EXCLUSIVE: NYCLU pushes against NYPD keeping police misconduct records secret

The New York Daily News

Christopher Dunn of the NYCLU says the organization wants to see why so few officers are being seriously disciplined by the NYPD. (RICHARD HARBUS/FOR NEW YORK DAILY NEWS)

The firestorm surrounding the NYPD’s decision to keep secret the results of disciplinary actions taken against cops has its roots in a case involving officers hired to do work at a construction site and another in which partying off-duty cops pelted a vehicle with eggs.

Now, 40 years after the enactment of a state law protecting such information, there’s a new chapter in the controversy.

The New York Civil Liberties Union has filed papers arguing against an appeal made by the NYPD after a judge ruled that police must provide the group a set of 1 Police Plaza trial room decisions. The NYCLU sought the documents on grounds they would provide a window into how the nation’s largest police department deals with critical issues like excessive force and stop-and-frisk.

“We want these decisions so we can get to the bottom of why so few officers are being seriously disciplined by the NYPD,” said NYCLU Associate Legal Director Christopher Dunn. “If, as we suspect, the NYPD is ignoring evidence of misconduct or applying the wrong legal standards, we’ll see that from these decisions.”

The NYPD in its court filing argued such decisions are protected by section 50-a of the state Civil Rights Law, which was adopted in 1976 and bans access to a cop’s personnel and misconduct records — unless a judge orders them released.

The News in August reported the NYPD would no longer make available to reporters the trial room dispositions that summarized internal disciplinary proceedings.

Those dispositions had been posted on a “personnel orders” clipboard that also included more mundane information, such as promotions and retirements, and hung in the department’s press office for more than 30 years.

That was done in error, in violation of 50-a, the NYPD said. The mistake wasn’t realize until recently, when a Legal Aid lawyer, in filing a Freedom of Information request for five years’ worth of those dispositions, mentioned the clipboard, police said.

Reporters — and members of the public — can still attend departmental trials. But the orders are the only official way to learn their outcome.

That’s because guilt or innocence isn’t determined until months later, after an assistant commissioner who serves as the judge makes a recommendation to the police commissioner, who makes the final call.

Cops expected to appear in the trial room in the coming months include Officer James Frascatore, who tackled ex-tennis star James Blake during an arrest in Midtown last year, and Officer Richard Haste, who fatally shot unarmed Bronx teen Ramarley Graham in 2012.

Officer Daniel Pantaleo, who pulled Eric Garner to the ground in a chokehold incident that lead to his death in 2014 on Staten Island, is also expected to be hit with departmental charges.

The NYCLU in 2011 sought the dispositions plus the pages-long decisions that explained the reasoning behind them.

The NYPD provided the dispositions, with cops’ names blacked out, but said it couldn’t do the same for the decisions.

The NYCLU said that’s nonsense.

“The claim that the NYPD cannot produce these decisions because they contain some officer information is simply a ploy to protect the NYPD,” Dunn said. “The department already produced to us hundreds of pages of related disciplinary documents and blacked-out officers’ identities, so they certainly could do the same thing with these decisions.

“What really is going on here is that the City is trying to use section 50-a to hide as much information as possible about officer misconduct and about the NYPD’s refusal to confront that misconduct.”

The Legal Aid Society, meanwhile, is preparing to file its own suit after the department rejected its request for the dispositions dating back to 2011.

Cynthia Conti-Cook, the lawyer who mentioned the clipboard when she requested the information, said it would help defense lawyers whose clients feel they were mistreated by police.

Beyond that, she said, such information would enable the public to “engage in an informed discussion about police accountability.”

Mayor de Blasio has backed the NYPD’s decision to withhold disciplinary records but said he supports a change in the law.

Assemblyman Daniel O’Donnell (D-Manhattan) in January plans to introduce one bill modifying 50-a and another repealing it.

“I think there’s a growing sentiment that it’s not necessary and it does more harm than good,” he said.

The enactment of 50-a can be traced to a 1974 incident in which three police officers in upstate Johnson City were disciplined for doing work at private construction sites while on-duty.

Officials there sought to prevent the release of what the police chief’s investigation found, but a state court ordered the report be released. Police unions later pressured the Legislature to adopt 50-a.

Since then, the law has been expanded in court decisions favoring law enforcement, most notably following a 1997 case in which off-duty cops in upstate Schenectady, where a busload of off-duty cops out for a colleague’s bachelor’s party got into an argument with two people in another vehicle, then pelted it with eggs.

Eighteen cops were disciplined, but not named. Two newspapers sued for the disclosure of further information but lost when the Court of Appeals ruled in favor of the police.

All personnel records used to evaluate performance toward continued employment or promotion … shall be considered confidential and not subject to inspection or review … except as may be mandated by lawful court order.

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