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Police anchor appeal over disciplinary records to new contracts holding

In a bid to unravel recently passed police-accountability legislation, the Connecticut State Police Union says lawmakers cannot go back on an agreement that blocks the release of some internal investigation records.

MANHATTAN (CN) — An attorney for a police union told the Second Circuit on Friday to look at a ruling the court issued just one day earlier as it considers the constitutionality of a new Connecticut law that shines a light on the disciplinary records of state troopers.

Passed in July 2020 in the aftermath of George Floyd’s death and widespread protests over excessive force, the law known officially as Act 20-1 walked back portions of the collective bargaining agreement state troopers made with Connecticut in 2018 that said, for instance, a trooper would be notified if someone used the state’s public records law to request their file.

The act also allows the public to access internal investigation documents even when the complaints against the officer are found to unfounded, not sustained or exonerated.

When the union sued in August 2020, the district court denied its request for a temporary restraining order and a preliminary injunction. It appealed to the Second Circuit last October.

“If this case does not present a contract clause violation, then the clause is a dead letter,” the union’s attorney Proloy Das of the firm Murtha Cullina said in his first few moments before the Manhattan-based three-judge panel.

But the “clause is alive and well,” Das continued, thanks to a 109-page opinion the Second Circuit had released the day before in an unrelated case about commercial lease obligations in New York City during the Covid-19 pandemic.

A federal judge had previously dismissed a challenge from New York City landlords to the city's tenant-protection laws, but the Second Circuit breathed new life Thursday into their allegations under the contracts clause.

In the police union case, Das said precedent supports states making changes to a collective bargaining agreements in only narrow instances, when there was a “dire fiscal emergency." He argued the Legislature acted here with political expediency here rather than wait to address the issue in June 2022 when the current contract expires.

“This isn’t an action of last resort,” he said, urging the panel to apply a strict scrutiny standard to the police union contract.

None of the judges from Thursday's case sat on Friday's panel, who pointed out that their colleagues in the other case had been focused on contracts private individuals created with each other that was affected by New York’s law. Thursday's opinion had made a point to distinguish public and private contracts, the judges said.

When the judges asked Connecticut Assistant Attorney General Michael Skold what he thought of their colleagues’ decision, Skold said he was unaware the opinion had been issued and he would be willing to file supplemental briefing to address it.  

The changes to Connecticut’s police records came as the state passed a flurry of measures last year designed to enact police reform — banning chokeholds, allowing towns to create civilian review boards and creating an Inspector General office whose sole task is to review instances where police killed individuals.

Referring to the Freedom of Information Act, Skold said the Connecticut State Police Union is trying to prevent the state from carrying out its “mandatory duty to disclose police records under FOIA.”

Skold told the judges police disciplinary records had been public record in the state until 2018.

That year, state police employees negotiated a provision in the collective bargaining agreement that excluded some internal affairs investigations from disclosure.

But the state’s public policy had changed, Skold said, adding that it was not in the state's interest to shield the records until the contract was up for renegotiation to return open-records law to the way how it was for the last four decades.

Skold said the law enforcement industry is a heavily regulated area like the energy industry where the state uses the services while still regulating it.

“The state doesn’t bargain away its ability to regulate in the public interest,” Skold said.

Skold also noted that at least one records request regarding state trooper records has been fulfilled, as the law is already in effect.

The parties argued before U.S. Judges Gerald Lynch and Raymond Lohier Jr., both Obama appointees, as well as Joseph Bianco, a Trump appointee. Though judges and attorneys wore masks in the courtroom, the audio of the proceedings was livestreamed over YouTube.

It is unclear when the panel will rule. Judge Lohier was on the panel in February when Second Circuit affirmed a similar case regarding law enforcement disciplinary records in New York.

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