Texas Enacts Secret Police Database that Chills First-Amendment Protected Speech on September 1, 2001

By Scott Henson

Director, Police Accountability Project, ACLU of Texas

When the Texas Legislature hits Austin, for a few scant months the term “Big Brother” takes on larger meaning than just part of the name of Janis Joplin’s old backup band. This spring House Bill 3149 by Representative Ray Allen R-Grand Prairie again pushed boundaries of Constitutional propriety, authorizing a secret statewide database that’s the equivalent of a police enemies list, with no notification for people included in it.

Both the Legislature and the Governor approved HB 3149, which creates a secret database of non-criminal “threats” against Texas police officers. The bill went into effect September 1, 2001. Virtually every conceivable “threat” against police officers already is a crime, so in reality this bill includes statements which by definition are protected speech under the First Amendment.

This creates a “chilling effect” on criticism of the police and of government in general that the ACLU believes is unconstitutional.

The new law has many other problems. For starters, there’s no definition of the word "threat," or any standard for what information may be included in the database. Police officers individually make this determination on a case by case basis. A threat could include a word thrown in anger, a gesture, or any other retort that an officer or another person decided to report.

Because the information reported to the database remains a secret, no one will ever know if the "threats" reported and tracked truly constitute a public menace, or if this database is an enemies list and an infringement on basic freedoms.

Unlike the existing Criminal Street Gang database, HB 3149 contains no standards of evidence that would ensure the veracity of the information. The Criminal Street Gang database law requires at least two separate pieces of evidence from a list of possible indicators that a person is in a street gang.

HB 3149 does not even require that reports actually come from the police offices themselves. News of "threats" may come from uncorroborated third parties, though ACLU criticisms resulted in a ban on anonymous tips in the database.

Even worse, misinformation in the database might make citizen interactions with police more highly charged than they are today. A police officer who believes that a particular person made a threat might be more likely to assume the worst when the person reaches for a driver’s license, car registration or insurance. That makes it all the more critical that such a database contains rigorous standards for what non-criminal statements may be included.

Finally, to add insult to injury, if a police officer hurts someone based on false information in this database, this law waives all officer or agency liability for those acts. If DPS or a police department disseminates false information, then that information results in an overreaction by one or more police officers, HB 3149 says neither the officer nor the department will be liable for acts relating to any use of that information.

Surely that’s not a just outcome.

DPS rulemaking will have a lot to say about just how out of hand this new database will become. As it stands, it seems ripe for abuse.

Janis Joplin had a great band, but that’s the only place we need Big Brother in Texas.

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