The New York Times | 4 Years After Eric Garner’s Death, Secrecy Law on Police Discipline Remains Unchanged By Ashley Southall June 3rd, 2018
The legal battle over a New York City police officer’s disciplinary records after the chokehold death of Eric Garner in 2014 cast an obscure statute into the spotlight.
The city’s explanation that it could not disclose the disciplinary history of the officer, Daniel Pantaleo, because the statute made the records confidential fed a national debate over transparency and police accountability and prompted promises from City Hall and the state Capitol to push for the law to be changed or repealed.
But nearly four years after Mr. Garner’s death on July 17, 2014, on Staten Island, the statute, Section 50-a of the State Civil Rights Law, is, if anything, stronger, its interpretation expanded at the insistence of Mayor Bill de Blasio’s administration, even as the mayor has vowed more transparency.
Judges and lawyers’ groups have joined criminal justice activists, public defenders and newspaper editorial boards in calling for the Legislature to act. But with the legislative session ending later this month, lawmakers, for the second consecutive year, have not taken up legislation to repeal or modify the law.
“If it’s led to this much confusion, it’s a badly written law,” said Cynthia Conti-Cook, a staff lawyer at the Legal Aid Society, a nonprofit that sought Officer Pantaleo’s records from the Civilian Complaint Review Board, a police oversight agency.
The push to lift the veil on officer discipline faces powerful opposition: The city’s police and corrections unions, which have deep coffers, vocal leaders and influential allies. Indeed, the unions carry considerable sway among lawmakers in Albany, to whom they have given more than $1.3 million in donations over the past decade, according to data compiled by the National Institute on Money and Politics, a campaign finance watchdog. In recent years, lawmakers have passed legislation that would have given police unions more say in officer discipline.
The Assembly Speaker, Carl E. Heastie, a Bronx Democrat, has not taken a position on the statute. The Senate majority leader, John J. Flanagan, a Long Island Republican, opposes changing it.
While the Legislature has not moved on the statute, neither Gov. Andrew M. Cuomo nor Mayor Bill de Blasio has laid out a path forward.
Mr. Cuomo, though he has criticized Mr. de Blasio’s expanded interpretation of the statute, did not include changing it among the legislative priorities in his current agenda. Mr. Cuomo, a Democrat, has moved further left as he faces a primary challenge in his bid for re-election, but as governor and previously as attorney general he has accepted tens of thousands of dollars from law enforcement unions and rarely pushed back against their interests.
Mr. de Blasio, also a Democrat, has called for removing the cloak on disciplinary records that critics blame on his administration, but he has not come up with legislative language or indicated support for any proposed measures. At a police briefing last month, he said his administration was making a “big push” to get the law changed by the end of June.
“The commissioner, his predecessor and I are united in wanting change in the law that will create the transparency everyone wants and once and for all settle the question,” he said.
Those who want the law changed concede it is unlikely as long as Republicans control the Senate. But they are still making the rounds in Albany, with the expectation that if they are not successful in the next few weeks, the political climate could be more favorable after November if Democrats regain control of the upper chamber.
“Unless the leadership changes, or unless the governor decides he wants to get behind the legislation, I do not see it changing,” State Senator Kevin S. Parker, a Brooklyn Democrat, said. Mr. Parker is the sponsor of a bill supported by the Police Department that will allow some records to be disclosed once disciplinary proceedings have concluded, a process that can take years in high-profile cases, including fatal police encounters with unarmed civilians like Mr. Garner.
Even if Democrats win control of the Senate, changing the statute will not be easy. Many lawmakers fear the dozens of police, fire and corrections unions across the state that have millions of dollars in resources to undermine a campaign or provide a financial boost.
Ed Mullins, the president of the Sergeants Benevolent Association in New York City, said it was important to preserve the statute because releasing disciplinary records could serve to prejudice public opinion against police officers.
“We’ve got to find a balance where the public’s interest is at the forefront, but so are the rights of the individual police officers involved because we don’t get a do-over,” he said.
The statute was intended to shield officers from defense lawyers looking to discredit police testimony using unverified civilian complaints. It is one of the strictest laws of its kind in the country. It shields records that states such as Washington and Alabama routinely make public. Opponents say that the secrecy the law codifies hurts police efforts to mend ties in predominantly black and Latino communities.
The New York City Bar Association endorsed repealing the statute last month in a white paper describing how the statute stymies transparency. And activists under the umbrella of Communities United for Police Reform have begun descending on Albany by the busload to lobby lawmakers on both sides of the political aisle to repeal it.
Joo-Hyun Kang, the coalition’s director, said repeal had become necessary because of legal precedents that were established over the past two years affirming the de Blasio administration’s interpretation of the statute’s protections.
“The body of case law and their public messaging promotes the idea that pretty much anything related to an officer should be kept confidential — it’s just really irresponsible,” she said. “It makes a segment of the public believe that we don’t have the right to know about the people patrolling our neighborhoods who can use deadly force against us, and we should have that right.”
Councilman Donovan J. Richards Jr., the chairman of the City Council’s Committee on Public Safety, said he thought the Police Department was worried that the public would see that “the disciplinary measures don’t match up to the cases that come before them.” Mr. Richards, a Queens Democrat, noted that the police often release the names and pictures of officers to praise them for good work on potentially dangerous cases, like drug and gun busts.
Lawmakers’ inaction on the statute has left it to state courts to parse the law’s meaning in litigation brought by transparency advocates seeking fuller disclosure and police unions looking to apply it more broadly.
Tensions over the statute escalated in 2016, when the Police Department stopped making disciplinary summaries available to the news media. In a continuing lawsuit brought by the Legal Aid Society, city lawyers have argued that removing officers’ identities from the summaries is not enough to comply with the statute.
The Police Department reversed course in March, when it announced that it would provide disciplinary summaries on its website with officers’ names removed. But that plan has been put off because the Patrolmen’s Benevolent Association, the city’s largest police union, obtained a court order temporarily halting it.
The union has also taken the city to court over the Police Department’s policy of releasing edited body camera videos at Commissioner James P. O’Neill’s discretion. City lawyers defend the policy with the assertion that edited videos do not fall under the statute because they are not used to evaluate officers.
Councilman Rory I. Lancman, a Queens Democrat and the chairman of the Council’s Committee on the Justice System, led the push for a law passed in 2016 requiring the Police Department to provide data on officers’ use of force and related disciplinary outcomes by precinct.
But last month, the department’s top legal official said in a letter that the statute precluded the department from fully complying — a position that was abruptly reversed by Commissioner O’Neill, who has framed his department’s use of the law as an effort to balance transparency and safety.
“There are people out here that are looking to do police officers harm, and I know you know that,” he said at a Council budget hearing. “So, you know, we just don’t sit over in 1 Police Plaza making these decisions without careful consideration.”
Mr. Lancman said in an interview that the shifting position on whether it could comply with the disclosure law showed that the Police Department had “no coherent policy for how 50-a should be interpreted and applied.”
“It really amounts to a game of three-card monte,” he added.
Officer Pantaleo is not expected face disciplinary charges stemming from the Garner case until the federal inquiry is finished. Charges were recommended by the Civilian Complaint Review Board, which has said he should be fired.
Assemblyman Daniel J. O’Donnell, a Manhattan Democrat, had not heard of the statute before Mr. Garner was killed. With career prosecutors in the United States Justice Department recommending civil rights charges against Officer Pantaleo, Mr. O’Donnell said it was beyond time for the Legislature to deal with the law and has offered bills to narrow or repeal it.
“Until we legislatively fix it,” he said, “it’s going to be the whims of any mayor or police department to do with it what they want.”