As people around the world struggle to secure fundamental rights, Americans may gain a greater appreciation of the rights enshrined in our Constitution and Bill of Rights. But the struggle for those rights is continual, even in the United States.
For example, citizens of the United States know that the Fourth Amendment establishes “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” A person cannot be arrested except upon probable cause.
In other words, police cannot break into your house and haul you off to jail without cause or hold you without charging you. That is the behavior of a police state.
In the United States one way we ensure that police do not behave in an arbitrary manner is by allowing for public access to information about police activities. Sunshine, it is said, is the best disinfectant against the secrecy that allows arbitrary power to flourish.
That is why Anne Galloway of vtdigger.org, a news website, brought suit against the Hartford Police Department. She wanted to gain access to police records about an incident of what may have been racial profiling. And on Friday the Vermont Supreme Court agreed with Galloway that Hartford would have to disclose its records about the incident.
The incident occurred in 2010 when police went to the home of an African-American man after receiving a report from a neighbor. They found the man, Wayne Burwell, comatose, naked and sitting on the toilet. They seized him, pepper sprayed him and removed him, and only then did they learn they had taken him from his own home.
Burwell’s attorney has said that if the police had found a white man in a comatose state, they would have considered it a medical emergency. Because Burwell is black, he said, they assumed he was engaged in criminal activity.
The Supreme Court case was not about whether the police had acted properly. It was about whether a reporter had a right to look at police records of the incident. Police had argued that the records were exempt from the public records law, which holds that “records dealing with the detection and investigation of crime” need not be disclosed.
A lawyer for the American Civil Liberties Union of Vermont, representing Galloway, pointed to another provision of the law. It says that “records reflecting the initial arrest of a person and the charge shall be public.”
In other words, if police haul you away, the public gets to know about it.
The town of Hartford argued that Burwell had not been arrested and so it did not need to release records of the incident. The court found that, whether nor not the town called it an arrest, what happened to Burwell — sprayed, clubbed, cuffed and removed from his home — constituted an arrest. The Hartford police report had even said that Burwell had been resisting arrest.
This is an important case, and Galloway has become a First Amendment hero in pursuing it. It is one of several cases involving access to police records that the Supreme Court has decided lately. In two cases involving the Rutland Herald, the court exempted from disclosure police records related to the detection and investigation of crime. The ACLU has found the distinctions described in the several court decisions to be fuzzy and believes the Legislature may need to provide clarity.
If the Legislature weighs in, it must honor the important principles at stake in the Hartford case. Holding the police accountable is how we guard against arbitrary power. It is how we protect democracy.
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