April 3, 2017
By MARK TOOR
The de Blasio administration was legally justified in withholding information about the disciplinary record of Police Officer Eric Pantaleo, who subdued petty criminal Eric Garner when he resisted arrest for allegedly selling untaxed cigarettes with enough force to be a factor in his death, the State Appellate Division ruled March 30.
In a unanimous decision, the panel of five judges decided that accusations substantiated by the Civilian Complaint Review Board fit the definition of personnel records under Section 50-a of the state Civil Rights Law. That provision says that such information cannot be released without a court order.
PBA: They Got It Right
The law was passed 41 years ago at the urging of police unions, and Patrolmen’s Benevolent Association President Patrick J. Lynch praised the decision.
“This ruling is the correct one, because it cuts right to the heart of the issue,” he said in a statement. “The release of police officers’ personnel files poses a grave safety risk for police officers and their families.”
To some degree, the ruling was academic because a list of complaints filed against Mr. Pantaleo was leaked a week earlier to the website ThinkProgress.org.
Mr. Lynch asked Manhattan District Attorney Cyrus R. Vance and the Department of Investigation to investigate the leak, and mentioned it when commenting on the ruling.
“Now that these important protections have been reaffirmed, they need to be rigorously enforced. Those who leak police officers’ records in defiance of the law and this ruling must be prosecuted,” he said.
Earlier Ruling’s Reasoning
Manhattan Supreme Court Justice Alice Schlesinger ruled in 2015 in a lawsuit brought by several police-reform groups and news organizations that 50-a didn’t cover CCRB records. She ordered the agency to release a summary of substantiated complaints.
Mayor de Blasio appealed the ruling, attracting sharp criticism from civil-liberties groups that believed he was going back on his pledge for transparency in the NYPD. He replied that the law should be changed, but until it was, the city had to abide by it.
The appeals court’s ruling said there is “no question that the records sought are ‘used to evaluate performance toward continued employment or promotion,’ as required by the statute.”
“The Appellate Division has reaffirmed the well-established legal principle that records generated by the police disciplinary process are protected from disclosure by 50-a,” de Blasio spokesman Austin Finan said. “While we advocate for a state-legislative change that would increase the transparency of the police disciplinary process, today’s decisions make clear that we must adhere to the law as it currently exists.”
NYCLU’s Turn to Appeal
“This decision has put the police in the position to deal with what they consider internal matters without any public oversight,” public-interest attorney David Thompson told the Daily News. “That means they’re not going to discipline officers for breaking the law, for using excessive force, even for killing people.”
The New York Civil Liberties Union said it would appeal.