(TNS) — The Borough of Carlisle, Pa., could release more information about use of force by officers, or about the racial makeup of traffic stops.

Or, it could not.

As mundane as it sounds, the critical distinction surrounding recent discussions on police transparency is the old “can’t-versus-won’t” issue, according to government officials and activists. And there isn’t a unified sense of what is worth releasing or withholding.

In the wake of the death of George Floyd on May 25 at the hands of police in Minneapolis, and the ensuing protests against police brutality nationwide, a recurring element of activists’ demands for reform is that police agencies disclose more information about their use of force and the racial demographics of those with whom they interact.

Those demands have been voiced locally, with both the Cumberland County government and, most recently, with the Borough of Carlisle.

From a legal standpoint, there isn’t a clear yes-or-no answer to activists’ demands. But as has been pointed out at several public meetings in the past few weeks, there is a difference between the technicalities of the law and the moral imperatives that may be involved.

“The right thing to do is to create avenues to gather this information, even if the law doesn’t mandate it,” said Chris Burbank, vice president of Law Enforcement Strategy at the Center for Policing Equity, which advocates for better data collection in the justice system.

It's not that the volume of force used has changed dramatically over time, Burbank said, but rather that the public has demanded more accountability and justification.

"Why are we having that [use of force] encounter when we cannot demonstrate that the act which brought us together is doing anything to make society better? You've got nothing if you don't have the data," Burbank said, which is why his organization works to help police departments track when, where, and why they are using force in order to identify disparate outcomes.

“If every agency in the country were to do that, they would be miles ahead in terms of trust and confidence in law enforcement,” said Burbank, the former police chief of Salt Lake City.

Use-Of-Force Reports

Carlisle presents an example of some of the institutional constraints on doing so.

With only 32 officers, Carlisle Police Chief Taro Landis said it’s not difficult for him to keep tabs on his staff, and questioned if broader use-of-force statistics would be valuable.

“Any kind of statistics you put out can be misconstrued,” Landis said. “Why would we do that? Why would we look for another thing for people to look at us for, and justify what we do and don’t do, and criticize?”

His fear, Landis said, is that any disparities in the use of force — particularly racial disparities — will be used to accuse individual officers of malice, rather than taking into account a wider variety of circumstances, particularly socio-economic factors.

“Those are the things, in reality, we should be looking at, but we look at the low-hanging fruit,” said Landis, who is Black.

The Carlisle Borough Police Department keeps a record on each use-of-force incident, which Landis said he reviews vigorously on a case-by-case basis.

“Just my very presence as an officer in uniform is a use of force,” Landis said. “Anything other than that is going to have to be documented. If I put hands on, point a gun, point a Taser, point a dog, everything has to be documented.”

The Carlisle Police Department doesn’t track those incidents in a statistical sense in the way data proponents like Burbank would like. That would be where a department can track how often certain calls escalate, what types of force were used in those calls, and deduce any patterns as to location, race or other factors.

The uses of force that create unbalanced outcomes, Burbank said, aren't sensational incidents like armed robberies, homicides, and the like; they're typically low-level encounters that go awry.

“The majority start out as an encounter with a homeless man, an individual who violated a traffic law, was jaywalking, and then somehow the situation devolves,” Burbank said. “We want to see the sorts of things that generate use of force and any disparities that may be involved there.”

Landis said he didn't know if his department had the administrative staff to compile such numbers, but if the borough council decided it wanted those statistics compiled, it could be figured out.

“It’s above my pay grade. If they say do it, we do it,” Landis said. “I don’t see how it would be helpful, but I leave that up to the borough council.”

Hypothetically, the borough can release whatever information it wants regarding the use of force, be it statistical breakdowns or even specific incident reports.

Some argue the latter may not always be wise, given legal liability concerns, but it isn’t disallowed — something that hasn’t always been clear in public discussions on the matter.

Local and State Statutes

In the weeks following Floyd's death and the ensuing protests across the nation and in Carlisle for racial justice reform and against police brutality, Carlisle Borough issued a series of written responses to questions from concerned residents.

In a set of responses issued July 20, the borough wrote that “use-of-force reports fall under various exemptions found in the Right-to-Know statute.”

In a second set of responses issued July 25, when another person asked if the borough had a database of use-of-force actions, the borough wrote that “at this time records retained by the police department on the issue of deadly force are not available to the public under state law.”

This isn’t a statutory prohibition, however, but rather a concern with civil liability.

“I’m not aware of any statutory prohibition against it,” said Erik Arneson, director of the Pennsylvania Office of Open Records, regarding the release of use-of-force reports.

Pennsylvania’s Right-to-Know Law provides some fairly broad exemptions that agencies can choose to exercise, Arneson said. This includes the ability of police to decline to disclose information that could compromise an investigation or hinder a department’s ability to secure an arrest.

“The short answer here is that it depends on exactly what the records are,” Arneson said. “We have ruled that some use-of-force records can be withheld. We’ve also ordered some use-of-force records to be released.”

Ultimately, exercising certain clauses of the Right-to-Know law in order to withhold certain information is a choice of the government body that oversees the agency that holds the records.

“If you have the option, in the end it’s a policy decision as to whether you release it or not. Whether that’s good policy, that’s up to people to decide,” Arneson said.

In an email to The Sentinel, Carlisle Borough Manger Susan Armstrong said the borough’s response about use-of-force disclosures was predicated on the criminal investigation exemptions found in the Right-to-Know law.

Asked about the release of statistical data about different uses of force and their frequency, “there is no prohibition against releasing that information, if a police department keeps a record of that information,” Armstrong wrote, but that “the more detailed information about the incident giving rise to the use of force, however, would most likely implicate the various exceptions under the criminal investigation provisions.”

This doesn’t mean the borough couldn’t still release the information, even though it has the legal option to withhold it. But the issue — and the reason the borough has said a change in state law would need to occur to release use-of-force reports — is a concern about releasing information and then facing civil suits from parties who claim they have been harmed by the choice to release it.

Pennsylvania has statutory standards within state law regarding personnel files and employment records, and employees' expectations of privacy. An officer's personal information as a municipal employee, if disclosed in an un-redacted use-of-force report, could create a conflict.

“If we disclose personnel information, we’d need some immunity to securely do that,” said Carlisle Deputy Mayor Sean Shultz, who is a municipal attorney. “There’s no statutory prohibition against release, but you would need statutory immunity to make a municipality comfortable releasing that information.”

Landis, however, said he would be more comfortable with the inverse — while he’s reluctant to put out statistics that may be misconstrued, he said he’s perfectly comfortable discussing specific incidents with concerned residents, as long as names are kept out of it.

“Come in and talk about, I’ll give you our whole philosophy,” Landis said. “I’ll show you blacked-out use-of-force reports.”

What he doesn’t want, Landis said, is for such information to be shared without cause or without a specific issue in mind, or for officers to feel like they’re being targeted every time they do their job, and then become reluctant to self-report their use of force.

“The more we tinker with this on one end, officers just stop reporting it on the other end,” Landis said. “I’m not saying that would happen here, but in general that’s the concern.”

Racial Data

Landis has already provided some statistical breakdowns that include race data. In the published answers to residents' questions, Carlisle Borough provided arrest numbers, by race, going back several years.

That data table shows that Black people are arrested at a proportionally higher rate in Carlisle than white people — for instance, half of the 34 arrests in 2019 for possession of small amounts of marijuana were of Blacks, despite only 7.6% of Carlisle residents being Black, and another 4.7% mixed-race, according to the U.S. Census.

Half of 2019’s criminal trespassing arrests in Carlisle were also leveled at Black people, as were 43% of disorderly conduct charges, according to the data released by the borough.

But Landis said he is confident that his officers aren't the cause of the disparity. The department doesn't use quotas, and there's no incentive for officers to be racially biased in order to boost their numbers.

“We don’t give anybody a toaster for making more arrests,” Landis said. “You drive out of the gates and stuff just comes at you."

Burbank said that, in an ideal world, the data available would be even more granular, including not just arrests but also the nature of the initial call, use of force and other factors. This could also be tracked not just for arrests but also for summary offenses, including traffic stops.

But the collection is “all over the map,” Burbank said, given that few states or localities have concrete requirements for what data police agencies collect. Most collect only top-line arrests that must be reported to the FBI under federal funding laws.

The Pennsylvania State Police are a case in point. The agency faced criticism recently following media reports that the agency stopped collecting race data on traffic stops in 2012.

There is no legal requirement that the State Police record such data; the collection was initially part of a 2002-03 study, in partnership with the University of Cincinnati, which attempted to identify any racial bias in troopers’ traffic citation patterns, spokesman Ryan Tarkowski told The Sentinel.

The State Police continued to collect the information on its own volition for several years after the formal study, until stopping the program in 2012, but is now working to start collecting the data again, Tarkowski said.

“We hoped to have it started back up by now, but COVID-19 kind of gummed that up,” Tarkowski said, adding that race data is now expected to go back into the State Police traffic database in the first quarter of 2021.

Carlisle’s e-ticketing system does record race, Landis said, even though there is no requirement from the Administrative Office of Pennsylvania Courts that race be on citation forms.

But at the end of the day, Landis questioned if this was worth the administrative effort to pro-actively track race data, given the small size of the borough police department, and his ability to personally oversee his staff.

"People ask ‘how do you know what your cops are doing?’" Landis said. "I can drive around and see them.”

©2020 The Sentinel (Carlisle, Pa.) Distributed by Tribune Content Agency, LLC.