JURIST Guest Columnist Theo Wilson, a recent MPA graduate from Princeton University and a future law student, discusses why the New York Legislature should repeal Section 50-A of the New York Civil Rights Law...
The New York State Legislature is convening next week to respond to the public’s demand for criminal justice reform. During this session, the legislature must repeal Section 50-A of the New York Civil Rights Law, which has blocked public disclosure of officer misconduct records. While this step will not cure the systemic racism and violence plaguing the state’s police departments, it is nevertheless an essential step towards bringing a minimum degree of transparency and accountability.
After learning of George Floyd’s death at the hands of Officer Derek Chauvin, the public could log on to the Minnesota Police Department’s webpage and see his record of public complaints and relative impunity. In his 18-year career as a police officer, Chauvin elicited 18 public complaints — just two of which resulted in minor disciplinary action. This level of transparency exists because Minnesota law requires police departments to make data on arrests, detentions, and complaints made against officers available to the public.
But had Mr. Floyd’s murder been committed by law enforcement officers in New York State, not only would those officers’ disciplinary record have been withheld, but the police department would have had legal justification to withhold other crucial details about the incident, thanks to Section 50-A of New York State’s Civil Rights Law. In fact, in New York State, a police department could even legally withhold the officers’ names.
New York’s police departments routinely invoke 50-A to shield their officers from public scrutiny, especially when unarmed Black people die in police custody. When Eric Garner died in Officer Daniel Pantaleo’s chokehold in Staten Island in 2014, for example, the New York Police Department cited 50-A when refusing to disclose Pantaleo’s disciplinary history. It took almost three years for the public to learn that Pantaleo’s conduct was “among the worst on the force”— a revelation made possible only because of a leak inside the Civilian Complaint Review Board.
Surprisingly, 50-A was not really supposed to give New York police officers these blanket protections. As Nick Pinto rightly points out in Gothamist, the law was passed in the 1970s aftermath of the American civil rights movement, when New York’s police unions were lobbying politicians to prevent the ceding of oversight power to the public. But 50-A, which says that personnel records used for performance evaluations and promotions “shall be considered confidential and not subject to inspection or review,” was merely intended to prevent so-called “fishing expeditions” by private attorneys seeking to discredit police officers giving testimony in trials.
So how did this relatively innocuous statute turn New York State into one of the only states in the nation that affords police officers more privacy protections than other civil servants?
Look no further than New York State’s appellate courts. In the 44 years since its passage, these courts have extended 50-A’s protections far beyond its original intent. In 1988, a New York State appellate court expanded 50-A’s protections in Prisoners’ Legal Services of New York v. New York State Department of Correctional Services to prevent the disclosure of officer records that could be used to discredit them in future court cases. Then, in 1999, a New York State appellate court held in Daily Gazette v. City of Schenectady that 50-A should not only prevent the public disclosure of an officer’s record during court proceedings, but that any request whatsoever by the public or press for such records is unlawful harassment of police officers.
The most problematic interpretation of 50-A surfaced in 2014, when Mayor Bill de Blasio’s administration argued that the NYPD could invoke 50-A to refuse to disclose police personnel records in any form whatsoever, including anonymized data. Despite running on a campaign of police reform, the de Blasio administration had been resisting efforts by the New York Civil Liberties Union (NYCLU) to obtain anonymized data on how administrative judges dealt with cases of police officer misconduct, especially racial profiling, since around 2011. New York’s appellate court upheld the de Blasio administration’s interpretation of 50-A — the last nail in the coffin of police transparency and accountability in New York.
The appellate court totally ignored the original intention of 50-A, which had been reiterated just two years earlier by the law’s original sponsor, Frank Padavan. In a 2016 interview with Times Union, the late senator went on record to confirm that the law was never intended to block the public disclosure of police misconduct. Its “sole intention,” according to his interview, “was to stop private attorneys from using subpoenas to gain unfettered access to the personnel records of police officers.”
Unfortunately, none of this mattered to the court. The justices argued that 50-A provides broad statutory protections against any form of public release of police offer records and promptly washed their hands of the case, declaring that they were not at liberty to second-guess the Legislature’s determination or to rewrite statutory text.
As long as police officers know they can continue using violence indiscriminately, especially against people of color and without fear of reprisal, New Yorkers will continue to be deprived of their right to justice. In the first six days of the George Floyd protests in New York City, residents lodged more than 500 complaints of police misconduct alone, an amount that nearly exceeded the complaints lodged in all of April. This is no outlier but part of a disturbing trend — at least in New York City. Complaints against police officers rose by nearly 20 percent in the city from 2018 to 2019. By immediately repealing 50-A, the legislature will begin peeling back the veils of secrecy that have enabled police officers to use violence with impunity, as has been so egregiously demonstrated against Black people and communities of color.
Organizations like the NYCLU and Communities United for Police Reform (CPR) have long demanded this change. In a June 1 coalition letter signed by more than 30 social justice organizations, CPR has redoubled its call for a repeal. Senator Jamaal Bailey and Assemblyman Daniel O’Donnell have introduced bills in the New York State Senate and Assembly, respectively, which would repeal 50-A outright. Governor Cuomo has also indicated his openness to signing such a bill. Considering the extent to which 50-A has been distorted by New York State courts, a full-fledged repeal of this law is the only suitable redress. Attempts to further amend or revise the statue’s language will only encourage a new wave of judicial efforts to reverse attempts at police transparency. While repealing 50-A cannot possibly cure the systemic racism and violence plaguing the state’s police departments, it is nevertheless an essential step towards introducing a degree of transparency and accountability into New York State law enforcement.
Theo Wilson recently graduated with a Master in Public Affairs (MPA) from Princeton University and is planning to begin law school this fall. He is a national security consultant for Speaking Truth to Power, a former graduate intern at the Center for Ethics and the Rule of Law at the University of Pennsylvania Carey Law School, and former senior program officer at Freedom House. He is on Twitter at @twilson008.
Suggested citation: Theo Wilson, New York’s Courts Have Broken 50-A, Now the Legislature Must Immediately Repeal It, JURIST – Student Commentary, June 6, 2020, https://www.jurist.org/commentary/2020/06/theo-wilson-section50a-officer-misconduct/.
This article was prepared for publication by Cassandra Maas, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org.
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