Using deadly force with a cloak of secrecy — in America

Did you know that some American lawmen can kill in the line of duty and keep their names secret?

These men — or women — can use deadly force and not face any publicity. They can take a life anonymously.

That’s true, even in this age of high scrutiny of police shootings. Even as groups like Black Lives Matter demand more accountability. Even as many in this country push to publicize not only the names of officers who use deadly force but also their images, especially dashcam and copcam video that is often generated when shootings occur.
So why the special treatment for some officers of the law?

They’re federal employees, that’s why. Different laws and policies apply to them.

U.S. Marshals often work side by side with local police but have more privacy protections than their partners in blue. The marshals can, and have, used deadly force and kept their names from newspapers, Web accounts and TV.

How? They rely on an exemption in the federal Freedom of Information Act, and a Marshals policy protecting those who use deadly force.

Nah, can’t be true, you say. Gotta be another urban myth, a liberal exaggeration.

Nope. I’ve seen this policy in action. I tried for months when I was a journalist to get the name of two deputy marshals who, along with county deputies, shot to death a 23-year-old, gun-wielding man in Missouri in 2009. I fought, with the newspaper’s help, for disclosure of the names by filing Freedom of Information requests and by writing about the secrecy.

Bizarrely, the names would have been quickly released had the shooters been county deputies or city police. Local police departments usually have policies that call for release of the names, based on a theory that full disclosure helps the public understand the reasons behind the use of deadly force.

Full disclosure can end speculation and rumor-mongering.
Any kind of secrecy can mask error, in my opinion.
The first roadblock we ran into in 2009 was a directive from the United States Marshals Service under the category “Shooting Incidents.”
It says: “The names of USMS personnel involved in a shooting are NEVER to be released to the news media at the district/field office level.” The capital letters for emphasis are contained in the directive. It goes on to say marshals’ names are released to local or county investigating agencies “with the understanding that they cannot release the names to the news media.”

That might seem reasonable if the goal of the Marshals Service was to release the names through marshals channels. That wasn’t the case, though. After first holding up the directive to block release, the marshals service then pointed to an exemption in the federal Freedom of Information Act, or FOIA.
That privacy exemption basically allows the government to close records that could create “an unwarranted invasion of personal privacy.” In this case, the government acted in line with a theory that still exists today in the marshals service.
The agency believes that when marshals do their jobs and do them well, they should not be subjected to publicity.
Of course, the crux of that thinking relies on the assumption that publicity is bad for the officer. The argument could be made, as is often done when lawmen and women receive awards, that their actions in the line of duty are heroic and deserve to be praised, publicly.
The secrecy also raises this nagging question: How can the public or news media monitor the conduct of deputy marshals if they don’t know their work history, their previous use of force or even their names.

As I mentioned, the case I watched was from 2009. I checked back with the marshals service late this month (March 2017) and was told there has been no change in policy or the directive to keep names secret.
The service still considers it sound to argue that, even though most police agencies release names of officers involved in shootings, the marshals deserve more protection.

Why should we relinquish our marshals’ rights simply because local and city police have not worked hard enough to protect theirs? That’s a tenet the marshals hold to tightly.

In the Missouri case, I have to admit that we did not fight all the way to the top to try to get the names. We were delayed by red tape, our readers expressed no outrage at the secrecy and we gave up after months of being stymied. We could have sued.

We might have won, but there are no guarantees. When a suit is filed, the marshals service has to convince a court that the need for privacy outweighs the public interest in names.
I should stress that we made our request before the wave of highly publicized controversial police shootings of recent years.

One official with the Reporters Committee for the Freedom of the Press believes the heightened public interest in police shootings — exhibited profoundly after the killing of Michael Brown in Ferguson, Missouri — could work against any Marshals’ argument for continued secrecy. The greater public interest could help sway a judge in today’s climate to release marshals names.

I couldn’t find any recent case to determine if the names of deputy marshals have surfaced in shootings that took place after 2009.

Unfortunately, I have to guess in our country of heavily armed civilians that a shooting will happen soon. And, unless marshals are found to have acted badly, or are prosecuted, their names will remain secret.

Unless someone fights in court to have them released.

Meanwhile, the names of local officers continue to be released and they seem to handle it well, especially when facts and circumstances support their use of deadly force.

In the case I watched, we still have no idea if the officers involved had shot anyone previously or since. That seems like bad policy in the land of the free, and the home of the brave.

Are these courageous public servants really afraid that publicity will harm them? Or, is the marshals service sticking to a policy that’s out of touch with progressive law enforcement in today’s America?

Author: David Iseman

Longtime newsguy. Retired. Tinkering with words. Lemme know what you think.

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