Rutherford County, NC, Western North Carolina, News,arrests, RC Catalyst, Judicial District 29A In NC, transparency on deaths in custody remains elusive, inconsistent – rc catalyst

In NC, transparency on deaths in custody remains elusive, inconsistent

By | March 18, 2021
North Carolina not divulging records gathered for federal program, citing federal law, but other states don’t see an issue with releasing the same records.
Raleigh Police investigate an officer-involved shooting with a robbery suspect, leaving both injured on May 13, 2020 at a gas station. News & Observer photo

About a year after a Raleigh Police Department officer shot and killed Keith Collins in 2020, an RPD sergeant pulled up a blank, two-page federal form and started typing.

Collins’ autopsy showed six gunshot wounds in the 52-year-old’s legs, stomach and chest. And a report from Wake County’s district attorney concluded that Officer W.B. Tapscott acted lawfully when he fired at Collins 11 times as he fled with a BB gun in his hand.

The federal form detailing deaths “in custody” didn’t ask for all that.

Dated Feb. 8, the completed document notes Collins’ basic demographics and the location of his shooting in a parking lot off Pleasant Valley Road. And under “brief description of the circumstances surrounding the death,” the RPD sergeant marked “attributed to use of force” by police.

As bare-bones as it is, that two-page document forms the backbone of one of the federal government’s most comprehensive attempts to track deaths during interactions with law enforcement.

Since late 2019, the federal government has required agencies across the country to fill out a similar form for each of these deaths, whether it’s the result of a police shooting or natural causes in a jail. States collect those forms and send the results to the U.S. Department of Justice, creating a nationwide database intended, as one federal report phrased it, to “increase public transparency about deaths in custody and take steps to reduce their number.”

Yet six years and counting after President Barack Obama signed the Death in Custody Reporting Act into law, the federal government has failed to publish any of its findings or the data it has collected from law enforcement agencies in U.S. states and territories. And in North Carolina specifically, the administration of Democratic Gov. Roy Cooper has refused to release its own state-level data, citing a broad federal confidentiality law covering statistics collected to improve the criminal justice system that, so far, hasn’t been challenged in court.

Keeping these death records secret puts the Cooper administration at odds with more than a dozen local law enforcement agencies in North Carolina and the public safety departments in several neighboring states, which quickly responded to identical requests for documents submitted by the N.C. Watchdog Reporting Network.

Some of those documents revealed deaths not previously announced publicly. The effort by the network, a collaboration involving seven newsrooms across the state, was timed for Sunshine Week, an annual celebration of transparency and open government every March.

The lack of transparency is particularly perplexing to the author of the Death in Custody Reporting Act, who called the idea that federal law prevents the release of this data “absurd.”

“The whole point of the law was to make information public so that people will know what’s going on in public, policymakers could make appropriate judgments,” U.S. Rep. Bobby Scott, the Democrat representing Virginia’s 3rd District, said in an interview with the N.C. Watchdog Reporting Network.

“As a sponsor of the bill, I’m unaware of anything in federal law that prohibits the release of this information.”

The Governor’s Crime Commission, which collects the data required by the DCRA, says it’s just following federal law. And statements from the U.S. Department of Justice support the commission’s interpretation.

But it’s a stance that worries local and national advocates for transparency and accountability in policing, who note it’s not the only way state officials have sought to keep potentially problematic interactions between law enforcement and citizens secret.

“The benefit of making those things public is that it creates a level of accountability to the public,” said Dawn Blagrove, a Raleigh attorney and executive director of Emancipate NC, an advocacy organization pushing for criminal justice reform.

“It creates a shift in power and ultimately results in a more balanced power dynamic between the community and law enforcement.”

Secrecy a common complaint

Data on police accountability in North Carolina is notoriously hard to track.

Local law enforcement agencies routinely use broad exemptions in the state personnel law to refuse to hand over records detailing use of force in the communities they serve. The release of body camera footage requires taking a case before a judge.

As recently as Monday, a proposal in the state legislature to track disciplinary actions and other red flags against officers when they move from agency to agency would shield the information from public view.

“The access to information that we’re looking for is very, very often in the discretion of the police department or the city elected officials, whether or not they’re going to disclose that information,” Blagrove said.

“In many cities across North Carolina, what we find is that city and town councils very often abdicate their power to create transparency and sunshine around police accountability to the police departments.”

And where secrecy doesn’t already exist, public officials have tried new tactics to ensure confidentiality.

That happened after the death of 56-year-old John Neville on Dec. 4, 2019.

Forsyth County deputies responded two days earlier to Neville’s jail cell after his cellmate called for help. Believed to have been suffering from a seizure, Neville woke up combative, surrounded by a special response team and a nurse.

In response, deputies put Neville on his stomach, with his arms secured by handcuffs behind his back and his ankles raised to his wrists, a controversial position that can lead to suffocation and death.

Body camera video showed Neville yelled out at deputies about 30 times that he couldn’t breathe, but they didn’t respond. He became comatose, and jail staff left him in that position for another six minutes before attempting medical assistance. He died at a Winston-Salem hospital.

The Forsyth County Sheriff’s Office never notified the public of Neville’s death, and it evaded questions when The News & Observer began looking for answers.

Forsyth County District Attorney Jim O’Neill charged five deputies and a nurse with involuntary manslaughter. The county fired the deputies after being questioned by the media about Neville’s death. And a public records request revealed that one deputy received a merit-based raise for above-standard performance just weeks after Neville died.

Prosecutors fought attempts by the newspaper and other media organizations to get video from the jail of Neville’s last conscious moments.

And when The N&O filed public records requests with the N.C. Department of Health and Human Services for Neville’s death investigation records, prosecutors had the documents sealed by a judge without any notice to the newspaper.

State lawmakers even tried — and ultimately failed, following scrutiny from the media and protesters that led to  a Cooper veto — to pass a measure to explicitly keep secret information law enforcement shares with medical examiners.

Access to information, said Ann Webb of the American Civil Liberties Union of North Carolina, “has been part of every conversation about policing reform and police accountability.”

“We know that we lack information about who’s in our jails across the state,” said Webb, the advocacy group’s senior policy counsel.

“We know that we lack information about incidents like the death of John Neville. We know that we lack information about the details of things that have occurred when body cams haven’t been turned on properly or used pursuant to their local policies. We really need lawmakers and law enforcement agencies to follow through on their commitments to create transparency in this system.”

Tracking deaths gets a second look

As law enforcement accountability goes, the federal Death in Custody Reporting Act is somewhat novel. For starters, 2020 marked the first full calendar year of data captured under the program.

When Congress passed the DCRA in 2014 with unanimous consent of the U.S. Senate, the representatives intended to replace an older law that lacked the teeth to require law enforcement agencies to hand over data.

The new law was designed to solve a fundamental problem, one solved in part in recent years by the efforts of multiple news media organizations and independent researchers: The government simply couldn’t say how many people died nationwide in county jails, state and federal prisons, and during violent altercations with law enforcement.

“The whole purpose is that the debate is going on, and people were making allegations like, ‘Certain people are being shot. Certain people are unarmed.’ And there’s no data,” Scott said. “With the data, we can find patterns.”

The DCRA, at least in theory, was designed to capture all of those deaths. It uses a broad definition of “deaths in custody” that includes those who die in government facilities and while “in the process of being arrested.”

But for years, data collection under the DCRA was plagued by delays both bureaucratic and political, as the DOJ grappled not just with how to gather the information, but which division would be ultimately responsible for the job.

Along the way, the DOJ under the Trump administration abandoned a proposal to bolster data collection with “open-source” techniques, filling in missing deaths by scouring media sources and other public information. It would instead rely on state-level reporting only, which during previous collection efforts only captured about half of the deaths the agency sought to track.

Despite those limitations — and a collection effort that was already “significantly delayed” — a U.S. DOJ 2018 inspector general’s report concluded that even flawed data “can help the department better understand the scope and causes of deaths in custody.”

Nearly two years after the inspector general criticized the department for missing congressional deadlines on the DCRA, the U.S. DOJ still has yet to release a single finding from its collection efforts to date.

To Michele Deitch, a senior lecturer at the University of Texas whose work focuses on health inside prisons and jails, the U.S. DOJ’s failure demonstrates a lack of commitment. She hopes to see the issue become a bigger priority under the administration of President Joe Biden.

“You can’t fix what you can’t measure, right?” Deitch said. “If we don’t know the extent to which there are deaths in custody happening, we don’t know when to be concerned. We don’t know what the explanation is for why people are dying.

“There’s no more fundamental obligation that prisons and jails have than keeping the people inside safe. And if people are dying, there’s something wrong with what’s happening.”

The Biden administration has given few specifics on when to expect more from the U.S. DOJ’s Bureau of Justice Assistance, the division now charged with running the program.

“BJA is working on an interim report which we hope to share soon,” Tannyr Watkins, a spokesperson for the agency, said in an email.

At press time, the N.C. Watchdog Reporting Network’s request under the Freedom of Information Act for data on deaths in custody in North Carolina remains outstanding with the U.S. DOJ.

‘Forbidden by federal law’

The federal Justice Department, though, isn’t the only government agency that collects information on deaths in custody.

Deaths in jails maintained by county sheriff’s offices must be reported to state health regulators. The N.C. Department of Public Safety, separately, tracks deaths within its own 55 prisons. Combined, the latest data shows, about 180 people died in those county and state facilities in 2020.

Neither count captures those killed in shootings and other incidents with local law enforcement, the N.C. Highway Patrol or the State Bureau of Investigation.

But the DCRA data collected by the Governor’s Crime Commission should.

Just a day after the N.C. Watchdog Reporting Network requested that data, the commission refused to release it.

Spokesperson Margaret Ekam said attorneys at the state agency concluded DCRA data is confidential under a specific federal law that governs the release of data collected under a long list of U.S. DOJ programs.

“It is not our information, and we are forbidden by federal law from releasing it,” Ekam said in an email.

Yet nearly identical requests sent to three neighboring states — Virginia, South Carolina and Georgia — prompted public safety officials there to quickly provide both electronic and paper records detailing deaths each agency had collected from local law enforcement through the DCRA.

And after requests to 50 of North Carolina’s largest law enforcement agencies, only three — the Onslow County Sheriff’s Office, the Lincoln County Sheriff’s Office and the state Highway Patrol — cited the same federal statute as a reason for keeping the death documents confidential. All three agencies used advice from the Governor’s Crime Commission.

At least 15 other police departments and sheriff’s offices quickly provided the forms submitted to the Governor’s Crime Commission totaling 30 deaths in 2020.

Ekam declined to make anyone at DPS available for an interview for this story. But she said it’s unfair to say the state agency doesn’t believe the public has a right to know, pointing out that she did supply data on inmates who died in DPS prison facilities — information collected for other purposes than the DCRA.

“As an enforcer of laws, we must hold ourselves to the highest of standards and hold ourselves accountable to all laws,” Ekam said in an email. “This includes federal laws that we may or may not agree with.”

But Ekam could not explain why other state agencies across the Southeast reached a different conclusion.

“We are not in a position to answer why another organization would or would not provide information pursuant to a public records request for DCRA information,” Ekam said. “They may not be aware of the federal provision, or they may have a different interpretation.”

David Cotter, director of policy and legislative affairs for the Virginia Department of Criminal Justice Services, which provided records after the N.C. Watchdog Reporting Network requested them, said he had no comment on North Carolina’s interpretation of the federal confidentiality statute.

“All I can say is that the records requested can be disclosed under Virginia law,” Cotter said in an email.

And aside from limited redactions, Robert Thornton, director of the Justice and Compliance Division for Georgia’s Criminal Justice Coordinating Council, said his agency came to a similar conclusion.

“All I can add is that we provided the records you requested because we determined they were subject to Georgia’s Open Records Act,” Thornton said in an email.

Records shed more light on jail deaths

Almost half of the 50 law enforcement agencies contacted by the N.C. Watchdog Reporting Network said they had no reportable deaths in 2020.

The records police and sheriff’s offices did provide included a mix of cases — not all of them previously reported publicly.

The Wake County Sheriff’s Office provided records for four people, all of whom died in one of the county’s two Raleigh detention facilities. Three of the four deaths are listed as suicides.

The office announced only the last of those deaths publicly when it happened, holding a press conference in late October to say Enrique Baca-Sandoval killed himself.

Wake sheriff’s spokesman Eric Curry said the department does not have a policy on when to issue public notice of a jail death and that the office did so in Baca-Sandoval’s case because of “an unprecedented number of suicide attempts” at the jails.

During that press conference, Sheriff Gerald Baker said Baca-Sandoval, at the time identified only as a federal inmate, hanged himself with a bedsheet. There was no indication ahead of time that Baca-Sandoval was a suicide risk, Baker said.

“This incident draws our attention to our concern that the state jail regulations require us to provide sheets to those that are in our custody, thus furnishing them the means to take their lives,” Baker said that night.

“Something has to be done about this. … We’ve had concerns for quite some time.”

Curry said Monday that the sheriff’s office is “still in communication with the state” about the bedsheet policy.

Another case came in May, when Jeffrey W. Prichard died at the jail on Hammond Road eight days after he was booked. The 30-year-old’s cause of death is listed as “natural causes,” though according to the state Medical Examiner’s Office, Prichard’s autopsy is not complete.

Curry said privacy regulations limit what he can release.

“I can only say Mr. Prichard had a preexisting health condition prior to being placed in our custody,” Curry said in an email.

Attempts to reach Prichard’s mother were not successful.

To the ACLU’s Webb, accessing data on deaths in custody is a crucial part of improving both policing and incarceration.

Without it, she said, it’s impossible to move forward.

“We need to see this information,” Webb said. “There’s no point in collecting it unless we can look at it as a society, as a country, as a state, as a community, and understand what it means and try to solve the underlying problems that led to these tragic incidents.”

Lawyers: Secrecy may be up for debate

On the federal level at least, North Carolina’s interpretation of the federal confidentiality statute appears to line up with the U.S. DOJ’s.

Almost a full year ago, N.C. DPS Assistant General Counsel Sammy Said sought guidance on this very issue from U.S. DOJ lawyers, emails provided by DPS show.

The U.S. DOJ responded by saying how it would react to a request for the data.

“Therefore, we’d likely either provide a heavily redacted version of the form or provide nothing to protect the confidentiality of the individual,” U.S. DOJ Assistant General Counsel Peter Brien wrote back to the North Carolina official on April 14.

Said opted to release nothing.

“We cannot reveal the information ‘for any purpose other than the purpose for which it was obtained,’” Said wrote of the DCRA reporting form. “I believe the purpose it is being obtained is to provide the information to you guys in order to furnish your report to Congress.”

That interpretation, the U.S. DOJ counsel replied, “makes perfect sense.”

It doesn’t appear the department’s position has changed in the last year. In a statement to the N.C. Watchdog Reporting Network on Tuesday, the U.S. DOJ’s Watkins said states “are covered by this provision and must keep confidential” completed forms and other material submitted to DOJ offices.

Cooper administration spokesperson Ford Porter said it would be “concerning” if other states received different advice and that the governor expects DPS “to continue to seek clarity on reporting allowed under federal law.”

As for whether North Carolina officials — or for that matter, those on the federal level — are correctly interpreting the law, legal opinions are somewhat mixed.

After examining responses both from the state and U.S. DOJ, Adam Marshall, senior staff attorney at the Reporters Committee for Freedom of the Press, thinks they got it wrong.

“I just don’t think, under the plain terms of the statute, that the confidentiality provision applies,” Marshall said.

For one, he said, the law at issue is in a completely different chapter of the U.S. Code. And even if it did apply, Marshall said, it’s possible to release the data in some form without crossing the statute’s prohibition on releasing personally identifiable information.

“It is infuriating to me that there’s this huge treasure trove of data that could help us understand this debate and really inform the debate with empirical evidence, and government agencies are hiding behind inapplicable statutes to keep the public from knowing this information,” Marshall said. “It’s absolutely ridiculous.”

The state’s position may not be an “outrageous” one given the broad wording of the federal law, says attorney Amanda Martin, who frequently represents media organizations including N.C. Watchdog Reporting Network members. But she said the courts have yet to weigh in.

Legal wrangling aside, she said, it’s clear there’s significant public interest in the information, especially in light of a national reckoning on police misconduct that has spread from street protests to statehouse floors. And North Carolina leaders, she said, have a responsibility to ensure transparency upfront.

“North Carolina should say, ‘We want to participate in your program. We appreciate it. But we’re a state that’s committed to transparency. And so, if we create documents, we’re going to insist on an understanding that those documents are public unless there’s a very good reason and a very explicit statute that says they are not,’” she said.

And for these records in particular, the ACLU’s Webb said, transparency is a matter of life and death.

“We’re talking about information that makes a difference in people’s lives and their safety,” Webb said. “We expect our state government, we expect our federal government, to share information as freely as possible, within reasonable limitations, and not to be looking for excuses to hide information about what is occurring in our communities if they have it.”

This story was jointly reported and edited by Laura Lee, Jordan Wilkie and Frank Taylor of Carolina Public Press; Gavin Off of The Charlotte Observer; Danielle Battaglia, Tyler Dukes, Dan Kane, Jordan Schrader and Lucille Sherman of The News & Observer; Nick Ochsner of WBTV; Michael Praats of WECT; Travis Fain and Ali Ingersoll of WRAL; and Jason deBruyn of WUNC.

Publisho Theme | Powered by Wordpress