available to the public. And measures that would make a wide swath of internal disciplinary records available to the public gained momentum in both chambers of the state legislature this month.
A bill passed by the Maryland Senate would make completed investigations of officer misconduct releasable in many cases, regardless of whether they resulted in discipline. Officials could still withhold records by deeming their disclosure “contrary to the public interest.”
The bill is named “Anton’s Law” for a young man who died after an encounter with police. It has the support of a coalition of about 90 advocacy groups, including the American Civil Liberties Union, Common Cause and the Public Justice Center, as well as the Maryland-Delaware-D.C. Press Association, which represents news outlets including The Washington Post.
Late Friday, the Maryland House Judiciary Committee amended an omnibus police overhaul bill sponsored by House Speaker Adrienne A. Jones (D-Baltimore County) to include similar provisions. The amendment was proposed by Del. Erek L. Barron (D-Prince George’s), who with Del. Gabriel Acevero (D-Montgomery) had sponsored a House version of Anton’s Law. The omnibus bill is likely to be considered by the full House this week.
That Judiciary Committee action essentially kills, for now, a less expansive public records bill Jones had proposed that was supported by the Maryland Chiefs of Police Association and the Maryland Sheriffs’ Associations. That bill would have allowed release of sustained findings of sexual assault, dishonesty, discrimination or excessive force, along with investigations of police shootings.
Advocates of the narrower approach say it would be unfair to officers in most cases to allow public access to complaints that departments ultimately dismissed.
“We have to balance the public’s right to know if there are questionable officers serving their community with the needs of and fundamental fairness to our officers,” Bowie Police Chief John Nesky, president of the Maryland Chiefs of Police Association, said in an interview, adding, “Do you really want somebody who has a family to have to go around and go: ‘No, no, no, I was cleared. No, that was unfounded.’ ”
Advocates of a broader approach to transparency say it is imperative to see all disciplinary records so the public can understand which officers are frequently accused and judge whether police agencies are conducting investigations appropriately.
Only a “tiny fraction” of complaints are sustained, noted David Rocah, the senior staff attorney for the ACLU of Maryland. That raises questions for some advocates about the rigor of internal probes.
“Someone might say, ‘Well, that’s because all of those complaints by members of the public are false, frivolous or rest on a misunderstanding of the proper role of police,’ ” Rocah said. “Maybe. But nobody has any factual basis on which to say that because they haven’t seen those complaints.”
He and others point to a 2016 report by the U.S. Justice Department finding that the Baltimore Police Department regularly violated residents’ civil rights and that it lacked an adequate system for investigating complaints and imposing discipline.
Several years after that investigation, federal monitors found that the department still struggled to fully investigate complaints and that the problem was particularly acute when complaints originated with members of the public.
“Every time there has been a systematic outside review, it reveals systemic problems,” Rocah said.
Last month in Prince George’s County, a judge unsealed an expert report alleging that complaints against officers involving racial harassment and discrimination are often “not investigated, not investigated appropriately, or not disciplined appropriately.”
The report, commissioned by the plaintiffs in a federal discrimination lawsuit against the county, relied on disciplinary records that were turned over to the plaintiffs under seal during court proceedings — but that the public is not generally allowed to see.
In one of many cases cited in the report, prosecutors complained to police officials that a lieutenant tried to intimidate an officer who witnessed a colleague using excessive force into changing her account. The police internal affairs division did not sustain the allegation, but the county’s Citizen Complaint Oversight Panel disagreed, saying there was sufficient proof of misconduct.
The complaint against the lieutenant is among the vast majority that would remain undisclosable to the public under the narrower versions of the public-records legislation.
“If we only focus on sustained complaints, we really won’t get to the meat of what is going on with these internal processes,” Sen. Jill P. Carter (D-Baltimore City), sponsor of the more expansive Senate bill, said during a committee work group meeting ahead of its passage.
Even the Senate bill would not throw open the door for all police disciplinary records to become public. It would simply remove the blanket protection from disclosure provided by classifying them as public employee personnel records, which state law deems confidential.
Police officials could still withhold such records in many situations, including if disclosure would interfere with an ongoing investigation, deprive someone of the right to a fair trial or create an unwarranted invasion of privacy.
Maryland’s Fraternal Order of Police has opposed all the versions of the legislation submitted to the General Assembly, including the measure backed by the associations of police chiefs and sheriffs. “We don’t believe that any non-sustained or unsustained cases should be disclosed to the public,” said Michael Davey, representing the FOP at a legislative committee hearing last month.
Carter questioned the idea that releasing records would lead to smear campaigns and harassment of officers, pointing to more than a dozen states that already allow most complaints to become public, along with other states that allow more limited disclosures.
“Are you actually aware of any of the problems that you’ve brought out — your hypothetical problems that you foresee potentially — that have been the case in other states?” she asked Riverdale Park Police Chief David Morris during a committee hearing in January.
He did not offer any examples, nor has anyone else during various committee hearings since then.
New York recently repealed its law shielding disciplinary records from disclosure, and New York City police on Thursday made public a searchable database of records that had been secret for decades.
Several unions had fought vigorously to prevent the disclosure, but a federal appeals court rejected their arguments, writing that “despite evidence that numerous other States make similar records available to the public, the Unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities.”
Other states, such as Oregon, are also weighing whether to grant the public more access to such records.
For decades in Florida, investigations of alleged police misconduct have been deemed public once they are closed. Lisa Henning, legislative liaison for the Florida Fraternal Order of Police, said in an interview that she could not offer examples of officers getting smeared or harassed because such records are available.
“I’ve sat around and heard conversations that law enforcement officers hold in regards to when they have issues,” she said. “There’s a lot of extreme bullying on social media. But that is just part and parcel of where we’re at as a society right now.”
Does Florida’s open-records law — which sprang from a traditionally conservative distrust of government — make it harder to attract officers to the state?
“No, I would not say that,” she said. Officers there are more concerned about benefits, salary and other proposed police overhaul efforts, Henning said.
Ovetta Wiggins contributed to this report.
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