News Analysis — Secret Police Records, Secret Arrests, Secret Charges: Brown University police make every effort to escape public scrutiny and accountability

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his peers or by the law of the land.

— Magna Carta, 1215

Brown University and its police department have consistently refused to respond to records requests by Motif related to arrests and court charges filed, reflecting their view that as a private institution they are not subject to laws requiring public access. Failure to respond when required is per se violation of law.

On Nov 8, 2023, a group of 20 students was arrested at a sit-in, pro-Palestine protest; according to the Brown Daily Herald, all were members of Jews for Ceasefire Now. Those charges were dropped Nov 27 after the unrelated shooting of three Palestinian Arabs in Vermont, one of them a Brown student; “We want to reduce tensions on campus, and certainly the attack on the students has helped to elevate tensions,” Brown President Christina Paxson was quoted as saying in explaining her decision. On Dec 11, 41 other students were arrested in a similar sit-in protest, but Brown refused to drop these charges. The disparate treatment of the 20 Jewish students was criticized, according to the Brown Daily Herald, by one of those arrested as part of the separate group, Brown Divest Coalition, on Dec 11: “Isabella Garo… noted that the cohort of 41 students is more racially diverse than the first 20 students who were arrested. ‘It’s also concerning that we have one group [that] did not have to navigate the system and another group that is much more racially diverse is still being subjected to the system,’ she said.” This claim, called “disingenuous” by a university spokesman, makes the identity of the arrestees newsworthy in and of itself.

Brown Police charged the Dec 11 arrestees under a special provision of state law that makes willful trespass in school buildings a non-criminal violation (§11-44-26.1), with roughly the severity of a traffic ticket, for which a first offense carries a fine of not less than $50 nor more than $500, with no possibility of jail time. This is distinct from ordinary willful trespass (§11-44-26), a criminal misdemeanor with a fine of up to $1,000 and one year in prison, or both. The clear and obvious intent of this statutory exception is to offer leniency in cases of minor misbehavior by young school students, without giving them criminal records.

On May 14, Judge Nicholas Parrillo of the 6th Division of the state District Court, over the objection of the Providence city solicitor, who was prosecuting, chose to record a “not-guilty filing” for all 41 defendants in the Dec 11 protest. This is a common practice in RI (although usually by agreement between prosecution and defense) for minor offenses, especially for first offenders: Having entered not-guilty pleas, rather than move to trial the case is postponed for a time, here six months, at the end of which the charges will be dismissed entirely if the defendant has remained of good behavior, including not being arrested for any other offense.

One of the most fundamental protections against government abuse is the right to a public trial, guaranteed in American law by the Sixth Amendment. If police could make arrests and file charges while keeping secret the identity of those arrested and the nature of the charges, it would be possible to make people “disappear.” Since the Rome Statute in 2002, enforced disappearance is formally a crime against humanity under International Humanitarian Law.

When the American constitutional framers wrote and ratified the Sixth Amendment in 1791, they had very much in mind the English Civil War of the 1640s. Leading up to that conflict, the pre-eminent legal scholar of his time, Sir Edward Coke, argued that the people had rights protected from the government and even from the king, recognized since Magna Carta became part of the English Constitution. Coke was a mentor who greatly influenced the thinking of one of his law clerks, Roger Williams, later founder of Rhode Island. Coke was cited as a legal authority by John Adams, Thomas Jefferson, and James Madison.

The US Supreme Court has clearly recognized that the public has a right of access to trials — Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) — grounding that right in a combination of First Amendment freedom of the press and Fourteenth Amendment due process of law, although declining to extend to the public the Sixth Amendment protection of defendants. RI enacted the Access to Public Records Act (APRA) to provide specific procedures to facilitate the way the public obtains records, such as requiring that requests be answered within ten business days (§38-2-3(e)). RI law has a specific provision that police arrest records be released within 48 hours of a request (or 72 hours if the request is made on a weekend or holiday) (§38-2-3.2), including full name, year of birth, and nature of the charges; there are no exceptions and all adult arrest records are public.

In the days before everything was on the web, it was the traditional job of a junior reporter at a newspaper to visit each of the local police departments to obtain the daily log, detailing all of the complaints that came in regardless of whether arrests or charges resulted, and these were among the most widely read items, so readers could know what was happening in their community. Today, most police departments publish their daily log directly to the web, and larger cities (such as Providence) even publish statistical tables.

By its own terms, APRA applies not only to ordinary government departments and agencies, but to “any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency” (§38-2-2). Specifically, when the Brown University Police Department carries out a public function, including making arrests or filing criminal charges, under the plain language of the statute it is subject to APRA regardless of the general status of Brown University as a private entity. Like every other police department, it is required to disclose arrest reports, charging documents, evidence, mug shots, and all other relevant records that are of an inherently public character.

Because the Brown Police called for assistance in processing the first batch of arrests, Motif was able to obtain the list of arrestees through the Providence Police. (The City of Providence generally, and the Providence Police specifically, typically scrupulously comply with APRA.) For the second batch of arrests, Motif made a formal request to Providence for “all records, including names and photographs if available, related to arrests at Brown University on or about Dec 11 reportedly of approximately 41 students… The arrestees may have been arrested by the Brown University Police Department but were reportedly ‘processed’ by the Providence Police and, therefore, any relevant records in the possession of the Providence Police are subject to APRA regardless of the arresting agency.”

Providence Police denied any direct knowledge of the Dec 11 arrests: “The City of Providence does not maintain documents responsive to this request.… To aid in transparency, here is a bit of explanation: when we couldn’t find anything for the address of University Hall, we looked to all PPD call logs for the whole day. I’ve included a redacted excerpt from the hour before and after news reports indicated the incident happened. Nothing there (and nothing elsewhere) indicated anything happening near University Hall. The Waterman Street address at 4:30pm was in the 200 block, far to the east of campus. We then went to our communications department to see if there were any calls, and we didn’t have anything for any of the addresses we could discern for University Hall.” Our formal APRA request was then closed, and we accepted the response; it made little sense to appeal an explicit finding of an absence of records.

On Apr 29, a post on X (formerly Twitter) made us aware that the APRA response, although apparently in good faith, had to be wrong. We reopened our APRA request: “The City Council has publicly stated that the City of Providence is the charging agency of record and its solicitor is prosecuting the case, so it is inconceivable that there are no records responsive to [the] request as claimed.” The city investigated and quickly admitted their error, promising to correct it and provide the records as soon as they could:

Apologies for the delay in responding. The last month has brought greater clarity. While Public Safety apparently had no records of these arrests, the Law Department has indeed received copies of the arrest reports from Brown PD for prosecution.

I am somewhat unclear, but my understanding is that Brown Police did the “processing” of the arrested individuals, which led to our confusion here. (This is notwithstanding the reported presence of PPD officers at the site.) This is why Public Safety had no records of the arrest.

Long story short, though, we do now have the reports. However, they are hard-copies currently in the City’s case files at District Court. We are aiming to retrieve them to our office so we can scan them. Presumably Brown PD has electronic versions of them, but we express no opinion as to whether the Brown PD is subject to the APRA or whether you would be entitled to the reports from them.

On May 10, we received the records from Providence, with only the usual private information redacted, such as Social Security numbers and cellular telephone numbers. It is troubling in the extreme that it took literally five months for us to obtain records of police arrests that, under state law, are supposed to be made available within 48 hours: We could not get the records from Providence city government because they did not know they had them, we only found out they did by chance from a public tweet, and they found out from us.

List of arrestees at Brown University, Nov 8, 2023

(last name, first name)

List of arrestees at Brown University, Dec 11, 2023

(last name, first name, birth year)

Arguing that the Brown University Police Department is subject to APRA and their failure to acknowledge or reply to our request violated their obligations under the law, I filed a formal complaint with the RI Office of the Attorney General (RIAG), the primary agency responsible for enforcing open government laws including APRA, which was docketed on May 8 and served against the general counsel of Brown University on May 10. Aside from the issue of strict compliance with the law there is a practical concern that, although we have the records that Brown chose to supply to Providence for purposes of prosecution, we have no way of knowing whether additional records may exist that should be subject to public disclosure.

On May 15, Brown University General Counsel Ellen Goldgeier, in answer to the complaint, asserted that police officers in their Department of Public Safety are “Special Police for Private Institutions” deriving their authority from Chapter §12-2.1 of the RI General Laws, who therefore under §12-2.1-2 have authority strictly limited “…in and upon the lands and buildings of the institution by which he or she is employed, and upon streets and highways immediately adjacent to those lands…” (Goldgeier retired as of Jun 30 and was succeeded by Sandhya L. Iyer as general counsel in August.)

On May 20, in reply to Brown, I argued that, on the contrary, “as noted in [the] original complaint, ‘Brown University police officers’ are explicitly and specifically named as ‘peace officers’ under §12-7-21(9) and therefore have the full powers of police officers anywhere and everywhere in the state, just like all other sworn police officers employed by an ordinary municipality… The power of all ‘peace officers’ to make arrests everywhere in the state is granted by numerous broadly worded statutes, for example §12-7-3 [misdemeanors] and §12-7-4 [felonies].” Additional statutes reinforce the broad powers of Brown University police officers, such as §11-47-9 that exempts “other duly appointed law enforcement officers” from permit requirements to carry concealed firearms everywhere within the state in their personal capacity. Per the reply to Brown, “Regardless of the statute (or statutes) from which Brown police derive their authority, the act of making arrests and filing charges is still an inherently public act that makes them, when acting in that capacity, subject to APRA.”

Brown argued that it is a private institution “and not a public body,” precisely the point made in the original complaint that the plain language of APRA (§38-2-2) explicitly makes it applicable to “any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency” and therefore the reply to Brown said “the relevant question is not whether Brown is private, but rather whether police making arrests and filing criminal charges are carrying out inherently and exclusively public functions.” As my reply to Brown stated, 

To hold otherwise would allow Brown and any other private party similarly situated to make arrests in secret with no public accountability or oversight whatsoever. While it is not contended here that Brown has ever acted in a manner recalling the gulags of the Soviet Union or the desaparecidos of South American dictatorships, that is nevertheless exactly what they are claiming the power to do. Hypothetically, if at some future time a police officer employed by Brown University killed someone, along the lines of the widely publicized police killings of George Floyd, Breonna Taylor, or Botham Jean, the claimed immunity from APRA could allow Brown to shield not only the circumstances of the incident but even its mere existence from public view.

The dispute is now awaiting adjudication by the RIAG: If their ruling goes against Brown, it can be appealed to the Superior Court and eventually to the Supreme Court, which could drag on for years. 

While much of this dissonance may seem to revolve around obscure definitions, there are very practical ramifications. The issue is of enormous public importance: Can sworn police officers, carrying badges and guns, entitled to act as peace officers against anyone anywhere in the state, regardless of the boundaries of their employer, make arrests and file charges in court while keeping all records of their actions, including the identities of those they physically detain, completely secret?