Policing Transparency

Legal, Policy and First Amendment 

This article, written by Brechner Center for Freedom of Information Legal Fellow Imani Jackson and Director Frank LoMonte, originally appeared in Human Rights published by the American Bar Association.

Introduction: Town vs. Gown

When affluent university campuses sit in the urban core of major metropolitan areas, harmony between these institutions and local community members can be challenging. Deploying university policing authority in neighborhoods adjoining campus also predictably spurs tension and conflict. Likewise, the social soft sell that elite universities remediate area blight complicates stakeholder relationships.

As private universities have sought to expand their patrol and arrest jurisdiction into surrounding residential areas, legitimate questions arise over how non-governmental actors can be given the authority to exercise the ultimate governmental power—the power to use deadly force and to take away freedom—without governmental accountability. This sort of creeping jurisdiction can raise fears about policing and the depth of public knowledge about criminal justice policy and practice.

In recent years, community leaders in Baltimore and Chicago have pressed local private universities for greater transparency in how they exercise policing authority. Civic organizers and grassroots political groups produced noteworthy success in Baltimore, where private Johns Hopkins University was forced to accept transparency concessions in exchange for policing authority, responding to concerns raised by community stakeholders. But transparency gains have proven more challenging to achieve in Chicago. These experiences bring into focus both the importance of public accountability in policing as well as the resistance of non-governmental actors to accepting unaccustomed public oversight.

Policing Privatized

Police departments with full arrest authority (known as “sworn” law enforcement) are increasingly common on college campuses. According to the most recently released U.S. Justice Department (DOJ) data, 68 percent of all colleges and universities with student enrollment of 2,500 or greater employ sworn law enforcement officers. Although the practice is somewhat less common among private institutions, the DOJ reports that 38 percent of private postsecondary institutions employ police officers with arrest authority. The practice is not limited to higher education; in 2014, the Columbus Dispatch reported that more than 800 sworn law enforcement officers were patrolling Ohio under supervision from private hospitals and other nongovernmental employers.

At traditional law enforcement agencies operated by cities and counties, open-records statutes afford the public access to documents and data that facilitate oversight over both trends and developments in local crime, as well as how the police are using their authority. Arrest reports, complaint records, jail booking logs, body-cam videos, and other such records regularly are made available to journalists and citizen watchdogs, serving both a deterrent function against official misconduct as well as an after-the-fact detection function. Savvy community organizers can use social media to broaden scrutiny of law enforcement policies, practices, and decisions by sharing public records online.

Yet, when the police department answers to a private university, it is less certain that the public can obtain the records necessary for meaningful oversight. Private universities, like all other non-governmental entities, are beyond the reach of state freedom-of-information laws, which typically apply only to records maintained by public entities. Consistent with these informational gaps, the American Prospect described university police forces as “one more case of privatization producing more confusion and less accountability.”

Even in states that do afford the public a measure of transparency, that access generally is circumscribed by statute. For instance, in North Carolina, Texas, and Virginia, state statutes provide that police departments operated by private universities must disclose the first page of each “incident report” written by officers responding to the scene of a crime, but nothing more.

The issue is currently before the courts in Utah, where the Salt Lake Tribune is suing Brigham Young University (BYU) for access to reports about how campus police became embroiled in a disciplinary investigation, in which a rape victim faced student conduct charges for violating the university’s prohibition on unwed sexual activity. In response to the case, Utah state legislators enacted Senate Bill 197, making BYU police incident reports clearly accessible to the public in the future.

The Tale of Two Cities

Community Concerns Heeded: The Baltimore Experience

Johns Hopkins University’s (JHU) proposal to create a new police force to patrol the Baltimore campus and surrounding neighborhood landed with a thud in a city still shaken by the acquittal of three officers charged with participating in the 2015 killing of 25-year-old Freddie Gray, who was shaken to death in the back of a police department van. JHU’s proposal ignited civil unrest in a community fearful of unleashing unaccountable private police in their neighborhoods.

In April 2019, the Maryland General Assembly enacted the Community Safety and Strengthening Act. The act empowers JHU to establish its controversial private police force. Indicative of democratic participation, community stakeholders voiced their fears of and belief in this police force. The late U.S. Rep. Elijah Cummings was a key supporter, stating that he lost a nephew to violence. He predicted that without political change in Baltimore, “[More] blood will be spilled.”

The act sets appropriations for the JHU police force and provides increased funding for the recruitment and training of new law enforcement officers. Funding is also appropriated for youth services, including introducing young people from the social margins to potential law enforcement careers.

Before the act became effective, dissent was potent. As the Baltimore Sun reported, protesters staged a nearly one-month-long sit-in in spring at a JHU administration building before escalating tactics. At the tipping point, protesters chained doors and blocked windows to such an extent that administration operations were relocated on campus. Police made arrests. A GoFundMe page attributed to Students Against Private Police and Hopkins Coalition Against ICE, two highly cited organizations in opposition to the JHU force, drew $12,315, more than twice the initial $5,000 goal.

The environment reflected political engagement. Protester marches, sit-in activities, and public comments revived consistent criminal justice concerns. Had Baltimore adequately addressed its police brutality history? Would arming JHU police boost militarization against and police surveillance of local residents and non-white JHU students?

As The Washington Post reported, dozens of JHU faculty members signed onto an opposition letter, arguing JHU private police would be “antagonistic” to communities of color. The faculty members maintained that newly armed officers would “inevitably amplify the climate of fear and justify their [policing] roles by citing stops, arrests, and detainments.”

JHU police protesters pushed several demands: (1) withdrawal of plans to create the private police force; (2) cessation of JHU cooperation with Immigration and Customs Enforcement; and (3) an admission of criminal wrongdoing in the killing of 44-year-old Tyrone West, who died in 2013 after he fled a traffic stop and struggled with police from the city of Baltimore and Morgan State University.

When it became apparent that JHU could not be stopped from creating a police force, opponents turned their focus to making sure that the police force would be subject to meaningful public oversight. They found a ready ally in Senator Mary L. Washington, D-Baltimore, who pushed for pro-transparency amendments to the Community Safety and Strengthening Act.

Since 2016, campus police have fatally shot people at Georgia Tech, Portland State University, and the University of Cincinnati.

The private university offered to make limited disclosures, including an annual report to the public containing data and demographic information regarding the size of the police force, stops, arrests, use of force, and complaints against officers. Washington was unsatisfied. In addition to the annual report, she convinced the Senate to add that “the police department shall allow a person or governmental unit to access information in the same manner as a person or governmental unit would be able to access a public record of a [public] law enforcement agency under the Public Information Act,” if the documents relate solely to law enforcement functions (as opposed, for example, to salary data or officers’ personnel files). Governor Larry Hogan signed the act in April 2019, with the transparency wording included.

JHU Vice President for Finance Daniel G. Ennis promised to promptly appoint a public oversight board and to negotiate transparently with the city of Baltimore over a memorandum of understanding divvying up policing responsibilities with Baltimore city police, including several public hearings.

Community Concerns Unheeded: The Chicago Experience

The relationship between the majority-white University of Chicago (UC) and the majority-black residential neighborhood that surrounds it has been described as “precarious.” WBEZ-FM’s news program, “Curious City,” explored the tension in an April 2019 episode, tracing neighborhood distrust back to the 1930s and ’40s, when the university supported restrictive covenants that kept black families from buying homes in the West Woodlawn community that adjoins the South Side Chicago campus.

Roughly 100 officers from the UC police department patrol a six-square-mile area in and around the campus, serving as the primary law enforcement agency patrolling a neighborhood of about 50,000 non-campus residents. The university took on full policing authority after enactment of the Private College Campus Police Act in 1992, enabling private postsecondary institutions to apply to the state for law enforcement certification.

UChicago United, an organization of multicultural students at the university, has demanded that UC police obey Illinois’s Freedom of Information Act (FOIA), enabling the community to see how the university is using its state-delegated law enforcement authority. A student-led movement, Campaign for Equitable Policing, sought to open the department’s records after hearing multiple complaints about harassment by campus police officers that could not be documented without access to the agency’s files.

As with Freddie Gray’s death in Baltimore, police-community relations in Chicago have been strained by questionable uses of force against people of color, particularly the October 2014 shooting death of 17-year-old Laquan McDonald. Police and the Chicago mayor’s office fought for 13 months to keep the public from seeing the dash-cam video that, when finally released to journalists under court order, showed that officers lied to justify the shooting and exaggerated the threat McDonald posed. Four years after the killing, Chicago police officer Jason Van Dyke was found guilty of second-degree murder and sentenced to prison.

In the UC’s South Side neighborhood, scrutiny of the college’s policing intensified after officers shot and seriously injured a 21-year-old student in April 2018, which UC claimed was the first shooting by its police force in 40 years. Video showed that the student charged at the officer with a pipe, and, as a result, the shooting was deemed justified.

Recent findings from the University of Chicago’s GenForward Survey, which regularly polls a demographically diverse pool of young adults 34 and under, confirm that respondents believe nonwhite people are singled out for unfavorable treatment by police.

Per the July 2019 research, almost half of African American GenForward respondents said they always or often go out of their way to avoid interaction with police. Almost 30 percent of Latinos said the same. A 57 percent majority of respondents, cutting across racial and ethnic lines, agreed that police treat black people worse than white people. Fifty-one percent of respondents agreed that police treat Latino people worse than white people.

In 2015, state Representative Barbara Flynn Currie, D-Chicago, filed legislation to require police at private Illinois universities to adhere to the same public-records standards as police at public universities. The University of Chicago did not support the change. UC was able to take the steam out of the transparency movement by voluntarily agreeing to make additional disclosures beyond the minimum necessary under federal law, which requires colleges to release only a skeletal daily crime log and an annual statistical report of serious crimes. Representative Currie’s bill never became law.

Even with the benefit of UC’s compromise level of partial transparency, journalists have been able to unearth troubling disclosures. Reviewing the first wave of data released by UC police—about the police department’s use of a pedestrian stop technique called “field interviews”—the Chicago Reporter found that black people made up over 90 percent of the stops but less than 60 percent of the population within the jurisdiction. This data gives a hint of what more the public might find out, if the state FOIA law could be clarified to extend to private entities with state policing power.

Concern for Police Accountability Galvanizes Communities

The experience of the Johns Hopkins and University of Chicago neighborhoods dramatizes how community members can organize and rally behind the issue of public transparency, even if (as in Chicago) the results are not always satisfying. Additional research would help discern what makes citizen-led transparency movements succeed or fail, and what conditions are most conducive to building enduring community accountability coalitions.

Access to documents and data from law enforcement agencies enables the public and press to discharge essential oversight functions. The information gleaned from police records is at times unflattering, if not downright alarming. Reporters in New Jersey used their state’s Open Public Records Act to build an award-winning database of 72,677 use-of-force cases, concluding that the state’s oversight system for police is “broken,” failing to detect patterns that might help identify problem officers. In Chicago, the nonprofit Invisible Institute used public records to map the location of nearly 250,000 misconduct complaints against police officers—finding that just 7 percent of the complaints resulted in any disciplinary action.

College police have become largely interchangeable with city and county police, often responding jointly to serious incidents in areas of overlapping jurisdiction. Campus police are, for all practical purposes, officers of the state. Case after case has held that they must adhere to Fourth Amendment standards when making searches, seizures, and arrests, despite being nominally non-governmental. Since 2016, campus police have fatally shot people at Georgia Tech, Portland State University, and the University of Cincinnati. Regardless of who signs their paychecks, police officers’ on-the-job behavior is a matter of intense and legitimate community concern.

The law is slowly evolving in the direction of greater public accountability. In 2015, the Ohio Supreme Court ordered private Otterbein University to disclose its campus police records, and the Texas legislature voted to extend the state’s Public Information Act to private police, after Rice University refused to release records about why three campus police officers clubbed an African American man with batons during a stop for misdemeanor bicycle theft.

Police have earned public skepticism in Baltimore, Chicago, and communities throughout the country where overzealous use of deadly force has been well-documented. Secrecy inflames public distrust. A generation raised on smartphones and YouTube will not be satisfied with mere assurances that police are using their power advisedly. Restoring public legitimacy in the integrity of policing requires greater transparency, and police will imperil their legitimacy by continuing in communities like Chicago to resist public oversight.

Imani J. Jackson is a legal fellow at the Brechner Center for Freedom of Information at the University of Florida. She earned a B.A. at Grambling State, a J.D. at Florida A&M, and an LL.M. at the University of Florida. Frank LoMonte is a professor at the University of Florida College of Journalism and Communications, where he teaches media law and runs the Brechner Center for Freedom of Information, a think-tank focused on the public’s right of access to civically valuable documents and data.​ He formerly practiced law with Sutherland Asbill & Brennan LLP and clerked on the Eleventh Circuit U.S. Court of Appeals.

©2020. Published in Human Rights, Vol.  44, No. 4, January 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Posted: January 8, 2020
Insights Categories: Legal, Policy and First Amendment
Tagged as: Frank LoMonte, Imani Jackson, Police