ATLANTA, GA - MAY 31: A police officer wearing a body cam is seen during a demonstration on May 31, 2020 in Atlanta, Georgia. Across the country, protests have erupted following the recent death of George Floyd while in police custody in Minneapolis, Minnesota. (Photo by Elijah Nouvelage/Getty Images)
Police misconduct under new scrutiny
03:22 - Source: CNN

Editor’s Note: Mark Osler is a former federal prosecutor and currently holds the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas (MN). James Grotz is a financial adviser and branch manager of a national financial services firm branch office in Edina, Minnesota. His Central Registration Depository number (which can be used to look up his records) is 231116. The views expressed in this commentary belong to the author. View more opinions at CNN.

CNN  — 

In an attempt to address the national outcry over police brutality, President Donald Trump signed an executive order last week that introduces very limited reforms. The order lays the foundation for a national database to track the use of excessive force, but only calls for police officers to be included when they are terminated, de-certified, convicted of a crime, or found liable in civil court. That’s remarkably timid — to be truly worthwhile, this database needs to be publicly available and include each police officer’s credentials, along with an extensive list of the disciplinary action and complaints he or she has faced. Fortunately, a good model exists: the strikingly transparent national database on the people who handle our financial investments.

Fifty years ago, Americans got fed up with the secrecy that protected crooked securities brokers — the people who buy and sell stocks and bonds. In response to federal and state pressure, regulators created a publicly available database that discloses the qualifications, complaints and disciplinary action against every broker in the United States, along with a broad array of financial planners, advisers and others. The new system made the track records of these securities brokers accessible to all. Why not do the same for every law enforcement officer in the United States?

Individual states cooperate with a nonprofit institution, the Financial Industry Regulatory Authority (FINRA), that works under the supervision of the US Securities and Exchange Commission, to ensure the database is updated and accurate. Everyone who enters the financial services industry must sign a standardized personal information form and agree to abide by the rules of their home state and the national regulatory scheme. They then become a part of the Central Registration Depository.

The depository currently has information on roughly 700,000 brokers/advisers and their firms. A central feature of the system is a disclosure website, which makes it easy for members of the public to search for their brokers or run a background check on prospective ones. This is the perfect model for a national police disclosure scheme.

After the police killed George Floyd in Minneapolis — just a few miles from where we both live — it was shocking to learn that Derek Chauvin, the officer who kneeled on Floyd’s neck for more than eight minutes, had 18 prior complaints against him, two of which led to disciplinary action. And even though the Minneapolis Police Department disclosed this information, it did not provide any additional details regarding the nature of those complaints. Even after the death of Floyd, Chauvin was protected by the secrecy that too often veils police records.

There are many reasons to make these disclosures public. Most obviously, it would allow the public to access important information which could reveal patterns of department-wide failures. Public access could also create political pressure to get rid of bad actors. And once those officers are removed, this public knowledge might keep them from getting another job that comes with a gun and a badge.

A database would also be a tremendous boon for both prosecutors and defense attorneys. For prosecutors, it would be easier to search the database and gather information on officers who have a bad track record, instead of relying on police departments to disclose it. A database would also benefit defense attorneys who are reliant on prosecutors for this information to properly cross-examine the officers during a trial.

Beyond Trump’s executive order, the movement toward disclosure is already underway. New York has repealed a notorious statute that had been used to bar the release of nearly all disciplinary information about police officers, and New Jersey is mandating that individual law enforcement agencies make officer disciplinary records public. That is only a partial step, though. A broad, national mechanism for disclosure is necessary to make this project meaningful, both because police brutality occurs nationwide and because disgraced officers often shuffle between jurisdictions.

This disclosure system is only one small part of the bevy of reforms we will need to implement if policing is to be remade into something that truly earns the respect of our nation — and the trust of our minority communities. But it’s an important start, since transparency pierces the veil of secrecy that is one of the most dangerous aspects of police culture.

Of course, police unions will surely howl at any such requirement: They will complain about loss of privacy and point to the potential for abuse. But this can be addressed by creating a database that does not include any personal information (such as an officer’s address) and developing a system that prevents frivolous complaints from muddying the database. Securities brokers who are listed in the Central Registration Depository, for example, can file arbitration claims and ask that certain complaints be expunged.

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    As a whole, objections to police disclosure fall flat when we consider what is required of security brokers and other people who work in financial services. These regulations are meant to protect our investments. Certainly, the protection of life from police violence is more important than our 401(k), and police officers can handle the same regulations as the people who manage their retirement funds.