Charlotte cops document their violence in reports filed with, and reviewed by, the police department.
But the public — those on whom violence is inflicted — can’t see the reports.
Charlotte-Mecklenburg Police Department’s position is that so-called use of force reports, including those that were completed following officers’ June 2 ambush of citizen-protesters with chemical weapons, are considered personnel records and therefore must be kept confidential.
CMPD and its lawyers present this position as an ironclad legal conclusion, essentially suggesting that somewhere in the state’s statutes there exists a sentence that reads, “Use of force reports shall be considered part of officers’ personnel files and, therefore, such reports shall remain confidential.”
No such provision exists, and, in fact, CMPD routinely releases information like that which would be included in use of force reports.
That’s because it isn’t a mandate of state personnel law that drives the department’s campaign to keep its use of force reports secret, but a desire to control the law-enforcement narrative by preventing the disclosure of information that could invite criticism of local law enforcement.
“The Charlotte-Mecklenburg Police Department’s Homicide Unit is investigating an officer-involved shooting that occurred at a home located on the 3100 block of Ernest Russell Court. This location is in the University City Division.
“On Thursday, August 1, 2019, at 8:08 p.m., CMPD officers responded to a domestic disturbance call for service at a home located on Ernest Russell Court. The officers arrived at the scene and determined that the suspect had already left the location prior to their arrival.
“On Friday, August 2, 2019, at 12:12 a.m., 911 received a call from a female located at this same residence on Ernest Russell Court. The female caller stated that her father was armed with a gun. As the 911 operator was speaking to the female, the operator heard gunshots being fired in the background. During the 911 call, the female also told the operator that her mother and aunt were still inside the home with her father and that her father was pointing a gun at her aunt.
“University Division Officers arrived at the home and while they were outside they heard gunshots coming from inside the residence. An adult female exited the home after being shot in the leg. The victim informed the officers that her brother in-law had shot her. She additionally stated that her sister was still inside the home with the suspect and that she believed the suspect was going to kill her.
“A short time later a CMPD officer encountered the suspect at the rear of the home and perceived an imminent, lethal threat and discharged a firearm, striking the suspect.
“The suspect was transported by MEDIC to Atrium Health’s Carolinas Medical Center where he was later pronounced deceased by hospital staff. The female victim who was shot in the leg was also transported to the hospital where she is being treated for a non-life-threatening gunshot wound. Their names will be released at a later time.
“The investigation has revealed that three (3) teen-aged children were inside the home when the incident first occurred but all three had exited the residence prior to our officers arriving at the scene.
“Homicide Unit detectives responded to the scene to canvass the area and to conduct the investigation.
“A firearm believed to be in the suspect’s possession at the time of the shooting was recovered at the scene. Crime Scene Search responded to process the scene and collect physical evidence. Representatives of the Mecklenburg County District Attorney’s Homicide Prosecution Team, Victim Services, CFD, MEDIC, and Operations Command also responded to the scene.
“As is standard procedure with any officer involved shooting, the Internal Affairs Bureau will conduct a separate but parallel investigation to determine whether CMPD policies and procedures were adhered to during the course of the incident.”
The city released additional details later in the day:
“Detectives with the Charlotte-Mecklenburg Police Department’s Homicide Unit have identified the male subject as Delano Williams, DOB: 05/08/1964. Mr. Williams was pronounced deceased at Atrium Health. His family has been notified of his death.
“The member of the Charlotte-Mecklenburg Police Department who fired his weapon has been identified as Officer John Juhasz. Officer Juhasz was hired on February 20, 2017, and is assigned to the University City Division. As is standard procedure with any officer involved shooting, the Internal Affairs Bureau will conduct a separate but parallel investigation to determine whether CMPD policies and procedures were adhered to during the course of the incident. Per department protocol, the officer has been placed on paid Administrative Leave.”
Within twenty-four hours of Juhasz killing Williams, CMPD released the officer’s name, the victim’s name, the location of the shooting, the events leading up to the shooting, the circumstances surrounding the shooting, the reason the officer used lethal force, and the additional investigatory steps being undertaken.
Put differently, CMPD promptly released a comprehensive description of Juhasz’s use of force.
North Carolina’s public records law proclaims, “The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people.” Charlotte is among the “subdivisions” of the state covered by the law.
The North Carolina Supreme Court wrote in News and Observer Publishing Company, Inc. v. Poole (1992) that the “the legislature intended to provide that, as a general rule, the public would have liberal access to public records.”
The court also observed, “Good public policy is said to require liberality in the right to examine public records . … While some degree of confidentiality is necessary for government to operate effectively, the general rule in the American political system must be that the affairs of government be subject to public scrutiny.”
Just as the state’s public records law creates a broad policy of openness and access, it also carves out exceptions that allow state and local governments to keep certain records confidential. However, as the North Carolina Court of Appeals wrote in Wallace Farms, Inc. v. City of Charlotte (2010), “Exceptions and exemptions to the Public Records Act must be construed narrowly.”
It is against the backdrop of these two rules — one requiring “liberal access” to public records and another mandating that exceptions to this liberal access are to be construed narrowly — that CMPD’s argument regarding the confidentiality of use of force reports should be assessed.
One narrow exception to the public records law allows municipal personnel files to be kept mostly confidential, and it is this exception that CMPD points to when seeking to justify withholding use of force reports from public inspection.
CMPD’s analysis seems straightforward:
Major premise: Personnel records are confidential.
Minor premise: Use of force reports are personnel records.
Conclusion: Use of force reports are confidential.
The problem here is the minor premise.
To understand how it goes wrong, we need to review the definition of “personnel file” contained in state law.
The city is not empowered to label just anything as part of an employee’s personnel file. If it could, the public records law would be but a hollow promise that existed at the mercy of government officials, who could hide anything embarrassing or unsavory in the office of human resources and thereby prevent the public from seeing it.
The law defines “personnel file” as “any information in any form gathered by the city with respect to that employee and, by way of illustration but not limitation, relating to his application, selection or non-selection, performance, promotions, demotions, transfers, suspension or other disciplinary actions, evaluation forms, leave, salary, and termination of employment.”
In essence, this two-part provision defines a personnel file as 1) records or information about a particular employee 2) used to assess the employee’s application or performance. Think job applications, annual reviews, and reprimands, the sorts of documents that are common to anyone who finds himself in the role of employee.
That doesn’t describe use of force reports. Rather, use of force reports, even if incidentally or secondarily used to assess an officers’ job performance, are primarily about documenting the manner and motivation for CMPD inflicting violence on the community: What violence was used? Against whom? For what reason? Under what circumstances?
CMPD itself acknowledges this. The proof? Every occasion on which the department has released information about something an officer has done in the line of duty — like the shooting of Delano Williams, which resulted in the prompt release of plenty of information about Juhasz’s use of force against Williams.
The first argument for the people getting their hands on CMPD’s use of force reports, then, is that such reports are not personnel records at all and are required to be disclosed pursuant to North Carolina’s well-established, broadly-defined conception of public records.
CMPD is unlikely to relent and voluntarily release its use force reports — even though it commonly releases similar information in a variety of circumstances. The department’s interest in concealing the truth won’t permit it to do otherwise.
Fortunately, CMPD doesn’t have the final word, which bring us to the second means by which the people can gain access to use of force reports.
State law empowers City Council, with the consent of the city manager, to release otherwise confidential information to the public if it is necessary to “maintain public confidence in the administration of city services or to maintain the level and quality of city services.”
As Brooks Fuller, an attorney who leads The Sunshine Center of the North Carolina Open Government Coalition, recently explained to WBTV, “They have the ability to do it, but it takes a little bit of courage, a little bit of political courage.”
So even if use of force reports qualify as personnel records, our elected officials can still order the reports’ release (provided the city manager, who is directly employed by Council, goes along) if good reason exists to do so.
Is there any doubt that at this moment in our local and national experience, “maintaining public confidence” requires allowing the people to see for themselves how, when, why, and against whom law enforcement inflicts violence and uses force? To ask the question is to answer it.
It remains unclear whether the city manager and a majority on City Council will display the political courage necessary to order the release of CMPD’s use of force reports, a move that would almost certainly be opposed by law enforcement.
It’s perfectly clear, though, that every elected official, along with the city’s top administrator, owes a duty to the public to clearly and unequivocally state their position on the question.