New York's Thin Blue Line Is Protected By A Thick Black Curtain

This is the first part of our story on how a 40-year-old state law has blocked police transparency in New York. Read part two here.

If four men shoot and kill your unarmed son on the street, should you be officially informed of the killers’ names? In New York, the answer is no—if the shooters are police officers.

A city employee investigating the suspected sale of untaxed cigarettes illegally chokes a man to death. Should the public know that prior to that fatal encounter, the public servant already had one of the worst disciplinary histories in his department, but had received only slaps on the wrist? In New York, if the public servant is a police officer, the answer is no.

You wanted to attend a city hearing that is open to the public under New York’s Open Meetings law, but the small room in which it was held didn’t have space for you, so you’d like a transcript to know what public business was conducted. That’s available—unless you’re talking about an NYPD disciplinary hearing, in which case you’re out of luck, because while the meeting was technically public in the present, the moment it became past it vanished behind the veil of state secrecy.

You’ve been charged with a crime, but you know that the police witness against you is lying. You want to see if they have a history of lying, so you can bring that up when she testifies against you. Can you subpoena her disciplinary record? In New York, the answer is no, unless you can convince a judge you have proof there’s something relevant in the file—and can do so without having seen the file.

You’re an academic historian who wants to know how police discipline today compares to what it was three years ago, or thirty. Were black police officers disciplined differently than white officers? How has discipline changed over time? In New York, this is special, secret information that must be kept from you and the public because to provide even anonymized disciplinary records would be a violation of the law.

The legal regime that governs all of these scenarios stems from a 43-year-old state statute, section 50-A of the New York Civil Rights Law, which severely restricts the disclosure of police personnel records, as well as those of corrections officers and firefighters. New York is hardly the only state where police records are concealed from the public, but its law is the most restrictive. New York is one of only two states with a law that specifically makes law enforcement personnel records confidential. The other state, Delaware, limits its protections to records the disclosure of which would be an invasion of privacy.

Originally written at the behest of police unions to make it more difficult for defense lawyers to challenge the credibility of police witnesses, the law has steadily expanded over the decades to impose a virtual blackout on any public disclosure of how police departments handle misconduct. (You can read a more thorough history of 50-A -- from its origins in the 1970s backlash to civil rights to its legislative passage to its increasingly expansive interpretation by the courts -- tomorrow in our second installment.)

50-A has been a serious cause of concern to advocates of government transparency and police accountability since its inception, but it’s only in the past few years -- especially after the death of Eric Garner at the hands of Officer Daniel Pantaleo -- that the wider public has become aware of the law, and pressure for its repeal has mounted.

It was the administration of Mayor Bill de Blasio, citing a novel interpretation of 50-A, that unilaterally stopped publicly posting disciplinary summaries at police headquarters and shut down access to 40 years of disciplinary records in the city archive.

And in 2017, when the New York Court of Appeals expanded the interpretation of 50-A to include a ban on the disclosure of anonymized disciplinary records, it did so because the de Blasio administration had asked it to.

Aside from the judges who presided over the case, it’s hard to think of anyone more directly responsible for the expansion of 50-A in recent years than de Blasio, who won his office on promises to reform the police department and increase transparency and accountability.

Publicly, de Blasio has pleaded helplessness, claiming that his hands are tied by the law, and that the only remedy lies in Albany. In previous legislative sessions, though, the mayor has been noticeably absent from lobbying efforts to change the state law, reform advocates say. When it came time to testify before the Senate committee last fall, de Blasio’s NYPD came out in opposition to the repeal of the bill.

Repeal of the law would also put officers in physical danger, potentially revealing their home addresses and exposing them to violent reprisals, according to Oleg Chernyavsky, the NYPD’s Assistant Deputy Commissioner for Legal Matters, who testified in defense of 50-A.

“The safeguards imposed by section 50-A promote the fair administration of justice.”

Danny O’Donnell, a Democratic State Assemblymember from Manhattan, has sponsored legislation for the past five years to repeal 50-A, but under Republican control of the State Senate, the bills went nowhere.

State Senator Jamaal Bailey, Democrat of the Bronx, who chairs the Senate Codes Committee, is sponsoring the Senate version of O’Donnell’s bill to repeal 50-A. Bailey called it his top legislative priority for this year, pledged to take it up as soon as session begins in January, to avoid the late-season languishing and opaque budget-season horse-trading that often kills legislation in Albany. (Other bills, sponsored by Brooklyn State Senator Kevin Parker, would keep 50-A in place but reduce the categories of records it covers.)

To that end, Bailey held hearings in New York City and Albany in October to take testimony on the proposed repeal of 50-A. Among the witnesses testifying at those hearings -- government transparency advocates, police reformers, news publishers, civil rights organizations, and the mothers of men killed by police who have found their efforts to understand what happened stymied by 50-A -- there was resounding consensus that 50-A serves no constructive purpose at all, and should be repealed in its entirety.

The Senate testimony painted a picture of police secrecy run amok. Constance Malcolm, the mother of Ramarley Graham, the unarmed teenager shot to death in his own bathroom by police who did not have a warrant, described how police secrecy had exacerbated her ordeal.

“When my son Ramarley was murdered, it took us three years to find out the misconduct history of Richard Haste, the officer who shot and killed him,” she said. “And that was only because a whistleblower leaked it to the media.”

As it turned, out, Malcolm said, Haste had racked up more complaints and allegations in 13 months than 91 percent of officers accrue in their entire career. “50-A is dangerous for everyone because there’s no transparency, so those officers who are dangerous and who abuse their authority are allowed to continue to patrol our neighborhoods and we don’t even know who they are,” she said.

Diego Ibargüen, a lawyer representing Hearst papers, including the Albany Times Union, told senators how the law has been invoked to stymie reporters digging into why an off-duty police officer involved in a hit-and-run was never charged, as well as the paper’s reporting on a practice whereby police officers were using official channels to buy machine guns for personal use.

Diane Kennedy, the president of the New York News Publishers Association, told Senators that while New York City cases may make headlines, 50-A is being invoked to thwart public-interest journalism in communities everywhere across the state.

When a 2016 Syracuse Post-Standard report found that 11 of the city’s 400 police officers were responsible for a quarter of misconduct complaints, the city used 50-A to keep the public from learning who those officers were. When the Kingston Daily Freeman reported on white police officers gratuitously using Tasers on black men, local officials hid behind 50-A, refusing to divulge not only the identities of the officers, but what discipline if any they had received.

50-A “has drawn an opaque curtain over a category of records which are of vital public interest,” Kennedy said. “Trust in law enforcement is eroded when the law serves as a closed door behind which government agencies secretly handle allegations of abuse of authority.”

The only witnesses to testify in Senate hearings against repealing 50-A were the NYPD and law enforcement unions. They argued that 50-A poses no obstacle to police accountability, since the law doesn’t prevent district attorneys, grand juries, and civilian oversight bodies like the Civilian Complaint Review Board from reviewing police records.

“If Civil Rights Law 50-A is repealed, the safety of New York police officers and their families will be placed in jeopardy, and a valuable weapon will be provided to those who would seek to do harm to members of law,” said Patrolmens Benevolent Association of New York City President Pat Lynch.

That argument doesn’t hold water, according to transparency advocates. New York’s Freedom of Information Law “already allows agencies to withhold records or portions of records where disclosure would constitute ‘unwarranted invasion of personal privacy’ or where disclosure ‘could endanger the life or safety of any person,’” said Michael Sisitzky of the New York Civil Liberties Union. “These are the same standards that apply to the disclosure of every other public employee’s records, allowing public access to disciplinary records while shielding more sensitive information from public view.”

Chernyavsky, the NYPD’s deputy commissioner, told the Senate Committee on Codes in October that repealing 50-A would “extinguish the officer’s voice in a process centered on disclosure of their own personnel records and provide defense counsel access to records irrelevant to the case before the court.”

Professor Steve Zeidman, who directs the City University of New York Law School’s criminal defense clinic and who served on the Mayor’s Advisory Committee for the Judiciary in the Bloomberg and Giuliani administrations, says defense lawyers aren’t about to raise irrelevant disciplinary infractions to embarrass police officers on the stand because that’s not how the judicial process works.

“This is fundamental rules of evidence,” Zeidman says. “If you want to put something into evidence, the judge weighs the probative value versus the prejudicial effect – how relevant is the information? Judges do that now, every day, in every trial. If I want to bring into evidence that a police officer is on his third marriage or something – that would never come in.” Even in less obvious cases, Zeidman said, judges tend to be protective of police officers and skeptical of defendants. “Who do the judges side with, the accused or the prosecution?” he asked. “I don’t think I even have to answer that.”

Chernyavsky said the NYPD supports an amendment to 50-A, to allow police to disclose the transcripts of already-public disciplinary hearings, as well as the final disposition of those hearings and the punishment that results from them. These disclosures should only happen in “serious discipline cases,” Chernyavsky qualified, and they should only happen after those cases have already been adjudicated. To go further, with a full repeal, Chernavsky warned, would be to expose police to physical danger and embarrassment.

But a 57-page report written in 2019 by an independent panel on NYPD discipline and embraced by the Department explicitly rejected Chernavsky’s concerns. Even without 50-A, “other provisions of existing New York law would provide sufficient protections to officers’ privacy and security interests,” the panel concluded.“ A regime without 50-A’s blanket exemption for police personnel records would still afford officers meaningful protection."

The New York Bar Association has called for the repeal of the law. So has the head of the New York City agency tasked with civilian oversight of the police.

If Democrats appear to lack the courage of their criminal-justice-reform convictions even more than usual right now, political observers say, blame the timing. The party controls both houses of the legislature and the governor’s office for the first time in a decade, but their Senate majority rests on several tenuous Long Island seats that favored Trump in 2016. The coming 2020 election will put the Senate majority up for grabs again, and since the winners of that election will control the once-a-decade state and federal redistricting processes, stakes are especially high. Whether Democratic leaders really want to take up 50-A repeal and publicly pit their Long Island colleagues against powerful police unions at such a delicate time is unclear at best.

Last year’s hard-fought bail reforms have been signed into law and went into effect two months ago, but anti-reform constituencies -- prosecutors, police unions, and race-baiting media -- have launched a fierce counteroffensive. District Attorney’s Offices are training each other on how to circumvent the new laws, and in the days since the new laws went into effect, a concerted fearmongering campaign by opponents has attempted to link the reforms to everything from rising anti-Semitic violence to imaginary saliva-borne HIV transmission. NYPD Commissioner Dermot Shea and Mayor de Blasio have publicly argued that a single month’s data, in which some crimes went up and others went down, constitutes evidence that the bail reforms are a public danger.

The vehemence of this backlash hasn’t surprised reform advocates, but the degree to which their nominal allies in elected office have appeared to cave to it has. Attorney General Tish James, a former public defender, has called for the laws to be reviewed, and de Blasio reportedly demanded changes from Assembly Speaker Carl Heastie. Senate Majority Leader Andrea Stewart-Cousins has floated a plan acceding to the anti-reform coalitions' demand that judges have expanded power to lock people up before their trial.

“I’ve had private conversations with folks in Albany, and they clearly understand that this is an appropriate next step,” said O’Donnell, the Assemblymember sponsoring the 50-A repeal bill. “I'm confident in the Assembly we can get the votes to pass this. I can't speak for the Senate.”

For his part, Senator Bailey insists he’s committed to seeing the law passed this year. “I don’t do stuff just to do it,” he said. “I’m looking for a real legislative resolution. We’re going to have to have all hands on deck to get it done.”

At the Albany hearing for 50-A reform, Republican State Senator Patrick Gallivan, a former sheriff and state trooper, offered a preview of an argument Senate Republicans may use against the bill when it comes up for debate.

“How do we trust the press?” he asked, wondering what sort of accountability exists for bad reporters who might have an anti-police bias. “How do we know sources are telling the truth?” Gallivan stressed his intention wasn’t to impugn the press, though he allowed he finds much national news coverage to be badly biased. His point, he said, was that “We still are left to trust you as an industry.”

Similarly, he suggested, perhaps the public just needs to have faith in law enforcement’s ability to police itself. “At a certain point in time,” he said, “we have to trust people.”

Kennedy, the publisher association president, countered that people trust the press because reporters offer supporting documentation. As for whether the system is adequately policing itself, “We need to see those documents so we can verify that.”