police and the law

My email chum and fellow columnist -- and, oh yes, did I mention ACLU lawyer? -- Bill Newman wrote what follows in today's Daily Hampshire Gazette. Since I agree with him, I thought I might give the piece a minuscule bump here:

NORTHAMPTON — Consider Chicago. There on a city street, police officer Jason Van Dyke shot 17-year-old Laquan McDonald 16 times — in the chest, back, neck and head — mostly while the teen was lying on the pavement. This was a cold-blooded execution.

Hard to believe? Go watch the video, the Chicago police dashcam recording. fter the shooting, city officials engaged in a conspiracy of silence for 13 months. But a judge ordered the video released and this past week, the day before the release, the state charged the cop with first degree murder.

Why was the video suppressed? Why was the public’s right to know so blatantly ignored and discarded? Aren’t police officers public officials subject to the same disclosures and bound by the same legal rules and standards that apply to all other public officials?

In 2000, in our brief to the Massachusetts Supreme Judicial Court, my ACLU colleagues and I argued that police officers indeed were public officials. The officer in the defamation case claimed to the contrary that he was not a public official or a public figure but merely a private individual employed by a governmental entity.

Our side won. The unanimous decision noted “the broad powers vested in police officers and the great potential for abuse of those powers ... in areas impinging most directly and intimately on daily living (including) the sidewalks and the streets.”

Abuse of this important public office, the court stated, “can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury ....” The court was swayed in part by “police officers’ high visibility within and impact on a community” and concluded that law enforcement, including patrol-level police officers, are public officials.

You might have thought that after this decision law enforcement in Massachusetts (as in Illinois and almost every other state), cognizant of their status as public officials, would not try to block the public’s right to know about their public job activity performed in a public place.

But you would be wrong.

In 2011, when Simon Glick videotaped Boston police officers using excessive force as they arrested a young man on the Boston Common, the cops busted him. Those criminal charges quickly were thrown out of court. But when Glick, also represented by the ACLU, sued the police, they asserted as their defense that no one had a firmly established constitutional right to video-record them.

The federal courts emphatically rejected that argument. There is in fact a constitutional right to record cops as Glick had, and that right is well established.

The Glick decision emphasized the pinnacle on which the law places the public’s right to be informed about law enforcement activities. That right is grounded in the public’s legitimate and significant “interest in the responsible exercise of the discretion granted police .....” 

Unfortunately, some municipal officials still believe that they enjoy the right, an entitlement of their power, to try to bury information about the most public of public officials — the police.

When keeping the public in the dark they almost always employ a subterfuge or have an excuse. Chicago Mayor Rahm Emanuel claims, for example, that he didn’t want to interfere with an investigation.

Here’s reality. The dashcam video would have remained buried forever if not for lawyers and journalists having been tipped off to its existence. The video, if released before the election, would have further ripped apart Emanuel’s already tattered reputation in the black community and threatened his re-election. The video was kept under lock and key until long after the votes were counted. Emanuel is supposedly a liberal Democrat — you know, the kind of official who allegedly believes in official honesty and transparency, often referred to as government in the sunshine. Well, apparently not so much.

Don’t discount the importance of institutional racism. If the victim had been white, do you think that municipal officials would have, or could have, engaged successfully in this conspiracy of silence that went on month after month after month?

When a public official — whether elected or appointed — allows, condones or facilitates hiding significant information about alleged or apparent police misconduct, the public and our system of laws and government pay a high price. Such non-disclosure vividly demonstrates a lack of transparency and honesty. It undermines faith both in government and those officials, a fact which sadly too often doesn’t deter them or make them honor the public’s right to know.