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The tide may be turning for NY's secrecy law on police discipline

"The way I see the law, I think it's being misapplied by local officials," said Assemb. Michael Montesano (R-Glen Head), a former New York City police detective, village justice and defense attorney. Credit: James Escher

ALBANY — In Minnesota, it took the public just a few days to learn the police officer accused of murdering George Floyd had been the subject of a long list of misconduct complaints during his career.

If the incident had happened in New York, the information might have never come out.

That’s because of a state civil rights law, called “50-A,” considered one of the three most restrictive statutes in the country in shielding police disciplinary records from the public. It's survived lawsuits, Freedom of Information challenges and bad publicity linked to high-profile deaths since it was enacted in 1976.

Now, prompted by Floyd’s death, New York state legislators say there is finally momentum to overhaul the statute after failures to do so for decades.

“The system needs to change. The time is now to change it,” said Assemb. Daniel O’Donnell (D-Manhattan), lead sponsor of a bill to change 50-A that could be voted on as soon as Monday, under a tentative plan by legislative leaders.

Some Republicans also say change is needed because statute was never meant to block disclosure of police misconduct, but that’s how it’s been applied.

“The way I see the law, I think it’s being misapplied by local officials,” said Assemb. Michael Montesano (R-Glen Head), a former New York City police detective, village justice and defense attorney.

“I think they are looking at it from a perspective of protecting themselves from a civil liability, and not as much about protecting the public,” Montesano said about local officials refusing to turn over disciplinary records. “If it gets out there, ‘We knew about this police officer and we didn’t do anything about it,’ it can create a civil liability.”

The legislator, who has a pro-police voting record, said the law should be amended to say “founded” disciplinary charges “have to be released upon demand.”

That would be short of a full repeal of 50-A, intentionally so. Montesano and some Democrats say some things should continue to be off limits, such as whether a police officer sought addiction treatment.

The Democrats who control the Senate and Assembly say such limits are under consideration. They also are negotiating language nuances, such as “founded” and “substantiated,” to determine when misconduct allegations could be disclosed, sources said.

Other proposals gaining new momentum since Floyd’s death that could be voted on Monday include banning police from using chokeholds and creating a permanent special prosecutor’s office to investigate deadly civilian-police conflicts.

Gov. Andrew M. Cuomo, also a Democrat, has said he would sign any 50-A bill the State Legislature approves, “repeal, reform, whatever they send me.”

Thomas Mungeer, president of the State Troopers’ union, criticized what he called Cuomo’s vow to “diminish the civil rights of your New York State Troopers.”

Along those lines, NYPD union president Patrick Lynch has asserted the goal of 50-A overhaul proposals isn’t to improve police discipline but instead “completely delegitimize police officers and the work we do.”

And on Friday, six police unions issued a joint statement criticizing state legislators for pushing “anti-cop bills.”

“We are further concerned that the intent behind the purported legislative agenda appears to be to destroy the morale of law enforcement, to subvert our rights and standing in the community and to expose us to increased risk,” said the group, which included the NYPD union. Specifically, the unions opposed the release of police disciplinary records, which, they said, could expose officers to “irreparable harm to reputation.”

Montesano’s view is notable because Republicans — in the state Senate, not the Assembly — had blocked all proposals to change the law for decades. The 2018 election ended GOP control in the Senate and, now, with Floyd’s death, the “climate has shifted dramatically” on 50-A, said one lawmaker, who asked not to be identified.

It originally was championed by the late Sen. Frank Padavan, a Queens Republican, not long after the legislature approved a landmark Freedom of Information Law to open up government records. The legislature approved the 50-A bill in 1975, but then-Gov. Hugh Carey, a Democrat, vetoed it.

Approved again a year later, Carey signed it. It places tougher restrictions on disclosing police personnel records than on other public employees.

Republicans had controlled the Senate for all but a few years over the last five decades and, on 50-A, had adopted a view supported by influential police unions: The law was needed to protect officers from harassment and from being used by defense attorneys to undermine trial testimony.

Over the years, legal challenges under the state’s Freedom of Information Law, including some by newspapers, came to naught.

In 2010, a federal court blocked Newsday from obtaining potential police misconduct records related to the death Jo’Anna Bird, a New Cassel woman tortured and killed by her boyfriend. A 2013 Newsday investigation identified more than 200 Long Island police officers linked to misconduct cases by departmental charges, jury verdicts or court settlements. The report said the total number of misconduct cases is unknown because 50-A makes comprehensive accounting impossible.

In 2014, 50-A came under intense scrutiny following the death of Eric Garner on Staten Island. The city said it could not release disciplinary record of the officer involved in the chokehold death.

That sparked the New York State Committee on Open Government in 2015 to recommend repealing or substantially amending 50-A. The suggestion went nowhere.

Without legislative action, the New York Civil Liberties Union mounted a legal challenge, but that failed too after a six-year court battle when the state’s highest court agreed, in 2018, with the police union’s view of the law.

“The statute was designed to protect police officers from the use of their records ‘as a means for harassment and reprisals and for purposes of cross-examination by plaintiff’s counsel during litigation,’” Justice Michael Garcia wrote for the majority in a 5-2 Court of Appeals decision. “'Documents pertaining to misconduct or rules violations’ by an officer are ‘the very sort of record which, the legislative history reveals, was intended to be kept confidential.’”

The decision even strengthened the law, some said, because Garcia reinforced the concept that 50-A limits weren’t tied strictly to litigation but extended to any “potential use of the information,” which closed off any freedom-of-information requests.

The New York City Bar Association issued a white paper in 2017, noting: “Only two other states have laws like 50-A that restrict the scope of law enforcement information available to the public.”

The Bar report also said Padavan’s original “purpose was to prevent disclosure of ‘unverified and unsubstantiated’ civilian complaints — not to prevent disclosure of substantiated civilian complaints.”

In recommending amendments, the lawyers’ group said the severe restrictions imposed by 50-A actually work to undermine police-civilian relations.

“Interpretations of 50-A have become increasingly broad and go far beyond the statute’s initial purpose of protecting police officers from harassment and undue invasions of their privacy,” the Bar report said. “This, in turn, fuels the mistrust between communities and the NYPD officers pledged to protect them.”

In 2018, Democrats rode a “blue wave” on Election Day to take a commanding grip on the State Senate, where they now hold a 40-23 advantage. Their first year in solid power, they teamed with the Democratic-led Assembly to approve a series of criminal-justice changes, from reducing the number of “bail eligible” crimes to creating a prosecutorial misconduct board.

But they balked at changing 50-A, in part because making too many criminal-justice changes too quickly might hurt Long Island and upstate Democrats electorally.

Police unions also mounted an unbending defense of the statute at a heated Senate hearing on the issue in October in Manhattan.

“I don’t think you can compare (NYPD) to any other agency,” Paul DiGiacomo, vice president of the Detectives Endowment Association, said, citing undercover and other operations.

Troopers’ union chief Mungeer told the Buffalo News this week: “The importance of protecting the civil rights of police officers was recognized when it was codified into law in 1976. Why should the civil rights of police officers be any less important today than they were 44 years ago?”

But now the tide is moving the other way. New York lawmakers are finalizing how to change 50-A, not whether to.

“If a cop has a pattern of misconduct, false arrests, by all means that should be out there,” said Montesano, the Republican assemblyman.

He said “no one piece of legislation” is going to be the “silver bullet” to improve civilian-police relations and build trust. But he believes 50-A changes could help.

“Just because we repeal 50-A or amend it, it doesn’t mean these problems go away,” he said. “But where I think it could be helpful is where you have an officer with a history of violent behavior, it will help the department flush them out.”

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