As New Rochelle Stonewall Continues, Federal Judge Expects to Rule within Days on Police Disciplinary Records Lawsuit

NEW YORK, NY — In a hearing yesterday in the U.S. District Court for the Southern District of New York, Judge Katherine Polk Failla said she expects to issue a decision this week in a motion to extend a Temporary Restraining Order (TRO).

Reporters listened to an audio feed of the Skype proceedings.

Failla had previously issued a decision to lift a TRO preventing the release of police — allowing the release of record. A stay was subsequently issued temporary blocking the release of the records until the decision could be appealed in the U.S. Court of Appeals for the Second Circuit.

Both hearings occurred yesterday with Failla commenting that she would not know if her decision would be sustained, that she have “a hotline to the Second Circuit” before hearing arguments on whether she should decide to grant a request from the plaintiffs in the case, led by lawyers representing the New York Police Department Police Benevolent Association to turn the TRO into a preliminary injunction to keep status quo for months, until a full trial can take place.

The plaintiffs (NYPD PBA, et al) argue that police officers will suffer repetitional harm, future employment harm, and that the safety of officers will be put at risk if disciplinary records are made public.

The defense (De Blasio, et al) argued that plaintiffs have to show an immediate harm and since Pro Publica and the NYCLU have already released such records in July and there has been no immediate harm claimed by plaintiffs there is no basis for an immediate harm claim; that no harms of any kind have been claimed. Defense lawyers noted that State legislators heard the same arguments by plaintiffs and rejected them in voting to repeal 50a in June.

NYPD PBA claimed their lawsuit is not an attempt to undo the repeal of 50a but to preserve Collective Bargaining Agreement).

Judge Katherine Polk Failla sounded skeptical of the Plaintiff’s argument that police officers deserved the special protection afforded under 50a.

Talk of the Sound filed a Freedom of Information request for the disciplinary records of Police Officer Alec McKenna on June 12th, minutes after Governor Andrew Cuomo signed the repeal of 50a,

50-a was a section of the New York Civil Rights Law, enacted in 1976, which hides performance records of police officers, firefighters, and prison officers from the public.

The City delayed responding, then agreed to turn over the records, then refused, as we described in an article published on July 18th.

New Rochelle Stonewalls on Release of Disciplinary Records for Cop Who Killed Kamal Flowers

In response to a Freedom of Information request filed on June 12th, minutes after Governor Andrew Cuomo repealed Civil Rights Law §50-a, a long-standing statute that prohibited the disclosure of police disciplinary records, a City of New Rochelle employee contacted Talk of the Sound on Thursday July 9th to schedule a meeting at City Hall on Tuesday July 14th at 10:30 a.m. where she said the records would be provided. The City has never required or even requested an in-person meeting before turning over public records under a FOIL request.

On Monday evening that meeting was cancelled and a new meeting, either on Wednesday or Thursday, was offered. A meeting on Wednesday was requested. On Tuesday, after another call, the City said the meeting would not take place on Wednesday and rescheduled the Tuesday meeting for Thursday July 16th at 2:30 pm. On Wednesday the City rescheduled the meeting again — for 2 pm Thursday.

At 12:21 pm on Thursday July 16th, City Manager Charles B. Strome sent an email to Talk of the Sound cancelling the meeting and stating that the City would not turn over the records.

Talk of the Sound then filed a new FOIL request on July 27th

In light of this:

ProPublica posts NYPD records, bypassing judge’s blockade

https://apnews.com/b58c024d68048781af36f2c631290779

I would like to obtain the following records:

All disciplinary records for all New Rochelle Police Officers from the beginning of time until the present.

On August 6th that FOIL request was denied citing the Federal lawsuit and the claim that the request was unreasonable.

We appealed. We disagree because the City’s claim of unreasonableness is to present the issue from the wrong end of the telescope. We requested all records for all officers for all time. That can be made to sound like a voluminous request when it is not. While we have no way to know how many records our request covers, the NRPD knows exactly how many records our request covers. There may have been thousands of police officers employed by the NRPD since 1885, the year the City was incorporated but only a fraction of those records may exist and of that fraction another fraction of officers would even have disciplinary records.

The number of records covered by our request is readily available information to the City so before claiming it would be burdensome to fill our request the City should state how far back NRPD has records, how many individual police officers have disciplinary records so the public and press can known the actual volume of what the City characterizes without foundation as voluminous

Regarding New York Police, “ProPublica published those records on Sunday, revealing that roughly 4,000 officers out of the New York City Police Department’s 36,000-member force had at least one substantiated complaint against them.”

NRPD today has about 200 police officers. In 2015 that figure was 157. If the numbers are comparable to NYPD that would be 18 NRPD officers had at least one substantiated complaint against them.

It appears the numbers in New Rochelle may be smaller.

According to the recently published NRPD Special Report there has been 19 sustained civilian complaints in the period 2014 to 2020 or about 2.5 per year.

The small number of recent sustained civilian complaints suggests that our request is not remotely burdensome and a minor request compared to the massive request for many thousands of records in the case the City cited in denying our request, Fisher & Fisher v. Davison (Supreme Court, New York County, September 27, 1988).

As the City was arguing that only individual requests for specific officer’s disciplinary records would not be “unreasonable” we prepared a list of names and submitted 344 individual FOIL requests, every few minutes, between August 11 and August 14th. The NRPD is required to individually confirm receipt of each request by August 21st them produce the records or deny each request within 22 days.

Reading in the NRPD Special Report that any time a Taser is sparked the officer must file a Use of Force Report and that anytime an officer unholsters their service weapon they must file a Firearm Discharge Reports we request those records.

We have now made a Freedom of Information request for all Use of Force Reports filed in 2020 and for all Firearm Discharge Reports filed in 2020. These requests will likely be denied for the June 5, 2020 officer-involved shooting on the grounds it is an active investigation.