Court of Special Appeals decision
Legal documents and more
***MEDIA RELEASE***
Full Court of Special Appeals Rules in Favor of Right to
Public Information Regarding Documents in NAACP/ACLU
“Driving While Black” Case
FOR IMMEDIATE RELEASE
February 2, 2010
CONTACT: Meredith Curtis, ACLU of Maryland, 410-889-8555; media@aclu-md.org
ANNAPOLIS, MD – Ruling in favor of the right of the public to access important government records pertaining to Maryland State Police (MSP) handling of racial profiling complaints, Maryland’s Court of Special Appeals – in a rare decision issued by the full court – today ordered the state police to produce investigatory records concerning how such complaints were resolved. The ruling overturns part of a decision by the Circuit Court for Baltimore County that concluded the records withheld by MSP were “personnel records” under the Maryland Public Information Act (MPIA), and upholds the Circuit Court's decision requiring the MSP to disclose the records. Today, the appeals court said, “The common sense meaning of the term ‘personnel record[s] of an individual’ would not include investigative files of a police department concerning racial profiling.”
“The ruling handed down by the Court of Special Appeals today is a true victory for the Maryland State Conference NAACP, the ACLU, and for the citizens of Maryland,” said Gerald Stansbury, President of the Maryland State Conference of NAACP Branches. “There have been reports of racial profiling all over the country, and if this decision is upheld, it would set a precedent that can be used to combat racial profiling. This ruling will give us the ability to determine if and when reports and complaints of racial profiling are thoroughly investigated and handled appropriately.”
The ruling results from an unusual “en banc” sitting of the CSA last September in a lawsuit brought by the NAACP and the American Civil Liberties Union (ACLU) in which the MSP had been found to have violated the MPIA by improperly withholding documents that would show whether it has meaningfully investigated complaints of racial profiling in the wake of a federal court consent decree in the ACLU's “Driving While Black” litigation. Oral arguments were heard before a three-judge panel in the case on May 11, 2009, but on July 31 the Court decided to re-hear the appeal before all thirteen judges on the Court of Special Appeals. Such full-court hearings by the intermediate appellate court are extremely rare.
“This is not simply a victory for the NAACP. It is a victory for the principle of open government,” said Seth Rosenthal of the law firm Venable LLP. “The court correctly found that the law requires, rather than prohibits, the state police to disclose to the public exactly what it does to investigate complaints of racial profiling by its troopers.”
“Today, the Court of Special Appeals reinforced the fundamental right of the public to information that allows them to hold government agencies accountable and ensure that bad public policies, such as racial profiling, are addressed and not perpetuated,” said Deborah Jeon, Legal Director for the American Civil Liberties Union of Maryland.
“Despite ongoing efforts to combat it, there can be no denying that racial profiling by police continues to persist in communities across the nation,” said Reginald T. Shuford, senior staff attorney with the ACLU Racial Justice Program. “Hopefully today’s decision will set a powerful precedent for transparency that will enable any police department that illegally and unconstitutionally targets people of color to be held accountable.”
In 2003, the NAACP and the MSP entered into a Consent Decree in racial profiling litigation initiated in the early 1990s. There were continuing complaints from African-American motorists of racial profiling, and the data gathered since 1995 continued to show large disparities as between whites and non-whites in traffic stops and searches by the MSP. People of color were stopped and searched much more often, even though the MSP did not find drugs on them any more frequently than when searching whites.
A key part of the 2003 Consent Decree was that the MSP agreed to make the process more user-friendly for motorists to file racial profiling complaints and to thoroughly investigate all such complaints. This was important because many motorists had complained that they were
harassed, intimidated and "given the run around" when they tried to complain to the MSP about perceived racial profiling.
Unfortunately, since 2003, the racial disparities as to who is being searched by the MSP on Interstate 95 have persisted. The 2008 data shows that minorities were about 70% of those searched on I-95 (45% African American, 15% Hispanic and 9% other), with whites comprising 30% of those searched. These percentages are almost exactly the same as for 2002, the year prior to the 2003 Consent Decree.
Since 2003, approximately 100 official complaints alleging racial profiling have been filed by minority motorists. The MSP has confirmed that not a single one of these complaints has been sustained following the requisite internal investigation. Thus, since 2003, no MSP trooper has ever been found to have engaged in racial profiling, and no disciplinary action has ever been
taken against a trooper for racial profiling.
In February 2007, the NAACP, represented by Venable LLP and the ACLU, filed a request under the MPIA to obtain the investigative records created in connection with the racial profiling complaints filed since 2003. The NAACP asked for the records with all information identifying the motorists and the troopers redacted. The point was not to target particular troopers, but rather to see whether the MSP was truly investigating the complaints and taking seriously its responsibility to eliminate racial profiling by its troopers.
The MSP refused to turn over the documents, even in redacted form, saying that they were "personnel records" exempt from disclosure under the MPIA. In September 2007, the NAACP filed suit, and in June 2008, Baltimore County Circuit Court Judge Timothy Martin ruled that the records should be disclosed in redacted form, and that doing so would not violate the personnel records exemption of the MPIA. Rather than turn over the records, the MSP appealed the ruling. In its appeal, the Attorney General, on behalf of the MSP, took the position that the investigative records are "personnel records" exempt from disclosure and that they may never be disclosed – even in redacted form.
The Maryland State Conference of NAACP Branches is represented by pro bono attorneys Robert Wilkins, Seth Rosenthal, Brian Schwalb, Joeann Walker and Daniel Moylan from the law firm Venable, LLP, Deborah Jeon from the American Civil Liberties Union of Maryland, and Reginald Shuford of national ACLU’s Racial Justice Program.
More information on the ACLU Racial Justice Program's work on racial profiling can be
found at: www.aclu.org/racialjustice/racialprofiling/index.html