Open Letter to New Rochelle City Council on Lying by City Officials on Alec McKenna Disciplinary Records

Dear Council Members,

I want to make sure everyone understands the timeline for the cascade of lies emanating from Mayor Noam Bramson, Police Commissioner Joe Schaller, Communication Director Kathy Gilwit, City Manager Charles B. Strome, and Corporation Counsel Kathleen Gill.

All of what follows is documented with video, emails, texts, police records and more.

On June 6, Bramson and Schaller presented a narrative to each of you along with leaders in the black community and others, and shortly after to reporters at a press conference where those at the prior meeting stood behind Bramson and Schaller as they told lie after lie about the two days leading up to the traffic stop on June 5.

That entire narrative — that for two days NRPD had been looking for a mysterious Black Dodge Charger with tinted windows and Virginia plates (number unknown) because NRPD was on the look-out for outside agitators seeking to bring violence and mayhem to New Rochelle related to the George Floyd protests — is 100% false and has never been retracted or corrected in any way.

All of you who stood with him were duped, the Mayor’s “Useful Idiots”. I wonder how it feels to have been used to appear to lend credence to the many lies told that day. Not good, I bet.

Under FOIL, I subsequently obtained police records that show NRPD located the vehicle on June 3, 2020 — two days before Kamal Flowers was killed — within 15 minutes of a 911 call (bogus, I might add).

15 MINUTES! NOT TWO DAYS!

The plate number was entered into the NRPD computer system during the incident, the police observed Isa Muhammad in the vehicle during the incident, he was driving a vehicle he rented at Enterprise rental in Mamaroneck because his car insurance had lapsed, and he could not afford to pay it. One phone call to Enterprise would have provided a treasure trove of information as anyone who has ever rented a car knows — credit card, address, phone numbers, driver’s license with photo, etc.

That begs the question of why, having pulled up alongside the vehicle on North and Lockwood (as shown on video NOT released to the public), McKenna and his partner — supposedly pursuing a dangerous vehicle — did not make a traffic stop then and there. Why did they follow the car down North Ave — past NRPD HQ, past City Hall, onto Hamilton, still going past City Hall and only upon arriving at a dimly lit street pull the car over for a purported traffic violation (realize that the driver knew police were following him for 1.5 miles)? Traffic stops and serving warrants are the two most dangerous things a police officer can do according to the FBI. So, why roll past the brightly lit area in front of 475 North Avenue and instead travel more than a mile further to a dark, out of the way, street?

If NRPD has been looking for this vehicle for two days as claimed, why didn’t McKenna and his partner just pull the car over based on the June 3 911 call?

Every detail of the narrative from June 3 at 5:47 pm until June 5 at about 11:30 pm was false

So much for truth-telling from the Mayor and Police Commissioner

I requested the McKenna records on June 12, 2020, at about 2:30 pm just after Governor Cuomo repealed 50-a.

At the time there were FOUR investigations ongoing by law enforcement agencies: Westchester County District Attorney’s Office, New York State Police, Westchester County Department of Public Safety, and the New Rochelle Police Department (this according to a DA statement issued on November 4th).

NO OBJECTIONS WERE RAISED by NRPD or City Hall that the records could not be produced due to these active investigations.

Under FOIL, an agency is required to produce records or give confirmation of receipt within 5 business days but can request up to 20 business days to produce the records.

The City said nothing for about a month.

On the evening of July 9, 2020, I received a phone call from Kathy Gilwit to tell me the McKenna records were ready, and she was calling to set up an appointment for me to meet with Chuck Strome and a consultant to receive the records. That is as illegal as it is unprecedented.

I told Kathy to email me the records as is not only customary BUT REQUIRED UNDER FOIL. If the requestor asks (and I did) via email for records those records MUST be sent back via email, in this case by PDF. She said Chuck wanted to meet with me so he and some consultant could “explain” the records. I told her that as I could read I did not need anyone to “explain the records” to me. Kathy said producing disciplinary records was new and so the City was “experimenting” with how such records were to be released and that is why the consultant was involved and why I had to come to a meeting at City Hall to receive the records.

Given no alternative, and anxious to get the records, and against my better judgement, I mistakenly trusted them and agreed to come to City Hall the following Tuesday 7/14/20. On Monday, I received an email saying that the meeting had to be moved to Wednesday or Thursday. Again wanting to get the records as soon as possible I asked for Wednesday. I was told on Tuesday that Wednesday was out. I asked for the soonest possible time and the meeting was once again rescheduled, this time for Thursday 7/16/20 at 2:30 pm.

This is past the NYS FOIL deadline.

Based on an email I received on 7/16/20, I believe that the week of stalling by City officials was deliberate.

On 7/16/20, as I was literally walking out my door to go to the meeting I received an email from Chuck stating that the meeting was off, that the City would not produce the McKenna records on the grounds that a lawsuit had been filed in New York City.

“…our counsel has advised us not to release Officer McKenna’s records at this time, due to the uncertainty surrounding this issue. We were fully prepared to release them before this came up, and will do so in the future if the legal issues change or become clarified.”

If that were true, those records would have been released last week.

As of last week, the legal issues changed and become “clarified” — a Federal Appeals panel ruled that the disciplinary records in New York City, and thus the entire Southern District of New York, including New Rochelle, must be released. But the City is still withholding the records.

As of now, the City is no longer claiming that the lawsuit prevents the release of disciplinary records. In fact, they have said they will release all 800+ records I requested except the McKenna records (but they have yet to do). So, let’s continue as to more lies as to why the McKenna records are still not in my possession.

Strome added on 7/16/20:

“…we believe we can legally share the following facts, based on our review of the officer’s history. In his five years on the job, Officer McKenna was never accused of, nor found to have used, excessive force, nor did he ever draw his gun in the line of duty before the June 5 shooting.”

Imagine a volcano erupting, and you will have a good idea of what my phone call back to Chuck sounded like upon receiving his email.

Chuck reiterated on the phone what he said in the email to the effect of “there is ‘nothing’ in the records”.

A big fat lie.

I was subsequently contacted by Kathleen Gill on behalf of Chuck. I was offered the opportunity to review the McKenna records under the condition that I agree not to report anything about the records, that I had been shown the records or even that the offer to show me the records was made. Furthermore, I was asked to keep this offer confidential which I have done until this moment.

Putting this information on the record is not something I do lightly so I want to explain my decision to do so.

The whole point of a reporter allowing a source to be off the record or on background (not identified) is to protect the identity of the source or that information was provided by that source because in exchange for that protection the source will tell the truth thus serving the interest of the public to bring to light information that would otherwise remain concealed.

As you may not know the ins-and-outs of going off the record, the agreement to be off the record is predicated on the idea that the source is telling the truth. Lying breaks the agreement and the reporter no longer has any legal or moral obligation to keep the source and their information confidential. When a reporter and source go off the record or on background and the source violates their duty of good faith and fair dealing by lying to the reporter the deal is off.

That is the case here with Kathy Gilwit, Kathleen Gill and Chuck Strome. They lied. The deal is off. So, I am disclosing the offer to let me secretly view the records and (below) my response declining this preposterous offer.

I was and am entitled to the records and my intention has always been to publish them immediately. That remains the case.

I believe Chuck and Kathleen knew the lawsuit in New York City was coming and strung me along for a week — it is why the City kept rescheduling the meeting — just waiting to have a pretext to withhold the records.

Let me reiterate that despite FOUR ongoing investigations including one by NRPD, neither Chuck nor Kathleen ever said anything about withholding the records based on an NRPD investigation even though all four of those investigations preceded not only their denial on 7/16/20 but even my initial request on 6/12/20.

As you know, I used information I had previously obtained to make over 300 individual FOIL requests of disciplinary records for current and former NRPD officers in August 2020.

In September, I received an email from Kathleen Gill stating that those records would be researched and assembled by Dec. 31, 2020. This is not legal but let me set that aside.

In October, I received a reply to my FOIL to the OSC asking for pension records and used those to make another 500 individual FOIL requests of disciplinary records for former NRPD officers. I never received acknowledgment of that request at all. This is not legal but let me set that aside.

A Westchester County Grand Jury began hearing testimony Monday, Oct. 26, 2020, and concluded on the sixth day, Monday, Nov. 2, 2020. The Grand Jury decision was announced on November 4, 2020.

As things stood at the end of 2020, there had been FOUR investigations plus a Grand Jury hearing and at no point did the City claim that there was any reason other than the lawsuit in New York City preventing the release of the McKenna records or the other 800+ records.

The lawsuit in New York City ended last week, on Tuesday, February 16, 2021.

The week went by with no communication about my records requests. I waited until Friday before sending a series of emails and text messages asking about the records.

I finally got a response from Kathy Gilwit after Close of Business on Monday, February 22, 2021.

This, in a word, baloney.

For seven months I was told the justification for withholding the McKenna records (and all the others) was the lawsuit. With the lawsuit resolved, the City had now once again moved the goal posts.

Consider that the records I seek are all records that predate the death of Kamal Flowers. Those records have nothing to do with any investigation which is precisely why that there were four (now five) investigations was never cited as a reason to withhold the records.

To put this in focus, let me go back to Chuck Strome’s statement in his email of July 16, 2020, where he wrote:

“In his five years on the job, Officer McKenna was never accused of, nor found to have used, excessive force, nor did he ever draw his gun in the line of duty before the June 5 shooting.”

On August 19, 2020, I made a separate FOIL request for “Use of Force” reports for 2020.

I received a partial fill of my request from NRPD on October 20, 2020, to which I responded:

Captain Rosenbergen replied:

I did not get the Use of Force report involving McKenna for June 5, 2020, on the grounds that the case was being actively investigated and if disclosed would interfere with “judicial proceedings”.

Consider that at the time the Grand Jury had yet to meet, but we now know there will be no judicial proceedings as District Attorney Scarpino failed to indict a ham sandwich. Sorry, I mean failed to convince a Grand Jury to indict a white police officer who shot and killed a black man after a highly dubious traffic stop. Sorry, I mean the Grand Jury made a determination of “no true bill,” which ended the grand jury investigation.

Note, that adds up to SIX investigations, TWO by NRPD.

I did receive a Use of Report for January 11, 2020.

As you can see from the report (below), Alec McKenna drew his gun in the line of duty before the June 5 shooting.

Seems to me if the City Manager lied about McKenna having never drawn his gun in the line of duty before the June 5 shooting, I see no reason to believe anything he or other City officials have to say about this matter including that there is “nothing” in the McKenna file I requested or the various excuses offered for not producing the file or the other 800+ records I requested 4-6 months ago.

It gets worse.

Please note in the report the similarities with the Kamal Flowers shooting.

On January 11, 2020, McKenna makes a highly dubious (illegal?) traffic stop of a car with two black people, both age 24. Flowers was 24.

Based on the report, the car was heading East on Lincoln Avenue then made a U-Turn at North Avenue and headed West on Lincoln Avenue then South into the Memorial Highway traffic circle onto the North Avenue overpass.

By New York State law, U-Turns are legal anywhere in the City of New Rochelle even across double-yellow lines unless the City Council votes to make it illegal and posts signs. Lincoln Avenue is not a street designated by City Council as a No U-Turn street therefore the driver that night could not have made an illegal U-Turn.

NRPD has a long history of pulling cars over and issuing summonses for U-Turns that are legal. In fact, most such summonses are issued improperly. There is no claim the car was fleeing the scene or otherwise driving in a way to avoid or get away from McKenna.

McKenna says he followed the car for “a long distance” but the distance from North/Lincoln to North Avenue overpass is a short distance that can be traveled in under a minute.

Soon after the traffic stop, McKenna drew his weapon. He claims the driver was not in park and even after he put the car in park the driver did not turn off the ignition. It would appear McKenna is claiming he was concerned that the driver would leave the scene before he could give the driver a summons for a legal U-Turn with his plan presumably being that if the car drove away he could fire blindly into the vehicle. This report is not a good look for McKenna. He comes across as a cop on the hunt for felonies (the path to promotion in NRPD) by pulling over young black male drivers, ready to shoot them at the drop of a hat.

Some might feel that brandishing a weapon after pulling over a car for no valid reason is the use of excessive force but regardless it is certainly the case McKenna drew his gun in the line of duty before the June 5 shooting and did so in circumstances eerily similar to his traffic stop on June 5th.

However, one perceives the incident on January 11th, it is inarguable that the City Manager lied on July 16, 2020 that McKenna never drew his weapon in the line of duty prior to June 5, 2020.

The Use of Force report follows:

While the content of the report above is important the fact of the release of the report is highly significant as it pertains to the denial of my request for McKenna’s disciplinary records.

I am well familiar with NRPD practice of withholding records when there is an active investigation. I make more records requests than anyone in New Rochelle and NRPD will have to admit that when they tell me they cannot release records due to an active investigation I accept that as a legitimate response, both per the Public Officers Law and as a practical matter where the investigation may lead to other suspects, other crimes or flipping a suspect to become a witness. I want them to catch bad guys just like everyone else.

As regards disciplinary records, none of this applies.

I accept that NRPD withheld the Incident Report and Use of Force Report from June 5, 2020, involving McKenna.

I do not accept that public records involving McKenna prior to June 5, 2020, can be lawfully withheld.

Obviously, NRPD agrees because having withheld the Use of Force Report from June 5, 2020, they provided the Use of Force Report from January 11, 2020.

There is no justification whatsoever for the City to now claim that the McKenna disciplinary records are exempt from FOIL because there is an ongoing NRPD investigation when they did not make the same claim in July (or ever since until yesterday) when there was not only an NRPD investigation but FOUR investigations going on — Westchester County District Attorney’s Office, The New York State Police, the Westchester County Department of Public Safety, AND the New Rochelle Police Department.

This is a despicable, transparent effort by the City of New Rochelle and New Rochelle Police Department to illegally withhold public records in the most grave matter possible, a police officer shooting and killing a resident. In the wake of the death of George Floyd, that McKenna is white and Flowers black only more so.

Given that the City Manager lied in July about McKenna’s record and given the avalanche of lies going back to the June 6, 2020, press conference, there is no reason to believe there is “nothing” in McKenna’s records.

Even worse, by mishandling my FOIL request so badly, the City and NRPD have raised reasonable suspicion that if they ever do release these records they will have been altered, sanitized to protect McKenna, NRPD and the City of New Rochelle.

As Council Members, you need to consider who you represent. Is it Alec McKenna? The NRPD? The City Manager? The Corporation Counsel? Or is it the people of New Rochelle of which you are their elected representatives.

To quote an idiotic remark made by a now-deservedly-former school board member, it is past time to put on your “big boy pants” and act on behalf of your constituents, not the people who serve at your pleasure.

You all asked Attorney General James to take over the investigation into the shooting and killing of Kamal Flowers. So, you clearly recognize the need for some distance in looking into all of this. Yet, you gave up on that. Reconsider. Do not quit.

I am calling on you to direct the City Manager to hire a well-respected outside investigator to prepare a report setting the record straight on the many false statements made by City officials since June 6, 2020, regarding the entire matter and take your lumps.

I recommend you consider the woman who did the second Apex investigation for the New Rochelle Board of Education. She was thorough, pulled no punches and she is from Long Island.

Further, I am asking for your support in demanding that the City Manager turn over all the disciplinary records I have requested, starting with McKenna, then the first batch of 300+, then the second batch of 500+.

I want the McKenna records immediately. The 300+ by the end of the week. The 500+ by the end of March but those 500+ produced as they are assembled each day not all at once at the end of March.

I would ask that each of you tell the City Manager you support the immediate release of the McKenna records with the rest to follow promptly.

If this letter sounds to you a bit like the Statement of Facts section of a lawsuit you win a cookie. I have already told Kathy to pass along that I have drafted a lawsuit over these records and intend to file next week. The City of New Rochelle and its police department are assuredly going to lose that lawsuit.

There is a better way — release the records!