The fight for transparency in police misconduct, explained

New York’s repeal of section 50-a — which allowed police to shield misconduct records — is a big win for activists, but there is more work to be done.
June 16, 2020
Stephanie Wykstra

In 2012, Ramarley Graham, an 18-year-old black teenager, was fatally shot in his own home by a white New York City police officer, Richard Haste. Haste and other officers had followed Graham home from a nearby bodega and forced their way in, later saying that they believed Graham was carrying a gun. Graham was, in fact, unarmed.

Eighteen months after the killing, a grand jury decided not to indict Haste. Graham’s mother, Constance Malcolm, later tried to obtain information about the shooting and investigation, as well as Haste’s misconduct history. But the police department denied her freedom of information law (FOIL) request, citing New York’s civil rights law — section 50-a — which it said barred access to all disciplinary records of officers.

Eventually, a whistleblower leaked disciplinary records that showed that Haste had an unusually high number of civilian complaints against him over a one-year period in 2009-2010, shortly after he joined the department. A disciplinary review would later find Haste guilty of using poor tactical judgment (Haste quit the force in 2017 before he could be dismissed).

Malcolm went on to join the advocacy group Justice Committee, which includes many other families affected by police violence, in an effort to push for the repeal of section 50-a in New York and bring greater transparency to policing. Last week, their long advocacy efforts succeeded.

On June 12, Gov. Andrew Cuomo signed several police transparency and accountability bills, including a repeal of 50-a. Malcolm and other advocates point to the surge of protests against police brutality sparked by Minnesota police officer Derek Chauvin’s killing of George Floyd — in addition to the work of groups like Justice Committee and Communities United For Police Reform (of which Justice Committee is a member) — as the impetus that finally pushed the bills through.

“Now families like mine and people who are brutalized by police won’t have to rely on leaks to get information about the officers who abused them,” Malcolm said. “So this is a very big victory for us.”

To be clear, neither Malcolm nor other advocates view transparency about police misconduct as a panacea for preventing violence by police officers. All of them want to see much more significant change as well — for instance, reallocating public funding to schools, health care, housing, and other community resources, rather than to police.

But at the same time, many of the advocates describe transparency about police misconduct as important for holding officers accountable for abusive behavior. With the repeal of 50-a, New York embarks on a more transparent course that many other states have taken and joins the conversation about how transparency can better allow citizens to hold the police accountable for brutality.

Laws that shield police misconduct from public scrutiny, explained

New York’s section 50-a, which passed in 1976, stated that “personnel records [of police officers] used to evaluate performance toward continued employment or promotion” were confidential and couldn’t be disclosed without the officer’s permission or a court order (with a few exceptions including district attorneys).

According to a legislative memo written at the time, the law was intended to prevent defense attorneys from going on “fishing expeditions” by placing broad subpoenas of officer misconduct records. But over time, the police department and the highest court in the state came to interpret the law as barring any police officer misconduct records from disclosure under the state’s open record law (misconduct records of firefighters and correction officers were later added to the law). This secrecy increased in recent years, such as when the police department even stopped publicly posting outcomes of disciplinary trials of officers.

“50-a was arguably the worst law in the nation when it comes to the public’s ability to access these records,” said Michael Sisitzky, lead policy counsel at the New York Civil Liberties Union, a group that has often filed freedom of information requests for police records and had long been denied.



Topics: Repeal 50-A