Police shooting on Richmond Highway may prompt challenge to police exemption.
By Michael Lee Pope
Thursday, June 03, 2010
Does the Fairfax County Police Department have the right to withhold the name of the police officer who shot and killed an unarmed man on Richmond Highway?
That’s a question at the heart of a potential legal challenge now being considered by the American Civil Liberties Union of Virginia. Executive Director Kent Willis said an "army of lawyers" would be closely examining documents presented to the Richmond-based organization this week from a Mount Vernon organization known as the Citizens Coalition for Police Accountability.
"We’ve filed these kinds of lawsuits before, and we’re not afraid to take chances," said Willis. "We’ll be taking a close look at the documents."
At issue in the case is a Freedom of Information Act request filed by the coalition in May for the name of the officer who killed motorist named David Masters last year. The police denied the request, citing an exemption clause that allows Virginia police broad discretion about what kind of information they are allowed to withhold. Coalition executive director Nicholas Beltrante said he was unsatisfied with the response from the Fairfax police. This week, he forwarded his request and the police denial to the ACLU of Virginia.
"To me, this is going to require a lawsuit," said Beltrante, a former private investigator who lives in Mount Vernon. "It’s clear that Fairfax County is going to stick by their guns on this."
LIKE OTHER POLICE departments in Virginia, the Fairfax County Police Department refuses to release documents and information widely available in other states. The lack of transparency includes an unwillingness to share basic documents, such as incident reports. In an interview about availability of public documents, Fairfax police spokeswoman Mary Ann Jennings said she didn’t understand why the department should release the name of the officer who killed Masters last November.
"What does the name of an officer give the public in terms of information and disclosure?" she asked. "I’d be curious to know why they want the name of an officer."
Beltrante responded that disclosure is necessary to maintain public confidence, adding that he believed the county police department has a history of official misconduct that should be examined. Because the power of the government is derived from the will of the governed, Beltrante said, citizens of Fairfax County have a right to review the actions of police. In addition to calling on legal action from the ACLU of Virginia, Beltrante and the Citizens Coalition for Police Accountability have also called for the Fairfax County Board of Supervisors to appoint a citizen complaint review board.
"We can ill-afford to pay millions of dollars in damages to the families of loved ones as a result of police misconduct or negligence," said Beltrante, citing a $1.5 million settlement to the family of Ashley McIntosh. "Fairfax County is one of the largest jurisdictions without any form of independent review for alleged misconduct by police officers."
ADVOCATES FOR OPEN government in Virginia have criticized the state’s Freedom of Information Act as inadequate, and legal experts say challenging the exemption clause used by the police to withhold information would be tricky. Although the beginning of the act clearly states that "any exemption from public access to records or meetings shall be narrowly construed," a section outlining disclosure of criminal records excludes "complaints, memoranda, correspondence, case files or reports, witness statements and evidence."
"Fairfax is operating outside the spirit of the law," said Virginia Stanley, executive director of the Virginia Press Association. "The flow of information has just stopped."
But is a lawsuit the best way to challenge the unwillingness of the Fairfax Police Department to share information? Stanley cautioned that pending litigation might allow lawmakers a way to avoid ducking the issue during the next session. Lucy Dalglish, executive director of the Arlington-based Reporters Committee for the Freedom of the Press, agreed with Stanley that best way to deal with the county’s lack of public accountability was to pursue a legislative fix rather than a court challenge. But Dalglish said it would be better to apply pressure through the courts and the legislature to accomplish change.
"As citizens, we shouldn’t have to put up with this," said Dalglish. "A lawsuit sounds like a good idea to me, although it seems to me the more effective way of pursuing this would be to go through the legislature."