An unusual subpoena issued by acting Nassau Police Commissioner Thomas Krumpter for the identity of a Facebook user will be the subject of a court hearing in Supreme Court in Nassau County Wednesday.
Vincent Grande, attorney for the Facebook user, filed a motion in the name of John Doe to quash the subpoena Thursday, arguing that Krumpter “is attempting to make an end run around the requirement of probable cause.”
Krumpter issued the subpoena seeking all identifying subscriber account information for Facebook user “Sue Reilly” on Sept. 7. The subpoena cited a disciplinary proceeding into a police department employee and warned Facebook not to disclose the contents or existence of the subpoena for 90 days.
A police source said the investigation was prompted by a complaint from a member of the department.
In an interview, Grande said his client is not a police officer and is not named Sue Reilly. Newsday spoke to the Facebook user and the person wished to remain anonymous.
Grande said Krumpter was abusing his power for personal reasons.
“I do not believe there is an open Internal Affairs investigation other than his desire to know who’s posting bad things about him,” Grande said.
Krumpter declined to be interviewed, but released a statement through department spokesman Det. Lt. Richard LeBrun:
“The Nassau County Police Department issues approximately 40-50 subpoenas a year based on investigations. With regard to this specific inquiry, we can neither confirm nor deny the issuance of a subpoena and cannot comment further because it is an active investigation conducted by the Internal Affairs Unit.”
A Facebook spokeswoman declined to comment.
Grande said he thought the subpoena was related to comments posted by Facebook user on Newsday.com Sept. 2 that were critical of Krumpter. The comments were taken down and cannot be retrieved.
LeBrun said the subpoena was justified.
“Even if Sue Reilly is not an active member of law enforcement, the amount of information being disseminated, which is filled with inaccuracies, indicates some type of communication with a member of this department, which is detrimental to the department,” he said.
Although subpoenas are typically issued by prosecutors, the Nassau police commissioner has limited subpoena power under the Nassau County administrative code. The Suffolk County police commissioner also has administrative subpoena power for conducting Internal Affairs investigations.
Several law enforcement sources familiar with Nassau’s department policy, including one who worked in Internal Affairs, said previous police commissioners used subpoena power only in rare circumstances. LeBrun said it was difficult for the department to track the number of subpoenas in the past, but said previous commissioners had signed off on them.
In addition, the department’s social media policy bars department employees from “speech that impairs or impedes the performance of the department, undermines discipline and harmony among members or negatively affects the public perception of the department.”
Eugene O’Donnell, professor of law and police science at John Jay College of Criminal Justice in Manhattan, said it’s not uncommon for police departments to have subpoena power in administrative investigations and that the number of subpoenas has increased as police departments have contended with offensive commentary online.
“This is an area that’s becoming more common – unmasking commentators,” said O’Donnell, a former NYPD officer and prosecutor. “Police departments need to maintain public confidence, which can be shaken when people who appear to be connected to a police department appear to be making provocative or divisive comments.”
However, how departments use subpoena power “is the real question,” he said.
“They obviously don’t have unfettered grounds to issue subpoenas,” he said. “Curiosity is not enough. Malice is not enough.”
James Carver, president of the Police Benevolent Association, the department’s largest union, said he has long been concerned about the police commissioner’s ability to issue subpoenas without any oversight and is troubled that Krumpter is apparently investigating someone who isn’t a police officer.
“He should only use that authority for issues related to the police department and its members, not for a fishing expedition to find out who doesn’t like him,” he said.