Sep 1
2020
Police transparency hinges on legal battle
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For more than 40 years, state law and contractual agreements concealed police personnel records from public scrutiny. Complaints lodged against officers, investigations into misconduct, disciplinary actions, settlement agreements — all these tools for evaluating an officer’s suitability for the job — were almost completely inaccessible.
That changed in June, when, in response to the nationwide protests following the death of George Floyd, the New York State Legislature amended the state’s Civil Rights and Freedom of Information laws to make those records public.
Buffalo’s police union is not surrendering those protections gracefully. The Buffalo Police Benevolent Association is challenging the new transparency in court, arguing that all but a sliver of personnel records should remain shrouded in secrecy.
The battlefield has quickly grown crowded: Local and national civil rights organizations, police reform advocates, media outlets, and private attorneys — even an organization of former law enforcement officials — have all filed briefs arguing against the union’s positions.
On Monday, the battle was finally joined by the actual defendants in the lawsuit, when the City of Buffalo’s attorneys filed a motion asking a state judge to dismiss the police union’s lawsuit.
Though it originates with the police union, the city’s firefighters union is also party to the lawsuit. The defendants are Mayor Byron Brown, Buffalo Police Commissioner Byron Lockwood and Buffalo Fire Commissioner William Renaldo.
Among other arguments, the police union contends releasing disciplinary records violates the city’s contract with police, the privacy rights of officers and confidentiality agreements with officers disciplined for wrongdoing. They argue only those cases of misconduct in which an officer disputes the charges and is found guilty should be open to public scrutiny.
Those cases are rare: The vast majority of misconduct complaints, if they are even fully investigated, are resolved in arbitration. And those arbitrated resolutions, the union argues, should remain confidential.
Opponents counter that the city’s contract does not supersede state Freedom of Information Law, which provides plenty of privacy protection to officers. And they argue all agreements between the city and its employees should be open to public scrutiny.
State Supreme Court Justice Frank Sedita granted a temporary restraining order in late July effectively barring the police department and the city from releasing any records until the union’s case can be heard.
City joins the fight
In the six weeks prior to Monday’s filing, the city’s attorneys made no effort to rebut the union’s arguments or contest that temporary restraining order. They only asked Sedita to clarify the meaning of his injunction:
“Respondents do not oppose the proposed preliminary injunction, but request guidance regarding the injunction’s intended scope,” William Mathewson, assistant corporation counsel, wrote in the city’s only previous reply to Sedita’s order, filed August 14.
How, the city asked, did the court define “disciplinary records”? Should the city continue to provide them to the U.S. Attorney and the Erie County District Attorney? How about plaintiff’s attorneys in civil lawsuits?
Read Geoff’s insightful analysis of Buffalo police contract
Stephanie Cole Adams, a Buffalo attorney who has sought to intervene in the case, called the city’s original acquiescence to the judge’s order and silence in response to the union’s argument’s “a serious lapse of statutory duty.”
“We had concerns the city wouldn’t fight [Sedita’s restraining order], but even my cynicism was shocked by the reply the city filed,” Adams told Investigative Post.
Indeed, uncertainty that the Brown administration would vigorously contest the union’s lawsuit is one reason other parties have sought to intervene or file “friends of the court” briefs. Those parties submitted to Sedita hundreds of pages of arguments and evidence opposing the union’s arguments.
Monday’s motion to dismiss, however, seems to indicate the city will put up a fight after all. While the city’s argument for dismissal is based largely on procedural grounds, it also takes issue with some of the union’s central arguments, including the notion that releasing disciplinary records breaches the city’s contract with police, which keeps personnel files secret.
“Petitioners and respondents do not have the power to mutually agree to circumvent the Freedom of Information Law,” Mathewson, the city attorney, wrote in his motion to dismiss.
In other words, the provisions of the PBA’s contract with the city do not trump state law. Neither the city nor the police union can bargain away the public’s right to know.
Friends and intervenors
In New York State, disciplinary records for police officers and firefighters have been largely hidden from view, thanks to a provision of the state’s Freedom of Information Law — Section 50-a, adopted in 1976 — that was initially intended to limit criminal defense attorneys’ use of them to undermine officers’ credibility. Over the years, court rulings and arbitration decisions transformed what was initially a relatively narrow provision into a blanket protection that made complaints against police officers, and the investigation and resolution of those complaints, virtually inaccessible.
A target of police reformers for decades, 50-a was repealed by the New York State Legislature on June 9, as part of a package of police reforms signed into law by Gov. Andrew Cuomo a few days later.
A flood of record releases followed, as the Buffalo Police Department and the city’s law department responded to requests from the media, the public, attorneys, and civil rights organizations.
On July 22, the Buffalo PBA sued to stop the flow. Sedita granted the temporary restraining order on July 24.
Since then, six parties have stepped up to argue against the PBA’s assertions. Three of them have filed “friends of the court” briefs:
- The firm Finnerty Osterreicher & Abdulla, partnering with the UB Law School’s Civil Rights and Transparency Clinic, submitted a “friends of the court” brief on behalf of 26 local and national media organizations, including Investigative Post.
- A group of 13 citizens and a dozen civil rights organizations focused on police reform — including the Buffalo Police Advisory Board, the Western New York Law Center, and Black Love Resist in the Rust, among others — filed a “friends of the court” brief. These parties “collectively represent communities disproportionately affected by police misconduct and lack of police accountability,” according to papers filed by attorney Joel Cohen of the firm Gibson, Dunn & Crutcher.
- The Law Enforcement Action Partnership, a nonprofit comprising former police officers, prosecutors, judges, and corrections officers, filed a “friends of the court” brief arguing that transparency “promotes the goals of effective law enforcement” by fostering trust between police and the communities they serve.
Three parties have sought permission to intervene in the lawsuit:
- The New York Civil Liberties Union was involved in a similar case in New York City, in which the NYPD’s police union obtained an injunction preventing the NYCLU from publishing police disciplinary records obtained after the repeal of 50-a. That injunction has since been lifted. The NYCLU seeks to intervene in the PBA lawsuit on the grounds that access to the records is a public good.
- James Kistner, Adams’s client, accuses the City of Buffalo and its Police Department of violating his civil rights during a 2017 incident in front of his home. Adams argues that Kistner’s lawsuit, filed in federal court, depends on access to the disciplinary records of the officers Kistner says police detained him unlawfully, assaulted him, then conspired to concoct a story to justify their actions. The city has cited Sedita’s restraining order in denying Kistner those records.
- Tremel Stone, shot by Buffalo Police Officer Ronald Ammerman in 2009 while being arrested, is represented by attorney Jeanne Marie Vinal. The judge in Stone’s lawsuit against the city and Ammerman has ordered the release of Ammerman’s disciplinary records. Vinal seeks assurance the judge’s order will be satisfied.
The parties seeking to intervene wish to join the lawsuit. The three “friends of the court” — amici curiae in legal language — offer their analyses as guidance for the judge, if he chooses to accept it.
The legal arguments
Karim Abdulla, of Finnerty Osterreicher & Abdulla, explained his firm’s amici brief argues specifically for the interests of the news media. However, he noted, the media act as surrogates for the public. The 50-a exception protected individual officers and concealed systemic problems with law enforcement. It is the news media’s job, Abdullah explained, to report those problems.
“If nobody knows what the problems are, it becomes very difficult to fix the problems,” he said. “Having this transparency allows everybody — the press, the public, other members of government — to see what’s going on, to formulate a plan to address any problems…to move forward and to do better.”
The briefs filed by Abdulla’s firm and the UB Law clinic, Adams, and the NYCLU offer the most extensive rebuttals to the police union’s arguments. Many of those arguments are echoed in the city’s motion to dismiss:
The city and the police union cannot contract away the public’s access to information about its government.
The repeal of 50-a was accompanied by revisions to the Freedom of Information Law that safeguard the privacy of officers and exempt records regarding “minor, technical infractions that do not involve interactions with the public.”
The details of the city’s settlement agreements with, or on behalf of, an employee are exactly the sort of document that FOIL is meant to provide the public, which pays the bill.
Indeed, the city’s civil liability for police misconduct could be construed as an incentive for the city to keep a lid on the details of that misconduct. The city usually defends officers against civil claims and pays court-awarded settlements. Police-related incidents have cost the city $11.9 million in civil judgments in the past five years.
“The city may or may not have the same interest, or the same focus, on transparency and public access” as the amici curiae and the intervenors, Abdulla said.
Abdulla said he was not surprised that Sedita granted a temporary restraining order. It is natural, he said, for a judge to pump the brakes on a big change in law or policy — to maintain the status quo while the repercussions of the change are sorted.
“The problem is, the Legislature has changed that status quo; they’ve changed the law,” Abdulla said.
Abdulla and Adams both noted the PBA’s lawsuit does not challenge the constitutionality of the 50-a repeal. That would be the only basis for the courts to overturn it.
Adams believes the union’s lawsuit may be a negotiating tactic. Even as they tangle over public access to disciplinary records, the union’s attorneys are engaged in talks with the city’s attorneys about a new police contract. Those negotiations, dormant for nearly a year, picked up again in August and are currently in mediation.
“The union clearly wants to make the interpretation of the law a bargaining chip at the negotiating table,” Adams told Investigative Post.
Attorneys for the PBA and the city did not respond to requests for comment.
Sedita is scheduled to rule whether he will accept the proposed interventions and “friends of the court” briefs on September 15. The court will hear arguments on the substance of the lawsuit and the temporary restraining order on Oct. 6.
