Principles of the Law, Policing

(a) Governments should require—through legislative or executive action—that agencies and courts collect, analyze, and release to the public data and information about the following, in a form that easily can be accessed, understood, analyzed, and compared to the data and information of other agencies and courts:

• (1) crime rates or reported crimes and calls for service;
• (2) enforcement actions;
• (3) reportable uses of force;
• (4) policing policies, strategies, techniques, and mechanisms for public input;
• (5) allegations and outcomes of citizen complaints of officer misconduct, civil suits filed against agencies and officers, and, in criminal proceedings, motions to suppress;
• (6) organizational structure, employment standards, and staffing, including staff demographics;
• (7) requests for and executed search warrants and court surveillance orders;
• (8) collective-bargaining agreements; and
• (9) civil settlements and judgments.

(b) Governments should require that courts collect, analyze, and release to the public data and information—in a form that easily can be accessed, understood, analyzed, and compared to other like data—about:

• (1) requests by agencies for search warrants, executed search warrants, and court surveillance orders;
• (2) motions to suppress evidence and their resolution; and
• (3) civil settlements and judgments regarding officers or agencies.

(c) Governments should require—through legislative or executive action—that agencies using body-worn cameras and other video technologies to record police encounters:

• (1) make relevant footage available on the agency website within a reasonable time following a significant adverse incident; and
• (2) make footage available to any individual who it captures on video and who requests to review that video.

(d) Governments should ensure agencies and courts have the capacity, training, technology, and other resources necessary to collect, retain, analyze, and release this data.

(e) Governments should establish a process by which data collected is regularly analyzed and used to inform policies and practices.

Comment:

a. Transparency, generally. The public, and agencies of democratic governance charged with superintending policing agencies, cannot do their job of superintending policing agencies without the information necessary to reach reasoned conclusions about policing-agency performance. Policing agencies therefore should collect and analyze such data as is necessary to allow for public supervision, and they should make such data and any other information specified in this Section routinely available in an accessible and meaningful fashion.

b. Data collection and analysis. Agencies routinely should collect, retain, analyze, and make public all of the information specified in this Section. Some of the information will be readily available to agencies. Other information may require additional data collection or analyses beyond what the agency presently does. Jurisdictions should ensure that agencies have sufficient staff and the necessary resources to support data collection, retention, analysis, and publication. Jurisdictions also should ensure that clear definitions for data elements are established, adhered to, and published. Although the data and information indicated here may be restricted or protected by state or local laws, agencies should release this information to the greatest extent permitted by law. To the extent present law prohibits the collection or release of such information, legislative bodies should explore whether such prohibitions are appropriate, and modify them if not. See § 14.02 (Legislative Responsibilities to Ensure Sound Policing).

c. Routine release. The frequency with which data and information should be released will depend on the fluidity and immediacy of the data, the capabilities of the agency, and the priorities and expectations of the public in a jurisdiction. For example, agencies that update crime statistics on a monthly basis should release them on that schedule. By contrast, it may make sense to release agency demographics annually. Policing-agency policies should be released as soon as they go into effect, and they usually should be shared for public input prior to final adoption. See § 1.05 (Transparency and Accountability). Agencies and communities should come to a consensus on what data and information should be available and when it should be available, and they should formalize these expectations in a publicly available data-and-transparency policy.

d. Meaningful and accessible fashion. Agencies should release data and information in a manner that ensures the public and other interested parties can comprehend its meaning and compare trends over time. For incident-based data in particular, this means including aggregate as well as anonymized incident-level data. Data should be released in a standard format and be machine-readable. Ideally, data should be released through a platform operated by the jurisdiction in question (i.e., not just by a policing agency) that is accessible to all and includes relevant criminal-justice data from other system actors such as prosecutors, courts, and correctional institutions. Agencies should publish data and information on their official agency websites, ensure the websites are easily navigable and are accessible to people with disabilities, and educate the public as to where and how the data can be accessed.

e. Confidential information. Agencies should take great care to anonymize data about members of the public and ensure that any personally identifiable information—such as a member of the public’s name, phone number, birth date, or exact address—is stricken prior to release, unless it is a matter of public record. Additionally, agencies should avoid releasing data and information in a manner that allows deductive disclosure, i.e., that it permits an individual’s identity to be ascertained despite the absence of personally identifiable information. If an agency is releasing photographs or videos, it should obscure the faces and other identifiable characteristics, such as prominent tattoos, of any individuals who are not the subject of the incident in question. In addition, confidentiality concerns may mandate redaction of some information; see § 1.06 regarding principles governing confidentiality concerns.

f. Crime rates or reported crimes and calls for service. Information about crime trends and enforcement actions provides critical insight into a jurisdiction’s public-safety issues and the policing agency’s actions in response. Release of this information allows the public to hold policing agencies accountable both for public-safety outcomes and the measures taken to achieve public safety, including any impact those measures may have on personal safety, privacy, or racial disparities. See § 1.05 (Transparency and Accountability).

• (1). Crime rates or reported crimes. Agencies should release data on crime rates or reported crimes and trends that, in larger jurisdictions, is broken down at least through the district or precinct level. Agencies should include rates beyond the Part 1 crimes required under the Federal Bureau of Investigation’s Uniform Crime Reports, including hate crimes, and ensure that data released addresses the public-safety priorities of their jurisdiction. For example, if an agency in a jurisdiction with high rates of vehicle break-ins focuses solely on Part 1 crime rates, they are unlikely to meet the public’s need for timely information about their safety concerns and if and how policing agencies are addressing them.
• (2). Calls for service. Agencies should release data on calls for service, including the nature of those calls, broken down at least through the district or precinct level. Agencies also should include contextual information such as time of day and day of week. This affords communities necessary insight into when, where, and why police services are requested, as well as an understanding of the nature and extent of demand for police response in their jurisdictions.

g. Enforcement actions. Agencies should release data on enforcement actions, including pedestrian and traffic stops, arrests, searches—including consent searches—and citations. Data should be broken down at least through the district or precinct level and include demographic information about the subject of the action and the alleged offense. These enforcement actions—particularly traffic and pedestrian stops—have been linked to discriminatory practices such as racial profiling, and the fines and fees associated with citations for minor offenses can have catastrophic financial implications. See §§ 1.09 (Furthering Legitimate Policing Objectives); 1.04 (Reducing Harm). The public requires information about enforcement actions to ensure agency practices align with community public-safety and social-justice priorities, and to identify and hold agencies accountable for any harms inappropriately imposed.

Agencies also should track and release information about the location and date/time of checkpoints such as sobriety checkpoints, which have been shown to disproportionally be deployed in Black and other marginalized communities (such as immigrant communities) in some jurisdictions. Some states have legislation governing when and where checkpoints can be administered. Even in the absence of governing legislation, communities deserve access to information about checkpoint deployment to determine whether agencies are deploying them equitably.

h. Reportable uses of force. Reportable uses of force means any application of physical force—that is, any intentional touching by a body part or by the intentional application of a tool, technique, or weapon to a person’s body—other than physical contact used solely for facilitating the taking of custody of a compliant person (such as the application of handcuffs on a cooperative arrestee). Agencies also should consider reporting threats of force, such as the pointing of a firearm at or in the direction of a person.

Agencies should release data on reportable uses of force, including for each incident the type of force used, justification for use, geographic location of the incident, demographic information about the individual(s) against whom force was used, and any resultant injuries to the officer or individual(s). The public requires information on police use of force in order to identify any trends or disparities and to hold agencies accountable to the law, agency policy, and equitable standards. Ideally, use-of-force data will contribute to the development of police practices that go beyond basic constitutional minimums to prioritize de-escalation and affirm the sanctity of human life. See Chapter 7 (Use of Force).

i. Policing policies, strategies, and techniques. For public safety to be a shared endeavor between communities and police, the public must have access to the strategies, policies, and techniques that define how a policing agency fulfills its mission. Agencies should release this information on a regular basis.

• (1). Policy manuals. An agency’s manual defines how officers respond to a community’s public-safety needs and establishes parameters for how agency employees interact with the public they serve. By publishing its policy manual, an agency provides communities with necessary information about what the agency deems to be acceptable and expected police behavior. Communities then are in a position to advocate for revised policies that align more closely with their priorities, and to hold agencies and officers accountable for deviations from accepted practices.
• (2). Strategic plan. A policy agency should have a strategic plan that indicates how it will address public-safety challenges in its jurisdiction and achieve sound policing in accordance with these Principles and governing law. Democratic governance requires that an agency’s goals and strategies reflect the priorities of the community it serves. Reviewing published strategic plans allows communities to make informed decisions about their agencies’ plans, and offer meaningful input into how they are policed.
• (3). Specific policing strategies. Policing strategies and tactics further define how an agency will achieve its public-safety mission. Such strategies must balance effective enforcement with the preservation of constitutional rights and advancement of public trust and confidence in the police. See generally Chapter 1 (General Principles of Sound Policing). Communities—particularly those most impacted by policing strategies—require general information about agencies’ use of particular strategies and their expected and intended impact. Evidence regarding common policing strategies, such as predictive policing or focused deterrence, varies widely, and some strategies carry with them the inherent risk of harms such as racial discrimination and over-criminalization. Together with crime and enforcement data, information on policing strategies helps the public understand the extent to which a given strategy might achieve its intended purpose, and at what social cost.
• (4). Information-gathering techniques. Information-gathering techniques—from consent searches to the use of new technologies—are important investigative tools. However, each of these tools carries some risk of imposing harm. Chapter 3, governing the use of information-gathering techniques, calls upon agencies to adopt policies addressing the use of those techniques. Policies regarding the use of information-gathering techniques and data regarding the frequency of their use, as well as any documented abuse, should be made public to allow for adequate democratic supervision.

j. Allegations and outcomes of officer misconduct, lawsuits, and motions to suppress. Information about allegations and actual instances of misconduct help the public hold agencies and officers accountable. See § 13.07 (Responding to Allegations of Misconduct). Agencies should release the following information to the greatest extent legally permissible, and work to minimize restrictions on disclosure and access over time.

• (1). Complaints and other allegations of misconduct. Given the authority invested in officers, it is particularly important that data on misconduct and abuses of power, and allegations of such misconduct, be made known to the community. Agencies routinely should release data on both individual complaints against officers and misconduct first identified through internal investigations, including allegations, adjudication statuses, complaint and investigation dispositions, and demographic information about the officer and individual(s). Whenever legally permissible, the identity of the offending officer should be disclosed. Specifics of complaints should be made available to individuals who are entitled to the information, such as a defendant against whom an officer is testifying. Additional circumstances requiring disclosure of complaint specifics, such as disclosing the complaint history of an officer seeking employment in a different agency, is addressed in Chapter 13.
• (2). Status and disposition. In addition to allegations of misconduct, departments should release details about the status and outcome of citizen complaints, as well as information about complaint resolution and any disciplinary action taken, including dismissal. Such disclosure provides communities with necessary information about the extent to which an agency is willing and able to hold officers accountable, as well as the expediency with which the agency investigates allegations and allows the public to identify and seek to address failures or insufficiencies in accountability standards.
• (3). Lawsuits. Agencies routinely should release information on lawsuits against individual officers and agencies, including allegations, judgments, and settlement information, to the extent permissible under any applicable settlement agreement. In most cases, individual officers who lose or settle a lawsuit are indemnified by their departments or municipalities. These payouts cost local taxpayers hundreds of millions of dollars per year, and the public deserves a transparent accounting of how their tax dollars are being spent to address officer misconduct. In general, municipal settlements should be made public, as the failure to do so may obscure from the public the need for agency reform.
• (4). Motions to suppress. Governments should track, analyze, and release information on motions to suppress evidence allegedly obtained in violation of a defendant’s constitutional rights. In criminal proceedings, these motions may offer insight into problematic police practices and/or identify specific officers with a demonstrated history of committing constitutional violations related to stops, searches, and arrests.

k. Organizational structure, employment standards, staffing, and mechanisms for public input. Information on agency budgets, organization, staffing, and employment standards allows the public to hold agencies accountable for efficient, equitable, effective, and appropriate use of public funds.

• (1). Budget. Budgets indicate agency priorities and values, both within an agency and across other agencies in a jurisdiction. Communities deserve to understand the extent to which their own priorities and values are reflected in the expenditure of their tax dollars. Further, the public needs to know how police funding fits proportionally within the municipal budget and the extent to which funding as allocated appropriately meets community needs.
• (2). Organizational chart. Agencies should make available and update regularly their organizational charts, including names and biographic information about their leadership, to help the public understand individual qualifications, agency hierarchy, and who is responsible for specific functions within the agencies.
• (3). Hiring, promotion, and training standards/qualifications. Currently, there are no national standards or guidelines for the qualifications, promotional standards, or training requirements for police officers. Although aspects of these matters are regulated in some states, local directives that vary widely across jurisdictions are commonplace. See § 13.03 (Adequate Training for Agency Employees). The public ought to know the experiences and qualifications necessary for the officers serving them in any capacity, from patrol officers to executive leadership, and the extent to which an agency screens for concerning traits and behaviors. Training requirements in particular offer the public insight into the skills and abilities they can expect from their officers, and the extent to which these skills are reinforced over time. This information also informs the public as to whether training curricula omit any critical skills, such as de-escalation, or disproportionately emphasize skills that do not align with public priorities.
• (4). Recruitment and retention information. Agency recruitment strategies illustrate who the agency believes will be effective and what they value in their ranks, while retention rates are an indication of officer morale, organizational efficacy, and internal procedural justice. The public ought to have access to recruitment strategies to determine whether an agency is likely to attract individuals who are particularly well suited to sound policing. See § 13.02 (Recruitment and Hiring).
• (5). Officer demographic data. Officer demographic data—including race, gender, ethnicity, sexual orientation, and gender identity—should be published across all ranks. Such data helps the public understand the extent to which the agency is diverse, inclusive, and represents the community. Research establishes that when members of the public believe policing agencies reflect the diversity of the communities they serve, they have higher levels of trust and confidence in the police. Coupling recruitment and retention information with demographic data allows the public to identify any trends in underrepresentation, and to hold agencies accountable for improving recruitment and retention strategies to address disparities.
• (6). Officer injuries and fatalities. Data and information on officer injuries and fatalities, including the circumstances under which they were sustained, contributes to the public’s comprehensive understanding of policing in their jurisdiction, including the inherent risks and the extent to which a department adequately ensures officer safety and wellness, which is critical in pursuing the goals of sound policing. See § 13.04 (Promoting Officer Well-Being).
• (7). Mechanisms for public input. Policing agencies should have formalized processes for receiving input from the public on policing strategies and policies, public-safety priorities, and other relevant feedback. Instructions for providing feedback should be clear, publicly available, and translated in the predominate languages of the jurisdiction.

l. Search warrants and court-ordered surveillance. Jurisdictions should release data and information on requests for search warrants and surveillance orders, as well as the related affidavits. This promotes public understanding of policing strategies, when they are deployed, and on what grounds. This information—particularly as it relates to the use of surveillance technology—also demonstrates the extent to which police and the courts are meeting basic minimum constitutional and statutory requirements, including by demonstrating sufficient cause.

m. Collective-bargaining agreements. Collective-bargaining agreements that dictate an agency’s internal disciplinary procedures often are barriers to officer accountability, as they impose restrictions on reasonable investigations into misconduct and disciplinary measures. To understand misconduct and disciplinary data in context, the public needs to know the extent to which the agency’s actions (or failure to act) are dictated by collective-bargaining agreements. See § 14.08.

n. Civil settlements and judgments. Settlements for police misconduct largely are paid through public funds, and the public deserves access to the specifics and cost of these incidents. Additionally, the underlying facts of these suits may provide insight into persistent problems and trends of which the public deserves to be aware. Jurisdictions should prioritize transparency and disclosure and minimize the use of confidentiality agreements unless they are in the best interest of the plaintiff.

o. Video-footage release. One of the primary factors driving the rapid implementation of body-worn cameras and other video technologies is the notion that the technology enhances police accountability. But greater police accountability is achieved if the relevant camera footage is made available to the public within a reasonable time after significant adverse incidents, particularly those in which an officer’s behavior is in question. See § 13.08, Comment b (discussing significant adverse incidents). Agencies should have clear, publicly available policies dictating how and when camera footage should be released. If circumstances require a deviation from policy, agencies should communicate this to the public and be transparent about the factors necessitating it.

Additionally, agencies should make footage of any incident available to a member of the public whose behavior is captured on the video. For many, interactions with police are stressful and unsettling. Video footage offers a more neutral account of police interactions and may lead to fewer complaints being filed. Inversely, if the video footage depicts problematic officer behavior, the public has a right to view it and use it to make an informed complaint. In order to effectuate this, agencies need policies that require retention of body camera footage for a long enough period to allow for requests. This precise level of disclosure may be restricted by law in some states; agencies should release incident footage to the greatest extent permissible by law and should work to ensure as much transparency as possible. State laws should reflect such need for transparency.

p. Using data to inform policies and practices. It is fairly common practice for policing agencies to use data to inform certain strategies, such as adjusting patrol assignments relative to calls for service. However, agencies also should leverage data to inform improvements to agency policies and practices. The data identified in this Section are critical for agencies to understand the impact of their tactics and choices on communities and the extent to which current policies and practices are achieving their intended outcomes. Agencies should leverage this data to identify and prioritize opportunities for improvement. Many agencies lack the capacity, training, technology, and other resources necessary to provide the data called for in this Section. Government should work to remedy this situation as the accessibility and analysis of such data is essential to sound policing.

Reporters’ Notes

Accurate, sufficiently detailed, accessible data about policing activities is essential for understanding the effectiveness, propriety, and fairness of policing practices and interactions. This data provides critical insight for stakeholders—from state and local legislators to police leaders and communities—to understand the extent to which policing agencies are fairly and effectively achieving their public-safety mission, and whether and how policies, procedures, and practices should be changed. Rachel Harmon, Why Do We (Still) Lack Data on Policing, 96 Marq. L. Rev. 1119, 1122-1128 (2013).

Reliable, accessible data also is a fundamental aspect of police accountability, particularly data regarding involuntary contacts with the public. Data reveals trends about individual and agency-level discriminatory practices and other misconduct, disparate impacts of policing practices, and other problematic patterns that negatively impact public-safety outcomes and may rise to the level of actionable violations of law. Alexandra Holmes, Bridging the Information Gap: The Department of Justice’s Pattern or Practice Suits and Community Organizations, 92 Tex. L. Rev. 1241 (2014). And transparent access to this data is critical for democratic accountability and fostering community trust in policing. Grace E. Leeper, Conditional Spending and the Need for Data on Lethal Use of Police Force, 92 N.Y.U. L. Rev. 2053, 2057 (2017). See Final Report of the President’s Task Force on 21st Century Policing, Office of Community Oriented Policing Services (2015) (advocating for improvements in data collection and release to build community trust). National efforts to improve data collection, analysis, and transparency—such as the Obama Administration’s Police Data Initiative—are built in part on the premise that transparent and timely access to police data is foundational to improving public trust in police and strengthening accountability. See White House Fact Sheet: Police Data Initiative (2016).

Despite the critical importance of police data and concerted efforts to improve it, policing data remains notoriously limited, unreliable, inaccessible and, in many cases, nonexistent. See Harmon, supra; Grace E. Leeper, Conditional Spending and the Need for Data on Lethal Use of Police Force, 92 N.Y.U. L. Rev. 2053, 2055 (2017). This is particularly concerning with regard to data around involuntary police contacts. For example, police conduct tens of millions of vehicle and pedestrian stops annually, yet the data on these stops is so limited and of such poor quality that it is difficult to understand whether and to what extent they achieve their public-safety objectives (ranging from improved roadway safety to investigating criminal activity and deterring future crimes), let alone whether they do so equitably. There is a growing body of research indicating a disproportionate burden of these stops on non-white communities, and the operational practice poses inherent risks both to law-enforcement officers and the individuals stopped. See Ted R. Miller et al., Perils of Police Action: A Cautionary Tale from US Data Sets, 23 Injury Prevention 27 (2016); Janet M. Blair et al., Occupational Homicides of Law Enforcement Officers in the United States, 2003–2013: Data from the National Violent Death Reporting System, 51 Am. J. Preventive Med. 188 (2016). It therefore is critical for police and other municipal leaders as well as communities to determine whether stops are appropriate, equitable, and effective, but local data often is insufficient to support that analysis. See, e.g., Denise Rodriguez, et al., Racial Bias Audit of the Charleston, South Carolina, Police Department, CNA Inst. for Pub. Rsch. (2019) (finding the department’s current data structure hindered analysis of trends and racial disparities at the individual level). These limitations also negatively impact the ability of police leaders to understand and evaluate officer performance, and to determine whether and how training, policies, and procedures should be modified. Tiffany R. Murphy, When Numbers Lie: The Under-Reporting of Police Justifiable Homicides, 21 Berkeley J. Crim. L. 42, 48 (2016).

Contributing factors driving the insufficiency of police data are varied. In some cases, officers are ill-trained, ill-equipped, inadequately resourced, or otherwise unable to capture and report data in an accurate and complete way. Often, state-level requirements for policing data fall short, failing to require sufficient detail for the data to be useful. For example, although 40 states require reporting of race in arrest records, only 15 states require reporting ethnicity. This leads to severely undercounting the Latinx population, as states that do not capture ethnicity are likely to label many Latinx people “white.” This also obscures in part the overrepresentation of Black people by artificially inflating the representation of white people. See The Alarming Lack of Data on Latinos in the Criminal Justice System, Urban Inst. (2016).

When data is captured, it is not necessarily easily accessible, or sometimes an agency may choose not to make it so. For example, much of the critical data needed to understand police practices, such as data on uses of force and information about predicating events, are buried in narrative sections of incident reports. It is unlikely police departments have the internal capacity or acumen to extract and analyze this data on a large scale. And even if a department is able to aggregate and analyze this data, they may choose not to publish it absent a government mandate to do so. Brandon L. Garrett, Evidence-Informed Criminal Justice, 86 Geo. Wash. L. Rev. 1490, 1517-1518 (2018).

Policing data also suffers from a lack of standardization with regard to data elements and definitions. Similarly, there are no standardized methods or procedures to govern data collection related to law-enforcement activities and interactions. Rashida Richardson, Jason M. Schultz & Kate Crawford, Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice, 94 N.Y.U. L. Rev. 15, 22-25 (2019). This makes it difficult if not impossible to conduct much needed research into policing activities both within and across jurisdictions. Garrett, supra at 1518.

Fortunately, there is a growing recognition of the deeply problematic limitations of police data and calls for legislative and federal action to address them— both to mandate and standardize data collection, and provide appropriate resources to agencies to do so. See Barry Friedman & Elizabeth G. Jánszky, Policing’s Information Problem, 99 Tex. L. Rev. 1, 22 (2020) (recommending that Congress adopt “information-forcing legislation,” e.g., “statutes requiring the collection of demographic information around police stops”); Seth W. Stoughton, Policing Facts, 88 Tul. L. Rev. 847, 895-897 (2014) (“Additional legislative or agency attention is also appropriate. A great deal of information about law enforcement is conceptually obtainable but does not currently exist in any collected or useful form”). Though there are existing mechanisms focusing on broad collection of specific police data (such as the FBI’s National Use-of-Force Data Collection and the Death In Custody Reporting Act (DCRA)), they largely fall short of providing comprehensive, reliable insights into police practices absent reporting requirements, standardization, and resources to support agency compliance. Kenny Lo, Ctr. for Am. Progress, How To Address Concerns About Data on Deaths in Custody 1, 4-5 (2021) (discussing the absence of data on deaths in police custody and suggesting that “Congress should appropriate the necessary funding for [DOJ’s Bureau of Justice Assistance] to implement a methodology to search for and validate leads on deaths in custody,” while “state legislatures should look to compel all state and local law enforcement agencies to report DCRA data”). Michael McKeown, Police Misconduct, 51 Suffolk U. L. Rev. 309, 318 (2018) (“To improve data collection and reporting across all states, the new administration should direct the Attorney General to aggressively utilize the tools available under the DCRA. Specifically, the DCRA allows the Attorney General to cut funding to states that fail to meet the DCRA’s reporting standards. If the Attorney General aggressively enforces this provision, it would mitigate the inaccurate statistics currently reported by states”). See also Barry Friedman & Rachel Harmon, Policing Priorities for the New Administration (2021) (arguing the federal government should play a leading role in data standardization and support capacity building for collection and analysis at the state and local level).