As outrage over the NYPD’s violent treatment of protesters has grown, Mayor Bill de Blasio has been forced to temper his unqualified support of the police department. In acknowledging the public’s anger over racist policing, de Blasio announced his commitment to reform New York Civil Rights Law section 50-A, a 44-year-old statute that insulates police disciplinary records from public scrutiny, protecting violent police from consequences and insulating the departments statewide that fail to restrain them from accountability for those failures. The law’s sweeping language makes New York’s transparency around police records the worst in the nation.
“We need 50-a repealed. Let's do that in the month of June,” de Blasio told reporters on Monday. “We must also have legislation that protects the identities of police officers in their personal life, their home address. They deserve that protection, but discipline processes must be transparent. We have a moment now that we can get that done and that will deepen the trust and deepen our ability to have progress going forward.”
But de Blasio’s invocation of 50-A reform to prove his good faith commitment to police accountability in this moment is misleading in many respects. For one thing, it’s a punt: 50-A is a state law, and any change to it must be effected by the state government. For another, to the extent he’s presenting it as a response to the protests, it isn’t: he’s held the same position on 50-A for years.
The history of 50-A is long and tangled, but it boils down to this: The law was passed in the ‘70s at the behest of police unions aggrieved by the legal and cultural shifts of the previous decade. Initially framed as a measure to prevent unscrupulous defense lawyers from embarrassing arresting officers on the stand by calling attention to their disciplinary record, it metastasized over the years, through a series of court rulings, to apply not only to trial defense but to the public and the press, not only to information that might expose an individual officer to harassment but even to anonymized and aggregated misconduct data.
The mayor himself, far from pushing back on police secrecy, is himself responsible for much of 50-A’s most dramatic expansion.
“De Blasio has been the driving force that has gotten us to the position that has gotten us to this place,” said Michael Sisitzky, lead policy council for the New York Civil Liberties Union. It was the de Blasio administration that refused to give the NYCLU anonymized records of NYPD disciplinary decisions, then argued in federal court that 50-A might be interpreted to preclude even the release of records from which identifying information had been redacted.
With the issue teed up by the de Blasio administration, an appeals court handed down a sweeping ruling in 2018, holding not only that police departments may withhold even redacted disciplinary records, but that they must. Over the same period, de Blasio has ended a 40-year practice of making disciplinary summaries available to reporters, and went to court to suppress the Civilian Complaint Review Board’s record of substantiated complaints against Daniel Pantaleo, the officer who fatally choked Eric Garner in 2014.
The ruling brought down an iron curtain of secrecy around the NYPD, leaving accountability advocates no avenue forward but to seek relief from the law itself. Here again, de Blasio has confounded those efforts. Where accountability advocates have supported legislation to simply repeal 50-A, de Blasio has opposed those efforts, calling instead for “reforms” to the law. His arguments for doing so – that without some protections, officers’ personal addresses and other information might be released, putting cops’ lives in danger – can only be described as disingenuous. Personal information like addresses are already protected from disclosure under the state’s Freedom of Information Law, and the repeal of 50-A wouldn’t change that.
When State Senator Jamaal Bailey convened two days of hearings on his bill to repeal 50-A last fall, he invited testimony from police departments, police unions, police accountability activists, civil liberties groups, and journalism organizations. The only testimony that opposed full repeal came from police unions and the City of New York.
The “reforms” de Blasio wants would crack the door, allowing a little more information about police discipline to leak out of the department, while allowing police to retain wide latitude to interpret the law to withhold records. (The Mayor’s Office hasn’t responded to our inquiries.) The NYPD’s Senate testimony proposed allowing police to disclose the transcripts of already-public disciplinary hearings, as well as the final disposition of those hearings and the punishment that results from them. But not all cases: only “serious discipline cases,” and not immediately, but only after the cases have been resolved.
Given the NYPD’s long track record of exploiting existing legal loopholes and even creating new ones to justify keeping police misbehavior secret, these kind of exemptions hardly promise a new era of police transparency.
Until recently, state legislators haven’t shown much appetite for repealing 50-A either. Assembly Member Danny O’Donnell has proposed legislation to repeal the bill for years, without success. Senator Bailey promised last fall that repeal was his number one priority, but instead it languished, as Senate Democrats, terrified of being painted as soft on crime, instead rolled back back the reforms they had enacted the previous year.
There’s evidence that might be changing, though. Some state lawmakers have been the victims of overaggressive policing themselves in protests in recent days, and others are second-guessing the political wisdom of their regressive turn in the last session. Lawmakers met Monday to discuss doing something with 50-A. O’Donnell told Gothamist afterwards that he expects the Assembly will vote to repeal 50-A entirely. Whether the Senate will get behind a full repeal or opt for some sort of weaker revision is currently unclear.
Governor Andrew Cuomo, who managed for years to avoid taking any detailed position on 50-A, is now also talking about the law. Pressed on the issue at an appearance Monday, Cuomo argued, seemingly disregarding the 2018 federal appeals court ruling, that de Blasio could release disciplinary records if he wanted to. “Release the records because the law doesn't stop you,” he said. “Or if that's not enough, then the legislature should repeal the law.”
Whether the Governor is going to put his muscle behind 50-A repeal remains to be seen. But police accountability advocates say anything short of repeal will miss a historic opportunity to reign in police violence.
“If instead of repeal they go for some sort of compromise, that’s going to leave in place the systems that have served so far to protect the police state and police violence,” said Erin George, civil rights director for Citizen Action NY. “You’re asking people to believe that whole culture is just going to shift on its own.”
With reporting from WNYC’s Fred Mogul
