The NoVa Police Blackout

Law enforcement agencies in Northern Virginia say you have no right to know what they're doing

Last November along the roadside of Richmond Highway, a major thoroughfare in Fairfax County, Virginia, a police officer shot and killed David Masters, an unarmed motorist, as he sat in the driver's seat of his car. Masters, who was bipolar, was wanted for allegedly stealing some flowers from a planter. He had been given a ticket the day before for running a red light and then evading the police officer, though in a slow and not particularly dangerous manner.

In January of this year, Fairfax County Commonwealth's Attorney Raymond Morrogh announced through a press release that he would not be filing any charges against the officer who shot Masters. The shooting, Morrogh found, was justified due to a "furtive gesture" by Masters that suggested he had a weapon. The only eyewitness to the furtive gesture was the police officer who pulled the trigger.

There exists dash-cam video of Masters' shooting. There are also police interviews of other witnesses, and the police report itself. But the public and the press are as unlikely to see any of those as they are to learn the officer's name. That's because the Fairfax County Police Department—along with the neighboring municipal police departments of Arlington and Alexandria—are among the most secretive, least transparent law enforcement agencies in the country. And local political leaders don't seem particularly concerned about it.

Fairfax County hasn't charged a police officer for an on-duty shooting in 70 years. Perhaps that's because no officer there has ever merited charges through a use of force. But it could also be because local cops and prosecutors have too cozy a relationship. The point is, we don't know. Fairfax police have cut off inquiry and second-guessing by simply denying public access to any relevant information.

Michael Pope, a reporter who covers Northern Virginia for the Connection Newspapers chain and for the Washington, D.C., NPR affiliate WAMU, filed a series of open records requests with the Faifax Police Department related to the Masters shooting. All were denied. Last month, Pope asked Fairfax County Police Public Information Officer Mary Ann Jennings why her department won't at least release the incident report on Master's death, given concerns raised about the shooting. "Let us hear that concern," Jennings shot back. "We are not hearing it from anybody except the media, except individual reporters."

That's an astounding answer. "Except the media?" That's exactly who you would expect to file most open records requests. When asked why her department won't even release the name of the officer who shot Masters, Jennings got more obtuse. "What does the name of an officer give the public in terms of information and disclosure?" Jennings asked in reply, presumably rhetorically. "I'd be curious to know why they want the name of an officer."

Well for starters, because he's a government employee, paid and entrusted by taxpayers with the rather serious power to arrest, detain, coerce, and kill. And he recently used the most serious of those powers on an unarmed man. Releasing the officer's name would allow reporters to see if the officer has been involved in other shootings. Perhaps there have been prior disciplinary measures or citizen complaints against him. It would allow the media to be sure the Fairfax County Police Department has done an adequate job training him in the use of lethal force.

Of course Jennings knows that journalists—or anyone else for that matter—can't access any of that other information, either. The default position of the Fairfax County police department, Pope says, is to decline all requests for information. And not just from the media. When a member of the county's SWAT team shot and killed 38-year-old optometrist Sal Culosi, Jr. in 2006, it took nearly a year plus legal action to get the agency to release its investigation of the shooting even to Culosi's family. Culosi, who had been suspected of wagering on football games with friends, was also unarmed when he was killed.

In a state with comparatively favorable open records laws (the professional journalism association Investigative Reporters and Editors ranks Virginia the fifth most transparent in the country), the police departments in Fairfax, Arlington, and Alexandria have managed get away with interpreting that law in a way that allows them to remain almost completely opaque.

"Part of my daily routine when I worked in Florida was to drive to the police station and get a copy of the previous day's incident reports," Pope told me in a phone interview. "I was just dumbfounded when I started working in Virginia. They rejected all of them." The police agencies even rejected requests for incident reports about arrests for which the same department had put out a press release.

Pope wrote a remarkable article last month for Northern Virginia's Connections Newspapers detailing the police blackout, quoting a number of local public officials whose definition of oversight is apparently no more than "how tall people view the world."

"I don't think we have to justify it," Alexandria Police Chief Earl Cook told Pope of his department's refusal to release information. "A lot of things can be said about transparency, that doesn't make it effective."

Invoking a phrase traditionally used to refer to government censorship (apparently without irony), Fairfax's Jennings told Pope that releasing police reports to the press would have a "chilling effect" on victims and witnesses coming forward to report crimes, though as Pope noted in another piece for WAMU, that doesn't appear to be the case in nearly every other police department in the country. When Pope asked Jennings what evidence she has to support her theory, she replied, "I don't know if there's evidence or not. All I have is what our investigators and what our commanders and the police administration believe."

Don't look to elected officials to correct any of this, either. "I am in the corner of trusting our police department," Arlington County Board member Barbara Favola told Pope. "If they push back I am not going to override them, and I don't think I could get three votes on the board to override them either."

And then there's Alexandria Commonwealth Attorney Randolph Sengel, who fired off an indignant letter to the editor in response to Pope's article. Calling Pope's well-reported piece a "rant" that was "thinly disguised as a news story," Sengel wrote that "Law enforcement investigations and prosecutions are not carried out for the primary purpose of providing fodder for his paper." Mocking the media's role as a watchdog for government officials, Sengel added, "The sacred 'right of the public to know' is still (barely) governed by standards of reasonableness and civility," as if those two adjectives were incompatible with a journalist inquiring about the details of a govenrment agent's fatal shooting of an unarmed man. Sengel's concluding graph is worth excerpting at length to give a better feel for a certain type of official contempt for disclosure:

The most offensive theme of this article is the notion that law enforcement agencies decline to release these reports to protect their own, or to conceal corrupt behavior…Believe it or not, the reporter and his colleagues are not the last true guardians of truth and justice, the attainment of which does not hang on unfettered exercise of journalistic zeal. Last time I checked there were multiple safeguards in place to assure the integrity of the criminal justice system. Conscientious and dedicated judges, prosecutors, public defenders, and law enforcement officers work in a system which is as transparent as it needs to be, constrained by reasonable and appropriate limitations which are there for the greater good, not for purposes of playing hide the ball.

These are remarkably wrongheaded sentiments to come from an elected prosecutor. There are ample stories in recent headlines of police reports that haven't lined up with video evidence, or where police reports have been shown to be not merely inaccurate, but falsified. There are plenty more examples where journalists or advocacy groups have shed light on bogus arrests, police cover-ups, on-duty cops lacking training and certification, and wrongful convictions after accessing public records. Sengel seems miffed at the very idea that a lowly journalist might be looking over his shoulder, or over those of the gun-carrying police officers who bring him the people he prosecutes.

Sengel's attitude, and those of other public servants in Alexandria, Arlington, and Fairfax County appears to be just trust us. Sorry. If you're a government official carrying the awesome power to take away a citizen's freedom—to detain, injure, or kill—the public you serve deserves a hell of a lot better than that.

Radley Balko is a Senior Editor for Reason.