Latest Emotional Response to Newtown Shootings Leads to Troubling Record-Sealing Measure

Legislation based on protecting people's feelings could have problematic side effects


Acceptable emotion-based responses to tragedy
Credit: davebarger / Foter.com / CC BY-NC-SA

Should certain crime details and images be shielded from public view because of how they might make families of the victim feel? In the wake of the mass murder at Sandy Hook Elementary School in Newtown, Conn., the state's legislature has decided it should.

At 2 a.m. this morning, Connecticut's General Assembly added a new exemption to the state's freedom of information guidelines that includes "Any record created by a law enforcement agency or other federal, state, or municipal governmental agency consisting of a photograph, film, video or digital or other visual image depicting the victim of a homicide, to the extent that such record could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim's surviving family members."

There's more:

Notwithstanding any provision of the general statutes or any special act, a law enforcement agency shall not be required to disclose that portion of an audio tape or other recording where the individual speaking on the recording describes the condition of a victim of homicide, except for a recording that consists of an emergency 9-1-1 call or other call for assistance made by a member of the public to a law enforcement agency. This section shall apply to any request for such audio tape or other recording made on or before May 7, 2014.

The legislation passed overwhelmingly, with only two state senators and two state house members saying no. Governor Dannel Malloy is expected to sign the bill. Here's his justification for the legislation, via Reuters:

Malloy said his goal initially had been to provide a measure of protection for the families who lost loved ones when a gunman opened fire at Sandy Hook, killing 20 first-grade students and six staff.

"But the fact is, all families have a right to grieve in private. Those who lose loved ones to violence have a right to protect themselves against further anguish," Malloy said.

Here's what House Speaker Brendan Sharkey had to say about it, via The Courant:

"It is impossible to ignore the concerns of the Newtown families, and in fact families of all homicide victims. I am convinced that nobody needs to see such disturbing graphic crime scene photos. We owe it to all these families to protect them from further pain. In light of the Internet age, the balance between privacy and freedom of information needs to be reexamined and updated. The interim task force [to be formed under the terms of the bill] will now be able to thoroughly explore these issues further and help us ensure that the right to privacy is properly balanced with the public's right to know."

But the balance between privacy and freedom of information was never about protecting people's feelings. It's about balancing the right of the public to evaluate the behavior and competence of government agents and officials with the right for citizens who interact with the government to have to reveal no more about themselves than necessary. That's why the Supreme Court's recent ruling allowing the DNA testing of anybody arrested for a crime draws outrage. It's not because of how it makes criminal suspects feel. It's about the degradation of the rights of the public to keep unwarranted information about themselves from the powerful government, not the other way around.

Democratic state Sen. Edward Meyer was one of the four legislators who recognized problems with the act:

Meyer, one of the two senators who opposed the bill, said: "As a father of six and a grandfather of 13, I identify so much with the horrific crimes of Dec, 14 and the immense sadness that those events bring to the Newtown families," Meyer said. But, he added, "There is a bigger issue here that must be addressed. Criminal conduct occurred which is subject to Connecticut's criminal law, perhaps the most public of our laws. The Newtown crimes were committed on public property. The photos and recordings were taken or obtained by police officers. The suppression of horrific crimes committed on public property and recorded by public officials is not consistent with a free and open society.

"The more we understand about our ugliness, the better chance we have to overcome that ugliness. Suppression of horrific conduct, as this bill dictates, invites history to repeat itself. … With sadness, I say that history will show that this well-intentioned bill is a large mistake."

Meyer made his comments in a printed statement, to which he attached famous journalism photographs depicting: Vietnamese girl running in terror after her clothes were burned off her by napalm; the killings at Kent State University; the police abuse of Rodney King; and recent injuries after the bombing at the Boston Marathon.

This act falls under typical misguided memorial legislation where the people support it have a tough time seeing the unintended side effects because this is policy based on emotion, not logic. What exactly counts as "unwarranted" invasion of the personal privacy of a dead person? How could such a distinction possibly be made? Note that even though the law includes family members among those whose privacy might be invaded, it doesn't actually give family members any say in the matter. Could a family member demand that law enforcement make this information public and be refused?

Anybody with experience with law enforcement agencies would conclude that this law will be applied to the extent that they possibly can. Just wait until this law is invoked to censor reports from an officer-involved fatal shooting. No wonder civil liberties and newspaper groups opposed the legislation:

In a joint letter to Malloy opposing the bill, groups including the American Civil Liberties Union, The Connecticut Daily Newspapers Association, Connecticut Broadcasters Association and Connecticut Council on Freedom of Information said the documents were essential to public watchdogs keeping an eye on government.

"We maintain that public access to investigative reports, 9-11 emergency call transcripts and recordings, death certificates, and the like, serve the public's best interest by permitting the public to monitor the performance of its government," the group wrote.

I had a devil of a time trying to track down the actual wording of the amendment this morning. The name of the bill and the bill number was not listed in any of the news stories I read. That may be because, as The Courant had noted, the bill was drafted in secret, which is not exactly the kind of behavior that suggests the government is engaging in the work of protecting the public.