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Pennsylvania Is on the Verge of Enacting a Bill That Could Hide the Identities of Cops Who Use Excessive Force

Police Line Do Not Cross
Police Line Do Not Cross
Reggie Shuford,
Executive Director, ACLU of Pennsylvania
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November 1, 2016

When officer Lisa Mearkle shot and killed 59-year-old David Kassick while he lay facedown on the ground, officials in Hummelstown, Pennsylvania, released the officer’s name to the public almost immediately.

It was a strategic decision.

In a community of about 4,000 residents with a police department of only seven officers, not releasing Mearkle’s name would have put the entire department under suspicion. Instead, Mearkle was placed on leave, and her actions were subjected to public scrutiny. Fifty days after the shooting, she was charged with third-degree murder.

If Kassick’s killing had occurred today, however, the case might have played out much differently.

In July 2015, Philadelphia’s then-police commissioner Charles H. Ramsey instituted a policy that any police officer involved in an on-duty shooting would be publicly identified within 72 hours of the incident. The policy had a strong rationale: Adhering to recommendations from a U.S. Department of Justice report, Ramsey argued that the new policy would help to bring transparency to the city’s beleaguered police department. “This has been a major issue for a lot of the protests that have occurred in our city,” he said in a statement at the time. “People believe, rightfully, that the public has a right to know who these officers are.”

Fast-forward two months: On September 11, 2015, Pennsylvania State Rep. Martina White — who represents a district in northeastern Philadelphia, and who received a political endorsement from the local Fraternal Order of Police — introduced HB 1538. A direct response to Ramsey’s 72-hour policy, the bill was designed to shield the names of officers involved in shootings. HB 1538 would have made it illegal for any public official to release the name of an officer involved in a shooting unless that officer was charged with a related crime.

The backlash to the initial bill was swift. Not only did the bill go directly against DOJ recommendations, but it also undermined the idea that local governments should be allowed to make their own laws and set their own policies.

The initial bill was stymied in the state legislature, but a watered down version gained traction. On October 26 this year, Pennsylvania’s State Senate passed a form of the bill that sets a 30-day prohibition on releasing the name of police officers who use force on the job. The state House passed it the next day. Though it’s not quite as regressive and reactionary as the initial bill, it’s still a threat to transparency and local control.

By passing HB 1538, the Pennsylvania General Assembly has made it clear where they stand on police use of excessive force: They want to hide those who do it.

State Sen. Art Haywood, a Democrat from Montgomery County, had that exact reaction to the bill’s passage. “What police departments decide to do in terms of releasing or not releasing officer information has been purely a local matter,” he told “What this legislation attempts to do is make the General Assembly the Philadelphia City council.”

If Gov. Tom Wolf signs the bill, public officials, with the exception of district attorneys and the state attorney general, will face a second-degree misdemeanor if they identify a police officer who uses force within 30 days of the incident. After 30 days pass, public officials are allowed to release the officer’s name, but it’s not a requirement.

Imagine if Mearkle would have killed Kassick in an era after HB 1538 had passed. Officials in Hummelstown would not have had the option to legally release her name publicly for at least 30 days. For the entirety of that time, Hummelstown cops would have faced undue scrutiny for the actions of one of their own — even though none of the other six officers on duty had anything to do with the shooting.

As it played out in 2015, the release of Mearkle’s name and her eventual prosecution represented a rare case in which a cop was quickly held accountable for on-duty actions. But it’s not unthinkable that, under the shadow of HB 1538, her case might have played out quite differently: A state-mandated gag order on Hummelstown officials would have cast a pall over the borough’s entire police department.

What’s more, as the law currently stands, district attorneys, police chiefs, mayors, and other public officials already have the latitude to shield officers’ names from public scrutiny if they deem it necessary. Such cases have happened recently in Pennsylvania: The name of the officer who shot Shaleek Pinckney in Harrisburg in August has not been released to this day. Same goes for the officers involved in the shooting of Brandon Tate-Brown in Philadelphia.

After protests erupted in the wake of Michael Brown’s killing by Ferguson police officer Darren Wilson in August 2014, dozens of high-profile police shootings have forced officials and legislators nationwide to rethink how cops interact with the public. The most effective responses — such as recent legislation in Texas requiring police departments to report every time officers shoot people or get shot themselves — involve increasing transparency. The worst responses take the opposite approach.

HB 1538 may, in fact, be the worst response in the country.

The bill is now headed to Pennsylvania Gov. Tom Wolf’s desk. If he signs it, Pennsylvania will become the first state in the country to “slow the identification of police who shoot civilians,” as the Philadelphia Inquirer pointed out.

That is the wrong approach.

By passing HB 1538, the Pennsylvania General Assembly has made it clear where they stand on police use of excessive force: They want to hide those who do it. That is not an effective way of building trust between police and the communities they serve.

The ACLU of Pennsylvania is not alone in this opinion. Our allies here include the Pennsylvania NewsMedia Association, citizen review boards in Philadelphia and Pittsburgh, Philadelphians Organized to Witness, Empower and Rebuild (POWER), local Black Lives Matter groups, and Keystone Progress. And last week, Twitter and other social media were flooded with a wave of negative opinion from around the country lambasting the Pennsylvania bill that would make the commonwealth one of the least transparent states in the country with regard to police violence.

David Simon, creator of HBO television shows “The Wire,” “Treme,” and “Generation Kill,” flatly called the bill “bullshit.” He went on: “A nation in which state agents can take the life of citizens in secret is no longer democratic. It is a police state. De facto.”

We couldn’t agree more.

The Hummelstown Police Department was transparent after officer Lisa Mearkle killed David Kassick in February 2015. That transparency protected her fellow officers from unnecessary public pressure, and she was brought to trial. Though she was eventually acquitted of third-degree murder, she was eventually forced out of her job as a police officer.

Gov. Wolf should make sure officers like Lisa Mearkle are subjected to public scrutiny in the future.

Gov. Wolf should veto HB 1538.

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