How New York's Law Shielding Cops From Scrutiny Became One Of The Toughest In The Country

This is the second and final part of our story on how a 40-year-old state law has blocked police transparency in New York. Read part one here.

Last spring, the police trial of NYPD Officer Daniel Pantaleo and the bizarre cloud of mystery that hung over the public hearings introduced the public to what journalists, public defenders, and police watchdogs had long understood about Section 50-A of the New York Civil Rights Law. In its current interpretation, 50-A draws a curtain of secrecy over an area of government where trust and accountability are especially important.

For the fifth year in a row, legislators in Albany are now considering a bill to repeal 50-A, and holding hearings in which police unions predict chaos and disaster if the law’s protections are withdrawn, while virtually everyone else calls for its immediate repeal.

Much of the discussion from critics of 50-A so far has been framed around a narrative of good intentions leading to unforeseen consequences. When the legislature passed the law in 1976, this story goes, it did so with noble and modest intentions, but over the years, what seemed a sensible and beneficial law produced unfortunate side-effects that the law’s authors couldn’t have anticipated, especially as 50-A was distorted by courts’ increasingly expansive interpretations.

An examination of the legislative history of the law and the court cases that have defined its interpretation show that that narrative is not quite right.

It’s true that courts have greatly increased the scope of 50-A’s application over the years. But legislators in 1976 had ample warning that this law could play havoc with police accountability. 50-A was passed at a distinctive moment in American history, when a newly organized constituency of resentful police stood at the forefront of a concerted backlash against the civil rights movement. The bill, and many others like it around the country, was written at the behest of these revanchist interests, and it was passed into law over the objections of legislators, civil liberties groups, and law enforcement officials who accurately predicted the kind of unaccountability for police violence and corruption the law would foster.

In the mid-1970s, police across America were feeling besieged. A string of landmark Supreme Court decisions in the previous decade had completely altered the balance of power between police and the people they arrested.

In 1961, in Mapp v. Ohio, the court ruled that evidence obtained by unconstitutional searches was inadmissible in court. “We can no longer permit [constitutional rights to due process] to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment,” the court wrote. In 1963, Gideon v. Wainwright held that even poor people had a right to legal representation. Over the following years, as jurisdictions put in place the first modern public defender systems, police found themselves confronting the fact that many of the people they interacted with would, for the first time, have lawyers who might have something to say about their police work in court.

In 1964, the Supreme Court held that statements made in police interrogations after a suspect has requested and been denied access to a lawyer are not admissible. Two years later, in Miranda v. Arizona, the justices ruled that police have to inform defendants of their right not to incriminate themselves and their right to an attorney.

“Policemen still resort to physical force to obtain confessions,” the court noted in its decision. “Only recently in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party.”

Taken together, these rulings created the beginnings of systematic police accountability where there once had been little to none, Samuel Walker, a police historian and professor emeritus at the University of Nebraska-Omaha, told Gothamist. “Before all of this, the average police officer had very little oversight over their conduct,” Walker said. “Police departments would discipline officers here and there, but an awful lot of misconduct was ignored.”

At the same time, according to Walker, the political ferment of the 1960s was putting police officers on the defensive. As the civil rights movement gathered steam, the role of police as enforcers of racist power structures came into focus. By the mid-1960s, “long hot summers” of protests and riots, many of them set off by the killing of black residents by white police, had become a fixture in many cities, New York included.

All this social upheaval left many police feeling unappreciated and oppressed. “The cops felt that everybody was against them,” Walker said. “Their feeling was, ‘The Civil Rights movement, these African-American leaders, they hate the cops and they want to limit our autonomy and make it difficult to fight crime.’”

Police chiefs had initially joined rank-and file cops in resisting these tidal changes, but by the 1970s, many were beginning to see their value. The new legal environment created by the Supreme Court decisions forced departments to professionalize.

“Under the surface, Mapp and Miranda had a huge impact on improving police training and personnel standards, and things like supervising warrants,” Walker explained. “It was an alarm bell to police chiefs, because they realized ‘Holy God, we’re going to lose all these criminal cases because our officers are incompetent.’”

And while many chiefs opposed the movement for citizen oversight of police in the 1960s, Walker said, by the 1970s, many had stopped fighting it so hard. “They’re realizing, ‘We’ve got a community-relations problem. We’ve got to have some positive relationship with the African-American community. So they dropped out of that battle.”

It was in this environment, with cops unappreciated by a hostile public, betrayed by their own leadership, and knocked off balance by changing legal standards, that modern police unions came into their own around the country as a well-organized and powerful reactionary political force. The unions pushed for better working conditions and pay for their members like any other union, but as police sociologists have noted, they also gave voice to a growing police subculture of “Policeman as Other,” a sense of persecution and us-versus-them. They raised money for political contributions, hired professional lobbyists, and even adopted many of the tactics of the civil rights movement that so aggrieved them: demonstrations, on-the-job actions, and calls for expanded rights.

In 1966, when Mayor John Lindsay attempted to place civilians on the city’s police oversight board, which until then had been composed entirely of police officers, police unions rebelled. Police radios summoned more than 5,000 cops to a protest outside city hall, where the head of the Patrolman’s Benevolent Association addressed the crowd.

“I am sick and tired of giving in to minority groups, with their whims and their gripes and shouting,” John Cassese, the PBA president, said. “Any review board with civilians on it is detrimental to the operations of the police department.” After a public scare campaign promising New Yorkers that “your life may depend on” preventing civilian control, the PBA and its allies succeeded in winning a referendum that ended civilian oversight of the police. (Civilians wouldn’t sit on the review board for another two decades, and wouldn’t control it until 1993.)

“This was the piece of the union rhetoric that really landed,” Walker said. “‘Any effort to increase oversight and transparency is going to lead to more crime.’ For decades afterwards, no one really came up with an effective counter to that.”

All over the country, police unions used their newfound political influence to insulate officers from oversight, negotiating protective union contracts, passing “Law Enforcement Officer Bill of Rights” statutes that tie departments’ hands in investigating suspected misconduct.

In 1973, two things happened in New York that threw the police union fight against transparency into overdrive. One was the passage of the Freedom of Information Law, which mandated that huge swaths of government records were presumptively available to the public.

The other was a ruling by a Narcotics Court judge in Manhattan, that the NYPD had to turn over to the court the personnel records of the two officers who would be the chief witnesses against the defendant.

When police officers testify against defendants, “there is a duty on the prosecution to make available to the court any information in its possession or in the Police Department’s possession which might go to the issue of the defendant’s guilt, including evidence affecting the credibility of such officer,” Justice Arnold Fein held. The NYPD had argued that the defendant’s subpoena for the police records was a stab in the dark, and that, given the sensitivity of personnel records he sought, he should have to show some evidence that he was likely to find something relevant to his defense in those records in order to subpoena them. The defense argued that this was an impossible standard, as they couldn’t know what’s in the records without seeing them, and the judge agreed.

The ruling was hardly a radical embrace of absolute transparency: The judge ordered the records turned over not to the defense, but to the court, where a judge could review them and decide if there was anything the defense needed to see. In other cases the same year, judges broke with Fein’s ruling, quashing defendants’ subpoenas for police records. Nonetheless, Fein’s ruling sent shockwaves through New York law-enforcement circles, and by the next year, the bill that would eventually become New York Civil Rights Law 50-A was introduced in the state legislature.

The bill was written by Senator Frank Padavan, a Queens Republican, at the suggestion of a police union, according to a memo explaining the legislation when it was first proposed in 1974 that was reviewed by Gothamist. “The Patrolmen’s Benevolent Association of the New York City Transit Police has pointed up a very serious problem which exists whereby some attorneys engaging in ‘fishing expeditions’ subpoena personnel records as a possible basis for attacking the credibility of police officers on cross-examination and have abused and misused these files,” the memo reads.

Specifically, the bill created a new hurdle for anyone trying to get police records. Before they could request the documents, or even ask a judge to review them in chambers to determine if they contained anything relevant, a person seeking the records would have to produce a “clear showing of facts sufficient to warrant the judge to request records for review.”

On the Senate floor, Padavan seemed unequipped to explain exactly why his bill was necessary, or even what the current procedure for accessing police records was.

“Don’t you think it might be important for you to know what the present procedures are in order to be able to justify the need for this bill?” Senator Karen Burstein of Nassau County asked Padavan, according to a Senate transcript, after he was unable to answer her questions about how records were made public at the time.

“No,” Padavan answered.

“Well, can you tell me what in fact is the justification of the bill?” Burstein pressed.

“I think the bill stands on its own merits,” Padavan answered.

Burstein cut to the chase: Nobody wants to encourage harassment, she said. “What this piece of legislation really intends to do is make it so burdensome for anybody with legitimate interests to get a performance record that, in fact, it will kill such efforts. I suggest in one particular area that this is important, and that is if you have a charge, and you may have a number of them, of brutality. It becomes essential to be able to look at somebody’s performance record.”

Padavan’s original bill was framed in such sweeping terms that it appeared to prevent everyone, even district attorneys and city and state agencies in charge of approving pay raises and promotions, from seeing personnel files, so though the bill passed the legislature, Governor Hugh Carey vetoed it. Undeterred, Padavan brought the bill back in the next session, with new language exempting “those governmental agencies that need access to police personnel records in the exercise of their official function.” That still felt pretty vague to some prosecutors, who worried that the law could still end up shielding records from district attorneys, special prosecutors, and grand juries.

“Enactment into law of this bill would be counterproductive to the Governor’s vow to stamp out corruption in the process of law enforcement, which the Governor characterized as an intolerable cancer,” Deputy Attorney General Maurice Nadjari wrote, urging the governor to again kill the bill. “I feel very strongly about this.”

But police unions backed the bill, with organizations from around the state (as well as a national organization of police unions) sending similarly phrased letters to the governor urging him to sign it. The unions couched the need to create a law specific to police records in the language of the civil rights movement.

“The civil rights of police officers must be protected,” read a representative memo from the Patrolmen’s Benevolent Association of the New York City Transit Police. “These rights are sacred.” The problem, the Transit PBA explained, was that “In today’s milieu police officers are bearing the brunt of fishing expeditions by some attorneys who are subpoenaing personnel records in an attempt to attack the officer’s credibility.”

Carey vetoed the bill again in August of 1975, writing that if enacted it “would severely hinder the legitimate investigative efforts of such law enforcement personnel.”

Finally, Padavan brought the bill back a third time in the 1976 session, penning a memorandum in support of its passage that borrowed entire paragraphs from the police union lobbying materials of the previous year. The 1976 version of the bill included language explicitly exempting prosecutors, the attorney general, and grand juries.

When Padavan’s bill came up for floor debate, Senator Carol Bellamy of Brooklyn spoke against it.

“What this does in fact is prohibit, really, adequate cross-examination of a police officer,” Bellamy said. “It will deter or will in fact interrupt the adequate – or what is now in fact the inadequate – process of the criminal justice system and make our criminal justice system even more difficult to move along. I suggest it is a very bad bill and I urge it to be defeated.”

The Senate passed the bill by a vote of 45 to 4.

As the governor considered whether to sign the legislation, several state agencies continued to question the wisdom of creating judicial protections for police officers that is different from other citizens and public servants. Unsurprisingly, the New York Civil Liberties Union also wrote to oppose the bill. “The purpose of this bill is to insulate policemen from meaningful cross-examination in the cases in which they are witnesses,” the NYCLU wrote. As such, the bill “seems a wholly unjustified attempt to protect those policemen at the expense both of the persons against whom they are testifying and of the truth.”

The strongest opposition to the bill came from the Attorney General’s office, which acknowledged that the new language addressed its earlier procedural concerns, but argued the entire philosophy of the bill was a dangerous mistake.

“All the participants in the criminal justice system should constantly be reminded that their employment in this system is a privilege and that the greatest part of this privilege is being charged with the public trust of maintaining the public’s right to justice,” Special Deputy Attorney General Joseph Hoey wrote to Carey. “The public should feel it has the opportunity to review the justification for continuing the employment of members of the criminal justice system.”

Some prosecutors disagreed. The Bronx District Attorney, Mario Merola, wrote to support the bill. “Simply as a harassment tactic, defense attorneys in criminal cases have been making an unrealistically high number of requests for the personnel files of police officers scheduled to testify against their clients,” Merola wrote. Padavan’s bill would “discourage bad faith probing into police personnel records.”

The language of harassment was also employed by police unions in their lobbying. “It has become a matter of harassment of police officers that personnel records be constantly requested, scrutinized, reviewed and commented upon, sometimes publicly,” the Police Conference of New York wrote to the Governor.

It’s worth noting that, claims of harassment notwithstanding, nowhere in the legislative record or any of the preserved lobbying materials is any evidence that police officers were actually suffering any harassment or violation of their civil rights. The extent of the harassment, as far as the record suggests, is simply that defendants were asking for the ability to assess the credibility of police witnesses testifying against them.

Hoey, the deputy attorney general, acknowledged the concern over harassing record requests, but argued judges are perfectly capable of addressing such things on a case-by-case basis. Padavan’s bill was overkill, he said, “analogous to a village placing a glass dome over Town Hall to keep the mosquitos out in the summertime, because the Mayor fears the custodian will forget to put up the screens in May.”

Nonetheless, the third time proved the charm for Padavan, and Governor Carey signed Civil Rights Law 50-a into law in the summer of 1976.

As it turns out, the passage of 50-A was just the beginning of the story. A string of court cases interpreting the law, and how its restrictions interact with the broad presumptions of transparency imposed by New York’s Freedom of Information Law, have led to a continuously evolving and expanding understanding of when police records are secret.

Courts initially understood 50-A in the terms that it was discussed when it was enacted: that is, as applying to when defense attorneys can get their hands on police records for use in a courtroom.

In 1986, when a journalist investigating a police union boss’s use of sick-time sued to find out how many sick days he’d taken, a court ruled that the protections of 50-A are narrow. The law “did not provide an exemption for FOIL requests,” it affirmed, “but rather was only intended to prevent a litigant in a civil or criminal action from obtaining documents in a police officer's file that are not directly related to that action.”

Two years later, though, an appellate court dramatically expanded the understanding of 50-a to cover information that could be used in hypothetical future litigation, whether or not the records were requested in the context of a current court case.

In 1999, 50-A shook loose from the orbit of litigation entirely, thanks to an episode in which a chartered bus full of off-duty Schenectady police officers celebrating a bachelor party pelted two people in a car with raw eggs. The Schenectady Police Department confirmed the incident and said the officers involved had been disciplined, but refused a Freedom of Information Request by a local newspaper trying to find out which officers were involved and what kind of discipline each received.

In the resulting lawsuit, the New York Court of Appeals ruled that 50-A applied not only to courtroom disclosure, but to disclosure to the press and the public as well. To justify this, the court relied on the legislative discussion from 1981, when 50-A was expanded to cover corrections officers as well. The sponsors of that amendment had argued that prison guards needed the protections of 50-A to protect them and their families from “harassment or reprisals,” presumably by the incarcerated people they oversee.

Retroactively backdating the arguments concerning corrections officers to also apply to police officers is troubling, according to Cynthia Conti-Cook, a public defender who has written and litigated extensively around 50-A. “The Schenectady case means that as far as 50-A is concerned, the relationship between the police and the public is interpreted as being one of imprisonment,” Conti-Cook said.

Nonetheless, the appeals court ruled, police records can still be disclosed if people asking for them make narrowly-tailored FOIL requests or if the agencies with the records redact them “so as to preclude use in personal attacks against an officer.” And if a government agency does withhold personnel records requested under FOIL, the court held, “nondisclosure will be limited to the extent reasonably necessary to… prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer.”

That window created by the Schenectady case – that police personnel records should be made public if it can be done without subjecting an officer to personal attacks – governed how New York handled police records for about a decade, until the law’s interpretation was broadened again by a series of recent court decisions spurred by the de Blasio administration.

In 2014, Conti-Cook filed a FOIL request in order to learn something about the disciplinary history of Daniel Pantaleo, the police officer whose choking of Eric Garner on Staten Island in 2014 led to Garner’s death, but was being stymied by the NYPD and its invocation of 50-A. “I was getting nowhere, and then I read this piece in DNAinfo describing a disciplinary incident with Pantaleo,” Conti-Cook said. The article was based on disciplinary summaries posted, per long-standing tradition, on a board outside the public information office at police headquarters, where beat reporters could review them. “I was like, that’s swell! I want everything that’s been posted outside the press office,” Conti-Cook said.

Conti-Cook and her colleagues delved into the municipal archives, which collects the proceedings of New York City government for posterity. After some digging, she found that NYPD disciplinary summaries were preserved in the archives, but so intermingled with other personnel information – promotions, name changes, and the like, as to be very difficult to collect in a meaningful way. “Rather than doing it the messy way, we decided, let’s just request five years of the disciplinary records,” she said.

Conti-Cook filed a request for the records under New York’s Freedom of Information Law. The NYPD denied her request, and she appealed. The final denial of that request came in August of 2016, the same month the NYPD announced that it was reversing the decades-old practice of posting disciplinary summaries where reporters could review them, citing a new interpretation of 50-A. Some time later, Conti-Cook learned that even the messy, tedious route to NYPD disciplinary records had been cut off: 40 years of NYPD personnel records were no longer available at the public archives.

“Learning that was disturbing,” Conti-Cook said. “If you’re a historian writing about NYPD discipline -- from any perspective, maybe about how the disciplinary process is unfair to officers! -- that’s a historical record that’s just gone now.”

Vanishing records of official misconduct down the memory hole puts New York in bad company, Conti-Cook said. “When we look at other countries that are disappearing ledgers of people who have been murdered by police or by the government, this is not that far from that. Historians writing about police misconduct in New York for the last 40 years are not going to have a lot of material to work with. Not for a lack of misconduct, but for a lack of access to documentation. And that’s a really dangerous situation for a democracy to be in.”

Meanwhile, the New York Civil Liberties Union was also seeking ten years of documents showing the outcomes of NYPD disciplinary hearings for officers in cases where the Civilian Complaint Review Board, New York City’s police oversight organ, had substantiated charges. Anticipating a 50-A objection that such information could be used to embarrass or harass the officers in question, the NYCLU was asking for the reports in an anonymized form, with identifying information redacted. Even so, the de Blasio administration fought the effort in court, arguing that even this information was protected by 50-A.

In December 2018, the New York Court of Appeals delivered its ruling. Where previous courts had ruled that the legislative purpose of 50-A was to prevent the harassment of officers, the court of appeals ruled that the law actually precludes the release of any police personnel records in any form, even anonymized. The legislature knew full well what they were doing when they wrote such a broad law, the court reasoned. “We are not at liberty to second-guess the Legislature's determination.”

Frank Padavan continued to serve in the New York State Senate until 2010, and died in 2018. In a 2016 interview he confirmed to the Albany Times Union that the sole intention of his 50-A law “was to stop private attorneys from using subpoenas to gain unfettered access to personnel records of police officers.” Padavan added that “If the law is being misused, then obviously an amendment might be in order.”

For Assembly Member Danny O’Donnell, who has been sponsoring legislation for the past five years to repeal 50-A, Padavan’s words are a call to action, though not the action Padavan recommended.

“The law is being misused,” O’Donnell said. “There’s only one way to fix this. It’s clearly not going to come from the courts. We’ve seen what the courts are doing with this law. So if we’re going to fix this mess that the legislature created, it’s going to have to be by the legislature correcting the mistake and repealing the law.”