NYPD Fights to Keep Eyes Off Discipline Records

After a federal judge dismissed most of their bid for a preliminary injunction blocking the release of records, NYPD and fire unions are appealing.
January 19, 2021
Courthouse News

MANHATTAN (CN) — Former New York City Police Department officers and firefighters who say Mayor Bill de Blasio put them in harm’s way by unsealing discipline records advanced their claims to the Second Circuit on Tuesday. 

In June of last year, the state repealed a rule that limited public access, except by court order, to the personnel performance records of police officers, firefighters and correction officers. 

Within weeks, this led to the publishing of thousands of NYPD disciplinary records, organized by ProPublica in an online repository. The records revealed that roughly 4,000 NYPD officers from a force of 36,000 members had at least one substantiated complaint against them. 

Though the police and fire unions pressed for ProPublica’s database to be reined in, a federal judge left them disappointed. 

“I don’t have the ability to reach backwards in time,” U.S. District Judge Katherine Polk Failla said in July. 

Failla later denied the police unions’ request for an injunction that would block the further release of disciplinary records, though she did make an exception, granting an injunction for technical infractions where the officer is found not guilty. 

In their appellate brief, the unions said records were ordered unsealed without “meaningful pre-disclosure review of the risks of irreparable harm to officers’ safety, privacy, and professional reputation.”

Anthony Coles, an attorney at DLA Piper representing the unions, told the panel of judges Tuesday that police officers received “chilling threats” made to officers at the time the records release was first announced.

U.S. Circuit Judge Raymond Lohier faulted the unions, however, for failing to get specific in support of their claim that the repeal of the records-sealing law in the New York Constitution created irrevocable harm. 

“As I understand it, there’s nothing in the record that indicates that the unions were able to come up with anything,” Lohier said. 

That’s “significantly wrong,” Coles replied. “No one wants to exaggerate the risk, your honor. But you have to accept it.” 

Coles also said Failla usurped the role of the police and fire unions’ arbitrator, designated by a collective bargaining agreement. Attorneys for the city said that records released by NYPD do not overlap with claims that would be otherwise put to an arbitrator, and that Failla carefully deferred to the arbitrator for questions regarding CBA protection.

The records Failla agreed to allow expunged pertain to Schedule A, which involves technical infractions like an officer forgetting his memo book. City lawyers noted that they don’t believe there is any merit to that exception, but that fighting it would have caused unnecessary delay. 

Mayor de Blasio released new disciplinary guidelines just last week outlining penalties for Schedule A transgressions, as well as Schedules B and C. The lowest tier includes penalties for smoking where prohibited or losing an ID card; the middle tier includes unauthorized use of an official vehicle and failing to reveal an officer’s name and shield number upon request. 

In Schedule C, the most serious infractions include accidental firearm discharge, failure to comply with direction, and violating social media policies. 

Speaking on behalf of the Communities United for Police Reform, attorney Tiffany R. Wright cited reports that the newly released rubric is already being mishandled. “Serious infractions are being funneled through Schedule A,” Wright said, and the NYPD is being “undermined by their own discipline matrix.” 

“Nobody here is downplaying or taking for granted the threats that officers face,” Wright continued. But, she pointed out, Judge Failla considered the potential for safety risks, as did legislators who repealed the rule keeping disciplinary records hidden. 

“That is key,” Wright said: Unions have to show that the relief they are requesting “would stop the harm that is likely to happen.” If it’s not clear that harm would be linked to allowing records released, “then it is not clear that the injunction will stop it.” 

Wright also spoke about the public’s interest in accessing police records, amid the growing outcry over perceived excessive force where widely circulated videos show officers killing unarmed civilians including Eric Garner in New York City and George Floyd in Minneapolis. 

“The list goes on and on,” Wright said. 

Negative information about people killed by police has been allowed to circulate “in the public square,” she continued, while disciplinary records have not been public, making for a “one-sided, unfair” conversation. 

Before the panel of judges adjourned arguments and reserved judgment, Coles pled once more for the protection of officers’ files, noting that they had been sealed for 40 years — since well before the recent spike in national attention to police brutality, which peaked in summer 2020. 

“This is a dangerous time for police officers,” Coles said, noting that allowing the trial to proceed in Manhattan federal court causes the city “minimal hardship.” 

Tuesday’s oral arguments followed days after New York Attorney General Letitia James brought a federal complaint over brutal tactics used by police officers during protests beginning in May of last year. 

Violence by police officers is “not new,” the complaint states. Rather, these tactics “are the latest manifestation of the NYPD’s unconstitutional policing practices.” 

James said the NYPD has failed to adequately train officers on constitutional policing during protests, including enforcement against those protesting the police department’s own practices. 

Coles did not respond to a request for comment. Wright did reply, but was not available to speak for this article.

Topics: Repeal 50-A