New York’s Notorious 50-a Repealed

When a cop is called to the stand, the first questions asked are about his years on the force and assignments. The next question is how many arrests he’s made. The cop will give a number and nobody knows whether it’s true. There’s no way to find out. But what isn’t asked is how many times he’s been accused of misconduct, of beatings, of lying. Or how many times he’s been disciplined or suspended. Or whether he’s been fired from the job.

Meet New York Civil Rights Law 50-a.

All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency…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 department of corrections and community supervision or probation department except as may be mandated by lawful court order.

It wasn’t that it was theoretically impossible to ascertain any disciplinary information about a cop. There was a motion and hearing, but it was a Catch-22 process, where you needed to know, have evidence, to show the cop was dirty in order to get the records to prove the cop was dirty. It almost never happened.

It was bad law. It should have been repealed. Now it is.

New York took a step toward reform with the repeal Tuesday evening of a state law known as 50-a, a decades-old measure that has allowed the police to keep the disciplinary and personnel records of officers secret. Gov. Andrew Cuomo is expected to sign the bill.

The law has been under attack for decades, but the state lege has never had the fortitude to take it on. What did they fear?

New York’s 50-a is one of the strongest police secrecy laws in the country, the spoils of the unfettered political power New York police unions have enjoyed.

Police unions, like teacher unions, are primary funders of political campaigns. And for most of this time, public perception of cops ranged from heroes to necessities, with the occasional “bad apple” moment as if there weren’t themes of impropriety, racism, dishonesty and general disdain for the public permeating police culture. Legislators needed police union money, and there was little public support for ripping the shroud off cops’ personnel files.

For generations, the law has been used to keep officers accused of misconduct, as well as the departments they work for, from public scrutiny. To understand its tragic toll, consider some of the New Yorkers who died at the hands of officers who most likely never should have been on the job.

Eric Garner, an unarmed black man, died in 2014 of an asthma attack triggered by a banned chokehold by a New York Police Department officer with four substantiated allegations of abuse against him. The public learned of the complaints only after they were leaked.

Would Eric Garner be alive today without 50-a? As too often happens, there’s a bizarre leap of logic between a bad law and how people wholly ignorant of how law works connecting it to things that are bad. Daniel Pantaleo, the cop who murdered Garner, had four substantiated allegations of abuse (a generic word that informs no one of the nature of the conduct involved), and yet he was still on the NYPD.

If this information was available publicly, what difference would it make? No one was focused on Pantaleo until after Garner’s death, and it’s not as if the police department was unaware of the abuse; they’re the ones who substantiated them. And still he was there. With about 36,000 cops on the force, the ability to access police personnel records doesn’t mean that activists will vet each cop, or that any cop will get fired. Even if they find a particularly bad cop, firing one means going through union arbitration, and that rarely turns out well.

But the law, the notorious and extreme law, is repealed. Criminal defense lawyers will finally be able to get their hands on cop-witness records for cross, and this is, without question, a game changer for trials. It’s not just about time, but decades too late for too many defendants. But it’s here.

Now for the overkill problem. The law didn’t protect only police personnel records, but those of firefighters, EMTs and prison guards. The law didn’t preclude access to just disciplinary records, but personnel records, which include personal information as well. When Civil Rights Law 50-a is repealed, all of it goes. Do firefighters need to have their personal information open to public scrutiny? What will the consequences be when a cop’s home address and personal information (like social security number) are readily available? Before you reply, “who cares, tough shit, fuck cops,” consider whether this will impact who chooses to make policing his career, who will put her spouse and kids at risk of a mob should something go wrong and they end up the target of hatred.

Assemblyman Charles Barron spoke for many of the protesters when he said repealing 50-a was far from enough, and he called for “radical, systemic change.”

“I don’t have no more patience for gradual reform,” he said.

He’s got a point, even though I don’t like it. Having spent decades fighting for change, lawyers like me have accomplished little to nothing. We’ve had plenty of blue ribbon committees recommending smart and sustainable reforms, but they rarely happened. The groundswell of protests has done what we’ve been unable to do all these years, accomplishing overnight what “gradual reform” was unable to accomplish.

But radical change tends to be mindless, dumb, extreme and, ultimately, unsustainable because it not only corrects systemic failings, but takes down everything around it as well. The problem is that when we sought gradual reform, it went nowhere. Pols ignored us while depositing their police union donations and cops went on being cops. I’m no fan of mobs. I’m no fan of misguided radical change.

But then, Civil Rights Law 50-a is now repealed, not because of guys like me but because of the protesters, the public shift against police and the police intransigence against nuanced and smart reform. If they don’t like what’s happening now, they should have cooperated in making smarter, more gradual change happen when they had the chance. They brought this on themselves.

11 thoughts on “New York’s Notorious 50-a Repealed

  1. Andy

    Thanks for this thoughtful piece. One counter argument to the criticisms of breadth of the repeal (i.e. personnel records being available) is that there could be shenanigans with classifications of disciplinary records.

    That said, I’m curious to see whether the breadth (at least applying to firefighters, EMTs, as you said) helps or hurts in the long run, both legally and in terms of public perception. Does the application help against whatever legal challenge the police unions come up with?

    But whether it helps or not, I imagine that this is very very good news for defendants in criminal cases-I’m sure this gives you the opportunity for some very good cross-examination material.

  2. B. McLeod

    But, as part of cyclic overreactions, the pendulum may as well and as easily swing back, if this makes police recruiting an untenable proposition. This factor is not being considered much in all the quick fix proposals. In time, it will force it’s way into consideration in all the places that still think they need police forces.

    1. SHG Post author

      Perhaps my point is to avoid perpetual cyclic overreactions by achieving a viable equilibrium. You know, get it right, for once, so we can all survive?

      1. Casual Lurker

        “Perhaps my point is to avoid perpetual cyclic overreactions by achieving a viable equilibrium.”

        Unfortunately, it will never happen. Society is a negative-feedback control system that operates more like a Bang-Bang controller, rather than a P-I-D (Proportional, Integral, Derivative) controller, with its smooth, decaying, damped oscillation, toward a target baseline.

        Your typical house thermostat is an example of a Bang-Bang controller. At best, it keeps the temperature within +/- 2 degrees of the setpoint. Without a deadband (some erroneously refer to it as “hysteresis”) between the upper and lower limits, your boiler would rapidly cycle between on and off, wasting fuel and rapidly wearing out various parts.

        However, thermal momentum tends to partially average out the difference. But that momentum also causes a response lag that would exacerbate any target setpoint overshoot. To compensate, their is a small heating element with an adjustable value, that provides an offset to approximate the residual heat in the duct work. This mechanism is known as the “anticipator”. But, for the anticipator to not make matters worse, it need to be properly adjusted, usually over several iterative cycles.

        From this point, I could reduce the ‘transfer function’ to a formula. The lege’ is the thermostat, voters are the boiler, the unions are a (deliberately) mis-adjusted anticipator. You do the math. You will never reach a stable equilibrium. Bang-Bang controllers are just not intended for processes requiring any level of precision.

          1. Casual Lurker

            “Has anyone ever told you how fascinating you are?”

            Thanks for being polite, as I’m sure you had other words in mind. (Note that I generally prefer “eccentric” to “bizarre”).

            My mixed STEM background, prior to settling on medicine, often gives me an odd view of things.

            BTW, your CAPTCHA is back with a vengeance.

            In any case, today is the first day of our ‘beloved by all’ (staff and patients alike) head senior-supervisory nurse’s return, after having survived COVID-19. We are all overjoyed!

            This leaves me enough time to be my usual PITA self. I figure I’d better make use of that time, before the new crop of R1s settles in. (I mention all this only to explain the sudden burst of comments).

            Anyway, everyone here is relieved to see her temporary replacement, a Nurse Ratched Wannabe, sent, well… anywhere but here. (Did Andrea Dworkin have a sister?)

  3. Jake

    Hold the phone! Do you mean to tell me the all the protests have triggered something SHG thinks is a step in the right direction?

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