MPD’s Patrol Services North also houses its Disciplinary Review Division. Credit: Darrow Montgomery

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Inside a brick building on a residential street in Petworth, beyond locked doors that a desk cop controls with a buzzer, is a white-walled room where police officers plead for their jobs.

A sign on the front of the building identifies the place as a Boys & Girls Clubs of Greater Washington clubhouse. Except for the cop cars parked outside, one would hardly recognize it as the Metropolitan Police Department’s Patrol Services North, which also houses its Disciplinary Review Division.

Once inside the building, the public is directed through another set of locked doors to the room where MPD holds adverse action hearings, the quasi-judicial proceedings where officers have an opportunity to challenge disciplinary decisions. The hearings are open to the public, but observers are not allowed to record or livestream. Cell phones and other electronic devices are prohibited.

A schedule posted on the wall outside the hearing room lists the month’s agenda. In January, it featured MPD officers accused of illegally using pepper spray, making untruthful statements, an unauthorized chase, an unauthorized neck restraint, and “driving while intoxicated and leaving after colliding” in another county.

The schedule does not identify the officers and is not posted online. Until relatively recently, the only way a member of the public would know about these allegations would be to visit Patrol Services North each month and read the schedule off the wall.

Winkle “Hobie” Hong, director of MPD’s Disciplinary Review Division, is willing to email the monthly schedule to individual requesters, but that hasn’t always been the case with his predecessors, says Amy Phillips, a D.C. public defender who has taken a personal interest in police misconduct and is speaking with City Paper on her own behalf.

“Members’ names aren’t something we like to advertise,” Hong told City Paper in January, when asked for the name of the officer accused of an unauthorized vehicle chase. The hearing for that officer, it turned out, was postponed.

The rules around adverse action hearings are minor barriers to the public’s access to information about police misconduct in D.C. More significant efforts appear in three active lawsuits in which MPD, the United States Attorney’s Office for the District of Columbia, and the Office of the Attorney General for the District of Columbia defend a system that allows the identities and bad actions of police officers to stay secret. Government attorneys argue identifying officers with records of misconduct or untruthfulness could put their lives in jeopardy, embarrass and humiliate them, or hurt their chances of finding work outside the department.

The previously unreported cases highlight the demands for transparency in policing as outrage over officers’ harassment of Black communities and killing of Black people reaches a fever pitch.

For the past year, Phillips has challenged those systems in a lawsuit over access to records of an adverse action hearing in March 2019 that resulted in former officer Sean Lojacono’s termination. Lojacono was fired for an invasive buttock and genital search of a man he saw drinking alcohol in the passenger seat of a car.

“We give police officers more power than other government employees, including the power to use deadly force. That should come with increased accountability,” Phillips says. “I think that lack of transparency damages any relationship the police are hoping to build with the community.”

***

Phillips took three days off work in early March 2019 to watch Lojacono challenge the department’s decision to fire him.

Throughout the adverse action hearing, MPD, represented by OAG lawyers, made the case that Lojacono’s invasive search violated the department’s general orders and ran afoul of his training. In his defense, Lojcaono argued the opposite—that he was taught to search suspects for drugs and weapons by sticking his hands into a person’s buttocks and groin.

“I’ve seen numerous officers complete the exact same search,” Lojacono testified during the hearing, adding that “there was no simulation given to us of how a proper field search is supposed to be done. So I never actually got a chance—an opportunity to either see or conduct a simulated field search at that training academy.”

Phillips took notes as best as she could, but because she was barred from recording the proceedings, she filed a Freedom of Information Act request for the official audio recording, transcripts, emails, and exhibits to ensure her notes were accurate.

“This is such a fascinating inside look at what appears to be a dispute in the police department between what’s written in the rulebook about what’s legal versus what officers who are getting on-the-job training in the streets are actually being trained to do,” Phillips says. “And what they’re actually being trained to do appears to be really objectionable.”

Phillips submitted her FOIA request on March 15, 2019, shortly after the hearings concluded. Fewer than 90 minutes after filing her request, she received an outright denial. Publicly releasing such records would “constitute a clearly unwarranted invasion of personal privacy,” MPD wrote in its denial letter.

Phillips appealed the decision to the Mayor’s Office of Legal Counsel, and again MPD pushed back. A lawyer for MPD argued that Lojacono’s right to privacy outweighed the public’s right to records related to his public adverse action hearing.

“The requested records will not shed light on the operations of the department, which is the core purpose of FOIA,” MPD deputy general counsel Ronald B. Harris wrote in his opposition to Phillip’s appeal.

Still, the mayor’s office directed MPD to release a portion of the records, ruling that Lojacono’s privacy did not outweigh the public’s interest in seeing the records. However, the privacy of others who participated in the hearing, such as witnesses, lawyers, and spectators, did overshadow the public’s interest, the mayor’s office decided.

After 39 days without receiving a single document from MPD, Phillips sued the District. Only then did she start receiving the records she requested.

“I don’t know how you would do it if you weren’t a lawyer,” Phillips says of her efforts to get access to the records. “I would imagine a lot of people just give up, because it’s discouraging.”

So far, Phillips has received some body camera footage and thousands of pages of documents, including 1,200 pages of transcripts. But the names of MPD officers who testified about how the department trains its members to conduct searches are redacted. Officers’ duties and responsibilities within the department are also redacted in some places throughout the transcript.

(City Paper obtained redacted copies of the transcripts from Lojacono’s hearing, and through news reports and comparisons to Phillips’ notes has determined some of the withheld information.)

In September 2017, a video of Lojacono conducting a search of a man named M.B. Cottingham went viral. The video shows Lojacono sticking his hand in Cottingham’s buttocks and groin as Cottingham flinches and says “he stuck his finger in my crack.”

The footage caught the attention of the ACLU of the District of Columbia, and the organization filed a lawsuit against Lojacono, which the District settled for an undisclosed, six-figure amount, despite the fact that the D.C. government was not a defendant. The case settled just before the District’s deadline to give the ACLU-DC court-ordered evidence that included complaints, internal investigations, and discipline against Lojacono.

“Suddenly, D.C. had every reason to want to make this go away,” says Scott Michelman, the ACLU-DC’s legal director.

MPD’s internal investigators disciplined Lojacono and removed him from the narcotics enforcement unit.

It wasn’t until April 2018, when Lojacono’s father, Christopher, a former MPD commander, ran into MPD Assistant Chief Wilfredo Manlapaz, that the department found evidence that would lead to Lojacono’s termination. Christopher Lojacono asked about the status of his son’s case and when he could return to the specialized drug unit, according to a transcript of the adverse action hearing.

Manlapaz found a body camera video of Lojacono performing a similar search of another man about 30 minutes after he searched Cottingham. That video served as a primary piece of evidence for Lojacono’s termination.

During the hearing, Lojacono’s partner, Officer Kevin Van Hook, who is identified in previous media coverage, testified that the search in question was completely appropriate and in line with the way veteran officers taught them to pat down suspects.

Former Sergeant J.J. Brennan, who recently worked as a civilian supervisor in the department, supported Van Hook’s statements, saying the “police academy and the streets are two different places. Now once you’re on the street, you’re in the real world … And the streets train different ways.”

Brennan, who is also named in previous coverage of Lojacono’s hearing, was fired shortly after his testimony. Van Hook is still an officer with MPD. The department declined to make him available for an interview.

Lojacono also identified four senior officers who taught him how to search suspects. All four of their names are redacted in the transcript.

“To redact out the names of sworn police officers who come in uniform and testify in their capacity as police officers, that doesn’t seem right to me,” Phillips says. “Particularly when what they’re testifying about is use of force by the police against civilians, and that use of force was also deemed to be improper.”

She says she offered to settle the case if MPD would release an unredacted copy of the transcript. The department rejected her offer.

MPD first notified Lojacono of his termination in August 2018. Following the adverse action hearing in early March 2019, a three-member panel made up of MPD brass upheld his firing on March 29, 2019. Only one of those three high-ranking officials—Commander Stuart Emerman—is identified in the transcripts. The other two official’s names—Captain Kimberlee Williams and Captain Andrew White—are redacted in the transcripts but are left unredacted in a document summarizing the panel’s final decision. White disagreed that the invasive search should cost Lojacono his job, and instead recommended he be suspended and receive training on proper searches.

Although MPD released the transcripts and other documents, Phillips’ lawsuit is still ongoing. She tells City Paper that when she initially filed the case, she thought the OAG would agree that her request for transcripts of a public hearing was a “no brainer” and would release them in full.

“I continue to be surprised at just how vociferously MPD is fighting against turning these [unredacted transcripts] over,” she says, noting her respect for D.C. Attorney General Karl Racine, whose office is defending the District in the case.

Racine, the District’s first elected attorney general, is a proponent of progressive criminal justice policies, such as alternative approaches to reducing violence, restorative justice, and diversion in juvenile prosecution.

But, Phillips adds, “it is ludicrous to me that he’s publishing op-eds in the media talking about his commitment to reforming the police department and making sure that people have access to better government, and then attorneys who work for him … are coming into court opposing a request like this one.”

“That office is saying things publicly that I don’t think is being born out in what they’re doing in court,” she continues. “And it really makes me wonder if Mr. Racine knows the positions that his staff attorneys are taking and whether he would agree with them.”

An OAG spokesperson says in an email that the office has obligations to protect the “safety and security of District workers,” including “sensitive personal information from being publicly shared.

“The District provided Ms. Phillips with the information she requested including complete hearing transcripts,” the OAG spokesperson writes. “The only information that has been redacted is information that would identify a witness, such as a witness name or an employee ID number, which is subject to a FOIA exemption.”

***

Before the U.S. Attorney’s Office would hand over body camera footage of Dalonta Crudup’s arrest in January 2020, prosecutors asked his lawyer to sign a protective order.

The order bars Crudup’s attorney, Michael Bruckheim, from sharing the footage with anyone outside of individuals who prosecutors deemed as part of the “defense team.” The order specifically excludes Crudup himself.

The only way Crudup could view a major piece of evidence against him, according to the USAO-DC’s requirement, was under his attorney’s supervision. The order requires Bruckheim to somehow ensure that Crudup does not see or hear personal and identifying details of officers and bystanders.

The order also requires Bruckheim to destroy the footage or return it to the USAO-DC after the case ends, which he believes is unconstitutional.

Protective orders for body camera footage, as well as for police disciplinary records, have become common practice for federal prosecutors in D.C., defense attorneys tell City Paper.

The USAO-DC, which prosecutes felonies in the District, claims the orders allow them to release the footage in the early stages of a case, before the office has a chance to review it for possible redactions. The footage could contain images of bystanders or other sensitive information, the USAO-DC claims, and the order is necessary to protect their privacy.

But Bruckheim and his law partner, Sweta Patel, believe there is another reason: to hide evidence of what they believe is a pattern and practice within MPD of illegally stopping and searching Black men.

“There is no other purpose than the government trying to protect officers and videos from leaking to the media and the public knowing what’s going on,” Patel says.

The USAO-DC did not respond to City Paper’s request for comment.

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In Crudup’s case, four officers on the gun recovery unit watched from an unmarked silver Chevy Malibu as he walked down 14th Street NE carrying a backpack, according to a sworn statement from Officer Eddie Choi. Crudup looked over his shoulder at the officers, put the backpack on his shoulders, and kept walking, Choi’s affidavit says. That was, apparently, enough for the officers to stop him.

Four officers wearing street clothes under “POLICE” vests jumped out of the car and started questioning Crudup. Choi’s sworn affidavit describes Crudup shifting his body “as if to blade the backpack away from officers,” but he denied carrying any weapons.

Officers eventually wrestled the backpack from Crudup and found marijuana, cash, and an M&P pistol, the sworn statement says. Crudup was charged with carrying a pistol without a license.

Prosecutors handed over the body camera footage in Crudup’s case under a protective order, and then offered him a plea deal. Bruckheim rejected the offer after watching the footage, which he says conflicts with Choi’s sworn statement and shows that officers illegally stopped and searched Crudup.

While Choi’s statement says Crudup “pressed the back of his body against a chain-link fence,” Brukheim says the video shows officers forcing Crudup up against a fence, and “then tell[ing] him it’s suspicious the way he’s standing against the fence,” Bruckheim writes in court documents.

Fifteen minutes after Bruckheim rejected the plea deal, the prosecutor emailed saying the government would dismiss the charge.

Some variation of that sequence of events played out for two other Black men, Dontray Bell and David Burns, who officers on MPD’s gun recovery unit also arrested in the past two years. Now, Bell, Burns, and Crudup are plaintiffs in a class action lawsuit that Patel and Bruckheim filed in April.

The suit, filed in the U.S. District Court for the District of Columbia, accuses MPD of operating under a “policy of stopping, frisking, and searching African American people (especially young African American men) looking for guns without reasonable suspicion or probable cause, fabricating facts to justify stops, frisks and searches, and intentionally discriminating on the basis of race through its Gun Recovery Unit.”

In each of the three cases, police stopped, searched, and charged the men with felony possession of firearms. In all three cases, officers’ statements in sworn affidavits did not match the body camera footage and were fabricated to support the illegal stops and searches, Patel and Bruckheim’s lawsuit claims. Like in Crudup’s case, prosecutors dismissed the charges against Bell and Burns after releasing body camera footage to their attorneys.

“This is exactly why the government asks for protective orders,” Patel says. “They don’t want these bad stops to come to light. It’s clear that these stops are bad. That’s why these cases are dropped.” The deeper issue, Patel says, is that after charges are dismissed, MPD doesn’t retrain its officers.

“There is no follow-up from prosecutors, and that leads to no training for officers,” she says. “It’s a circle.”

The department’s strategy, it seems to Bruchheim and Patel, is that the ends justify the means.

“Their attitude is if we can get illegal items off the street, [then] we don’t care about violating rights,” Bruckheim says. “But that’s the wrong way to go about community policing.”

MPD Chief Peter Newsham did not agree to an interview for this story, and an MPD spokesperson writes in an email that the department does not make police personnel records available to the public.

Protective orders in Crudup’s and Bell’s cases prevent them from using any body camera footage their attorneys received in their criminal cases as evidence in their civil lawsuit against the District. In effect, that means the government is using the footage as evidence of a potential crime, but Crudup and Bell aren’t allowed to use it as evidence of potentially illegal searches.

Bruckheim and Patel asked a judge to lift the orders in both cases, and the USAO-DC opposed their requests. The government argues that in Crudup’s case, for example, the footage shows Crudup speaking with someone on his phone, shows officers interacting with people inside of a police station and, briefly, shows officers’ cell phone screens—an invasion of their personal privacy.

Bruckheim, who watched the video but cannot release it to City Paper because of the protective order, says the footage shows only “fleeting images” of bystanders and does not linger on officers’ cell phones long enough to read their text messages.

“The government’s assertion that police officers are entitled to privacy with body camera footage during the course of their duties where constitutional rights violations are an issue is without merit and against moral public politics,” Bruckheim writes in court documents.

D.C. Superior Court Judge Rainey Brandt sided with federal prosecutors and declined to lift the protective orders. In her decision, Brandt notes that the rules around disclosure of evidence are different for criminal cases than for civil cases.

She agrees with prosecutors’ concern that “lifting the protective order would increase the likelihood of the [body worn camera] evidence being circulated in the public domain,” and in a footnote the judge adds: “This point is of great concern to the Court. Should the [body worn camera] be uploaded to social media there is nothing to prevent the alteration of the video, among other things.” 

***

Inside locked file cabinets and on secure computer drives, federal prosecutors keep extensive records of D.C. cops’ transgressions. The records could contain details of minor mistakes, such as mouthing off during roll call or missing a court date, as well as evidence that officers lied in sworn testimony, and, in some cases, have criminal convictions.

A corresponding list, known as the “Lewis list,” tracks each MPD officer whose bad acts could call their credibility into question. The “Lewis committee,” a group of seven USAO-DC division chiefs, deliberates and votes on what information should be included in the USAO-DC’s database. Only federal prosecutors have access to the list itself, and only USAO-DC supervisors can access the underlying records.

Both are named after the D.C. Court of Appeals case Lewis v. United States, which requires prosecutors to hand over any information that could cast doubt on their witnesses’ testimony.

For the past six years, Ryan Shapiro has tried to get access to these records through FOIA. The USAO-DC has largely denied his requests, and in 2016, he filed a lawsuit to pry the records loose. Shapiro is the executive director of Property of the People, a nonprofit dedicated to fighting for access to government records.

“The residents of a city have a right to know when their armed public servants behave so egregiously that even the U.S. Attorney’s Office believes those supposed defenders of order are too compromised to credibly appear before a court,” Shapiro says.

The U.S. Department of Justice argues in court records that publicly releasing the Lewis list would violate officers’ personal privacy and could jeopardize the safety of those officers and their confidential sources. The DOJ also cites other exemptions to FOIA, such as those for interagency records and records compiled for law enforcement purposes.

The D.C. OAG asked to intervene in the lawsuit in May of 2018, and in court records Racine’s office argues that the Lewis list and related records contain information on “potentially hundreds of individual MPD officers—information that, if disclosed, could subject them to embarrassment, harassment, and undue public attention, to say nothing of possibly endangering their physical safety.”

In a sworn statement supporting the OAG’s case, MPD Assistant Chief of Investigative Services Robert Contee says police supervisors make sure officers on the Lewis list aren’t assigned to significant investigations where they’d have to testify in court. An officer’s placement on the Lewis list hurts their chance at promotions and advancement within the department, Contee says.

Contee also notes the public humiliation and embarrassment from publicizing the list could hurt officers’ chances of getting second jobs or starting second careers after retirement.

“These officers would likely receive fewer opportunities, or even the absence of any opportunity, to start a new career if prospective employers became aware that an applicant’s credibility or reputation had been previously called into question,” Contee claims in his attempt to keep the details of the list secret.

Jeffrey Light, a D.C. attorney and co-founder of Shapiro’s nonprofit, says the federal government is using an “unusually broad” interpretation of exemptions to FOIA.

“I do think that that speaks volumes about how they view the material and how closely they want to guard it,” Light says.

The level of secrecy that surrounds similar databases of police misconduct varies across the country. In Florida, for example, police personnel files are open to the public. But for decades, a New York state law explicitly hid police disciplinary records from the public. In 2018, BuzzFeed got ahold of five years’ worth of the records that revealed at least 319 cops committed serious offenses, from lying in court to vicious beatings, and still kept their jobs. The outlet published the records in a searchable database, including officers’ names.

This month, New York Gov. Andrew Cuomo signed legislation repealing the law that protects police disciplinary records, and Mayor Bill de Blasio promised to publish the records online rather than requiring the public to submit FOIA requests.

Shapiro’s case highlights federal and local governments’ efforts to withhold details about police misconduct on two fronts. The first is in their fight against his FOIA request itself, and the second is in the instances where federal prosecutors allegedly fail to reveal the information to criminal defendants as the Constitution requires.

Officer John Wright provides a perfect example of both.

In August 2013, D.C. Superior Court Judge Yvonne Williams wasn’t buying Wright’s testimony. Wright, a member of MPD’s gun recovery unit, described how he pulled his unmarked police car alongside Phillip Mitchell, who was walking down Oates Street NE.

Wright claimed Mitchell consented to a search, and though the officer didn’t find any weapons, he did find vials of heroin.

“I just don’t believe this officer,” Judge Williams said of Wright’s description of his interaction with Mitchell.

She summed up his testimony as, “‘I see a random dude on the street, I’m going to stop him.’ For nothing.”

“We can’t fathom those kinds of situations in this courthouse,” Williams said, according to a transcript of the hearing. “We cannot continue to allow this kind of stuff to happen.”

Williams threw out the drugs as evidence, forcing prosecutors to dismiss the charge.

“The reason why I’m not buying that’s what happened is because there was no reason for them to talk to the defendant in the first place,” Williams said. “So maybe they were just bothering this defendant because they felt like bothering with him. I don’t know, but I’m not finding this credible, and I am just—I’m not finding the whole theory credible.”

Less than a year later, D.C. Superior Court Judge Anita Josey-Herring made a similar finding against Wright. In a March 2014 hearing, Wright claimed that he stopped Louis Stanley for changing lanes without signaling. During the stop, Stanley admitted to owning a shotgun, and Wright later got a warrant to search his home and charged him with possession of an unregistered firearm.

In court, Stanley contradicted Wright’s testimony, telling the judge that Wright initially said he pulled him over for an “illegal turn,” and that Wright “continued saying he smelled marijuana in my car.”

“I said ‘No, there is no marijuana in my car nor do you smell any,’” Stanley told the judge, according to a transcript of the hearing. “And he said, well … yeah, then he continued the conversation of, you know, license and registration.”

“I don’t, honestly, credit the officer’s testimony,” Josey-Herring said, granting Stanley’s request to throw out the government’s evidence, again effectively dismissing the case.

It’s rare for a judge to declare a police officer’s sworn testimony was not credible, local defense attorneys tell City Paper. The judges’ findings are black marks that will follow Wright for the rest of his career and, in theory, should land him on the Lewis list. MPD declined to make Wright available for an interview.

Transcripts of these hearings are the kind of materials that the USAO-DC is required to turn over in cases where Wright could testify. But in at least one case, that did not happen.

In 2016, local defense attorney Joseph McCoy represented a man who Wright arrested and charged with illegal possession of a firearm. As the trial date approached, USAO-DC gave McCoy one of the transcripts in which a judge discredited Wright’s testimony, but only through a chance discussion with another attorney did he find out about the second.

McCoy asked for transcripts of every time Wright testified in court, arguing that he “couldn’t trust the government to turn everything over.”

The judge ultimately barred Wright from testifying in the case, and prosecutors later dismissed the charge when a surveillance video that McCoy played in court contradicted Wright and another officer’s testimony. Wright is still employed with MPD, making a $99,000 salary.

An untitled and undated document that Shapiro received as part of his FOIA request provides a possible explanation for the USAO-DC’s disclosure of one transcript but not the other.

The three-page document lays out USAO-DC’s guidance for what information it should give to people accused of crimes, what information it should not, and what information falls into a “gray area.” 

The document explicitly states that the subject of the case as well as the officer’s involvement determine whether or not the USAO-DC should reveal the potentially damning information.

“Note that whether these findings are disclosable depends very specifically on what the officer is being called to testify about,” the document says. “That means that certain findings may be disclosable in one case, but not in another (posing a potential for inconsistencies in disclosure between cases…).”

Light, who in addition to FOIA litigation handles criminal appeals, says the guidance conflicts with prosecutors’ constitutional duty.

“The defendants don’t know what they don’t know,” Light says. “I think everybody just presumed that if this type of information existed, and the officer was on the Lewis list, that would mean disclosure.”

Information that is “presumptively not disclosable,” without a specific request from the defendant, according to the USAO-DC’s guidance, includes findings of harassment or domestic violence against officers.

Information that falls in the “gray area” includes an officer’s “unjustified use of force,” “losing a prisoner/notebook,” and firing a pistol at a moving vehicle.

“The government’s job is to do justice, not to win cases,” Light says. “This [guidance] seems to focus more on getting away with the absolute bare minimum they can get away with.” 

The OAG, which prosecutes juvenile and misdemeanor crimes in D.C., has the same duty to people accused of crimes. When there’s a close call, the OAG errs on the side of disclosure, a spokesperson for the agency writes in an email.

Two weeks ago, U.S. District Court Judge Dabney L. Friedrich, a Trump appointee, rejected the DOJ’s motion to dismiss Shapiro’s case and ordered the department to explain in greater detail what records it’s withholding and why. 

The DOJ described one set of withheld records as “three emails and their attachments contained on the U: drive in a folder named Lewis,” Friedrich notes in her order. The DOJ also withheld 3,199 emails from Assistant US Attorney Roy McLeese because they fell “mainly into two categories.”

“Not only did the Department fail to describe the emails that fell beyond those two categories, but also the descriptions of the two categories themselves are too vague and non-specific to evidence that [the agency] carefully analyzed all information withheld,” Dabney writes in her order.

For now, Shapiro and Light see the judge’s ruling as an incremental victory.

“There’s a good chance we’ll be getting some documents in this case,” Light says.