By Graham Rayman
New York Daily News
NEW YORK — New York City’s lawyers continue to fight disclosure of NYPD disciplinary records in lawsuits filed against cops in federal court.
While Mayor de Blasio publicly supports disclosure of police disciplinary records, civil rights attorney Joel Berger says that lawyers with the Special Federal Litigation unit in the city Corporation Counsel’s office have continued to demand blanket nondisclosure agreements on the same documents in federal court.
“It’s a rearguard effort by the city to undermine the legislature’s repeal of 50-a,” Berger said.
In 2020, the state Legislature repealed the ban on disclosure of the disciplinary records under state Civil Rights Law 50-a, which the NYPD had been citing since 2016 in refusing to provide information on misconduct by police officers.
Prior to the repeal, the city historically had cited 50-a to keep documents supplied in discovery secret.
For example, the city’s lawyers under de Blasio stubbornly fought efforts to disclose Officer Daniel Pantaleo’s disciplinary record after the chokehold death of Eric Garner in 2014.
Since the repeal, the city has taken two opposing positions. It has argued for disclosure as it did when the Uniformed Firefighters Association sued to block disclosure of firefighters’ records, arguing the effort “subverts the clear intent of the repeal which was to increase transparency.”
But the city has also argued in federal court that the repeal only applies to the state’s open records act, known as FOIL, and not to federal lawsuits. And even when a FOIL request is made, the city demanded a provision barring disclosure of those records in federal court, too.
“There is no lawful reason why the plaintiffs should be prohibited from sharing such information,” Berger said.
The city, for example, used these arguments to oppose disclosure in the case of Sandra Capellan and relatives, who alleged cops burst into their Brooklyn apartment in February 2020 and ransacked it without finding any contraband.
U.S. Magistrate Judge Cheryl Pollak ruled against the city Jan. 9 in Brooklyn federal court, writing that the repeal of 50-a lifts blanket confidentiality from discovery documents.
“The Court finds no basis to include these disciplinary records in the protective order,” Pollak ruled.
The city then appealed the decision to U.S. District Judge Eric Komitee, a Trump administration appointee.
“The fact that city lawyers are appealing court rulings in a desperate bid to keep police disciplinary information secret shows the city has no real commitment to transparency or accountability,” said Christopher Dunn, legal director of the New York Civil Liberties Union.
“Albany spoke loudly and clearly when it repealed the state’s police-secrecy law … but the de Blasio administration simply hasn’t heard the message.”
In the case of Sean Mingo, who sued for false arrest and fabrication of evidence in 2019, the city made a similar argument. Magistrate judge Vera Scanlon ruled in December that cops’ disciplinary records filed in discovery are no longer confidential.
“The city fails to make the showing that the disclosure of the officers’ disciplinary (records) would result in specific harm,” Scanlon ruled.
“At worst, this is an explicit strategy to evade the requirements of the new law and to hollow out the legislature’s efforts to combat police misconduct,” said Katie Schaffer of the Center for Community Alternatives.
But Nicholas Paolucci of the city Law Department countered that “the duties of a municipality in providing more transparency in light of the repeal of 50-a is a matter currently before the courts. Meanwhile, in federal lawsuits against individuals the federal rules of discovery continue to apply.”
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