In Virginia, records detailing police misconduct and use of force are effectively secret

By: - July 27, 2020 12:05 am

Trooper Charles Hewitt looks to the camera and says, “Watch the show folks,” before forcefully pulling Derrick Thompson from his car during a traffic stop for an expired inspection sticker in Fairfax last year.

The White state trooper leaned into the Black driver’s car. “You are going to get your ass whooped,” he said before pulling the man from the car and making good on his promise.

Virginia State Police Superintendent Gary Settle offered a swift condemnation of the behavior when video of the incident was released earlier this month, promising a criminal investigation.

But otherwise, the department has refused to release details about the trooper, Charles Hewitt, seen in the footage of the 2019 arrest, declining to say whether he’s faced other complaints in the past or provide reports detailing them.

In many states, such information would be a matter of public record, including Minnesota, where Minneapolis police quickly disclosed that the officer filmed kneeling on George Floyd’s neck had been the subject of 18 prior complaints, two of which resulted in discipline.

Virginia, however, is one of 23 states in which records of police misconduct are effectively confidential, according to a nationwide review by WNYC.

Under Virginia public records laws, police agencies can choose to release records detailing complaints. But in practice, they almost never do. Even prosecutors have said they struggle to obtain personnel records from departments when officers face investigations or allegations of misconduct.

It’s not just police misbehavior that Virginia law shields from public view. Basic information about how officers use force on a day-to-day basis is hard to come by here. Just 15 percent of the state’s law enforcement agencies participate in the FBI’s voluntary use-of-force reporting program. And in a survey of the state’s 10 largest cities and counties, only one police department provided use of force reports requested by the Virginia Mercury under state open records laws.

Facing questions last week from lawmakers about how troopers are held accountable following complaints, Settle detailed a multi-layered internal review process — variations of which are employed in police departments around the state.

But some lawmakers wondered how those measures square with videos they see of officers brazenly using excessive force or otherwise violating department standards, most recently in the case of Trooper Hewitt.

“Some of the officers look so confident in wrongdoing, it’s as though they know that there will be no repercussions,” Del. Don Scott, D-Portsmouth, told Settle. “It looks like the policy and procedure is enough to get rid of folks like that, but nobody does anything about it. … It looks like no one is enforcing it.”

‘Watch the show folks’

In addition to threatening an “ass whooping,” Hewitt is seen describing himself as “a f—ing specimen,” turning to the camera Derrick Thompson was using to film the interaction and saying, “Watch the show folks.” He then forcefully pulled Thompson, who had been pulled over for an expired inspection sticker, from the car. Officers said they smelled marijuana in the car but found none.

Virginia State Police spokeswoman Corinne Geller issued a blanket denial when asked for information about or copies of complaints Hewitt has faced in the past. Geller cited three exemptions in Virginia’s public records laws that she said allowed them to withhold information about Hewitt, saying the department considers them investigative files, personnel records and records of background investigations.

“The department has considered your request,” she wrote, “and opted to exercise its statutory discretion … not to release the documents.”

The decision is not exactly surprising. Police in Virginia rarely choose to release such information. Sometimes, information about police misconduct stays under wraps even when prosecutors pursue criminal charges against officers.

This month, Richmond Commonwealth’s Attorney Collette McEachin acknowledged that her office and the police department had not been publicly announcing when grand juries handed down indictments for criminal misconduct against officers.

She said that would change going forward, but then refused to provide the name of a city police officer who was recently indicted and is scheduled to be tried next month, meaning for the public to find out about the case, they would have to cross reference hundreds of court records with a roster of the local police department’s more than 700 officers — a list of names that is not readily available.

“You’re welcome to find it,” McEachin told reporters. “The officers name is not hidden, it’s on the public indictment. … Literally, it’s in this courthouse.”

The Richmond Police Department subsequently named the officer in response to questions from the Richmond Times-Dispatch, identifying him as Lance Falkena, who is charged with misdemeanor assault and battery.

In other jurisdictions, some commonwealth’s attorneys have lamented that not even they can get records of police misconduct from their local departments. Members of the newly formed Progressive Prosecutors for Justice are backing legislation that would grant them unrestricted access to police reports and disciplinary records.

“One of the things we do not get access to is personnel issues such as complaints for use of force or integrity issues,” said Hampton Commonwealth’s Attorney Anton Bell. “As the chief law enforcement officer, we want to be preventative instead of being in a position where we have to respond only after something bad has happened to our communities.”

A small group of police officers carrying clubs clashed briefly with protesters before leaving the area on Aug. 11, 2018, in Charlottesville, the anniversary weekend of the deadly white supremacist rally that left one dead and dozens injured. (Ned Oliver/Virginia Mercury)

Use-of-force data often shielded

Residents in some localities have pushed for more transparency not just in misconduct complaints, but how police are using force on a daily basis.

In Norfolk last month, protesters staged a six-day sit-in outside City Hall to demand the city begin releasing reports detailing incidents in which officers shoot, tase, wrestle or otherwise lay hands on someone in the line of duty.

The Virginian-Pilot, which first reported on the city’s refusal to release the records, reported “the secrecy … makes it impossible to tell whether police use force differently in different parts of the city, or against Black people — or whether any officers have committed a disproportionate number of shootings.”

Norfolk is far from alone in its refusal to provide such records. The Virginia Mercury requested documents detailing use of force by police in the 10 largest localities in the state from the weekend of May 29, when protests and civil unrest following Floyd’s death spread to cities around the state.

Of the 10 departments queried, only the Fairfax County Police Department provided records in response, disclosing that officers reported using force five times during the time period in question. They released details about three of the incidents, including the names of the officers involved. In the remaining two cases, they provided a general description of what happened but said they were withholding other details because it was part of an ongoing internal affairs investigation.

All of the other departments responded with letters citing exemptions in state public records laws that allow but do not require police agencies to withhold investigative and personnel records. (One agency, the Arlington County Police Department, responded with a denial then wrote four days later to say they actually didn’t have any records to provide.)

In Norfolk, city officials responded to the sit-in with a pledge to begin releasing data about police use of force more regularly, though not the reports themselves. “I have reviewed how we release use-of-force data,” City Manager Chip Flier said in a statement. “Releasing this data once a year in the annual report is inadequate. We can and should do better.” The city subsequently committed to spending $200,000 for an outside analysis of the city’s crime and policing data, according to the Pilot.

The city of Richmond began releasing similar data on a monthly basis in 2018 in response to pressure from a coalition of activists who formed a group called the Richmond Transparency and Accountability Project. Members of the group said they began the effort after canvassing and holding town halls with residents of low-income neighborhoods about community problems and repeatedly hearing concerns about the way police treated residents.

Their ultimate goal was to get the city to establish a civilian review board, but that without data documenting the problems, they had trouble convincing city leaders to act. “Unfortunately when the stories from the town hall went to policy makers — people on City Council and the mayor — the response was, ‘Well those are just a few stories and those officers might be bad apples,’” said Eli Coston, a VCU professor who studies policing and anti-LGBTQ hate crimes.

Coston said that, as predicted, the data showed large racial disparities in who officers used force against. But they also found the data was inconsistent and often incomplete, leaving out instances of force that were publicly documented in the press. Most recently, the group found that Richmond police did not include any of the numerous uses of tear gas, rubber bullets and pepper spray in response to protests in their June report.

Some experts say they see no downside to compiling and releasing more data about how police do business. In some ways, it would help department leaders more than the public, argues James Hodgson, who directs the criminal justice studies department at Averett University in Danville.

“If I was working at Walmart and people were complaining about me as an employee, as the manager, you’d likely want to know that,” he said. “Corporate America and the private sector have done that for years. It’s called customer service.”

Protesters calling for police reform rallied outside the Richmond City Jail after George Floyd was killed in Minneapolis earlier this year. (Ned Oliver/Virginia Mercury)

Lawmakers debate stronger transparency

Requiring comprehensive use-of-force reporting by all law enforcement agencies in the state is among a range of policy proposals Democrats in the Virginia Senate have said they plan to pursue during the special legislative session scheduled to begin Aug. 18.

Currently the only uses of force police are required to publicly report in Virginia are shootings that cause death or serious injury. But that data, too, is often incomplete, with the Lynchburg News & Advance reporting last year that almost 30 percent of major police shootings weren’t reported to the state as required under the 2016 law.

The FBI launched a voluntary national reporting project to gather use-of-force data in 2018, but just 76 of the state’s more than 400 law enforcement agencies participate, according to the Virginia State Police. That database has its own limitations, only capturing incidents in which someone is hospitalized or killed by an officer.

While Democratic lawmakers have promised to tackle use-of-force data during the coming session, there is less agreement on what kinds of disclosures should be mandatory in the case of misconduct complaints against officers.

Advocacy groups, including the Legal Aid Justice Center, have called on the General Assembly to strike exemptions from the state code that allow police to withhold reports.

But lawmakers say that step is unlikely. Last week, Senate Democrats said they were unable to reach an agreement on proposals to narrow FOIA exemptions that block public access to records detailing officer punishment. Sen. Scott Surovell, D-Fairfax, suggested making the information available to commonwealth’s attorneys as an immediate step everyone could agree on.

“Restricting the FOIA exemption is something we talked about as a caucus,” he said. “We also talked about having the FOIA commission thoroughly vet that before we explore it on the floor of the legislature. … We were concerned about the complexity of it overwhelming a special session.”

Lawmakers in both chambers are also pursuing legislation empowering local or state-level civilian review boards. Supporters say the bodies would offer due-process to officers accused of misconduct while still bringing sunlight to encounters with police, regardless of whether they’re caught on widely-shared video.

Some local governments have already established civilian review boards, but they operate in an advisory-only fashion and members have sometimes complained that they were provided limited information about complaints and their recommendations were often ignored.

During a hearing earlier this month, Kim Rolla, an attorney with the Legal Aid Justice Center asked lawmakers to pass laws that would allow local governments to give oversight boards teeth, including subpoena power to compel witness testimony and documents — a proposal backed by at least some in law enforcement, including Richmond’s new police chief, Gerald Smith.

“Civilian oversight when done well ensures that the communities who are most harmed by destructive policing have democratic control over those law enforcement agencies,” Rolla told lawmakers. “But the localities need you to give them the tools to do it well.”

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.