Arguments about police evidence and records

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This page tracks arguments about police evidence and records. Information about this topic areas in relation to police CBAs in the 50 states and 100 largest U.S. cities by population can be found on Ballotpedia's Police CBA Dashboard.

This page tracks the following arguments about police evidence and records:

Arguments supporting calls for increased transparency of police evidence and records

Argument: Maintaining transparent disciplinary records is good

This argument states that making disciplinary records of police officers accessible to the public can yield good results, such as acknowledging officers who are considered ‘bad apples’ or rogue officers and potentially firing those officers due to their repeated misconduct.

J.D. Candidate Katherine J. Bies argued, “‘[S]unshine legislation’ makes officer disciplinary records public once a police officer is found guilty of misconduct such as excessive force. Like reforms to increase the use of officer body cameras, some legislators hope that sunshine laws will bolster public trust in officers by piercing the secrecy that often shrouds officer misconduct.”^[1]

Bies continued, “[C]ourts, activists, and scholars have offered two main arguments for why the public benefits from access to officer disciplinary files. First, the public has an interest in accountable and transparent decision-making by government officials. Second, providing public access to personnel files not only promotes public confidence in the ability of the police ‘to police themselves’ but also builds greater trust and mutual respect between the officers and the community they have sworn to serve.”^[1]

Scholars Paul McFarlane and Amaria Amin argued, “To mitigate public anxieties about fatal police shootings, we recommend that policing practitioners, policymakers and researchers seek out new empirically-based methods to improve the rigour and transparency of post-event investigations.”^[2]

CEO Action for Racial Equity, a fellowship of companies aimed at “advancing racial equity through public policy” according to their website, lists law enforcement transparency and accountability as a key focus area for the group’s efforts. CEO Action for Racial Equity argued on its website that public accessibility of law enforcement officers’ disciplinary records is necessary to promote officer accountability: "[S]ome [law enforcement officers] have been found to have violated policies and the law which can lead to an atmosphere of public distrust. Unlike other professions where disciplinary actions are public information (e.g., doctors, lawyers, etc.), police misconduct and termination records are often obscured by the law or can be difficult to access due to decentralized data at the local, state, and federal levels. In addition, police contracts often provide blanket protections and can limit accountability. These issues provide opportunities for officers disciplined or fired for misconduct to find work in other jurisdictions without knowledge by the hiring law enforcement executives or community members. In addition, police misconduct settlements can have a cost to society and possibly deprive communities of millions of investment dollars."^[3]

Argument: Body-worn camera video evidence increases transparency and improves officer behavior

This argument states that body-worn cameras (BWCs) effectively create transparency and improve officer behavior by filming police encounters with civilians to ensure officers follow protocol.

Professors Karen Harrison, Xavier L'Hoiry, and Simone Santoroso argued, “BWV [body-worn video] is a valuable addition to policing. … In some respects, there was little change in behavioural patterns, especially in terms of how officers interact with the public. However, on closer inspection two key changes were evident. Firstly, it was clear that the cameras made officers more confident in how they dealt with the public (because they were less fearful that the public would complain about them). Secondly cameras also made officers more introspective about their behaviour, leading them to ensure that they were acting professionally and appropriately when on view to the public.”^[4]

Claim: BWCs reduce use of force incidents and citizen complaints

This claim states that BWCs are effective at reducing officer use of force and citizen complaints by causing officers and suspects to act more appropriately. Proponents of this claim argue that this is because they know they are being recorded and the footage could be used as evidence in disciplinary or court proceedings.

Scholars Barak Ariel, Alex Sutherland, Darren Henstock, Josh Young, and Gabriela Sosinski argued, “[W]e set out to explain not only why BWCs trigger a desired effect on police behaviour, suspects’ behaviour, or both, but also what sets official BWCs apart from other video-recording innovations, such as closed-circuit television (CCTV), dashcams, and everyday smartphone cameras. We argue that deterrence theory can potentially ‘settle the score’ and address these findings, under what we refer to as the deterrence spectrum. In broad terms, we will claim that the deterrence effect of BWCs causes officers to comply with the rules of engagement. The effect moves within a spectrum, from minimal deterrence, through optimal deterrence and maximum deterrence, and up to inertia. As the degree of deterrence increases, officers are less likely to use force. We argue that, while our model explains the use of force within the context of BWCs, it can be generalizable to other surveillance apparatuses as well.”^[5]

Professors Michael D. White, Janne E. Gaub, and Natalie Todak argued that BWCs have the potential to reduce citizen complaints and police use of force. In their study the authors wrote, “[C]omplaints declined when each officer group was assigned BWCs. Use of force followed a similar pattern after BWC deployment for the Control group. The positive trends are perhaps best captured in the percentage of each group with an event, before and after BWC deployment: the percentage of the Treatment and Control groups with a complaint declined by 78 percent and 50% respectively; and the percentage of the Control group with a use of force declined by 39%.”^[6]

Professor Barak Ariel and colleagues argued, “[T]he use of BWCs in police operations dramatically reduces the incidence of complaints lodged against police officers, thus illustrating that the treatment effect … carried a strong external validity. If complaints are a proxy to police (mis)conduct, and if cases of police misconduct predict perceptions of illegitimacy, such a significant, large drop can potentially be interpreted as a technological solution for the legitimacy problem.”^[7]

Claim: Withholding body-worn camera video evidence negatively impacts community trust in the police

This claim states that community trust in police is negatively impacted by police departments withholding body-worn camera video evidence following use of force incidents.

American Civil Liberties Union (ACLU) Policy Analyst Jon McCray Jones wrote a 2023 article arguing, "The inability to trust police to be truthful about cases in which officers use force underscores why body cam footage is critical to ensuring law enforcement are transparent and accountable to the public. Without accountability, police lose community trust. We are witnessing that now: a 2022 Gallup poll found that only 45% of American adults are confident in the police. The numbers are even lower for communities of color."^[8]

Argument: Disciplinary record transparency is necessary to prevent wandering officers

This argument posits that efforts to shield officers' misconduct history allow them to seek employment from different law enforcement agencies after being fired or forced to resign, an issue referred to as wandering officers.

CNN journalist Ray Sanchez argued wandering officers are a problem throughout the United States and called for a national database to track officer misconduct: "The absence of an exhaustive, national database for tracking and weeding out rogue cops – along with a lack of coordination among the more than 18,000 law enforcement agencies in the country – has allowed officers like Grayson to get hired without their checkered histories sounding an alarm, according to policing officials and experts."^[9]

Arguments opposing calls for increased transparency of police evidence and records

Argument: Maintaining transparent disciplinary records is bad

This argument posits that making police officers’ disciplinary records accessible to the public will yield negative results, such as infringing on police officers’ right to privacy.

J.D. Candidate Katherine J. Bies outlined counter-arguments as to why the confidentiality of police disciplinary records is necessary. Bies wrote, “First, they posit that the disclosure of these records would have a chilling effect on the complaint making process and impede police departments from enforcing appropriate standards of police conduct.” Bies also highlighted arguments regarding public safety risks from disclosing disciplinary records and continued, “Moreover, opening officers to public scrutiny may ‘diminish public confidence’ in officers who return to work after an incident. One police union argued in opposition to a 2008 sunshine bill that the disclosure of personnel files would ‘subject officers to increased risk of retribution on the streets, lost credibility, diminished effectiveness on the beat, diminished credibility on the witness stand, increased civil liability, and general embarrassment.’ ... [P]olice unions have also argued that the public disclosure of disciplinary records constitutes an unwarranted invasion of police officer privacy rights.”^[1]

Claim: Transparency regarding disciplinary records infringes on the privacy rights of police officers

This claim states that making police officers’ disciplinary records accessible to the public interferes with police officers’ rights to privacy because police officers should be able to expect the same level of privacy as the general public. Proponents of this claim argue that the drawbacks of increased surveillance and data on police officers outweigh the benefits of transparency.

Law professor Kate Levine wrote about disclosure of police disciplinary records (PDRs) arguing, “[M]aking PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency is often seen as a solution with no downside, but this Article argues that, in the realm of PDRs, it comes with at least two major tradeoffs. First, making PDRs public will may lead to the accountability that advocates seek, and in fact may cause retrenchment from police departments. Second, transparency on an individual level necessarily comes with major privacy tradeoffs.”^[10]

Levine continued, “One reason for transparency’s popularity in police reform is that it is rarely viewed as having any downsides. … Yet that perspective shifts for many if we focus the transparency narrative on a different group of individuals: those accused and convicted of crime. Indeed, criminal record transparency has long been a policy with many critics. This Article aims to show how similar the debate over PDRs is to the rationales for and against criminal record publication. The police defend their privacy using similar rhetoric to critiques of criminal record publication. And advocates of PDR transparency may undermine larger criminal justice reform by using the same public-safety and anecdotal rationales employed to promote criminal record transparency in order to bolster their arguments regarding PDRs.”^[10]

Levine argued that she aimed to bring "a more nuanced perspective to the table, arguing that we should place the harms of surveillance and exposure side by side with the benefits resulting from public disclosure of findings of police misconduct. Doing so results in a more sophisticated understanding not only of PDRs, but also, and significantly, of the dissemination of criminal records and records of wrongdoing more broadly.”^[10]

Journalist Amanda Hernández highlighted arguments in a 2023 article opposing increased access to police disciplinary records, with claims that it would lead to public scrutiny and threaten officers’ safety: "Some police unions and law enforcement organizations have raised concerns about officer safety and privacy in California and nationwide. They fear that releasing unrestricted personnel records, which may include names and other identifying information, could expose individual officers to undue scrutiny and even endanger their safety and professional reputation."^[11]

Claim: Disciplinary record transparency negatively impacts officers' reputations

This claim states that calls for police disciplinary record transparency often do not account for the negative impact record disclosure has on officers' reputations.

Former Associate Editor of Texas Law Review Ash Guatam in a 2022 article argued, "One of the most frequent types of harm that officers worry about resulting from greater public access to police disciplinary records is unfair damage to officer reputation. In some cases, police disciplinary records merely note the infraction alleged or sustained without the factual context that prompted the discipline or investigation, leaving the public to make uninformed judgments and potentially assume the worst about the officers. […] For an extreme example, some records might not clearly delineate whether a complaint against an officer was substantiated or unsubstantiated, potentially leaving readers to assume that a reported case of misconduct was substantiated when it was not. Also, personnel files and police disciplinary records vary significantly in both content and style across departments. The public might fail to keep track of all these differences and read records from one department assuming, or at least implicitly influenced by, very different contexts used in files and records in other departments."^[12]

Argument: Releasing body-worn camera video evidence could impact investigation outcomes

This argument posits that releasing body-worn camera video evidence prior to the conclusion of an investigation could impact the outcome.

Reporters Myra Arthur and Brina Monterroza wrote a 2020 article outlining arguments for and against releasing body-worn camera footage, which included arguments from scholars claiming, "[S]ome argue there are legitimate reasons why, in some cases, the public should not see footage. In some cases, it can reveal tactics used by officers. ‘They’re not going to want to release that footage from an incident in which a case is still being investigates or in which a police officer might be subject to a misconduct charge,’ Donna Coltharp, law professor at St. Mary’s University said. The footage could affect what happens in court, or any internal proceedings involving an officer. ‘You don’t want to be showing your evidence to the public before you actually take it to trial,’ Howard Williams, a lecturer at Texas State University said. ‘The public’s right to know is one thing, but the defendant also has the right to a fair trial.’"^[13]