Who will watch the watchers?

The question dates back nearly two millennia but is highly relevant to policing today.

When police are accused of misconduct, they are investigated by other officers: either from within their department, from another department or, in limited circumstances, from POST (Peace Officer Standards and Training). While this level of oversight is necessary, it is not sufficient. Under Utah’s GRAMA law, if formal charges or disciplinary actions against a police officer are sustained, the records are classified as “public” and are accessible. However, if no formal charges or disciplinary actions are taken or if the complaint is not sustained, the public is out of luck.

This is problematic for two reasons.

First, investigations might fail to sustain valid complaints. All humans, including police, are fallible. Add to that the personal relationships and departmental pressure to protect fellow officers, and it is entirely possible that an investigation may simply yield an incorrect result. There is a strong argument that the public needs access to information regarding unsustained complaints to an even greater degree than sustained complaints. In what other way can the public ensure the investigation was completed with integrity?

Second, even when investigations are done correctly, lack of public access creates the perception that there is something to hide, thereby undermining public trust. Suppose an officer is accused of excessive use of force. In the investigation, witness statements and body camera footage show that the force was appropriate given the circumstances. Because the complaint is not sustained, the agency, as permitted by law, refuses to release any information collected in the investigation. Although the officer is officially cleared of wrongdoing, both the officer and agency remain under a cloud of suspicion because the public cannot independently verify that the results of the investigation were correct.

This is more than a hypothetical problem. Consider the recent debacle of Jared Rigby’s near appointment to the position of POST director. Rigby, the Wasatch County sheriff at the time, was tasked with investigating a complaint against Heber City Police Chief Dave Booth. The investigation cleared Booth of wrongdoing, so information relating to the complaints is not public and can’t be accessed under Utah’s GRAMA law. However, Heber City had to pay two officers who spoke out against Booth to settle retaliation claims. Rigby was not appointed as POST director when his role in the investigation came to light, and Heber City’s mayor’s comments about the incident have been interpreted as threatening to whistleblowers. Regardless of whether Booth’s use of force was appropriate, the lack of transparency in the investigation ended up undermining faith in Heber City Police, Heber City and the would-be director of POST. Had the public and the media had access to the whole story, regardless of Booth being cleared, the damage to public trust could have been minimized.

Scottish philosopher James Mill answered the question “Who will watch the watchers?” in 1835. His answer? “The people themselves. There is no other resource; and without this ultimate safeguard, the ruling Few will be forever the scourge and oppression of the subject Many.”

Certainly, police agencies should watch themselves and each other. But ultimately if the people themselves cannot access the information needed to watch these watchers, there cannot be true police accountability. At least 11 other states already allow their citizens to access information relating to alleged police misconduct, whether or not the accusations are substantiated. Utah could easily do the same. Doing so would encourage integrity in policing, allow Utahns to learn where there is room for improvement and vindicate officers who are acting appropriately.

Amy Pomeroy is a criminal justice policy analyst at the Libertas Institute, a liberty-focused think tank in Lehi.

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