No clarity on push for police transparency

Gwen Carr, mother of Eric Garner, who died from being put in a chokehold by a police officer, holds a news conference after leaving court on May 9.
Gwen Carr, mother of Eric Garner, who died from being put in a chokehold by a police officer, holds a news conference after leaving court on May 9.
Bebeto Matthews/AP/Shutterstock
Gwen Carr, mother of Eric Garner, who died from being put in a chokehold by a police officer, holds a news conference after leaving court on May 9.

No clarity on push for police transparency

50-a is getting more attention than ever, but has a tough path to passage.
May 13, 2019

NYPD Officer Fermin Bueno’s case wasn’t looking good.

A reporter attending Bueno’s administrative trial could hear all the details. Bueno had been accused of using excessive force during an arrest in Mott Haven, in the Bronx, on Aug. 10, 2016. More than two years later, on Aug. 24, 2018, Bueno was on trial at 1 Police Plaza. At stake: 20 of Bueno’s paid vacation days.

The trial commissioner watched video of the arrest in question, and Bueno’s lawyer argued that the man being arrested had purposefully thrown a hot cup of coffee at the officer. The questioning was tough, and it seemed like a punishment might be coming.

But as far as public disclosure, it’s like the trial never happened. It’s unclear what punishment, if any, was recommended for Bueno, because nobody, inside or outside the NYPD, can legally share that information.

That secrecy over police records is enshrined in New York state Civil Rights Law Section 50-a, a hotly contested law that has been litigated up to New York’s highest court in recent years. Now, Section 50-a is getting more scrutiny than ever. A report commissioned by the NYPD recommended that the department support amending the law to allow for greater disclosure. And the high-profile May trial of NYPD Officer Daniel Pantaleo is putting internal police discipline in the spotlight.

Since Democrats have full control of the government in Albany, criminal justice reform and transparency advocates are hoping to repeal 50-a, and to stop treating first responders’ records differently than other public servants. But opposition from police unions – and lukewarm responses from the governor and state’s biggest police department – may keep the bill from passing before the end of the session.

“It seems to me the public deserves transparency,” Assemblyman Daniel O’Donnell, who sponsors the repeal bill, A2513, told City & State. “The time has come to finally get rid of it.”

Section 50-a makes all “personnel records used to evaluate performance towards continued employment or promotion” for police officers, firefighters and correction officers “confidential and not subject to inspection or review” except by court order. The law was passed in the 1970s, but only become a major focus of police transparency activists in the past few years.

“50-a, it’s always represented an obstacle, but it’s never been as bad as it is now,” said Michael Sisitzky, who leads the police transparency and accountability campaign at the New York Civil Liberties Union. He told City & State that police departments and unions have been expanding their interpretation of what counts as a personnel record in recent years – the most prominent example coming in 2016, when the NYPD abruptly stopped publicly posting the outcomes of administrative trials. The NYCLU and its legal allies have brought lawsuits meant to weaken the law, but the courts have usually ruled against transparency, limiting what records can be disclosed.

That leaves legislation as the only route, O’Donnell said. He sponsored a bill to repeal 50-a the past two legislative sessions as well, but the bill never got out of committee. Since there has never been a vote, it’s unclear how much support there is for the bill, although more than 20 Assembly members have signed on as co-sponsors. As of early May, O’Donnell said he hadn’t started counting votes yet, but planned to send a letter to colleagues soon. O’Donnell has an influential constituency on his side: the press. Ten media companies, including The Wall Street Journal and The New York Times, signed on to an amicus curiae brief in July 2018 supporting the wider disclosure of records blocked by 50-a, saying their release is in the “vital public interest.” The Daily News, New York Post and Times editorial boards, which agree on very little, have all written in support of reforming the law.

“Since the press wants this very much,” O’Donnell said, “it puts a lot of (lawmakers) in a difficult circumstance to say they’re going with the PBA (and) against (the) freedom of information.”

The Police Benevolent Association, the union representing rank-and-file NYPD officers, has been the loudest opposition to wider records disclosure. The union frames it as an issue of safety, saying officers could be targeted and that the bill is being pushed by “professional anti-police activists.”

“Their real goal is not to improve police discipline,” PBA President Patrick Lynch said in a  statement provided to City & State. “It is to completely delegitimize police officers and the work we do, so that more criminals will be able to escape justice.”

While the PBA doesn’t want to change 50-a, NYPD leadership has made it clear that the department supports amending the bill, not fully repealing it. New York City Mayor Bill de Blasio, rarely one to publicly disagree with his police department, also backs reforms.

But advocates like Joo-Hyun Kang, director of Communities United for Police Reform, aren’t convinced that the NYPD wants to see change. The city has defended the law in court, and Kang hasn’t seen de Blasio or NYPD Commissioner James O’Neill make a strong lobbying push. The PBA, Kang told City & State, is “being aided and abetted by an administration that’s not interested in transparency but is trying to project an image that they are.”

Though Gov. Andrew Cuomo has championed criminal justice reforms lately, he has been relatively quiet on 50-a. Cuomo used the issue in 2016 to tweak his rival de Blasio, suggesting he was more progressive on police accountability than the mayor. But the governor has said little on the subject since, and didn’t mention the controversial law in his 2019 State of the State book, despite a section on “increas(ing) public trust in New York’s law enforcement agencies.” Asked to comment on the proposed reforms, Cuomo spokesman Don Kaplan wrote: “As we’ve previously said, we would be open to considering changes to the law.”

Lawmakers in Albany have options for changes. Brooklyn state Sen. Kevin Parker is the sponsor of two bills, S4214 and S4215, that would amend 50-a to allow for greater disclosure without repealing the law entirely. Bronx state Sen. Jamaal Bailey is sponsoring a full repeal bill, S3695, that matches O’Donnell’s in the Assembly.

Bailey told City & State that he’s having conversations with stakeholders, and while he’s open to compromise, he thinks a full repeal of 50-a is the best option for transparency. As chairman of the Codes Committee, Bailey has some pull over which bills move – and presided over the debate on a bill, S335 that suggests 50-a reform might be difficult. That “Blue Lives Matter” bill would make violence targeting first responders a hate crime, and the divisions were similar to the debate over 50-a. Police unions support the bill as a safety measure, and criminal justice reformers say it undermines legal protections that should be reserved for historically disadvantaged groups. That bill was voted out of the Codes Committee in May, with two Democrats joining the minority Republicans in support. Two more Democratic senators abstained, giving tacit approval.

As of May 13, the 50-a legislation remained in the Codes Committee, and Bailey said there’s “no timetable” for moving it forward. Though repealing 50-a is not his top priority personally, he thinks there's more energy from the conference as a whole behind passing the HALT Solitary Confinement Act – and that repealing 50-a is part of a process that could take years, not months.

“I think that our justice system still needs more of an overhaul, but it’s going to take more than one session,” Bailey said. “But I think that I’m up to the task.”

Jeff Coltin
is a staff reporter at City & State. He covers New York City Hall.