The Manager's report back on a Policy of Releasing Names of Officers and Use of Force

Calendar Item #2 of 5/22/23 Policy of Releasing Names of Officers and Use of Force

The purpose of this response is to address Calendar Item #2 of 5/22/23, whereby the “City Manager is hereby requested to work with PERF (the Police Executive Research Forum) and the relevant departments to establish a policy of releasing the names of officers involved in any use of force incident resulting in injury or death, including retroactively” and “report back to the City Council on this matter as soon as possible.” In preparing this response, I have consulted with City Solicitor Nancy Glowa regarding the legal issues involved in this matter.

An officer-involved death, though rare, can be a high-profile event that draws media coverage and citizen concern. The Cambridge Police Department is committed to demonstrating its accountability to the community by supporting an impartial, transparent, and systematic investigation into any officer-involved death. The Department recognizes the importance of protecting the integrity of an investigation.

In addition, the Department recognizes the increased importance of balancing that protection of the investigation’s integrity with the need to fulfill the community’s and the media’s desire for timely information. This balancing of important interests has been amplified in the context of other significant nationally publicized incidents. In the first calendar year after the May 2020 murder of George Floyd at the hands of Minneapolis police, 49 states proposed legislation to increase transparency in policing.

The national standard for use of force policies that incorporate the timely release of identifying information associated with officers involved in a deadly use of force incident has evolved due in large part to the aforementioned significant incidents that have occurred around the country.

Some of the most progressive law enforcement agencies around the country are beginning to shift from past practice to establishing policies around when and how an officer’s name would be made available to the public in the event of a deadly use of force incident. However, the adoption of such an enhanced policy in the Commonwealth of Massachusetts would be precedent setting. Preliminary research indicates that no such policy currently exists within any Massachusetts police department.

When considering the context of the Cambridge Police Department’s development of such a policy with transparency provisions, the Department should consider that the City has to balance the desire for transparency with:

(1) the impact of the Middlesex District Attorney’s Office’s (MDAO) role in leading a criminal investigation, its current policy to request an inquest for every fatal officer-involved shooting in Middlesex County, and what is involved in the inquest process; (2) protecting the Cambridge Police Department’s investigatory privilege relating to information pertinent to an ongoing criminal investigation; and (3) the involved officer’s privacy rights as defined by Massachusetts and federal law.

For background, the MDAO and the Massachusetts State Police (MSP) assigned to the MDAO conduct a criminal investigation into any officer-involved shooting or other fatal event in Middlesex County. Any fatal event, including an officer-involved shooting, is a death investigation, so by law MDAO is required to "direct and control” the investigation.1 The Rules of Professional Conduct2 govern what information attorneys are permitted to disclose during any case.

In addition to the rules that apply to all attorneys, prosecutors are also subject to Rule 3.8, which states that prosecutors cannot make any extrajudicial statements that “have a substantial likelihood of heightening public condemnation of the accused.” While the Cambridge Police Department is not itself explicitly bound by Rule 3.8, the MDAO, as prosecutors, must take reasonable steps to prevent law enforcement from making any extrajudicial statements that “have a substantial likelihood of heightening public condemnation of the accused.”

Additionally, the MDAO, under its current policy, has determined that it will always request that the state District Court conduct an inquest for all fatal officer-involved shootings in Middlesex County.3,4 An inquest procedure is governed by the state District Court’s Standards of Judicial Practice: Inquest Proceedings (1990) (“Standards”)5. All inquest documents, including the report, transcripts, medical examiner’s report, and any evidence, are impounded during the course of a judicial inquest.6 A court cannot lift the impoundment until:

(1) the DA’s office files a certificate of no prosecution; (2) a grand jury returns a no bill7; (3) the criminal trial of the person named in the report as responsible for the death has been completed (although some information will be released upon arraignment of a defendant and as trial approaches); or (4) a judge in the Superior Court determines that no criminal trial is likely.8

In addition to the impoundment of documents in every inquest, the judge conducting an inquest has the discretion to issue a protective order that would prohibit any parties involved in the inquest from releasing any information.9

While there is an ongoing investigation, both the Cambridge Police Department and the MDAO hold an investigatory privilege over all information related to the investigation.

The investigatory privilege allows the Department and the MDAO to withhold information from the public when, among other things, releasing the information would “probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”10 When evaluating whether the Cambridge Police Department has waived the investigatory privilege, a court will examine how much information the Department has already disclosed publicly.

If a court determines that the Department previously disclosed a substantial amount of information, a court will likely deem the Department to have waived the investigatory privilege.11

In addition to the constitutional right to privacy, everyone in the Commonwealth has a broadly defined right to privacy against “unreasonable, substantial or serious interference” with their privacy.12,13 When evaluating whether the Cambridge Police Department has violated an involved officer’s privacy rights, a