Police Blackout
Law enforcement agencies in Northern Virginia say you have no right to know what they're doing.
Last November a police officer shot and killed David Masters, an unarmed motorist, as he sat in the driver's seat of his car on the side of Richmond Highway, a major thoroughfare in Fairfax County, Virginia. Masters was wanted for allegedly stealing flowers from a planter. He had been given a ticket the day before for running a red light and then evading the police, though in a slow and not particularly dangerous manner.
In January of this year, Fairfax County Commonwealth 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" that suggested Masters had a weapon. The only eyewitness to this gesture was the police officer who pulled the trigger.
There exists dash-camera video of Masters' shooting. There are also police interviews of other witnesses, and there is the police report itself. But the public and the press are unlikely to see those, or even 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—is among the most secretive, least transparent law enforcement agencies in the country.
Michael Pope, a reporter who covers Northern Virginia for the Connection Newspapers chain and for WAMU-FM, filed a series of open records requests related to the Masters shooting with the Fairfax County Police Department. All were denied. In March, Pope asked Fairfax County Police Public Information Officer Mary Ann Jennings why her department won't at least release the incident report on Masters' death, given the concerns that some have 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."
Except the media? That's exactly who you would expect to file most open records requests. 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. "I'd be curious to know why they want the name of an officer."
Well, for starters, because he's a government employee, paid by taxpayers and entrusted with the power to arrest, detain, coerce, and kill. And he recently used the most serious of those powers on an unarmed man. Releasing the name would allow reporters to see if the officer has been involved in other shootings or if there have been prior disciplinary measures or citizen complaints against him. It would allow the media to assess whether the Fairfax County Police Department has done an adequate job of training him in the use of lethal force.
Then again, journalists can't get 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 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 department to release information about its investigation of the shooting 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 that the professional journalism association Investigative Reporters and Editors ranks the fifth most transparent in the country, the police departments in Fairfax County, Arlington, and Alexandria have managed to interpret the open records law in a way that lets them be 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 says. "I was just dumbfounded when I started working in Virginia." The police rejected all his requests for information—even for incident reports about arrests the same department had described in press releases.
Invoking a phrase that traditionally refers to censorship, Fairfax County's Jennings told Pope that releasing police reports to the press would have a "chilling effect" on victims and witnesses, discouraging them from coming forward to report crimes. As Pope notes, that doesn't appear to be the case in cities that routinely release police reports, as nearly all do. 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 expect elected officials to correct any of this. "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."
Alexandria Commonwealth Attorney Randolph Sengel fired off an indignant letter to the editor after Pope wrote about the secrecy in the northern Virginia police departments. Calling Pope's well-reported piece a "rant" that was "thinly disguised as a news story," Sengel declared, "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, 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 fatal police shooting of an unarmed man.
"The most offensive theme of this article," Sengel complained, "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."
These are remarkably wrongheaded sentiments, especially coming from an elected prosecutor. There have been several cases across the country where police reports haven't jibed with video evidence or have otherwise turned out to be inaccurate. Journalists and advocacy groups have used public records to shed light on bogus arrests, police cover-ups, poor police training, and wrongful convictions. Sengel seems indignant at the very idea that a lowly journalist might be looking over his shoulder, or over the shoulders of the cops who bring him the people he prosecutes. Fairfax County hasn't charged a police officer for an on-duty shooting in 70 years. Perhaps that's because no officer there has deserved to be charged. But perhaps local police and prosecutors have too cozy a relationship. The point is, we don't know. And northern Virginia's cops have made it almost impossible to find out.
Radley Balko (rbalko@reason.com) is a senior editor at reason.
