The incident that gave rise to Mitchell v. City of Cedar Rapids, recently decided by the Iowa Supreme Court, should sound familiar by now. In November 2016, a Cedar Rapids white police officer, Lucas Jones, stopped a black motorist, Jerime Mitchell, for a minor traffic violation. When Mitchell attempted to drive away, Jones shot him, leaving Mitchell paralyzed from the neck down. Jones had a record of questionable use of deadly force; a year before shooting Mitchell, Jones fatally shot Jonathan Gossman—also in the aftermath of a traffic stop.
In February 2017, Mitchell and his wife sued Jones and the City of Cedar Rapids and, in the course of discovery, sought the police department’s investigative reports into both shootings. But the defendants refused to produce the reports without a protective order, arguing that the state’s public disclosure law indicated that the reports were confidential. When the state district court denied the protective order, the defendants appealed to the Iowa Supreme Court. The Iowa Supreme Court affirmed the district court’s order but, in doing so, unnecessarily based its decision in the text of the state’s public disclosure law, limiting the public’s access to information crucial to police accountability.
At the Iowa Supreme Court, the Mitchells argued that the reports were not confidential because the investigation was not “ongoing” as that word is used in the public disclosure law. Although the court rejected this categorical rule, it reasoned that §22.7(5) of the Iowa Code, which governs public disclosure of materials from a police investigation, excludes reports confined to the specific facts and circumstances surrounding a crime or incident—just like the reports that the Mitchells sought in this case. Only then did the Court apply a balancing test for §22.7(5) disclosures, holding that, here, the interests weighed in favor of public disclosure. In other words, the Mitchells would get discovery without a protective order.
Justice Appel concurred specially, arguing that the court should not give “conclusive weight to an open records exemption in deciding on a protective order.”
Despite the differences between a public records request and civil discovery, the starting point for the Iowa Supreme Court’s decision was the state’s public disclosure law. Rather than determining first and foremost whether the defendant had made a showing of good cause for a protective order through “a particular and specific demonstration of fact,” as the Iowa courts do in a typical civil suit, the court presumed good cause for any record protected from public disclosure.
Not only was this presumption unnecessary but it also limits litigation as a tool for police accountability. Treating the open records law as dispositive in a protective order determination ignores the difference in position between someone making a public records request and a party in litigation. The former is merely a curious citizen, while the latter is a party alleging that the government has caused significant injury. When the government has committed a specific wrong, the public interest in free and full information is necessarily stronger than it might be ordinarily. Moreover, as the special concurrence points out, under the Rules of Civil Procedure and Iowa precedent, the fact of a lawsuit not only grants rights to the litigant but also strongly favors full access to information for the public. Because Iowa’s public disclosure law was not “intended to limit the discovery rights of litigants in cases involving governmental entities,” there is no reason to think that the public disclosure law should be dispositive in determining a protective order.
Though the special concurrence viewed “the open records law as informing—but not controlling” the majority opinion, the majority’s emphasis on the law will undoubtedly be instructive to lower courts. This outcome is concerning not just because it is contrary to the legal system’s values, but more so because of the consequences it will have specifically for police accountability. After Mitchell, though the public will have access to the investigative reports produced in the immediate aftermath of a crime or incident, it’s unlikely that the same will be true, for example, of police disciplinary records produced in the course of discovery. Under §22.7(11) of the Iowa Code, personnel records are protected from public disclosure. Treating that provision as dispositive, or even as the starting point for the inquiry, as the court did in Mitchell, makes it almost certain that records of misconduct or discipline will be shielded from public view, despite the traditional presumption in favor of public access to discovery.
The reality is that police departments continue to hire or refuse to fire officers with records of gross misconduct and inappropriate use of force. Often, these officers are the ones responsible for unjustified police violence and killings. In general, the public is prevented from accessing these records precisely because of public disclosure exemptions. But in the case of a police shooting and a subsequent lawsuit, the public interest in disclosure is heightened. Because of these heightened interests, exemption from public disclosure laws should not replace the interest balancing test that courts typically engage in when determining a protective order. But after Mitchell, courts are encouraged to do just that. Without a specific legislative carve out—like the one in §22.7(5) for reports only containing the facts and circumstances surrounding an incident—the presumption against disclosure that the Iowa Supreme Court implicitly articulated in Mitchell will prevent the public from learning of instances of repeat misconduct and abuse.
Revealing departments’ tolerance of officer misconduct is an important tool for police accountability. By ensuring that the public will not have access to misconduct records—even after an incident serious enough to warrant a lawsuit against the officer and the city—the court reassured Iowa police departments that they will not be held responsible for the irreparable harm their officers cause.