Law Lets New York Cops Keep Their Misconduct Secret

In New York State, personnel records for cops, firefighters and corrections officers are protected by a privacy law, even when those records reveal misconduct and are of concern to the public. Peter Schmitt, the presiding officer of the Nassau County Legislature, ran afoul of that law when he revealed important details of a case that resulted in a large settlement after police screw-ups allowed one of their informants to first harass, and then murder, his ex-girlfriend. While the judge in the case is holding off on a decision, Schmitt could be fined and even jailed for telling taxpayers about mistakes made by public employees that are costing taxpayers $7.7 million dollars.

According to news reports about the information Schmitt revealed:

The testimony came from the former head of the police department's internal affairs unit, who investigated police procedures in the case of Jo'Anna Bird. She was murdered in 2009 by her former boyfriend. Her family later claimed that police failed to arrest the man later convicted of the murders when he violated orders of protection on several occasions before the killing.

The killer, Leonardo Valdez-Cruz, was reportedly a drug informant for the police. He is serving life without parole.

After voting in January to approve the payment, Schmitt told Long Island cable TV station News12 that police had provided Cruz with a cellphone while he was in jail on a prior unrelated arrest. Cruz, according to Schmitt, made 35-40 harassing telephone calls to Bird from his jail cell.

Newsday adds that "Valdez-Cruz, who was a police informant, is now serving life in prison for torturing and killing the mother of two."

All of this is horrifying in itself, and it's a matter of public concern both because of the conduct of police officers employed to protect the public, and because Nassau County ended up paying out $7.7 million in taxpayer money to Bird's family to settle the case. Which would seem to be good reason for Peter Schmitt, the top lawmaker in the county and the guy who signed the settlement, to chat with a television news crew about a report revealing what his constituents were paying for.

But, in New York, § 50-a of the state Civil Rights Law, discourages that sort of transparency. Under the law:

All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the division of parole for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the division of parole except as may be mandated by lawful court order.

And, since the information Schmitt revealed was sealed pursuant to a reading of the law even broader than the law itself, he found himself, because of his role as a county official, facing a contempt charge.

Why such a restrictive law? Well, the New York Court of Appeals held in Capital Newspapers v. Burns that the law "was designed to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination." In Prisoners' Legal Services v. NYS Department of Correctional Services the court elaborated that the intent "was to prevent the release of sensitive personnel records that could be used in litigation for purposes of harassing or embarrassing correction officers."

However do other states get by without similar legislation? Oh ... That's right. Judges have the power to limit what gets presented in their courtrooms, and to screen out anything irrelevant.

And if it's not irrelevant? Well, being embarrassed is part of the price of screwing up, isn't it? You do something wrong, it gets exposed, and ...

That's the point made by Newsday, which editorialized:

It's not Schmitt's candor that is contemptible. It's the sealing of that report in a misguided ruling by U.S. Magistrate Kathleen Thomlinson, handling the case for U.S. District Court Judge Arthur Spatt, and the court's failure to see the critical public service that would have been performed by making the report public.

The newspaper goes on to list several other cases of serious police misbehavior, the details of which have been hidden from the public behind the wall of the law known as 50-a.

Newsday has good company in its contempt for the "privacy" law. In 2010, New York's Committee on Open Government warned (PDF) that under 50-a, "those public employees who have the most power over our lives are the least accountable. If a police officer, a correction officer or a professional firefighter has broken the rules, the public should have the right to know." The committee also said, "that law should never have been enacted, and it should be repealed."

The law is still there. And it still conceals police misconduct from the eyes of the public.

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  • sloopyinca||

    I would be more surprised if New York had any sort of transparency or accountability for their officers. Remember, in NYC, cops who are serial abusers are put in rubber rooms rather than get terminated and prosecuted for their crimes, they harass law-abiding people consequence-free with their stop-n-frisk program and they beat the shit out of people with nary a slap on the wrist from their internal discipline process that places them above the law mere mortals must abide by.

    I know this applies more broadly to the entire state, but fuck New York City and their double standards, nannyish bullshit laws and their motherfucking store dedicated to making the simplest of condiments in the fucking world.

  • SugarFree||

    Remember, in NYC, cops and teachers who are serial abusers are put in rubber rooms rather than get terminated and prosecuted for their crime

    You have been engliburated!

  • TELLMOFF||

    Records about how public employees perform their public jobs are a government secret because voters elect legislators who make it a secret. It all comes down to the fact that citizens get what they voted for. Blame them.

  • ||

    Empire Mayo? How about a batch of Sweet Steve's Double Nut Rude Oil (available in single serving pump)!
    C'mon man if it ain't Gotham it ain't shit, so says the New Yorkers where I live, and I don't live in New York.
    Anyway another story that shouldn't surprise us at all.

  • juris imprudent||

    Now that really is a shield law.

  • sloopyinca||

    I'd be more surprised if it was the opposite.

    This is a state that sends their cops to rubber rooms as opposed to jail cells for persistent abuse. There are several hundred cops in the city that cannot even be issued a gun due to violent offenses, yet they are still on the payroll. Their system of discipline is controlled entirely by union stooges, which has resulted in an exceptionally low punishment to incidence rate. And they regularly abuse the rights of law-abiding citizens with their stop-frisk program of illegal searches.

    Not to mention they have no respect for the 2A, their mayor is a nanny-state asshole and they have a fucking hipster store dedicated to nothing but the simplest condiment in the world to make. I wish that whole motherfucking place would drift off into the ocean.

    "The City that never sleeps." Yeah, because it's impossible to sleep when it smells like piss and the cabbies never stop blowing their horns.

  • sloopyinca||

    Fucking squirrels. If you'd post my first comment instead of giving me an error message I wouldn't have to go back in and write it again only slightly different. I feel like Joseph Smith!

  • ||

    Dum dum dum dum dum

  • mr simple||

    What? Police are agents of the state. They are incapable of misconduct.

  • ||

  • R C Dean||

    That statute applies only to personnel records "used to evaluate performance toward continued employment or promotion".

    (1) Since when is an internal affairs investigation that results in criminal charges and a conviction, used to evaluate performance, etc.?

    (2) Wouldn't the firing of any cop remove his records from the shield? After all, those records won't be used to evaluate performance, etc.

  • Tulpa the White||

    If he's fired over it, it was definitely used to evaluate continued employment. And because it once was used for that purpose, it remains shielded after the firing (just like edu records don't become unprotected after a student graduates).

    It's a monumentally stupid law, but it is correctly applied in this case.

  • R C Dean||

    You could argue it that way, but I think that it can also be read to apply only to records that can be used as specified by the statute. If a cop is no longer employed, then his records can't by definition be used regarding "continued employment or promotion."

  • TELLMOFF||

    These records are not personal records such as SS numbers or home address. Job promotion and continued employment is a public matter that should not be a government secret.

  • ChrisO||

    ^ This.

  • sloopyinca||

  • SugarFree||

    If you look carefully, you'll see they are the same person, just in different costumes.

  • WTF||

    Now those are some faces that need punching.

  • Mo' $parky||

    I don't get it, what's with the war on mayo?

  • sloopyinca||

    You want mayo? I'll fucking whip up a batch in the next 5 minutes...with free range eggs and fresh peppers and herbs from my garden.

    I addressed this yesterday: when I ran a high-end kitchen, I had the lowest jackass from garde manger make the aioli because it was easier than plating the salads. These fuckbags act like they've reinvented the wheel.

    Free range...locally sourced ingredients...blah, blah, blah. It's Brooklyn, for fuck sake. Who wants free range eggs from the city? What do they free-range on, broken syringes, crack and piss?

  • mr simple||

    Could you? I've got a sandwich here that's kind of bland.

  • mad libertarian guy||

    Not only that, but they want serious fucking cheese for a jar that's good for one, maybe two sandwiches.

  • EDG reppin' LBC||

    Tattoo sleeves? Check.
    Large belt buckle? Check.
    Black rimmed glasses? Check.
    Facial hair? Check.
    Vintage clothes? Check.
    Sock hat? Check.
    Brooklyn? Check.

    Living the hipster dream! Seriously though, at least these two developed and marketed a product. Hell, they are acting like capitalists.

  • ChrisO||

    Most states have some kind of FOIA exemption for public employees' personnel records, but they're not usually this broadly worded.

    Most of the litigation in this area revolves around FOIA requests that include employees' personal identifying information, such as address, phone number, SS number, etc.

    I've read a number of cases on this subject, and courts usually interpret these FOIA exemptions to allow investigative records to be releases, subject to redaction for personal identifying info.

    Part of the issue here may be that this county legislator released this information on his own, without it being submitted through the request process.

  • Broseph of Invention||

    Under the New York Rules of Evidence, a witness can be impeached with character evidence relating to immorality, dishonesty, and criminal conviction. The evidence is balanced on whether the witness would be substantially unfairly harmed vs the weight the actions would have on his credibility. There are protections in place, like in limine hearings before questioning. It's not like defense attorneys can bring in the external evidence; if the witness denies it, that's all there is. The officer's sterling reputation for honesty will carry the day.

    Considering that these police departments are tasked with controlling information and are often the only source of it, I'd say access to these documents is pretty important, as there's no other way to get a lot of this information i.e. through other witnesses. In other words, I can see why the pigs love it.

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