Police use-of-force, discipline database to be kept secret under new law

28November 2021

A paragraph deep in the new state budget forbids sheriffs, police departments and any other government entity in North Carolina from creating a public log of the times officers kill or injure someone.

These so-called critical incidents are going to be recorded statewide for the first time in a database that the General Assembly authorized earlier this year, as part of policing reforms contained in Senate Bill 300. But that database is for law enforcement to use in an effort to weed out problem officers; it won’t be available to the public—despite a push from advocates who view public scrutiny as a key to police reform.

That push took on new energy in the wake of George Floyd’s murder by a police officer last year. Lawmakers responded with reforms, including a new database tracking instances when an officer’s certification is revoked or suspended. That information will be public, but the budget language restricts release of other information.

Not only are local governments and others forbidden from cataloguing critical incidents publicly, they also can’t create a database of what the budget refers to as “disciplinary actions taken against law enforcement officers,” which may not always lead to certification issues.

The new language ensures that nobody in the government—a sheriff interested in transparency, for instance—publicizes any of this information in a separate database.

Public law enforcement database regulation

“This is another example of so-called reform that doubles down on the false idea that the police can police themselves, when what we really need is public accountability and oversight,” Ann Webb, senior policy counsel at the American Civil Liberties Union, said in an email in response to questions from WRAL.

Sen. Danny Britt, a key sponsor for policing reforms this legislative session, said last week that he didn’t remember the rationale behind the budget language. “But I think the main goal was just to have one central database,” he said.

“The goal wasn’t to make the information public,” said Britt, R-Robeson. “The goal was to have the information available to law enforcement.”

Lobbyists for the N.C. Association of Chiefs of Police and the N.C. Sheriffs’ Association said they favored the language, but it wasn’t a particular priority.

“I don’t know that we actually took a formal position on it,” said Eddie Caldwell, executive vice president and general counsel for the sheriffs’ association. “I told them it sounded like a good idea. It just ensures standardization.”

Expanded language

Elements of this new prohibition appeared in versions of the state budget that passed the North Carolina House in August and the state Senate in June. But the language was expanded as Republican majority leaders hammered out the final budget that lawmakers passed with bipartisan support earlier this month. The governor signed that budget the same day.

Where previous versions simply forbade public databases of disciplinary actions, the new language added the restriction on critical incidents.

“It would prevent a Sheriff from deciding to make a public ‘critical incident’ database just for their county,” Webb, with the ACLU, said in an email.

Fred Baggett, legislative counsel for the Association of Chiefs of Police, said it makes sense to keep bare-bones information from a database a secret, in part to protect law enforcement officers from unfair blowback.

“That bare information could be misconstrued, could be misused,” Baggett said. “It’s just a name, a time and an incident. … It is not a way to determine whether an officer is at fault or not.”

The prohibition on disciplinary databases comes during a session lawmakers considered opening state- and local-government employees’ personnel files a little wider, including law enforcement officers’ personnel files. A bill that passed the state Senate in June would have made general descriptions of firings, demotions and suspensions public record in North Carolina, but it got hung up in the House and has not passed.

Some tracking coming

Senate Bill 300 created two databases, plus a third process for aggregating information on police conduct.

The first logs any time the state’s law enforcement training standards commissions—there’s one for police departments, another for sheriffs’ offices—revoke or suspend an officer’s certification. This will be public.

The second database tracks critical incidents—any time an officer uses force that injures or kills someone—statewide. This database will be confidential.

The state will also collect Giglio letters, named for a court case that set precedents on when prosecutors have to tell defendants about an officer’s questionable conduct.

Going forward, any time a prosecutor or judge forbids an officer from testifying, that has to be reported to the head of that officer’s agency and, ultimately, to the Criminal Justice Standards Division in the state Department of Justice.

This isn’t a database, but if the officer moves to another agency, the division is supposed to inform that new agency. The division also will report back to the state legislature once a year on how many Giglio letters it collected, but the letters themselves and the names of officers involved remain confidential, even to lawmakers.

District attorneys across the state have long protected this information, refusing to release it under the state’s open records law. Nearly all prosecutors surveyed this year by WRAL and other media outlets declined to even say how many Giglio letters they’d issued.

State Sen. Mujtaba Mohammed, D-Mecklenburg, said last week that Senate Bill 300 included a lot of good reforms, but the new budget language prevents local officials from releasing information that could build public trust. He said the first time he noticed this language was in the compromise budget that emerged earlier this month.

“We should have left it the way it was,” Mohammed said. “I don’t understand why we should further shroud and delay any type of trust in our community.”

Caldwell, with the sheriffs’ association, said standardization is important and that it makes sense to keep local offices from publishing their own information. He also said, not for the first time, that Senate Bill 300 was a step forward, not the end of reforms for North Carolina law enforcement.

“A tremendous amount of progress was made,” he said. “But can it be improved upon? It probably can.”

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