In the 1932 case New State Ice Co. v. Liebmann, Justice Louis Brandeis dissented from the US Supreme Court’s decision that Oklahoma could not regulate an ice business as a public utility. Brandeis said states must have the power to reshape industries and institutions to meet changing social needs, noting that it’s “one of the happy incidents of the federal system that a single courageous State may … serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” And so was born an enduring metaphor describing the relationship between the state and federal governments.
Every year, the states propose or pass thousands of bills affecting land use, criminal procedure, banking, education, voting, and so on. The bills grow out of lobbying and grassroots efforts to protect or restrict certain interests—and, yes, to meet changing social needs. Some bills die in committee. Some on the floor. Others are vetoed. A relatively few pass—and of the ones that pass, some prove effective and others don’t.
The same goes for bills that implicate press freedom. Every year, the states propose or pass hundreds of measures affecting privacy rights, access to public records and meetings, defamation remedies, privilege claims, and so on. In general, they represent the states’ attempts to reshape the news ecosystem and the free flow of information about public affairs.
This is the first in an occasional series of articles highlighting state bills that implicate press freedom and calling attention to states in their roles as laboratories of legislative experiments. In each installment, I’ll note and briefly analyze a few bills. I’m not trying to be exhaustive in the bills I note or in my analysis. My goal is simply to point readers toward some bills, either enacted or pending, that are worthy of attention (and if you’ve got suggestions, drop me a note or a tweet).
So, without further ado…
Police shootings without public fingerprints
In Missouri, state representative Jeff Roorda (D-Jefferson) has introduced a bill to amend the Sunshine Law by closing certain records related to law enforcement. (Roorda, by the way, is the business manager of the St. Louis Police Officers Association.) The new language says that generally a Missouri governmental body may close, among other things:
Any records and documents pertaining to police shootings … if they contain the name of any officer who did the shooting, unless the officer who did the shooting has been charged with a crime as a result of the shooting, in which case such records or documents shall not be closed.
No law enforcement agency shall disclose the name of any officer who was the shooter or one of the shooters involved in a police shooting … unless such officer has been charged with a crime as a result of the shooting.
The bill defines “police shooting” as “any incident in which an individual is shot by a law enforcement officer regardless of whether the … officer was on duty.” It goes on to say that in Missouri a law enforcement agency is required to maintain records of all incidents reported to it, as well as records of all investigations and arrests made by the agency—“unless those incident reports or arrest reports involve a police shooting … in which case such reports shall be closed if they contain the name of any … officer who was a shooter …, except that the … reports shall be open if the name of the shooting officer is redacted or the shooting officer has been charged with a crime.”
In other words: If this bill became law, and I were an off-duty police officer in Missouri and I shot someone in the course of a confrontation, and I was not charged for it, then the Post-Dispatch basically would be high and dry in accessing records about the incident. Related records containing my name would be closed or redacted, and no agency could disclose my name. That means I’d be able as a police officer, privileged by the state to use lethal force, to discharge my firearm in public—to shoot someone—without leaving public fingerprints.
That’s an incredibly dangerous idea for reasons so obvious I hesitate to mention them. But I will, because Roorda apparently needs to hear them. As the legal scholar Vincent Blasi once wrote, “The abuse of official power is an especially serious evil because of government’s unique capacity to employ legitimized violence.” That means, he said, the “check on government must come from the power of public opinion,” informed partly by the press. The value of access to police shooting records is to allow people to determine and speak out when the government abuses its power. Roorda’s bill would make it difficult to do so.