Law360: Suits Rise Against NYPD Amid Discipline Transparency Efforts

By Cara Salvatore
February 10, 2019

Cynthia Conti-Cook of the Legal Aid Society at a rally Friday June 8, 2018 to call for the repeal of Civil Rights Law 50-a. Legal Aid is one of the legal service providers challenging what they consider to be a broad interpretation of the law by courts in the state. /Photo: Andrew Denney/

The New York City Police Department drew nearly 200 more civil lawsuits in 2018 than in 2017, according to new data that serve as one rough measure of alleged police wrongdoing in a state whose tight protection of officers' discipline records has provoked new criticism and legislative action.

Data released by the New York City Law Department on Jan. 31 raise questions about the NYPD's progress in curbing the kinds of officer misconduct that result in lawsuits. Last year 1,586 suits were filed against officers, up 14 percent from 1,391 in 2017, according to the Legal Aid Society, which analyzed the data. Such "police action" suits cover conduct like excessive force and unlawful detainments.

Other types of information about police misconduct, like internal data, can be hard to come by, according to a separate report released a day later, this one by a panel commissioned to scrutinize the NYPD's disciplinary process. The panel's work was the focus of a New York City Council hearing on Thursday, along with legislation intended to increase transparency in police discipline.

The panel critiqued the relatively new use of a decades-old law, called 50-A, to shield internal discipline records. Courts have upheld this use of the law.

What that means in practice is that officers with a pattern of misconduct can rarely be confronted with that pattern during their arrestees' criminal prosecutions, witnesses told two City Council committees Thursday. Officer credibility is the engine behind many convictions, witnesses said.

"Police misconduct is one of the primary reasons for wrongful convictions," the Legal Aid Society's Cynthia Conti-Cook testified before the City Council on Thursday. "Confronting a police officer in court about prior misconduct is not harassment; it is impeachment. Being able to confront an accuser is a constitutional right."

Another witness, Oded Oren of Bronx Defenders, told the committee, "Those records are really important to us when we take a case to trial. ... By airing what happened in court and by being cross-examined on those records, there is some accountability that comes to that specific encounter with police."

But the records can't be obtained unless defenders can convince a judge that they exist and are material. Since they're secret, it's well nigh impossible to show either, the witnesses said.

In the report on police discipline, the panel's three legal heavyweights — former SEC head Mary Jo White, former Brooklyn U.S. Attorney Robert Capers and former Southern District of New York Judge Barbara Jones — called New York an outlier with regard to public policy on officer discipline records.

Thirteen states explicitly make those records public, and 15 more require at least some records to be public, New York is one of the remaining 22 states that "largely preclude disclosure of police disciplinary files, mostly through exemptions in their freedom-of-information laws applicable to all personnel records," the panel's report said.

"Within this group, only New York and Delaware also explicitly restrict access to internal police records," the panel said.

The union for rank-and-file city police, the Policemen's Benevolent Association, said the panel report made line officers scapegoats and gave leadership a pass.

PBA President Patrick Lynch in a statement called it "a panel of distinguished law enforcement figures bowing to the demands of anti-police, pro-criminal advocates."

Addressing Thursday's hearing, Lynch said the transparency bills under consideration "largely consist of duplicative and counter-productive measures designed to once again demonize police officers."

The measures before the city council would require the NYPD to report on police misconduct complaints; require it to study the possibility of creating a "matrix" of guidelines for internal punishment based on infraction type and publish its discipline guidelines and data on the volume of officers punished.

One resolution would also formally request that the New York State Legislature repeal 50-A with regard to personnel records.

"The public, the media, and advocacy groups rightly argued that the decision [to clamp down on discipline records] blocked one of the few avenues for the public to gain insight into the NYPD's internal disciplinary practices," the panel said in its report.

No vote on the measures has yet been scheduled.

The NYPD said at the hearing it supports greater transparency on records. The department has also identified positives in the Law Department's civil litigation data.

An NYPD spokesperson said that those data revealed that payouts in lawsuits had decreased. 2018 represented "the first year-to-year decrease in total payouts since we began analyzing litigation data" in 2013, and the department spent 11 percent less in fiscal year 2018 than in 2017, the spokesperson said. Payouts can be for suits filed in a prior year.

The dataset also revealed that 230 officers were sued by multiple people in 2018, according to a Law360 analysis. No fewer than 58 officers saw separate legal claims from three or more people.

The NYPD started monitoring civil litigation against officers in 2013 through a group set up for that purpose, called the Police Action Litigation Section. As recently as 2015, the number of lawsuits filed was much higher than in 2018 — over 2,800 that year, according to the Legal Aid Society. The NYPD called the drop between 2015 and 2018 "remarkable."

For now, civil lawsuit information still doesn't feed directly into a core NYPD discipline database, RAILS.

That could change late this year, according to court papers posted Jan. 14 in the city's infamous stop-and-frisk litigation, which said the NYPD has decided to start feeding the lawsuit data into RAILS, and expects to do so in late 2019, which means at that time lawsuits against officers will become a factor in decisions regarding internal discipline, according to the update.