MANHATTAN (CN) — Police unions failed Tuesday to block a civil rights group from publishing thousands of NYPD disciplinary records, broadening a repository first made public this weekend by the ProPublica.
“I don't have the ability to reach backwards in time,” U.S. District Judge Katherine Polk Failla said in an afternoon phone conference, giving the police unions a day to appeal her decision.
Historically, New York required a court order for the public to access any personnel performance records of police officers, firefighters and correction officers pursuant to Section 50-a of its state Civil Rights Law.
That opacity changed on June 12 when Governor Andrew Cuomo signed the state’s criminal-justice reform agenda “Say Their Name” into law.
Though more than half a dozen unions for law enforcement quickly obtained a temporary restraining order, the news outlet ProPublica had already obtained the records by that time through a Freedom of Information Law request to the civilian complaint review board.
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.
With the information available to any member of the public, Judge Failla asked an attorney for the police unions: "Are you asking to put that particular genie back in the bottle?"
Police unions' lawyer Anthony Coles appeared evasive on that question, a request for post-publication censorship that would face stiff resistance in the wake of the Pentagon Papers precedent against prior restraint of the press.
The New York Civil Liberties Union, represented by Christopher Dunn, cited that watershed case for free expression in a letter shortly preceding today’s hearing.
Coles meanwhile skewered how quickly the civilian complaint review board released records to requesters, saying the disclosure “set land-speed records.”
“Mr. Dunn's organization received VIP treatment,” Coles claimed, accusing the NYCLU of “acting in concert” with the city to pre-empt the court’s order.
But the timeline persuaded Failla otherwise.
“There was no court order,” the judge said. “Does that not matter?”
She said the NYCLU requested and obtained the information before a restraining order had been issued.
Coles did not relent. “The question is whether they were acting in concert to violate a likely court order,” he said.
But Failla noted pointedly that the police unions could have filed its own lawsuit earlier, when it became clear New York would pass the criminal-justice-reform bill.
Though the judge called the prior restraint arguments “strong,” Failla ultimately made her decision based on the fact that neither the NYCLU nor ProPublica were parties to the litigation.
She noted that she “cannot enjoin the world at large.”
Like similar hearings in the time of the coronavirus, Tuesday’s teleconference was not without its technical bloopers.
While participants dialed into the proceedings via Skype, the court offered the press and public an option to listen to the high-profile hearing. With more than 100 people tuning in, listeners from the general public were muted but those who connected as a participant were not. Loud interference disrupted arguments multiple times with one man tempted by the lure of classic New York cuisine.
"I'll have a corndog,” the man exclaimed.
"Just a bite," he added.
Judge Failla told listeners that cats interrupted a trial on Monday, before complaining about the “inconsiderate” corndog eater.
After that exchange, technical problems silenced the remainder of proceedings for a reporter.
Oral arguments on the police unions’ request for preliminary injunction blocking the remaining parties from disclosing disciplinary records have been scheduled for Aug. 18, proceedings which likely will be held through the same technology.
Barring immediate relief from the Second Circuit, the NYCLU can post their police misconduct database on Wednesday afternoon.
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