Sunday, November 15, 2009

Appleseed rightly sues to make police use-of-force policies public

I'm pleased to learn that Texas Appleseed has filed suit challenging the Texas Attorney General's rulings on keeping use of force policies closed for police stationed at schools. (I'd encouraged Appleseed to go to court over this in a prior blog post.) Reports the San Antonio Express News:

Texas Appleseed, which rallied against the Texas Youth Commission's pepper spray-usage policy two years ago, is now looking into pepper spray and Taser usage in public schools.

The nonprofit filed open-records requests with 24 school districts across Texas in July asking for the use-of-force policies. About half the districts complied.

Among those that didn't were SAISD and Spring Branch ISD — both of which had suits filed against them Thursday.

Leslie Price, spokeswoman for SAISD, said Friday the district hadn't yet been informed of the suit but that the disagreement is nothing new.

The Texas Attorney General's Office issued an opinion in October that the school district didn't have to fully comply with the request because some law enforcement details are exempt from open-record laws.

Problem is, the AG is relying on an overbroad interpretation of the Public Information Act to claim that key portions of police use of force policies are closed records. But in fact, there appears to be no solid basis in the law for that view. Proponents of opacity try to skirt around the plain language of the statute by saying release of policies would "interfere with law enforcement." But that's not an exception to the open records act!

Agencies seeking to close these records rely on Sec. 552.108 of the government code, which states in relevant part that agencies may keep from disclosure any information which might "interfere with the detection, investigation, or prosecution of crime."

Use of force policies don't fit any of those three categories. They involve how police interact with suspects during arrest. By the time of an arrest, a crime has already been "detected." Similarly, the arrest process does not implicate the "investigation" of crime: When use of force is part of the investigatory process, that amounts to torture which is clearly illegal. And only prosecutors can prosecute, so policies about how police conduct arrests simply have nothing to do with the prosecution of any alleged underlying crime.

I'm not an attorney so maybe I'm missing something. I'd appreciate anyone who thinks otherwise to present an argument in the comments regarding how releasing police use of force policies could possibly "interfere with the detection, investigation, or prosecution of crime" as described in Govt Code Sec. 552.108. I just don't see it, and I'm hopeful a district court will agree and enforce the plain language of the Texas Public Information Act.


RAS said...

5 to 7 staff injured in the riot at Al Price; hopefully none of the children were pepper sprayed, it burns and can be very uncomfortable.

Gritsforbreakfast said...

Are you suggesting TYC youth filed a public information act request to learn the agency's use of force policies to plan this event, RAS, or is that just unrelated trolling? If the latter, take it somewhere else.

You seem to think I'm avoiding the "riot at Al Price," but no one besides you, an anonymous commenter, have ever mentioned it and it's received no press coverage. If you have documentation, send it along. Otherwise, don't expect me to run with rumors, and don't hijack unrelated strings to troll about TYC.

RAS said...

I don't think you are avoiding the riot but I don't think you are pursuing it either. If you contact Tim Savoy you will get a mostly honest answer,maybe; if an employee asks they'll get "I'll check into that and get back to you". If the blogs on 'TYC - In The Trenches' aren't total fabrications then why isn't the riot in the news? You can get answers that I can't.

doran said...

RAS' comments suggest, but just barely, at least one reason to support the non-disclosure of use of force policies in public school.

That is, if students do not know the kind or type of behavior which is the threshhold for use of force, they will be more apprehensive about being tazed or physically knocked around by school police, than if they have that knowledge. That ignorance can be expected to induce not only apprehension in the students, but also a certain amount of fear of the school police. The combination of the lack of knowledge and fear will facilitate the investigation and detection of crime in schools.

To put it another way, some students who know where the line is that they cannot cross without risking being tazed or physically assaulted by a school police person, should be expected to go right up to that line vis-a-vis school police persons. The knowledge of the use of force policy at a particular school can lead to disrespectful behavior toward law enforcement and thereby interfere with the detection and investigation of crime at that school.

I think this rationale I've set out stinks like four day old road kill in August. It should never be used by school officials to support non-disclosure of use of force policies. It is too weak and is a prime example of poor public policy. A school district which relies on this rationale will probably get laughed out of court.

I fully expect at least one of the sued districts to rely on this rationale.

Jerri Lynn Ward said...

"That is, if students do not know the kind or type of behavior which is the threshhold for use of force, they will be more apprehensive about being tazed or physically knocked around by school police, than if they have that knowledge."

So tell me, why do parents put their children in government schools?

RAS said...

doran, non-disclosure might deter some problems in school but not in any facility. If you're unsure about a rule ask an inmate that's been there a few weeks, they will have been properly educated by then. Also this is one thing I agree with Ms. Pope on, using pepper spray reduces injuries to staff and students. It shouldn't be used except to avoid physical conflict not as a punitive measure unless all verbal interventions are obviously hopeless.

RAS said...

To correct my grammer; it should read "It shouldn't be used except to avoid physical conflict when all verbal interventions are obviously hopeless." It should never be used as a punitive measure.

doran said...

Hello, Jerri.

To which government do you refer?

doran said...

RAS. Those Freudian slips are really embarrassing, aren't they.

I expect that students in schools will also learn what the rules are on use of force. Which makes it all the more absurd that some school districts do not want to release those written policies.

Anonymous said...

I don't really believe that a believable argument for keeping the police force policy secret can be given. What disconcerts me greatly is that we have moved to such a police state mentality that we have police stationed in our schools with the ability to use such force to begin with unless they are confronted with a student carrying pepper spray, tazers or guns. I think old Ben still has it right that “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty or safety.”

One cannot argue that in the case of those incidents where students have gone into a school and killed, an armed guard may have saved lives. I say may because in a world of uncertainties, the guard may have been the first target, a guard may not have the proper training to deal with such a situation or could be on the other side of the school when it happens. I cannot disrespect the feelings of those who have lost their children in such incidents by saying nothing could have been done.

But that said, I have little respect for the parents who sit back and allow the present situation where police presence in schools create a greater atmosphere of fear than that created by shooting incidents. For parents who just accept that their children may be assaulted by police for the many reasons we have read about and don't question both how we have gotten to this point and the effect is has on their child. Or for the parents who have allowed the policies that allow police force to be used against children in what should be school discipline issues and not court issues. I would agree that we are criminalizing a good number of what were once considered “growing pains” and creating a direct pipeline to prisons by handing school discipline to the police and courts instead of handling minor offenses in the school disciplinary office. Do we even have those any more and why aren't the parents up in arms over it?

It's funny that my own memories of a police presence in school were those of “Officer Friendly” who went from classroom to classroom actually speaking to students and made every effort to be seen as a non frightening person who students can turn to. Today we have moved to the presence of an officer in the schools as a figure to be feared with the power to physically harm students and destroy their lives by dragging them into the criminal justice system over a minor matter. Granted the schools have changed, but are we not responsible for those changes by moving away from teaching our children the basic knowledge we once did to teaching them to test for Federal Funding, Zero Tolerance policies that suspend and expel them for some really stupid reasons, both shoving students who don't make the grade through to the next grade because it would hurt their little psyches to fail and the abomination called No Child Left Behind, the abdication of disciplinary matters to the police and I'll say it though I may be trashed for not being PC, Mainstreaming. When we became more interested in the appearance of our educational system than the actual quality of it, the psyches of the children over the lessons learned from failing and everything became about the Federal dollars that could only be earned through attendance records and meeting particular goals instead of the actual quality of the education of the students themselves, we created our failing system.

Anonymous said...

It was bad enough when the bullies were fellow students and one had to rely on a good school administration to deal with the issues, but now the “bullies” come with a uniform, state authority and are armed with weapons and permission to harm students, handcuff them and take them to jail over a minor matter with no consequences. One has only to imagine the student body of the local grammar school watching a 10 year old being restrained, cuffed and led off to jail for a schoolyard fight to imagine what we are teaching them with examples like that. It's far deeper than just the policies being made public, it's that we have allowed a number of these policies to be instituted to begin with.

Jerri Lynn Ward said...

Hi Doran,

All public schools funded through taxes are government schools. I was specifically referring to primary and secondary schools.

doran said...

Yeah, Jerry, but to which government are you referring when you ask why do people send their kids to government schools?

doran said...

Jerri, just to clarify my responses to you, I doubt that a one-size-fits-all answer to your question exists.

To illustrate, what is the one-size-fits-all answer to why do parents send their children to non-government schools?

And why do you exclude colleges and universities from your question? Isn't the Universit of Texas System a system of govenment schools?

doran said...

And, Jerri, if the non-government schools receive public taxes, or abatements of public taxes, or public money via vouchers, or public assitance in any form, don't they become quasi-government schools?

Jerri Lynn Ward said...


I agree with all of your comments. They are all government schools, and they are all federalized.

I prefer homeschooling.

Anonymous said...

"So tell me, why do parents put their children in government schools?"

Government agencies do not get a free pass at acting unlawfully or abusing their charges just because some members of the public have figured out a way of avoiding contact with them.

-homeschooling mum

diogenes said...

Having the policies published will let the students (and parents) know what force can be used against them, and for what. Good policies allow for discretion, but they also reign in capricious uses of force, especially if public scrutiny is involved. This works for the general public just as well.

Yes, it is annoying when someone knows the limits of the policy and pushes as far as they can, trying to get you to overreact. That's why we try to screen the applicant pool to weed out those who don't have the proper judgment and emotional stability. Some agencies are better at it than others.

jimbino said...

It is not true that "only prosecutors can prosecute" or that only cops can charge a person with assault.

Until the government takes over the English language, the words prosecute and charge still belong to the people and were used well before Amerikan cops or any others existed.

Look it up in a dictionary.

R. Shackleford said...

And this is why my kids are home schooled.