Believing that the public has a right to know about police misconduct, BORDC/DDF has joined with Communities United for Police Reform and other civil society groups in filing an amicus brief in Luongo v. Records Access Officer. Luongo concerns an order by a New York Supreme Court judge that substantiated complaints against, Officer Daniel Pantaleo, the police officer who placed Eric Garner in a chokehold be made public. While the amicus brief is in support of Legal Aid’s Freedom of Information Law (FOIL) request for a summary of substantiated complaints against Pantaleo, it has far greater implications beyond just this one police officer. The New York City Law Department is arguing that such records are exempt from FOIL. While New York Supreme Court ruled in favor of Legal Aid, the New York City Law Department has appealed the decision. If the city succeeds police misconduct would essentially be cloaked in secrecy and the independence of the Civilian Complaint Review Board (CCRB) will be radically undermined.
Right to Know
On July 14, 2014 Eric Garner, 43 year-old father of six, died after being placed in a chokehold by Officer Daniel Pantaleo. Pantaleo had shown up on the scene after a plainclothes officer allegedly approached Garner about selling untaxed single cigarettes or “loosies.” Garner told police
“ Everyone standing here will tell you I didn’t do nothing. I did not sell nothing. Because every time you see me, you want to harass me[…]please just leave me alone.”
Garner, was not left alone, and Pantaleo attempted to arrest him, before putting him in a choke hold, and ultimately pushing against the ground. Garner can be heard on a video of the incident saying “I can’t breathe” 11 times. A number of other officers were present at the scene. Garner’s death at the hands of the police, which was caught on tape, caused national outrage and sparked protests across the country.
Garner’s death was ruled to be a homicide caused by “compression of neck (chokehold), compression of chest and prone positioning during physical restraint by police.” Yet, a grand jury failed to indict Pantaleo. Given the shocking video of the incident and the medical examiner’s conclusions, people across the US were outraged that no one would be held accountable for Garner’s death. Even former President George W. Bush weighed in, saying of the grand jury’s decision not to indict Pantaleo, “the verdict was hard to understand.”
Garner’s death was not the first time the Panatelo had been accused of misconduct. Prior to Garner’s death, Pantaleo was accused in three separate lawsuits of violating individuals’ constitutional rights. At least one of the lawsuits was settled by the city.
Given the high profile nature of Garner’s death and the lack of accountability, these records are of vital interest to a public. The need for the release is made even more compelling by the fact that neither Garner’s death nor the failure to hold his killer accountable are not unique occurrences, but part of a larger problem.
Two years ago, in order to find out more about Pantaleo’s conduct as a police officer, Legal Aid filed a FOIL with the CCRB asking for summary of substantiated complaints against Pantaleo. To put this in perspective, CCRB substantiates less than 1% of the complaints it receives.
The New York City Law Department has argued that this information is statutorily exempt from disclosure underNew York Civil Rights Law (“CRL”) § 50-a. CRL § 50-a states
[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state … shall be considered confidential and not subject to inspection or review without the express written consent of such police officer … except as may be mandated by lawful court order.
In 1976, the New York State Legislature passed this law in order to prevent criminal defense attorneys from going on “fishing expeditions” due to a fear that officers who were witnesses in criminal proceedings would be asked questions about unsubstantiated complaints against them. Regardless of the merits of this law, the situation at hand could not be more different. Panateleo is not a witness at a criminal trial and Legal Aid wants only complaints that have been substantiated by an independent agency.
Most troublingly though, the records are not under the control of a police agency or department of the state. In 1993, the CCRB was made independent of the NYPD making it an independent agency and meaning that CRL § 50-a does not apply to it. Up until 2014, CCRB routinely recognized this by granting FOIL requests like the one made by Legal Aid. It was not until relatively recently that they changed course. Claiming CRL § 50-a exempts CCRB from FOIL entirely undermines the purpose of making it an independent agency to begin with.
A New York Supreme Court judge agreed with Legal Aid and ruled that the requested material was not exempt under CRL § 50-a, a ruling BORDC/DDF fully supports. The NYPD has decided to appeal this decision and BORDC/DDF is proud to join with Communities United for Police Reform and other allies in calling for transparency for police misconduct. The rampant police abuses, especially in communities of color, illustrate the importance of transparency about police misconduct. Of course, transparency alone is not enough, officers who kill or otherwise violate the constitutional rights of people must be held accountable. The failure to hold anyone accountable for the death of Eric Garner, in spite of it being caught on video, shows that there are serious structural barriers to holding law enforcement accountable. By undermining the independence of the CCRB and cloaking all police misconduct in secrecy, the NYPD and CCRB would be throwing up another hurdle to police accountability. This is why BORDC/DDF signed onto the amicus brief.