A raft of police accountability and transparency laws passed by D.C. lawmakers amid the racial justice movement of 2020 may be well-intentioned, but they’re unnecessarily burdening cops as they try to do their jobs—or so Mayor Muriel Bowser, Ward 2 Councilmember Brooke Pinto, and other detractors argue as they push to roll back these reforms. The inconvenient truth is that hardly any of them are actually in force right now.
In classic D.C. fashion, many of the George Floyd-era reforms passed by the Council were never funded and still haven’t been implemented. But that hasn’t stopped the city’s vocal police union from fighting to overturn them. They’ve successfully convinced both Bowser and Pinto, the judiciary committee chair, to back legislation to do just that. Pinto has included many of the union’s favored changes in her “Secure DC” legislation, a jumble of crime prevention measures set to come up for a first vote next week, which could allow the Metropolitan Police Department to withhold more information about officers accused of misconduct from public disclosure, among other changes.
The omnibus bill has led plenty of people around the Wilson Building to wonder: What on Earth do these accountability provisions have to do with addressing the rise in crime? In a city where getting even basic information from the police is already like pulling teeth but violence keeps rising anyway, is there really any sense in turning back on good government reforms?
There’s room for debate on how effective any of the “Secure DC” proposals will really be in driving down violence, but as far as Loose Lips is concerned, it seems pretty clear that gutting transparency changes that have never actually been enforced is a political move, not a practical one.
“These are things that have not even been funded or enacted, so to say, ‘We have to change them, because they’re having detrimental effects,’ just isn’t based in reality,” Ward 4 Councilmember Janeese Lewis George tells LL, noting that she was following the lead of Mike Tobin, the director of the Office of Police Complaints, in opposing the provisions in question.
“Most of the proposal has nothing to do with addressing crime trends and everything to do with reducing police accountability in our community,” Tobin said at a hearing on Bowser’s first draft of these policies back in November.
Lewis George is one of several lawmakers working on amendments to Pinto’s bill that would strip out these transparency rollbacks. Ward 5 Councilmember Zachary Parker tells LL he is confident that there’s a majority on the Council to support the amendments, so he’s hopeful to strike a deal with Pinto before the Feb. 6 vote and avoid a public confrontation on the matter.
Crucially, Council Chair Phil Mendelson sounds supportive of the efforts, a key step to ensuring any legislative push proves successful. Mendelson may be more moderate than his aforementioned colleagues on other issues, but he has been consistently standing up for these accountability efforts over the years (and he’s faced enough attacks from the police union and its allies in recent months so as not to be any great fan of their preferred policies). He jokes, dryly, that he may need to “arm wrestle” with Pinto “over which amendments we’re moving and not moving,” but Mendelson was clear in an interview with LL that he remains skeptical of any rollback of the 2020 reforms.
“We can have good policing with good accountability,” Mendelson says. “And given the awesome responsibilities and powers police have, there needs to be good accountability provisions.”
For the moment, at least, Pinto is still defending these provisions. In a brief interview with LL, she says she sought to strike a “balance” between requests for changes from MPD and the public’s right to know, emerging with legislation she feels is “very strong.” After all, Pinto refined (or simply removed) some of the more extreme steps in Herronor’s ACT Now bill, which the mayor advanced last fall. Despite this grumbling, Pinto notes her bill passed unanimously out of the judiciary committee earlier this month.
But there is little doubt that she is feeling the heat. She faced a grilling from many of her colleagues on the purpose of these reform rollbacks during the Council’s Jan. 23 Committee of the Whole meeting, a preview of sorts for the legislative meeting next week. Even At-Large Councilmember Anita Bonds, not exactly a radical leftist, chided Pinto that “MPD should not be the entity that determines what the public knows about misconduct.”
“I reject the premise that this is a reversal,” Pinto said during the meeting. “We worked very hard to get this balance right.”
As evidence of her fairness and thoughtfulness, Pinto has often cited a provision included in her bill allowing MPD to withhold information about officers’ medical history or participation in “employee assistance programs,” such as mental health or substance abuse counseling, from public disclosure. Cops getting this sort of help is “something we want to encourage,” Pinto noted at the Jan. 23 meeting, and keeping this sort of sensitive information private is “something we’d expect and demand for any public employee.”
This can all sound reasonable enough at first glance: Who wants to poke around in a cop’s personal business except nosy reporters like LL? But transparency advocates explain that there’s more than meets the eye.
For starters, this information currently is not out in public. Personnel records, where such details would be kept, are already overwhelmingly protected by exemptions in the city’s Freedom of Information Act, and some of it only could have become public as part of disclosures of disciplinary cases. The Council’s police reforms would have opened up disciplinary case files to FOIA requests for the first time ever, and directed the city’s Office of Police Complaints to create a searchable public database of sustained cases against officers. But, as ever, it costs money for agencies to make these changes, and neither the Council nor the mayor has ever seen fit to fund them. All of this information remains under lock and key.
So right away, Pinto’s push looks a bit less well-intentioned. But, as a general matter, open government advocates say it’s still bad policy to create more opportunities for MPD to close off information about cops accused of misconduct. Kirsten Mitchell, president of the D.C. Open Government Coalition, outlines a series of scenarios in a Jan. 22 letter to the Council detailing how the provision could be abused. For instance, what if an officer was accused in a complaint of being drunk or high when on duty? (Not exactly a wild hypothetical to consider.) Mitchell says the department would likely consider those records to qualify as a “medical history” of substance abuse and could work to withhold them.
“Consider a 15-year MPD veteran who has been the subject of several disciplinary complaints for substance abuse, excessive force, or both, but remains on duty,” Mitchell writes. “Every D.C. resident has a right to that information, and to question why MPD continues to employ the officer.”
Pinto’s legislation would also wall off public access to any information about disciplinary cases that are still pending or that resulted in “unsustained” allegations of misconduct, even though the Council has repeatedly passed laws affirming that they want this information to be disclosed. (In fact, Mitchell argues in her letter that MPD already has been interpreting the law to mean that these cases should be exempt from public disclosure.) Similarly, the bill would let MPD withhold an officer’s name and badge number from public notices of MPD’s internal disciplinary proceedings, also known as “adverse action hearings.”
These hearings are notoriously difficult for the public to access already and, once again, the department is not actually sharing this information publicly, as the law requires. (These hearings are open to the public, but right now, MPD only describes cases in the broadest possible terms—for instance, a case that “involves an off-duty alcohol related incident” will receive a hearing Tuesday, according to the department’s public notice of January hearings.) Melissa Wasser, policy counsel at the D.C. chapter of the ACLU, argues this dynamic “renders it useless” for anyone to try and attend one of these hearings and find out what, exactly, these cops have been accused of doing.
The bill would also allow MPD to redact the faces and identities of officers captured in body-worn camera footage when that video is disclosed publicly (often after a shooting or other use of force against members of the public). Pinto, relying on the testimony of police and prosecutors, argues that this disclosure “could put officers at the risk of retaliation or other negative outcomes,” according to her committee’s report on the bill. But Mitchell argues that such a change will make it impossible to make sense of footage that is “often involving large numbers of officers and civilians.”
“The underlying principle is that D.C. residents need to see for themselves that, despite the incident’s unfortunate consequences, police did their jobs competently, in accordance with the law and regulations,” Mitchell writes. “Obliterating officers’ identities will make it difficult, if not impossible, in many instances to achieve that goal.”
Wasser adds that this is hardly the only change around body-worn cameras worth noting: Pinto’s legislation also reverses the Council’s previous prohibition on officers reviewing video footage before writing a report about an arrest or other incident. Federal prosecutors, in particular, have argued vigorously that this restriction has given defense attorneys an opening to cast doubt on officers’ testimony in court, should their recollections differ even slightly from their camera footage. Yet police reformers like Wasser note that officers could instead be overly relying on video footage (particularly if it was recorded by a different officer with another view of the incident) to include things in police reports that they might not have actually seen in real time.
“The question to ask is: What is the real benefit of this?” Wasser says. “Are you using this to jog your recollection, your memory? Or are you using this to help support a narrative that might not be entirely true?”
Another change to police practices Lewis George is honing in on: The expansion of when officers are allowed to engage in vehicle chases. The Council has repeatedly sought to limit these pursuits, particularly after the death of Karon Hylton-Brown during such a chase. But MPD eventually decided (incorrectly, in the view of some analysts) that the law barred officers from ever chasing suspects. Lawmakers passed a clarification over the summer aimed at allowing police to engage in pursuits in select circumstances, but Pinto’s bill goes a step further and allows for officers to continue vehicle chases even “if there is a risk of death or serious bodily injury to a fleeing suspect.”
Lewis George believes this will open the door for tactics such as ramming cars or deflating tires, which she does not believe are appropriate in many cases, because of the risks they pose to other drivers and bystanders.
“The solution to a lot of this stuff is more training, not reclassifying these actions,” Lewis George says.
The councilmembers who are skeptical of these police accountability rollbacks have yet to settle on which elements, exactly, they’ll try to strip out of the bill. But it’s reasonable to expect that all of the aforementioned policies will be on the chopping block.
Pinto may well be willing to make a deal. Parker notes that she listened to his “adamant” opposition to one of her previous proposals—which would’ve allowed for the warrantless searches of people released from prison on parole or probation—and declined to include it in the Secure DC bill. Similarly, she sanded down one of Bowser’s more egregious proposals in the ACT Now legislation that would’ve opened the door for the use of police chokeholds once more. Now, the bill allows for the “incidental touching” of a person’s neck, so as to allow officers some leeway if they graze the area during a struggle, Pinto says. Most councilmembers to speak with LL found this an acceptable middle ground.
“I find her to be reasonable and collaborative,” Parker says. “And I’m confident that we can reach a compromise before the first reading.”
As two of the more left-leaning members of the Council, Parker and Lewis George certainly aren’t surefire votes in supporting a crime bill like this. (Recall that Lewis George was the lone no vote on the Council’s summer crime legislation and Parker’s support of it earned him condemnations from the socialists who powered his 2022 campaign.)
But it is perhaps indicative of the city’s current political climate that they are seeking to remove the bill’s worst elements rather than oppose it entirely—Mendelson says he fully expects the legislation will pass next week, perhaps even unanimously. Even more controversial elements, such as the revival of drug-free zones and the expansion of pretrial detention, are likely to survive, even after the Council’s racial equity office penned a scathing review of many of its provisions.
Lawmakers are well aware that they can only do so much to actually drive down crime without serious changes from MPD and Bowser’s agencies. But they also know that they’ll keep facing attacks from the mayor and her allies unless they agree to pass something, so they might as well make it as palatable as possible.
“I want to know: When this is done, will all the divisiveness end?” Lewis George says. “Can we get to work on behalf of District residents?”
LL had a good laugh at that one.