I am thankful that individuals assume the responsibility and risks of becoming law enforcement officers. There is no doubt that these people put their lives on the line daily when they wear the uniform and answer the call of duty to protect all of us and ensure a law abiding order. However, the badge does not entitle law enforcement personnel to be above the law. Sure there are often tough calls requiring split second decisions that could mean the difference between life and death for the officer or for one or more members of the public (and this is why there is extensive and ongoing training). Of course in hindsight it is easy see mistakes can be and are made, and sometimes actions are taken that deserve greater public scrutiny. Just like the public sector workforce, who are for the most part, honest and hard-working, so are members of the law enforcement community. But, when errors of judgment happen, whether intentional or accidental, the public must be assured that full, transparent and unbiased investigations occur. This is essential to maintaining the public trust.
Demands for transparency are often thwarted by little known statutes that counter the promise of open government (e.g., open meetings law and freedom of information laws). For example, New York Civil Rights Law 50-a, protects certain police records, including information about internal investigations and discipline, from being disclosed (although when reading the language it appears to apply to the narrow circumstance of personnel records, court interpretations since 1976 have interpreted it more broadly to protect just about anything that could be used to evaluate an officer’s performance). In it's December 2014 40th anniversary report, the NYS Committee on Open Government implored the Governor and the Legislature to make it a top priority in 2015 to reform this law, noting that due to the effect of this statute, “The Freedom of Information Law (FOIL) today affords the public far less access to information about the activities of police departments than virtually any other public agency—even though police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees.” Yesterday’s NYT editorial called for ending the secrecy on police misconduct, fully endorsing the report’s recommendation.
So, what does all of this have to do with law schools? The City of Albany’s Citizens Police Review Board is the only police oversight board in the United States at this time that is staffed by a law school, designated by City Law in 2000. I had the privilege and responsibility of setting this up (see pp 1013-1015). The experience enabled the law school faculty and students to design and implement an oversight body and process that was accepted and supported by all impacted stakeholders (City Hall both Executive and Legislative branches, Police Department, Police Union, the Community – advocacy groups and individuals). Scholarship resulted such as a 2003 issue of the State Bar Government Law & Policy Journal (this may be password protected) and the only book exclusively on police oversight published by the profession. The existence of a research team for the Board that included law students and faculty enabled the development of significant policing policies in the City addressing things such as racial profiling, early warning systems to identify “rouge” officers (very important given the Court’s interpretation of Civil Rights Law 50-a), cameras in police cars, and the negotiation of the implementation of a mediation program as envisioned in the legislation. Above all, the law school created a system of transparency through the posting of comprehensive and detailed minutes, ongoing public outreach well beyond the monthly board meetings, and the school was and still is a neutral, non-governmental office where people in the community can feel safe discussing alleged police misconduct. Working with the independent Board members and contract investigators, excellent working relationships were established with the City, the Police Department and the Union. A former student even served on the Board after having been exposed to it as a law student. With more than 100 oversight agencies in the U.S (and there should be more), it is surprising that there are no other partnerships between law schools and their host communities to work on these issues. I urge interested law schools to reach out to explore potential opportunities.
Recently I had the honor of addressing students at the NEBLSA annual convention. In reflecting on the current events in Missouri and New York that highlighted, among other things, the lack of transparency in the grand jury process, I shared the short story of how law schools could work with communities and law enforcement on oversight issues. More important, attendees were reminded of the important long-lasting power they have to make a difference. Immediately following the Michael Brown and Eric Garner grand jury decisions, rallies were organized at various law schools and people participated in marches and “lay-downs,” but then what? Our advocacy surely can’t begin and end with rallies in December 2014. It is now February 2015. Some law schools have sponsored speakers and organized symposia. This is a start. Students and faculty so inclined could populate the law reviews and journals with legal and policy analysis that points to options for reform. Shorter articles in state and local bar journals and newspapers and op eds and postings on appropriate blogs could help to focus ongoing attention to the issue. Student groups can continue to invite speakers to remind us of the need for reform and to continue to inspire written and verbal advocacy. In certain courses, such as legislative drafting, students may choose to draft proposed laws to address the needed reform, and then rather than being a mere “academic exercise,” the drafting can be shared with key lawmakers. In other courses where aspects of the topic are appropriate, students may choose to complete writing requirements that address these issues, and then use these products to not only publish in outlets described above, but enter them into relevant writing competitions. The above are but a sprinkling of opportunities, and it should be noted, that while my lens in this post is police oversight, the suggestions can more broadly be viewed as ways in which law schools, faculty and students can lead needed reform in myriad areas. This is absolutely an important part of advanced legal education. Lawyers are leaders in government and in the community. People look to us to not only apply the law, but to ensure that when the laws are no longer adequate, we help to refine and reform them.