By Christian Sheckler | South Bend Tribune
Jan. 20, 2020
A set of proposed disciplinary guidelines for the South Bend Police Department has support from some community activists and the local police union in part because they say the punishment for violations by officers has sometimes seemed arbitrary or inconsistent over the years.
Members of the group Faith in Indiana have pointed to cases in which officers received seemingly light punishment despite previous disciplinary records. The union has said different police chiefs have levied varying penalties for the same types of violations.
In December, as former mayor Pete Buttigieg’s tenure came to an end, the city administration proposed a disciplinary “matrix” that would group types of violations in categories and assign a range of advisory punishments for each category, from minor mistakes to severe misconduct. Supporters of the plan say the guidelines would benefit both the public and officers by creating clear expectations and more predictability in discipline.
But, in fact, it’s almost impossible to know how South Bend police leaders have handled violations, or whether chiefs have, in reality, doled out inconsistent punishment. That’s because the city says it does not have records showing disciplinary actions on an annual basis. The unavailability of those records leaves the public and decision makers without historical data on disciplinary decision making, even as the city asks community members for input on the proposed new guidelines.
The public cannot, for example, review the past decade of police discipline to see if any officers have been found to have committed repeat violations. Nor can citizens review disciplinary decisions of multiple chiefs to see if they have levied consistent penalties for similar offenses.
Mayor James Mueller this week asked the city Board of Public Safety to table the proposal to allow more time for evaluation and community input. In an interview with The Tribune, Mueller said the lack of historical data on police discipline was among the reasons he delayed action on the new guidelines.
“I think it’s pretty clear that, especially as you go from different leadership in the department, that discipline has varied quite a bit,” Mueller said, “but we don’t have that data analysis to say how it varies.”
After the administration under Buttigieg proposed the disciplinary matrix, The Tribune requested records of all disciplinary actions against city police officers since 2010. The city denied the request, saying records of discipline in a given time frame are not kept in one place or sorted by date.
Instead, according to the city, the record of each disciplinary action exists only in the personnel file of the officer involved. To compile records of all discipline over a period of several years, someone would need to go through the file of every officer who has worked at the department in that period — a search of upward of 350 separate files.
A city attorney suggested a Tribune reporter could request a specific officer’s file to see disciplinary actions involving that officer. But many disciplinary actions never surface publicly, because the police chief has sole authority over any punishment of a five-day suspension or less, and those cases are not discussed in public meetings or listed on agendas.
That makes the very existence of low-level disciplinary actions unknown to the public, and the details of those cases shielded from scrutiny, even though Indiana law says an agency must disclose records of disciplinary actions that involve an unpaid suspension, no matter the length.
Indiana Public Access Counselor Luke Britt, a lawyer appointed by the governor to help resolve disputes over public information, said the city is not violating the law by keeping disciplinary records only in officers’ personnel files. But he also said the decentralized record keeping could make it more difficult for the public to exercise a right granted by state lawmakers.
“It’s in the statute for a reason that disciplinary actions up to and including those things are disclosable,” Britt said. “To the extent that they’re not, or they’re difficult to find, that generates some tension with the intent of the statute.”
How accessible a local government makes such records may not always come down to a question of legality, but to “their attitude about the public’s right to know,” said Steve Key, a lawyer and executive director of the Hoosier State Press Association.
“They can try to follow the letter of the law to the nth degree and make it as hard as possible for a citizen to get the information they have a right to,” Key said, “or they can recognize they’re the servant of the people and not the master, and an integral part of their duty is to provide information to the public. The legislature’s intent was for government to be transparent, and not opaque.”
Even without data on past discipline, local activists say there are known cases that signal flaws in police discipline.
Jorden Giger, an activist affiliated with Black Lives Matter, pointed to a 2012 case in which three officers received only written reprimands after hitting and using a Taser on a 17-year-old boy who they wrongly thought was a domestic battery suspect. The same three officers were later disciplined for a filmed stunt in which they pressured a convenience store clerk to try to swallow a tablespoon of cinnamon.
Giger said he is not surprised South Bend does not have historical data on disciplinary actions because the city has been slow to take other steps on police transparency. He pointed out the city has not established an independent civilian review board for police complaints, and even the matrix itself was proposed only after the fatal shooting of a black man, Eric Logan, by a white police officer in June.
“It’s not until now that we have a black man who was (killed) by a white police officer, we have a former mayor running for president, that now we have some movement around police accountability,” Giger said. “Given that we had an administration that was data driven, it seems like by this time we should have had that already worked out.”
J.B. Williams, a pastor and member of Faith in Indiana, said he is concerned that without access to broader data, the public cannot spot officers with problematic records before they emerge in high-profile incidents.
“Right now there is no clear transparency process. The data is not available,” he said. “Therefore, the repeated problems we’ve had will continue.”
Sgt. Harvey Mills, president of the local Fraternal Order of Police, did not respond to a call seeking comment. On Wednesday, he told the Board of Public Safety he agreed with the decision to temporarily table the disciplinary matrix to allow more time for input, though the union continues to support the idea.
Beyond the lack of data, Mueller said he also did not believe the city had “engaged” community members enough to collect feedback on the plan. The city has set a community meeting for Feb. 4 to discuss the disciplinary guidelines.
Meanwhile, the mayor said, he plans to have staffers compile a database of historical disciplinary actions from officers’ files.
In regards the discipline matrix, it would be nice to see what’s been the approach, what’s the average and range of outcomes historically,” he said. “Our inability to answer it internally raises questions — how does this compare to what we’ve been doing?”