The fight for transparency in police misconduct, explained

New York’s repeal of section 50-a — which allowed police to shield misconduct records — is a big win for activists, but there is more work to be done.

In 2012, Ramarley Graham, an 18-year-old black teenager, was fatally shot in his own home by a white New York City police officer, Richard Haste. Haste and other officers had followed Graham home from a nearby bodega and forced their way in, later saying that they believed Graham was carrying a gun. Graham was, in fact, unarmed.

Eighteen months after the killing, a grand jury decided not to indict Haste. Graham’s mother, Constance Malcolm, later tried to obtain information about the shooting and investigation, as well as Haste’s misconduct history. But the police department denied her freedom of information law (FOIL) request, citing New York’s civil rights law — section 50-a — which it said barred access to all disciplinary records of officers.

Eventually, a whistleblower leaked disciplinary records that showed that Haste had an unusually high number of civilian complaints against him over a one-year period in 2009-2010, shortly after he joined the department. A disciplinary review would later find Haste guilty of using poor tactical judgment (Haste quit the force in 2017 before he could be dismissed).

Malcolm went on to join the advocacy group Justice Committee, which includes many other families affected by police violence, in an effort to push for the repeal of section 50-a in New York and bring greater transparency to policing. Last week, their long advocacy efforts succeeded.

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On June 12, Gov. Andrew Cuomo signed several police transparency and accountability bills, including a repeal of 50-a. Malcolm and other advocates point to the surge of protests against police brutality sparked by Minnesota police officer Derek Chauvin’s killing of George Floyd — in addition to the work of groups like Justice Committee and Communities United For Police Reform (of which Justice Committee is a member) — as the impetus that finally pushed the bills through.

“Now families like mine and people who are brutalized by police won’t have to rely on leaks to get information about the officers who abused them,” Malcolm said. “So this is a very big victory for us.”

To be clear, neither Malcolm nor other advocates view transparency about police misconduct as a panacea for preventing violence by police officers. All of them want to see much more significant change as well — for instance, reallocating public funding to schools, health care, housing, and other community resources, rather than to police.

But at the same time, many of the advocates describe transparency about police misconduct as important for holding officers accountable for abusive behavior. With the repeal of 50-a, New York embarks on a more transparent course that many other states have taken and joins the conversation about how transparency can better allow citizens to hold the police accountable for brutality.

Laws that shield police misconduct from public scrutiny, explained

New York’s section 50-a, which passed in 1976, stated that “personnel records [of police officers] used to evaluate performance toward continued employment or promotion” were confidential and couldn’t be disclosed without the officer’s permission or a court order (with a few exceptions including district attorneys).

According to a legislative memo written at the time, the law was intended to prevent defense attorneys from going on “fishing expeditions” by placing broad subpoenas of officer misconduct records. But over time, the police department and the highest court in the state came to interpret the law as barring any police officer misconduct records from disclosure under the state’s open record law (misconduct records of firefighters and correction officers were later added to the law). This secrecy increased in recent years, such as when the police department even stopped publicly posting outcomes of disciplinary trials of officers.

“50-a was arguably the worst law in the nation when it comes to the public’s ability to access these records,” said Michael Sisitzky, lead policy counsel at the New York Civil Liberties Union, a group that has often filed freedom of information requests for police records and had long been denied.

By comparison, a majority of states allow public disclosure of at least some officer misconduct records under public records laws. (According to a WNYC report in 2015, 27 states make records available to some degree, and in another 23 states they are mostly unavailable.) New York’s law change will make misconduct records available to a greater degree than many other states, Sisitzky said.

Another big recent change to state law was in 2018, when California joined the group of partially transparent states by changing its law to require records to be released when officers are found to have committed certain types of misconduct, including sexual assault and use of force.

For many advocates, the answer to why such transparency is important is straightforward: Officers are given enormous power in their jobs, and their histories of abusive behavior should be available to the public they are charged to protect.

Adilka Pimentel, a lead organizer with the advocacy group Make the Road New York, which pushed for the repeal of 50-a, said that low-income black and brown communities are familiar with abusive officers. But without access to their histories of misconduct, “we are unable to look at patterns of officers who are continuously beating people up in the community.”

Pimentel pointed to the case of Daniel Pantaleo, the officer who killed Eric Garner in 2014 by chokehold, who had a history of misconduct. As was the case for Richard Haste, Pantaleo’s records remained secret until a whistleblower leaked them.

Police unions have often pushed back on transparency, arguing that sharing records could lead to officers being targeted by violence. In response to the repeal of 50-a by the state legislature, Patrick Lynch, president of the New York City Police Benevolent Association, said in a statement, “The unfettered release of police personnel records will allow unstable people to target police officers and our families for harassment or worse.”

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But advocates and researchers point out that there’s no evidence that disclosing records will lead to physical harm against officers. In a recent survey of 344 police and sheriff offices in the 12 most transparent states, legal scholars Rachel Moran and Jessica Hodge saw scant evidence of physical harm to officers. As one criminologist put it, there’s a “total lack of data” when it comes to the claim that officers will be harmed as a result of disclosures.

In his remarks on the repeal of 50-a, New York state Sen. Zellnor Myrie described the repeal not as “anti-police” but as “pro-people.” He discussed his own experience being harmed at the hands of officers while attending a recent protest about police brutality in Brooklyn. “I was pushed, I was shoved, I was hit in the back, pepper-sprayed, and handcuffed,” he said on the state Senate floor, “To this day, I don’t know if the officer that sprayed me and my colleague in the Assembly has a history of excessive use of force.”

Myrie then voted to repeal 50-a, saying, “My life matters. Black lives matter.”

Why transparency matters

Even as there’s been a movement towards transparency in recent years, there’s also been an ongoing conversation among advocates, policymakers, and legal scholars as to what transparency should look like in practice. Even in the 12 states with the most open laws, it’s very rare for misconduct data to be shared by government agencies in a public database. “There aren’t any laws that require a proactive database, that I’m aware of,” said Moran, a legal scholar at the University of St. Thomas School of Law who has done extensive research on police misconduct transparency.

In a few cases, nonprofit and media organizations have taken the step of creating such databases. In Chicago, the nonprofit Invisible Institute launched the Citizens Police Data Project (CPDP) in 2015, including nearly 250,000 complaints against more than 23,000 officers spanning decades. The data only became available after Invisible Institute’s founder, the journalist Jamie Kalven, along with attorneys at the University of Chicago Law School, sued Chicago’s police department to obtain the records, winning the six-year lawsuit in 2014.

“The fight we engaged in for so long, and in some ways continue to, over official secrecy was also a fight over a redistribution of power,” Kalven told me. “If the state has the information and it’s held behind a wall of secrecy, we as citizens are necessarily disempowered by not having access to the information.”

The Chicago database launched 10 days before the city’s release of a dashcam video showing a white police officer, Jason Van Dyke, fatally shooting black 17-year-old Laquan McDonald 16 times. The database showed that Van Dyke had more than 20 complaints against him, about half for use of force. Van Dyke’s history added to the outcry in the city about the lack of accountability for police brutality, and in 2019, he was convicted: the first patrolman in nearly 50 years to be convicted for murder in Chicago.

Beyond allowing citizens to look up individual officers by name, Kalven said, the database also allows for research into patterns of officer misconduct. One ongoing research project involves network analysis of officers that are co-accused of misconduct. The database “can allow you to proceed in a more systematic way to enforce accountability,” Kalven said.

A few other police misconduct databases exist across the country. In New York City, the public defender nonprofit Legal Aid Society developed a database on police misconduct, including cases in which officers had lied in their testimony — but that’s only for its attorneys to use. It also created a public-facing database called CAPstat (Cop Accountability Project statistics), which includes data from lawsuits against NYC officers over several years, as well as data on officer misconduct records that was leaked to BuzzFeed News.

In addition, USA Today created a national database of officers that have had their certification removed (to which Invisible Institute contributed), and the Police Crime Database out of Bowling Green State University reports data on officers charged and convicted of crimes. And a recent federal bill introduced by Oregon Sen. Jeff Merkley proposes a national database of police misconduct, including use of force.

The New York legislature also passed another bill last week, the Police STAT Act, that would require public reports of those killed in interactions with the police or in police custody (which the Governor has yet to sign). “To me, it’s just surreal that in 2020 there’s no database of people killed by police,” Pimentel said.

The work doesn’t stop with increased police transparency

All of the advocates I spoke to emphasized that transparency is not a cure-all and that much more change is needed to bring about not just accountability for police officers but transforming the role of police in our society.

For one thing, there are many other layers of complexity when it comes to transparency and accountability. Beyond state laws, police union contracts often also include provisions regarding police discipline that limit accountability. Stephen Rushin, a legal scholar at Loyola University Chicago School of Law who has analyzed hundreds of police union contracts, said that destruction of misconduct records after a set period of time is one of the most common items included in such contracts.

And there’s also a much wider question of how to hold police accountable — very few police are indicted on criminal charges, even when they kill people. And qualified immunity has often protected them from federal lawsuits. Internal discipline within departments is also relatively rare, even for serious misconduct. And civilian complaint review boards charged with investigations of complaints about police rarely have independent authority and can only recommend discipline to departments. (In 2018, the NYC police department either ignored the discipline recommendation of the city’s civilian complaint review board altogether or, about half the time, imposed less discipline than recommended.)

Skeptics have also questioned the utility of making records publicly available. Kate Levine, a legal scholar at the Benjamin N. Cardozo School of Law, told me that misconduct records should undoubtedly be available to defense attorneys and prosecutors in criminal cases and civil suits involving officers. However, as she published in a law review article last year, she has concerns about making that data public. For example, there’s often racial and other kinds of bias in who gets disciplined for misconduct within police departments — and public records would reflect that bias.

Beyond that concern, she is skeptical about the degree to which public disclosure of the misconduct records will help bring accountability. “I have not seen any evidence that having these records be public leads to a less brutal police force,” Levine said. While it’s possible that the public records would allow people to hold officers accountable, she says there isn’t a clear reason to think that making the records public would make much of a difference. “There needs to be radical change in the way policing is conducted,” she said, including “a radical reduction in our reliance on the police.”

Advocates who pushed for the repeal of 50-a in New York similarly emphasized the need to reimagine the role of police. Pimentel, who went to school in New York City where there were metal detectors and police, told me, “I survived the school-to-prison pipeline, and some people don’t. They are introduced into this unforgiving carceral system and that’s it.” Many advocates are pushing to remove police from schools, including in New York City. In Minneapolis, the public school system recently cut ties with the police.

Black Lives Matter and the Movement for Black Lives, along with many other organizations, are pushing for significant change in the role of police in society, as well as the role of incarceration. As Black Lives Matter co-founder Patrisse Cullors said recently on The Daily Show With Trevor Noah: “We’re in a moment when we can call for more.”

When it comes to what it means to defund the police, she said, she thinks about it in terms of a simple question: “What are the things that police are doing right now that could be given to other people, other workers that have been trained to do that particular thing?” She asked why police are charged with responding to people in mental health crises and with criminalizing homelessness. It’s “deeply unfortunate” that resources that communities need are gutted, she said, while the police receive a huge amount of funding.

In New York City, Constance Malcolm said that Justice Committee and many other advocates that have been engaged in protests are calling for cuts to the police department’s budget — including a cut of at least $1 billion in the next fiscal year — and to reinvest in social services that communities need. Malcolm told me that she is very glad to see 50-a repealed and the greater transparency that will result. At the same time, she and many others are pushing for further change.

“The world is watching,” she said, “to see how America treats its people.”

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