Pennsylvania’s HB 1538, Designed to Shield Police Officers’ Identities from the Public, Threatens Transparency

In September 2015, Pennsylvania State Rep. Martina White introduced a bill designed to shield the names of Pennsylvania police officers that have been involved in shootings from the public. This bill, House Bill 1538 (“HB 1538”), was a direct response to the Philadelphia Police Department’s new effort to increase police transparency: in July 2015, Charles H. Ramsey, Philadelphia’s police commissioner at the time, had instituted a policy that promised to release the identities of police officers involved in shootings within 72 hours of the incident.

Since its inception, HB 1538 has been criticized as an anti-transparency measure. But despite strong disapproval from critics, Pennsylvania’s Legislature passed a version of HB 1538 last week, on October 26, 2016. If Governor Tom Wolf signs the bill, it will bar public officials (except for district attorneys and the state attorney general) from releasing the names of officers involved in shootings and use-of-force incidents until 30 days after the incident or until an official investigation ends. Public officials who violate this gag order could face a second-degree misdemeanor charge. Although public officials can release officers’ names 30 days after the incident, identifying police officers is not required. If HB 1538 is enacted, Pennsylvania would be the first state to pass a law forbidding the disclosure of officers’ identities for 30 days after an incident.

Proponents defend HB 1538 as a necessary measure that protects police officers and their families by establishing a “cooling-down period” after a shooting. But HB 1538 is a troubling piece of legislation that is likely to heat up tensions rather than cool them down. At a time when public confidence in the police is incredibly low, especially among communities of color, it is important to increase transparency in law enforcement. Revealing the names of the officers involved in shootings and use-of-force incidents in a timely manner is critical. As Reggie Shufford, the Executive Director of the ACLU of Pennsylvania, has maintained, “The implication [of HB 1538] is that police officers who use force have something to hide.” Communities cannot regain confidence in the police if the police is hiding key information from them.

Instead, HB 1538 will likely amplify public suspicion and mistrust of the police. A 2015 Department of Justice (“DOJ”) report assessing the shooting of Michael Brown found that the Ferguson police department’s decision to wait six days before disclosing officer Darren Wilson’s name “inflamed” tensions between the police and the public. In light of this, the DOJ recommended transparency, noting: “Law enforcement should establish a practice to release all information lawfully permitted as soon as possible and on a continuing basis, unless there is a compelling investigatory or public safety reason not to release the information. A ‘compelling reason’ should be narrowly defined and limited in scope. Had law enforcement released information on the officer-involved shooting in a timely manner and continued the information flow as it became available, community distrust and media skepticism would most likely have been lessened.” HB 1538 is the antithesis of DOJ’s recommended approach.

Despite HB 1538’s many problems, the bill is unlikely to disappear anytime soon. Even if Gov. Wolf vetoes the bill, HB 1538 has enough support in the Legislature to overcome a veto (although the Legislature would have to reconvene for votes after Election Day). But the Legislature is misguided: measures that increase transparency into law enforcement agencies—such as Philadelphia’s 72-hour policy—are more likely to be effective than measures that shield information from the public. In this situation, Pennsylvania legislators should remember former police commissioner Ramsey’s recommendation: when it comes to identifying police officers after shootings and use-of-force incidents, “[t]ransparency is the right thing to do.”

—Rumela Roy ’17