With some states taking a fresh look at strengthening measures to hold police officers accountable, lawmakers in Pennsylvania are being urged to join states that make police department records of officer discipline accessible to the public.
Thus far, no such legislation is part of a reform package put forward by Democratic lawmakers, and a bill poised for a vote next week in the House of Representatives would require some department-to-department disclosure of discipline records during the hiring process for a police officer.
But, it would keep those records out of the public's reach in Pennsylvania, and the state's largest police unions are against making those records public.
Kenneth L. Huston, president of the Pennsylvania state conference of the NAACP, said his organization supports making police disciplinary records public so that people know the records of the officers who are policing them.
The NAACP, Huston said, sees the role of police in protecting communities as paramount, but it doesn't want officers with horrible records doing the policing.
“And we’re not sure about Pennsylvania because we don’t know,” Huston said in an interview. “All we can do is go by what they tell us.”
The American Civil Liberties Union of Pennsylvania also supports making those records public, a spokesman said.
David Harris, a University of Pittsburgh law professor who studies police behavior, told a joint state Senate committee hearing Thursday that the department-to-department disclosure of police discipline does not take transparency far enough and leaves the disciplinary process a “black hole.”
“There must be transparency on the issue of police misconduct with the public,” Harris said. “You want trust? You want to rebuild trust? You have to be transparent and there’s no other way.”
Amid protests over George Floyd’s killing in Minneapolis, members of the Legislative Black Caucus in Pennsylvania’s Legislature have pushed majority Republicans to hold votes on police reform bills, including some that have languished since 2018 after an officer fatally shot Antwon Rose in East Pittsburgh.
Bills central to Democrats' police reform platform — narrowing the allowable use of lethal force and appointing special prosecutors to investigate police shootings — have seen no action.
But protests across the country over police brutality and racial justice following Floyd’s death at the hands of police are shifting political will.
In Pennsylvania, the state lodge of the Fraternal Order of Police opposes making the records public, as does the Pennsylvania State Troopers Association.
Such disclosure would violate Pennsylvania's constitution without changing it, the troopers’ association president, David Kennedy, suggested.
“Pennsylvania is unique in that it has an explicit enumerated right to be free from governmental impairment of reputation,” Kennedy said through a spokesperson.
The troopers' association said there is no case law it can cite that applies that constitutional provision to the disciplinary records of police officers or other public employees because such records have always been exempt from disclosure.
Rather, the troopers’ association pointed to several cases it called “analogous" where the courts found problems with government agencies disclosing the names of people without giving them the opportunity to testify, cross-examine witnesses or subpoena their own witnesses.
The ACLU questioned the troopers' association rationale.
“The state constitution prohibits the government from impairing your reputation without due process,” ACLU spokesperson Andy Hoover wrote in an email. “It does not give you the right to hide findings of misconduct made with due process. And law enforcement get more due process before a finding of misconduct than any other employee.”
Senate Minority Leader Jay Costa, D-Allegheny, acknowledged that he had concerns that Pennsylvania's constitutional protections over a person's reputation would make it difficult to make police disciplinary records public.
So instead, he and other Pittsburgh-area lawmakers explored other avenues following Rose's shooting, including department-to-department disclosure legislation. When Costa introduced that bill in 2018, police unions opposed it, he said.
Now, with urging from state Attorney General Josh Shapiro, police unions support it, and it is important to capitalize on the moment, Costa said.
“We have to get stuff done," Costa said, "and then we can come back and fight for more another day.”