Lawmaker pushes for 'cooling-off period' to withhold officers' names in critical incidents

Lawmaker pushes for 'cooling-off period' to withhold officers' names in critical incidents

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SALT LAKE CITY — Saying rising public tension between law enforcement and the public has created a need for a "cooling-off period" following critical incidents, a Utah County legislator is sponsoring a bill to keep the involved officers' names secret for up to four months.

Rep. Mike McKell, R-Spanish Fork, says HB306 is motivated by concern about backlash toward police around the country when officers have used force against a member of the public, and fear that officers are being "targeted" for harassment or violence.

However, rather than alleviate tension between police and the public, former Salt Lake Police Chief Chris Burbank says the policy could exacerbate mistrust of law enforcement, and First Amendment attorney Jeff Hunt claims some concerns raised by the bill are already answered under Utah law.

'Officers are being targeted'

The bill is being considered even as three officer-involved shootings from the past week are investigated.

On Sunday, an armed man who had been making threats to blow up propane tanks at the Clean Harbors Incineration Facility was killed in a shootout with police in a remote area of Tooele County. Two men were fatally shot in separate incidents Tuesday night in Ogden and Roy after police say they pulled out guns during confrontations with officers.

While McKell says he has not seen any problems in the state surrounding critical incidents — when an officer uses a weapon against someone, injures someone or kills someone — he cited the intense controversy and debate surrounding the fatal shooting of an unarmed teenager by a police officer in August 2014 in Ferguson, Missouri.

"I feel strongly that officers are being targeted across the country," McKell said, calling Ferguson police officer Darren Wilson "an officer that was tried and convicted by the media."

He also referred to police officers across the country who have been attacked while on the job.

In a social media era, McKell says a "cooling-off period" is needed while tensions are high and investigations into critical incidents get underway. Currently, the bill sets that waiting period at four months.

"I believe that officers are being targeted, and with social media, we target them at a rate that outpaces anything we've ever seen," he said. "Because they're being targeted at such a fast and rapid rate, we need a cooling-off period."

McKell said he "still needs to vet" whether it's possible that, during the waiting period following a critical incident, tensions could rise rather than dissipate if law enforcement declines to release the names of officers.

An 'overprotective' bill

Burbank, who prioritized community relationships during his 25-year tenure with the Salt Lake City Police Department, says the proposal could damage the public's confidence in law enforcement.

"In any circumstance regarding a police officer, the more you keep protected, the more that is secret, the less the public has trust and confidence in what's going on," Burbank said.

Though the proposed legislation may "feel good," he said, it does nothing to address the nationwide tension McKell is concerned about.

"This is not going to serve or change the problem," Burbank said. "How we use force, especially against the public, should be right at the forefront of what public scrutiny is. That's how you gain the trust. You don't put it behind closed doors that are overprotective."

While he agrees it is unwise to release the name of an officer immediately following a critical incident, Burbank sees no purpose for an extended waiting period, saying departments need just a few days to appropriately prepare any affected officers and their families.

And regardless of whether that waiting period is optional or carries a mandate, Burbank believes police chiefs may feel bound to follow it even if they would like to release an officer's name before the four months are up.

If state lawmakers want to put a time limit on the process following such incidents, Burbank suggested instead they consider the amount of time it takes to complete the subsequent investigation "because we take way too long in this state to review these things."

Under the bill, police departments would be given four months during which they are shielded from releasing the names of officers involved in critical incidents. The heads of each police department maintain the ability to release the names earlier if they choose, according to McKell, but are not obligated to answer public requests.

The bill also stipulates that the names of involved officers be released before six months are up and if criminal charges are filed.

Burbank noted that criminal charges are already a matter of public record in the state.

"You are now, once again, separating what a police officer does and how you deal with it that much further than a normal citizen, and part of what we're facing in the nation right now is the idea, the notion or feeling that police officers are somehow above the law. They're not. They're subject to the exact same laws," he said.

Concerns about 'distrust'

Hunt, part of a coalition that represents KSL News and other Utah media outlets in legislative matters, noted that requests for information about police-involved critical incidents are made under the state's Government Records Access and Management Act.

The law already includes protections for when the release of information would jeopardize an ongoing investigation, constitutes an unwarranted invasion of privacy or would put an officer's safety at risk, he said.

"The problem with this bill is that at a time when it's more important than ever to build trust between police officers and the public, this would move Utah in the opposite direction," Hunt said.

Utah has "a tradition of transparency in government," and GRAMA laws are designed to balance the interests of both the people and the government, he said. Tipping that balance eliminates trust, fueling rather than calming any tension that arises, Hunt said.

"I think that concealing the information is much more likely to get people stirred up and make people distrusting of law enforcement, even when there's no reason for it," he said.

Emphasizing the risk of compromising confidence in police, Hunt cited the passionate cry for information from both the public and family members following the officer-involved shooting of 17-year-old Abdullahi "Abdi" Mohamed last year near Salt Lake's homeless shelter.

"This is about the public's rights. The media represents them, but this isn't about the media," Hunt said.

So far, McKell says that only members of the media have actively opposed the bill.

However, a representative for the American Civil Liberties Union of Utah also voiced concern about the proposal in a legislative committee hearing last week.

HB306 was given a favorable recommendation by the House Law Enforcement and Criminal Justice Committee on Wednesday with a 5-3 vote. The bill now moves to the House floor for further debate.

Marina Lowe, legislative and policy counsel for the ACLU of Utah, emphasized to the committee that transparency and accountability for law enforcement is vital to public trust, and that McKell's bill could potentially undermine that trust.

"Providing basic facts, including the names of officers, as soon as possible after a critical incident is absolutely essential to building or rebuilding trust," Lowe said. "Critical incidents are of very clear public interest, and oftentimes there is a real need to demonstrate to the public on the part of law enforcement that there is an ability to have some community building."

Support from law enforcement

Also at the meeting, Park City Police Chief Wade Carpenter shared support for the bill on behalf of the Utah Chiefs Association. He too named the Ferguson shooting as an example.

While Carpenter said the association isn't looking to undermine police accountability, he believes releasing the names of officers involved in critical incidents sets them up to be tried in the court of public opinion, threatening their reputation and their family.

Carpenter noted that following a critical incident, three investigations are initiated: an internal investigation by the department, an external investigation, and an investigation by a county attorney who considers whether there was any criminal wrongdoing by the officers.

"It's very important that these don't happen quickly. We want to make sure that the juries aren't tainted on this, that the opinion of the public hasn't come out before the findings have been made," he said.

Speaking about the meeting, McKell referred to Hunt's comments as the bill was presented to the committee and questioned the media's motivation for seeking the names of officers involved in critical incidents.

At the conclusion of that hearing, McKell said media outlets have a product to sell, and that fact becomes the "driving force" behind their reporting.

Questioned during the meeting by Rep. Steve Eliason, R-Sandy, about why the media would have interest in the officers' identities, Hunt replied in part that members of the public could have an opportunity to reach out to the individuals involved.

But when Eliason asked if that would be the media's primary concern when releasing an officer's name, Hunt disagreed.

"No, my primary concern is that when you have public peace officers performing a public function, they should not have an expectation of privacy if they perform that public function if there is a critical incident," he said. "I'm saying that you have to balance the officer's interest and privacy against the public's interest in accountability and transparency and monitoring what law enforcement does."

McKell said that so far he has received support from fellow legislators and law enforcement families about the bill. If members of the public would like to weigh in, he invites them to email him at .

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McKenzie Romero

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