Legal Aid Works To Shed Light on Police Misconduct, Accountability
FRIDAY, JULY 08, 2016

The Legal Aid Society’s ongoing efforts to shed light on police misconduct and improve accountability ­– through litigation, legislative advocacy and research – were back in the news last week.

The disciplinary data of New York City Police officers and law enforcement throughout the state is cloaked in an inordinate amount of secrecy by stringent state laws on police personnel records. But for years Legal Aid’s Cop Accountability Project has been amassing any officer data it can obtain, believing the information can strengthen the defense of our clients and play a role in larger questions about police-community relations.

Legal Aid’s recent testimony before the New York City Council and media coverage showed how the organization is making its multi-faceted case to judges and lawmakers that such information ought not be kept from a public that is entitled to know how its communities are being policed.

On June 28, Cynthia Conti-Cook, a Staff Attorney with the Criminal Practice’s Special Litigation Unit and Natasha Merle, Fried Frank Fellow from the NAACP Legal Defense and Educational Fund, testified in support of a bill that would require the city to collect and evaluate lawsuits and other complaints that claimed police misconduct. Information gathered through the proposed law would be done in order to improve police discipline, training and monitoring.

Ms. Conti-Cook and Ms. Merle told the council’s Committee on Oversight and Investigations that the bill was “an important first step in identifying patterns and trends of police misconduct, and has the potential to improve both officer performance and police-community relations.”

To boost the utility of information collected under the bill, Ms. Conti-Cook and Ms. Merle suggested additional types of data be gathered as well, such as the precinct where the incident occurred, the circumstances of the encounter and details on any officer use of force.

“We have witnessed first-hand the impact of collecting this additional information,” the pair said, noting Legal Aid has been extracting this sort of data from federal lawsuits from the past 15 months. Analysis submitted at the hearing, showed, among other things, that one Brooklyn police precinct was involved in more than double the amount of any other precincts in the time period at issue.

The testimony noted that no discussion of police transparency and accountability could be entirely addressed without reform to Civil Rights Law § 50-a, a law saying judges could not order production of police personnel records “without a clear showing of facts.”

Ms. Conti-Cook and Ms. Merle testified the statute, “like no other statute in the country, affords police disciplinary data unparalleled secrecy regarding an officer’s disciplinary history. … Without Section 50-a reform, which we urge the City Council to support, it would be difficult – if not impossible – to fully evaluate the NYPD’s accountability to the public.”

Both the Daily News and the Gotham Gazette reported on Legal Aid’s testimony and lawsuit analysis. ­­The analysis was compiled and created by Julie Ciccolini, a Paralegal in the Criminal Practice, and John Emerson, a Research Scholar at New York University School of Law’s Center for Human Rights and Global Justice.

Legal Aid’s push for greater transparency was also examined in a article. The article detailed the organization’s pending suit to see summaries of misconduct that were substantiated against Officer Daniel Pantaleo before he applied a fatal July 2014 chokehold on Eric Garner.

Manhattan Supreme Court Justice Alice Schlesinger ruled in July 2015 that any sought-after Civilian Complaint Review Board records of this type were not shielded by Civil Rights Law § 50-a.

The city is appealing the disclosure order, and the article noted the city’s efforts to keep other records confidential under the 50-a provision.

In court papers quoted in the story, Ms. Conti-Cook wrote, “We simply want to know the most minimal information about whether or not Officer Pantaleo was the subject of civilian complaints and to what extent the city’s mechanisms for discipline responded, or failed to respond, to those complaints prior to Mr. Garner’s death.”

In January, Queens Supreme Court Justice Leslie Purificacion granted Legal Aid’s bid for Civilian Complaint Review Board records on another officer, pointing to Schlesinger’s decision that the materials at issue were not covered by 50-a.

The city is appealing that decision as well.

Daily News
NYPD cops in East New York’s 75th Precinct sued a whopping 47 times in past year
By Lauren Klose and Graham Rayman
June 28, 2016

Cops in one Brooklyn precinct were sued more than twice as many times in federal court as police officers in the city’s second most-sued precinct over the past year, a new study reveals. Cops in the 75th Precinct in East New York were sued 47 times from June 2015 through May 2016, the Legal Aid study showed.

Officers in the next most-sued precinct, the 73rd Precinct in Brownsville, were sued 19 times. “This indicates to me there is a huge problem in the 75th Precinct,” said City Councilwoman Inez Barron, who represents East New York.

Citywide, police officers were sued 966 times in federal court during the same period, according to the study, which was done by Legal Aid's Julie Ciccolini and NYU fellow John Emerson. Counting lawsuits filed in state court, the NYPD is sued roughly 4,000 times a year, city Law Department officials said.

Lawsuits filed in state court could not be easily broken down by precinct because electronic court records are not as easily available as in federal court, Legal Aid officials said. Cops in the 6th Precinct in Greenwich Village and the 81st Precinct in Bedford-Stuyvesant were each sued 16 times, while officers in the 79th Precinct, also in Bedford-Stuyvesant, was sued 15 times.

The study was made public at a City Council hearing regarding a bill which would require the city to more closely track and analyze lawsuits filed against the NYPD — and publicly release information on those lawsuits every six months. The information would include the basics about each case and the amount of any settlement that was reached.

The number of lawsuits filed against the Police Department has dramatically increased over the past decade, City Councilman Vincent Gentile said. In fiscal year 2014, the city paid out more than $216 million to resolve claims against the NYPD.

Cynthia Conti-Cook, a staff attorney with the Legal Aid Society, said the bill should be broadened to also track more details about each claim, including the type of force used and any disciplinary action taken.

While the city Law Department testified Tuesday in support of the bill, neither the NYPD nor the Inspector General overseeing the department showed for the hearing — something that caused consternation among the City Council committee.

“It's unfortunate that they weren't here,” said Council member Jumaane Williams. “They should have been here.”

A city Department of Investigation spokeswoman declined to comment. The NYPD did not immediately respond to a request for comment.

The Legal Aid study showed that in those lawsuits where the race of the plaintiff was listed, 82% of plaintiffs were black and just 2% were white.

Nearly 40% of the lawsuits were about incidents that happened in Brooklyn, while 25% took place in Manhattan.

Claims of false arrest were made in 759 of the federal lawsuits — or 78.5%. Plaintiffs claimed they went to the hospital in 64% of the lawsuits.

Thirty-two of the lawsuits involved allegations that cops mistreated people who were video- or audio-taping them.

Eleven of those incidents took place in Brooklyn, and 10 in Manhattan.

Gotham Gazette
Without Key Stakeholders, Administration Supports Council Police Misconduct Bill
By Samar Khurshid
June 29, 2016

The City Council’s Committee on Oversight and Investigations heard a bill on Tuesday, sponsored by Council Member Jumaane Williams, which would require centralized reporting of data on police misconduct from multiple agencies to identify systemic problems and help create an early intervention system for the NYPD. To the disappointment of Williams and others, though, key stakeholders to be affected by the bill and instrumental in implementing it if it becomes law, were not present to testify at the hearing.

The bill, Intro. 119, requires the Inspector General for the NYPD, whose office is part of the Department of Investigations, to provide a report every six months on cases of police misconduct, particularly civil cases filed against police officers, in order to develop systemic recommendations on training, disciplining and monitoring officers. Council Member Williams was a co-lead sponsor of the law creating the NYPD IG, which passed over a Mayor Michael Bloomberg veto in 2013.

At Tuesday’s hearing, the city’s Law Department testified in support of the bill, which has been through a number of revisions since it was first heard at the Council two years ago. At earlier hearings, Law Department representatives expressed concern that they lacked the necessary resources to provide the data required and that some of the information may be confidential under attorney-client privilege. The department represents employees of city agencies, including the NYPD, in civil and criminal litigation.

Thomas Giovanni, chief of staff and executive assistant for government policy at the Law Department, said the bill in its current form resolved those issues and “strikes an appropriate balance between the Law Department’s operational capability and its mandate to safeguard the attorney-client relationship with the desire of the public to know more about the performance of the city’s police officers.”

Other than the Law Department, there was no other testimony from the de Blasio administration or related entities. No one testified from the NYPD, the Department of Investigations, the NYPD inspector general’s office, the Civilian Complaints Review Board, or the Commission to Combat Police Corruption. Under the legislation, these agencies would coordinate to provide the required data. The absences of the IG and NYPD were particularly felt, considering the bill aims at reforming the police department and would be executed by the IG’s office.

“Certainly there were questions here that were relevant to the PD, the IG or the DOI, and those questions couldn’t be adequately asked or answered because they were absent,” Council Member Vincent Gentile, chair of the committee, told reporters after the hearing.

Council Member Williams also expressed disappointment that the IG and NYPD failed to show up at the hearing. “I think if they weren’t here, someone from the administration should’ve been here that can answer the questions as a whole because it does apply to more than just the law department,” he said after the hearing.

The Department of Investigation declined to comment for this article. The NYPD did not respond to a request for comment.

Last week, an IG report that undermined the belief in aggressive policing of low-level offenses as preventative of felony crimes invited a sharp rebuke from the NYPD and led to an ensuing back-and-forth between the head of the DOI, Mark Peters, and NYPD Commissioner Bill Bratton. One reporter asked Council Members Williams and Gentile if this might have been a reason behind the absences. “If there is a spat going on,” Gentile responded, “they shouldn’t hold our bill hostage as a result, so to speak. We’re gonna move forward in any regard. It would’ve just been a more complete hearing had they been here.”

(The same reporter, from Crain’s New York Business, said Council Member Rory Lancman, a member of the committee, told her after the hearing that the administration was “contemptuous” of the Council for not being there.)

Representatives from the Legal Aid Society and the NAACP Legal Defense and Educational Fund also testified at the hearing. “This bill is an important first step in identifying patterns and trends of police misconduct and has the potential to improve both officer performance and police-community relations,” said Cynthia Conti-Cook, staff attorney at the Legal Aid Society’s Special Litigation Unit in Criminal Practice. The two organizations also proposed amendments to the bill to make it more effective. These included expanding the data collected, specifying how civil action data can be used, and ensuring transparency in the collection and analysis of the data. A concern brought up by Council Members Lancman and Helen Rosenthal was that the city should also collect and examine data on misconduct by precinct and geographical area. Law Department officials said this would be overly cumbersome and even possibly misleading in cases where police officers are assigned to different locations for specific events.

A second-order effect of the bill that emerged at the hearing is a reduction in the city’s expenditure on litigation arising from misconduct cases. Early in the hearing, Gentile cited Mayor Bill de Blasio’s allocation of $4.5 million to the Law Department to fight the increasing number of lawsuits against the NYPD, especially frivolous ones. The Law Department’s Giovanni stressed that this funding was meant for hiring more attorneys to deal with cases faster and more efficiently.

Later, in response to Gentile’s questioning, Giovanni said, “The more efficient information exchange we have, the more clear we are about trends, the more we know about what’s happening, I assume that hopefully more efficient our response will be, and ultimately that means cost savings. That’s the goal.” He estimated these savings would occur at least a year after the bill is approved.

New York’s police secrecy law: de Blasio fights to keep NYPD abuse records from the public
By Daniel Denvir
June 29, 2016

At first blush, the world already knows quite a lot about NYPD Officer Daniel Pantaleo. Video of him placing Eric Garner in a lethal chokehold is now a global symbol of police abuse.

Yet the public still has close to no idea about Pantaleo’s track record before July 17, 2014, when he approached Garner, suspected of selling loose cigarettes, on Staten Island. That’s in part because New York Mayor Bill de Blasio’s lawyers are fighting to keep it a secret, citing a broad interpretation of a state law tightly restricting access to police officer disciplinary records.

“This law is part of a larger culture, a dual structure when it comes to accountability for police officers,” said Lumumba Akinwole-Bandele, senior community organizer at the NAACP Legal Defense and Educational Fund. “The disparate kind of treatment that exists for law enforcement and non-law enforcement, community folks.”

Nearly two years after Garner’s death and the mass protests that followed, NYPD discipline remains shrouded in secrecy thanks to Civil Rights Law 50-a, which makes confidential most law enforcement and correctional officer “personnel records used to evaluate performance toward continued employment or promotion.” In February 2015, the Legal Aid Society filed a lawsuit against the Civilian Complaint Review Board after they refused to provide a summary of Pantaleo’s record, limited to information like the number of substantiated complaints against him and disciplinary action taken, in response to a freedom of information request.

“We simply want to know the most minimal information about whether or not Officer Pantaleo was the subject of civilian complaints and to what extent the city’s mechanisms for discipline responded, or failed to respond, to those complaints prior to Mr. Garner’s death,” Legal Aid Society attorney Cynthia Conti-Cook wrote in a court filing.

Last July, New York Supreme Court Judge Alice Schlesinger ruled in Legal Aid’s favor and ordered CCRB to provide the summary. But de Blasio’s CCRB, along with Pantaleo, have appealed. In a statement, Law Department spokesman Nick Paolucci said that Judge Schlesinger’s ruling appears to contradict those made by other judges and that their “appeal seeks clarity and guidance from a higher Court.”

“Courts have recognized that Civil Rights Law 50-a balances two important values—protecting the privacy of officer records and ensuring public accountability for law enforcement officers,” according to Paolucci.

It’s unclear what de Blasio is up to, or what sort of balance his interpretation of 50-a affords. When pressed, spokesperson Monica Klein would not explain why the administration believes that their expansive interpretation of the police secrecy law is the correct one, or whether they support efforts in Albany to reform or repeal it. According to Klein, they are still “reviewing the potential impact of this legislation.”

“It’s a political decision by the city to characterize their opposition as ‘clarity seeking,’” says Conti-Cook. “Lawyers don’t seek clarity, they argue,” and the city is in this case “arguing for a stricter interpretation of 50-a.”

In another case, the city is fighting the New York Civil Liberties Union’s efforts to gain access to decisions in NYPD discipline cases. The city, citing the police secrecy law, argues that those records are confidential even though the trial-like hearings are open to the public.

“The city goes to great lengths to use 50-a to keep documents from public view,” says Christopher Dunn, associate legal director of the NYCLU. “Unless you’re prepared to litigate, for many people that’s going to be the end of the line.”

In a separate case, the city is defending against a lawsuit filed by a Rikers Island guard making a futile effort to hide his unsavory disciplinary history, which was made public after he appealed a finding against him to a city administrative court. The NYCLU has filed an amicus brief, and The New York Times has intervened in the case, to challenge the corrections officer’s claims that he is protected by 50-a. Notably, the city has fought that lawsuit on procedural grounds and avoided discussion of the police secrecy law.

In court, city lawyers are representing the police oversight board. But Conti-Cook says their advocacy seems more like it is geared to protect the very police department they purportedly oversee.

For roughly one year, until October 2014, New York City’s Civilian Complaint Review Board released barebones summaries of officer disciplinary records in response to freedom of information requests, including the number and nature of complaints and whether they had been substantiated. That tiny window of transparency, according to a CCRB report, was slammed shut after an internal audit found the disclosures to be in violation of 50-a.

The disclosures, according to an unfriendly New York Post story, were made by former CCRB head Tracy Catapano-Fox. Catapano-Fox was ousted in 2014 in what she contends was retaliation for her questioning the CCRB board chair’s “decision to collude” with the NYPD to fudge statistics on stop-and-frisk and push against investigations of wrongdoing. Catapano-Fox also accused a board member of sexually harassing a female employee, and contended that the mayor’s office interfered with her application to become a judge. In May, the city settled for $275,000 but admitted no wrongdoing.

New York’s police secrecy law dates to 1976, passed in response to complaints that defense attorneys were using police records to embarrass officers. As Legal Aid coolly noted, Garner’s personal record had received no such courtesy.

“Unlike Mr. Garner’s entire arrest history that has been released post-mortem with detailed charges thoroughly digested by the news media, regardless of presumption of innocence or statutory privacy protections…the overall restricted summary requested here would merely indicate the number of prior civilian allegations, complaints, charges and outcomes brought against Mr. Pantaleo prior to Mr. Garner’s death.”

The law produces surreal results across New York. In 2011, Nassau County Police Officer Anthony DiLeonardo, off duty with a long night of drinking behind him, shot and injured a cabbie, allegedly fleeing and unarmed, after a traffic dispute. Though an internal affairs investigation found that DiLeonardo had been in the wrong, he was not suspended or prosecuted.

It was only two years later that a Newsday reporter, according to the paper, “found that the internal affairs report of the incident had been accidentally left unsealed in the court file of a $30 million federal civil-rights lawsuit.”

According to Newsday, it was only after their investigation was published that Suffolk County District Attorney Thomas Spota empaneled a grand jury to look into the incident. The grand jury never issued an indictment. Spota’s actions in that case and others are now reportedly the subject of a federal investigation. When DiLeonardo was finally fired in 2014, the police commissioner cited 50-a and declined to discuss his disciplinary record in any detail.

In New York City, WNYC received data, with no names attached, that showed how many officers had received a given number of complaints. Reporter Robert Lewis found that “a relatively small number of cops generate the most civilian complaints — and the department routinely ignores recommendations on how to discipline the worst of them.”

But he couldn’t identify who these problem officers were.

“50-a was a huge obstacle in reporting these stories,” Lewis emailed. “After the death of Eric Garner a lot of people, including me, wanted to know about the officer involved in the incident. Did he have a history of using excessive force? Had he been disciplined before? Should he have been on the street? But those questions were virtually impossible to answer in large part because of that law…Aggregate data is helpful. But a deeper analysis and examination of a system is often only possible if the public can examine the disciplinary history of specific officers.”

In 2014, the Committee on Open Government, an independent state agency, called for the legislature to make repealing or reforming 50-a a priority, writing that the law “affords the public far less access to information about the activities of police departments than virtually any other public agency—even though police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees.”

Assemblyman Daniel O’Donnell, a Manhattan Democrat, heeded the call, and has introduced separate legislation to reform and repeal the law. The measures stalled in the Democratic-controlled state House and went nowhere in the Republican-controlled Senate—which, in a New York peculiarity, Democratic Gov. Cuomo uses as leverage against his own party. Cuomo’s office did not respond to requests for comment.

It’s unclear where Cuomo stands on 50-a reform and repeal. O’Donnell says he doesn’t know either, and was incredulous when asked whether he had discussed the matter with the governor. “You’re kidding, right? You think the governor conversates with people like me? He either calls you to yell at you, or tell you you’re wrong. But he doesn’t conversate about legislative proposals.”

Other states and cities do things differently.

In Illinois, police disciplinary records are now subject to freedom of information requests thanks to a successful legal fight mounted by Jamie Kalven, who directs the Invisible Institute, a Chicago civic journalism project. It was just two weeks after the Invisible Institute launched its Citizens Police Data Project that a separate freedom of information request compelled Chicago to release video of Officer Jason Van Dyke shooting teen Laquan McDonald sixteen times as he walked away. The resulting uproar created a political crisis for police and Mayor Rahm Emanuel.

And unlike in New York, Chicagoans could dig deeper. Journalists were able to report that a large number of misconduct complaints had been filed against Van Dyke. By contrast, New Yorkers still have little idea as to Officer Pantaleo’s track record.

“Chicago had the opportunity to respond to the systemic failures because they had the information,” emails Conti-Cook. “NYC doesn’t have access to the information and cannot analyze whether systemic failures played a role.”

Police Commissioner Bill Bratton has insisted that the department will “work very aggressively to deal with” those officers too brutal or corrupt to be on the force. There is little way, however, to know whether they are doing so. Even amidst the mass protests following Garner’s death, de Blasio has failed to make the NYPD disciplinary system, widely criticized as ineffectual, more transparent. Among Bratton’s responses to Garner’s death: a proposal to increase the penalty for resisting arrest, which Garner was accused of doing before he was killed by police, from a misdemeanor to a felony.

The police secrecy law also makes it hard for defense lawyers to access disciplinary records needed to question an officer’s truthfulness on the stand. At Legal Aid, Conti-Cook has set up a database comprising whatever publicly available information they can glean about an officer’s track record from lawsuits, news reports and other sources. Currently, she says, prosecutors typically do not hand over such information on their own during criminal trials, and defense lawyers have to convince a judge to order the release of records the existence and content of which they can only speculate about.

In New York state, toppling Republican rule in the senate might clear a path for reform and force Cuomo’s hand. In the city, advocates must change de Blasio’s calculus so that he views police critics as a bigger political threat than the New York Post and Patrolmen’s Benevolent Association.

“Every year it seems that events occur that lead me to believe that maybe now is the time, whether its Ferguson or Pantaleo, or one of these terrible events” says Robert J. Freeman, the executive director of the Committee on Open Government. “Isn’t it time to either repeal or amend 50-a to make sense? And yet my belief is that the police union, and also the correction officers’ union, they scare the state legislature. And for the life of me I don’t know why.”

The balance of power, real and perceived, keeps the public in the dark.