After a Minneapolis officer murdered an unarmed George Floyd in May 2020, people took to the streets demanding a full accounting of force used on citizens. Some wanted the names of officers using it.
“We need law enforcement to participate in this conversation, to be transparent,” said Rebecca Trammel, a North Carolina community organizer who helped lead marches in Wilmington after Floyd’s death. “The more they resist transparency, the longer they are going to feed distrust.”
Their calls revealed a gap in North Carolina. No one was tracking all cases in which officers used deadly force.
Gov. Roy Cooper, a Democrat and longtime prosecutor, created a task force to study racial inequities in policing in June 2020. He called on the State Bureau of Investigation to create a center to study use of force by law enforcement.
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The governor’s order was clear: ”promote transparency” about officers’ use of force.
Legislators, with Cooper’s signoff, did the opposite a year later. All information on events where officers kill or badly injure people will be stored in a confidential database.
A criminal justice reform bill passed last summer protects the identities of officers reported to the database. Residents won’t be told whether the incidents were deemed justified, and if they weren’t, what discipline officers received.
A provision tucked within the state’s 628-page budget made the secrecy ironclad. It requires that information on these cases collected by the state be kept secret. Local agencies are forbidden from releasing the data.
The public will have no way to know how many critical incidents happened in their communities. Nothing about whether the person police encountered was hurt or killed could be disclosed. Even the date of the incident would be considered confidential.
State officials are now citing the budget provision when refusing to release new and historic data on incidents where police killed or badly injured people in this state.
“That just shows you the more we try to take one step forward, they are going to push us and continue to try to push us two steps backward,” said Kerwin Pittman, a member of the governor’s racial equity task force and director of policy and program for Emancipate NC, a Raleigh-based advocacy group.
This was not where many thought North Carolina was heading in 2020.
Cooper’s executive order launched two groups to advise on criminal justice reform: the racial equity task force and an advisory group to the SBI Center on Reduction of Use of Force by Law Enforcement.
Activists on the task force, particularly those representing Black residents, pushed for greater scrutiny and disclosure around use-of-force incidents.
“Public servants do not have any expectation of privacy,” Kristie Puckett-Williams, regional field organizer for the American Civil Liberties Union of North Carolina, said in an interview. She is an advisor to the SBI Center.
For months, Puckett-Williams and others seemed to gain traction.
In an email sent to task force members in November 2020, Matthew Brody, special advisor to the SBI director, noted a consensus among advisory group members toward a public dashboard. Five months later, he provided a link to New Jersey’s portal that disclosed all use-of-force incidents, including the names of officers at the center of them.
The SBI Center contracted with Research Triangle Institute to begin studying and recommending platforms for databases searchable by the public, according to a copy of the contract.
While the groups pushed forward toward transparency, the General Assembly crafted legislation that would ensure officers’ privacy.
By August 2021, both chambers voted to approve the bill that protected officers’ identity when they kill or badly hurt members of the public. And when Cooper signed the state budget into law in December, that secrecy reached far and wide. Nothing collected by the state could be released. Cities, too, are forbidden from disclosing such data.
But will the provision prevent police chiefs, sheriffs and other commanders from releasing information after individual events where officers kill or hurt people, as some now do? Some activists, such as Pittman, worry it might. Courts may need to decide the matter, he predicted.
Law enforcement leaders and some state officials bristle at the call for all officers to be named after they use deadly force on the job.
A common refrain: officers are civil servants, not elected officials who thrust themselves onto a public stage. And officers volunteer to put themselves in volatile situations most people never encounter, some of which require force to quell.
Officers can use lethal force legally when they have probable cause to believe a person poses a serious risk to them or to others. Police officials point to incidents like one in January, when Durham police shot and killed a man while he was assaulting a terrified gas station clerk with a glass bottle.
Rep. John Szoka, the Republican legislator who helped lead a House committee to propel criminal justice reform, said the effect of naming officers could have a devastating impact on officers.
Szoka said officers are public servants, not officials, and should have a right to privacy.
“If every single incident without due course of law is put out in the public, then you have a trial of public opinion,” he said. “Everybody’s innocent until proven guilty.”
Gary Gacek, Concord police chief and member of the advisory group to the SBI Center, said publishing names of officers would undermine his ability to recruit officers to the profession.
Attorney General Josh Stein, a Democrat, said he, too, has reservations about releasing the names of officers, citing state personnel privacy laws. But he added that he would be willing to discuss more disclosure.
Cooper’s racial equity task force, which Stein helps lead, stopped short of calling for naming officers, despite the urging of some members to disclose that information.
But not everyone is in lock step, including people in law enforcement.
Sheriff Alan Cloninger of Gaston County, who serves on the advisory group for the SBI Center, said it ought to be up to local law enforcement leaders or the courts to decide whether to release names of the officers and any data agencies collect about these events.
Cloninger said he’s in favor of releasing the names once the investigation is complete and he is sure that his officer won’t be harmed or harassed.
“The legislature can make the bright line, and we’ll follow it. But in my opinion, it’s hard for there to be a bright line,” said Cloninger, a Democrat who became unaffiliated last year.
The Forsyth County Sheriff’s Office will follow the state law and not release the identities of deputies involved in use-of-force cases, said Capt. Gary East.
“We don’t pass the laws or make the laws,” East said. “We will just follow the law.”
Amanda Martin, general counsel for the North Carolina Press Association, said state and local agencies have historically used their discretion when releasing the names of those investigated but not charged.
Legislative leaders who led budget negotiations last year did not respond to requests for interviews about the expanded secrecy.
State officials have started collecting data on incidents when officers kill or badly injure people in this state. Since the law took effect Oct. 1, the two organizations that certify North Carolina law enforcement officers have received 23 reports.
The Forsyth County Sheriff’s Office hasn’t reported any data because none of its deputies have been involved in incidents in which a death or serious bodily injury has occurred since the law took effect, East said.
But agencies don’t appear to be reporting every case, said Jeff Smythe, director of the North Carolina Criminal Justice Education and Training Standards. And there are no repercussions when they don’t.
“I’ve read about incidents in the press that have not been reported to us,” Smythe said in a meeting with the SBI Center and consultants in March. “Nothing is requiring them to send this to us.”
On top of that, the commission's role is to simply input the information they collect into a database. Legislators gave no further direction, including whether commission staff should review the officer’s actions, according to Nazneen Ahmed, a spokeswoman for the commission.
Officials from the SBI Center Center on Reduction of Use of Force by Law Enforcement are meeting to confer with law enforcement, lawyers, activists and a consultant group it hired to determine how to use the data.
Among the items they are discussing: whether the state ought to release information to the public. State officials acknowledged during the March meeting that any suggestions they make would require the legislature to sign off, however.
Sen. Natalie Murdock, a Durham Democrat, doubts legislators would be receptive to revisiting public disclosure of use-of-force incidents.
“Under current leadership, no. I don’t think the appetite is there currently for that,” she said.
A chilling effect?
For years, the SBI has been called in by local law enforcement to assess whether officers broke any laws while using force.
Last September, The North Carolina News Collaborative asked the SBI for information on investigations into officer shootings, allegations of excessive force and cases where incarcerated people died while confined. The agency agreed in February to release some general details, such as the date of the incident, type of event, the agency making the referral and whether the officer was criminally charged.
The collaborative, which includes the Winston-Salem Journal, then asked the SBI to release names of officers investigated.
SBI Director Bob Schurmeier declined, citing the 2021 budget provision mandating confidentiality in databases containing use-of-force incidents, past and future.
“I know how important ‘information sharing’ is to earning and keeping the public’s trust. But with that need for transparency comes the balance of respecting individual privacy,” he said in a written statement.
The collaborative, a coalition of 23 news organizations across the state, then asked Gov. Cooper to override the SBI’s refusal to release names.
A spokesman for Cooper said the governor’s authority over the SBI is limited.
The SBI moved to the executive branch in 2014. The governor appoints the director, and in rare instances, can remove him or her.
Former Gov. Pat McCrory appointed Schurmeier to an eight-year term in July 2016.
In addition to not releasing the names of officers, state officials are not disclosing a full tally of all critical use-of-force events statewide and how many occur within specific agencies each year.
The information the state is collecting is limited. For instance, no information on the race of the officer or civilian is reported by local agencies.
A political process
The secret database was adopted during a singular moment in North Carolina. The right and left agreed: something must be done to reform policing.
“We’ve got issues here,” Szoka, a Republican, remembered thinking when protests over George Floyd’s murder erupted in his hometown of Fayetteville.
But while the legislation was drafted, Republican legislators drew a line in the sand for officer privacy, Szoka said. The law extended personnel privacy protections to the database.
Rep. Marcia Morey, a Democrat from Durham and former district court judge, blames the influence of former sheriffs in the legislature and the sway the state Sheriffs’ Association has in the General Assembly.
Three former sheriffs serve in the General Assembly. And Sen. Danny Britt, the Republican who spearheaded the passage of SB 300, represents officers being investigated for shooting civilians.
The powerful Robeson County Republican is paid by the North Carolina Police Benevolent Association to defend officers being investigated in shooting incidents.
Association director John Midgette said Britt is one of about 100 lawyers across the state that the group calls on to advise officers and deputies after a shooting. Midgette recalled Britt handling two or three cases within the last year. The association did not receive any favoritism from Britt as a result, he said.
Britt said that work is not a conflict of interest. Like other legislators, he draws on his experience to help guide him as he works toward setting policy for the state, he said.
Sen. Mujtaba Mohammed, a Charlotte Democrat who served on the task force for racial equity, said he championed SB 300. Mohammed, a criminal defense lawyer, saw it as a step toward reform.
His support of the Republicans’ efforts waned, however, when he read the privacy provision inserted on page 364 of the budget. He said he voted against the budget, in part, because of that mandate.
Mohammed said he did not like that the decision was unilaterally made without public debate. He said it silences local law enforcement leaders who may want to publicly disclose data about critical incidents.
“This is a problem,” he said.