NYCLA CRLC CJS repeal 50-a letter FINAL

 

Governor Andrew Cuomo

New York State Capitol

State Street

Albany, New York 12224

 

June 9, 2020

 

Re: NYCLA Joint Committee Statement on Repealing Civil Rights Law 50-a

Dear Governor Cuomo,

 

In response to protests for police accountability following the May 25, 2020 killing of George Floyd by former Minneapolis police officer Derek Chauvin, Governor Andrew Cuomo announced the “Say Their Name” reform agenda, in which he calls for “transparency of prior disciplinary records of law enforcement officers by reforming 50-a of the civil rights law.”

 

On June 9, 2020, the NYS legislature passed Senate Bill S8496 / Assembly Bill A10611, which repeals CRL § 50-a and amends Sections 86, 87 and 89 of the Public Officers Law.

 

The New York County Lawyers Association’s Civil Rights & Liberties Committee and Criminal Justice Section (the “Committees”) believe the amendments to Sections 86, 87 and 89 of the Public Officers Law are unnecessary and that the legislature should have passed Senate Bill S3695 / Assembly Bill A2513, which would have simply repealed CRL 50-a.

 

Nevertheless, we urge Governor Cuomo to sign Senate Bill S8496 / Assembly Bill A10611 into law, as it significantly advances law enforcement transparency and accountability.

A. Six years after NYPD Officer Daniel Pantaleo killed Eric Garner, police disciplinary records are still shrouded in secrecy because of CRL 50-a.

 

The death of George Floyd and the ensuing nationwide protests are reminiscent of the July 17, 2014 death of Eric Garner. In the bystander video of Mr. Garner’s death, he can be heard pleading, “I can’t breathe” 11 times after Pantaleo placed him in an unlawful chokehold and pulled him to the ground, while other officers handcuffed him.

Eerily, Minnesota Police Officer Chauvin kept his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds, during which time he repeatedly stated, “I can’t breathe.”

Yet, nearly six years after Pantaleo killed Mr. Garner, police disciplinary records in New York remain shrouded in secrecy thanks to CRL 50-a, which makes confidential most law enforcement and correctional officer “personnel records used to evaluate performance toward continued employment or promotion.”

Because of CRL 50-a, Pantaleo’s misconduct history was shielded from the public. WNYC reporter Robert Lewis has described Section 50-a as “a huge obstacle” in reporting about Pantaleo’s killing of Mr. Garner:

“After the death of Eric Garner a lot of people, including me, wanted to know about the officer involved in the incident. Did he have a history of using excessive force? Had he been disciplined before? Should he have been on the street? But those questions were virtually impossible to answer in large part because of that law … Aggregate data is helpful. But a deeper analysis and examination of a system is often only possible if the public can examine the disciplinary history of specific officers.”

 

(Daniel Denvir, New York’s police secrecy law: de Blasio fights to keep NYPD abuse records from the public, Salon (June 29, 2016), https://www.salon.com/2016/06/29/new_yorks_police_secrecy_law_de_blasio_backs_nypd_to_keep_misconduct_records_from_the_public/).

 

In February 2015, the Legal Aid Society filed a lawsuit against the Civilian Complaint Review Board after they refused to provide a summary of Pantaleo’s record, limited to information like the number of substantiated complaints against him and disciplinary action taken, in response to a freedom of information request.

“We simply want to know the most minimal information about whether or not Officer Pantaleo was the subject of civilian complaints and to what extent the city’s mechanisms for discipline responded, or failed to respond, to those complaints prior to Mr. Garner’s death,” Legal Aid Society attorney Cynthia Conti-Cook wrote in a court filing.

In a March 30, 2017 ruling, the Appellate Division, First Department held that the records constituted “personnel records” within the meaning of Section 50-a and were exempt from disclosure under FOIL. (Luongo v Records Access Officer, Civilian Complaint Review Bd., 51 N.Y.S.3d 46, 56 [1st Dept. 2017]). Notably, however, just before the First Department ruling, a CCRB staff member leaked Pantaleo’s complaint history to the press. (Carimah Townes and Jack Jenkins, EXCLUSIVE DOCUMENTS: The disturbing secret history of the NYPD officer who killed Eric Garner, THINKPROGRESS [Mar. 21, 2017], https://archive.thinkprogress.org/daniel-pantaleo-records-75833e6168f3/). The records showed that Pantaleo had four prior substantiated complaints for abusive stops and searches. (Id.). Importantly, the leak showed that “the CCRB pushed for the harshest penalties it has the authority to recommend for all four substantiated allegations” but that “the NYPD, which is not required to heed the CCRB’s recommendations, imposed the weakest disciplinary action” for two violations arising from a 2011 incident, and a modified penalty for two violations arising from a 2012 incident. (Id.). The CCRB leak also showed that Pantaleo was one of the 1,750 NYPD officers (4.9% of the force) who has had eight or more complaints, and one of only 738 officers (2%) who had two or more substantiated allegations. (Id.). The leak illustrated the exact problem that the public speculated: Pantaleo had a significant misconduct history but was never adequately disciplined.

B. CRL 50-a prevents access to data that is necessary to understand department-wide policies and practices, which is necessary to implement systemic reforms.

 

Instead, the leaked Pantaleo records demonstrate that CRL 50-a functions to impede analysis of police officers’ complaint and disciplinary histories, which is necessary to understand problematic departmental policies and practices and to implement systemic reforms.

For example, in December 2015, in Klaven v. Chicago, 7 N.E.3d (2014), an Illinois appeals court ruled that decades of Chicago police disciplinary records had to be released under the state’s Freedom of Information Act. The court rejected the arguments of the Fraternal Order of Police, which represents Chicago’s rank-and-file officers, which had sued in 2014 to block the records from being released.

Analysis of the records have increased transparency of police misconduct and accountability. Researchers at the University of Chicago conducted a comprehensive analysis of the complaint histories and personnel records, which allowed them to accurately predict which officers will engage in future misconduct incidents. (Rozema, K., and M. Schanzenbach, Forthcoming, Good cop, bad cop: Using civilian allegations to predict police misconduct, AMERICAN ECONOMIC JOURNAL: ECONOMIC POLICY [August 2018]). The research showed that just one to five percent of Chicago Police Officers were involved in most of the City’s police misconduct cases. The research methodology linked personnel data from individual police officers with a dataset of 50,000 civilian allegations, 28,000 internal allegations, and 5,000 off duty allegations of police misconduct from 2002–14. The researchers also examined lawsuit and payout data. Id. The study concluded that the worst five percent of officers in terms of number of civilian allegations were much more likely to have lawsuits, supervisor allegations, and off-duty misconduct. Id. Thus, the authors conclude that civilian misconduct allegations accurately predict whether an officer will repeatedly commit serious misconduct in the future—and that a significant amount of the total misconduct could be prevented by imposing greater supervision and discipline on a small number of the worst officers. Id.

This research demonstrates that public access to civilian complaint and police personnel records is critical to implementing systemic reforms in New York and around the County. Police departments struggle to hold officers accountable for using excessive force. In many instances, police officers who use excessive force are given reduced or no discipline or are rehired after being terminated for misconduct. (Stephen Rushin, Police Disciplinary Appeals, 167 U. Pa. L. Rev. 545, 581 [2019] [“Just under a quarter (twenty four percent) of all officers terminated for misconduct in large American police departments are eventually rehired because of the disciplinary appeals process. . . . [B]etween 2010 and 2017, the City of Chicago has reduced or reversed sanctions against eighty-five percent of all police officers during the grievance appeals process.”]). For example, after he killed Eric Garner, Daniel Pantaleo remained an NYPD officer for over five years, and made a six-figure salary, until he was finally fired following an administrative trial in September 2019.

Minnesota has no similar law to CRL 50-a. Thus, almost immediately after Mr. Floyd waops killed, the public learned that Chauvin had 18 prior complaints filed against him with the Minneapolis Police Department’s Internal Affairs. (Dakin Andone, Hollie Silverman, and Melissa Alonso, The Minneapolis police officer who knelt on George Floyd’s neck had 18 previous complaints against him, police department says, CNN [May 29, 2020], https://www.cnn.com/2020/05/28/us/minneapolis-officer-complaints-george-floyd/index.html). In response to public pressure, the Minneapolis police department immediately fired Chauvin, and prosecutors charged him with Third Degree Murder, and then increased the charges to Second Degree Murder.

 

C Full repeal is necessary because the carve-outs sought in the “reform” bill are already covered by other FOIL and privacy exemptions.

 

The “reform” bill passed by the legislature, Senate Bill S8496 / Assembly Bill A10611, unnecessarily amends Sections 86, 87 and 89 of the Public Officers Law.

The amendments to Section 86 include unnecessary definitions of “Law Enforcement Disciplinary Records,” “Law Enforcement Disciplinary Proceedings,” Law Enforcement Agency,” and “Technical Infractions.” Law enforcement agencies and courts could interpret these provisions in unanticipated ways to restrict access to records. Most troublingly, the definition “technical infractions” is vague, and could be used to improperly prevent disclosure of misconduct that is of public concern, even if it does not concern an officer’s interaction with the public. For example, if an officer goes drinking at a bar after work and loses his department issued firearm, any discipline arising from this “technical infraction” of departmental rules would arguably be exempt from disclosure, even though this conduct raises serious concerns about the officer’s judgment and fitness to work in the law enforcement profession.

The amendments to Sections 87 and 89 state that any medical records, personal contact information, social security numbers, mental health records, and “technical infractions” contained in an officer’s disciplinary records may be redacted prior to disclosure. These amendments are unnecessary because HIPAA prevents disclosure of all medical and mental health records, and FOIL’s personal privacy exemption, Section 87(2)(b), prevents release of any information that would constitute an “unwarranted invasion of privacy.” 

Full repeal would simply subject law enforcement officers to the same rules that apply to all other public employees. For example, pursuant to the State Administrative Procedures Act (“SAPA”):

“Each agency shall maintain an index by name and subject of all written final decisions, determinations and orders rendered by the agency in adjudicatory proceedings … Such index and the text of any such written final decision, determination or order shall be available for public inspection and copying … within **752 sixty days after having been rendered” (SAPA § 307[3][a]).

 

Pursuant to § 307[3][b], an agency may delete information from such materials that constitute an unwarranted invasion of personal privacy under section 89 of FOIL, and must delete any information that which would reveal confidential material protected by federal or state statute, such as HIPAA. But otherwise, the statute mandates disclosure.

Thus, the general practice provided for by state law is for an agency to make public its administrative decisions while removing confidential and identifying information. (see 1995 NY Op Atty Gen 23 [1995] [section 307(3)(a) applies to all agency written final determinations issued after an adjudicatory process where the statute governing the hearing provides a party with an “opportunity to be heard”]).

For these reasons, the amendments to Sections 86, 87 and 89 of the Public Officers Law are unnecessary and could thwart public access to some law enforcement records that are of vital public concern.

Conclusion

 

The citizens of New York demand systemic reforms within law enforcement, which requires transparency and accountability for police misconduct. A full repeal of CRL 50-a is the only way to ensure transparency and accountability. Simply revising its language will not address concerns that police departments will continue to seek, and courts will continue to grant, broad interpretation of what types of records qualify as “personnel records” that can be protected from disclosure.

For all these reasons, the Committees urge Governor Cuomo to repeal CRL 50-a. As the bill’s sponsors memo states, “the evolution of § 50-a has defeated [FOIL’s] goal of accountability and transparency.” New York should join Minnesota and other states that prioritize transparency and accountability of police misconduct.

 

Respectfully Submitted,

 

Elliot D. Shields, Esq.

Robert Rickner, Esq.

NYCLA Civil Rights and Liberties Committee Co-Chairs

Asha Smith, Esq.

Andrew Eibel, Esq.

Criminal Justice Section Co-Chairs