The repeal of New York’s dreaded Executive Law § 50-a, which protected cops, among others, from disclosure of their personnel records, was an emblematic reaction in these curious times. The law was bad, awful even, in that dirty and violent cops were able to conceal their conduct from the public and criminal defense lawyers who got to cross them about their actions.
Yet, the repeal was simplistic, a bludgeon rather than a scalpel, The NYCLU sought information from the Civilian Complaint Review Board about all police officers who were the subject of complaints, with the intention of making it publicly available. The police union took issue with this and sought a temporary restraining order.
“We are defending privacy, integrity and the unsullied reputations of thousands of hard-working public safety employees,” a union spokesman said on the filing of the lawsuit.
On Wednesday, a federal judge issued a temporary restraining order, blocking the city, including the CCRB, from releasing disciplinary records. Judge Katherine Polk Failla also barred the New York Civil Liberties Union from disclosing data it had obtained.
I had planned to review Judge Failla’s decision, but hadn’t gotten to it before Pro Publica made a decision that rendered it irrelevant. Pro Publica was not a party to the action and was under no constraint by the TRO. But they had the data and, despite the issuance of the TRO, despite knowing that the action was before the court, that there were arguments made against disclosure, decided to disclose it anyway.
“We understand the arguments against releasing this data. But we believe the public good it could do outweighs the potential harm,” said Stephen Engelberg, ProPublica’s editor in chief.
In other words, who cares what a judge decides. They decided that release was more important, better served the greater good, than the “potential harm” and, well, so much for the legal system.
To be fair, they didn’t release all of it, and sought to make some accommodations for cops against whom no complaint had ever been “substantiated,” the CCRB word for guilty.
In releasing the information included in our database, ProPublica is not publishing all complaints against officers. As we’ve noted, we’ve limited the data to only those officers who’ve had at least one substantiated allegation. And every complaint in the database was fully investigated by the CCRB, which means, among other steps, a civilian provided a sworn statement to investigators. We’ve also excluded any allegations that investigators concluded were unfounded, meaning investigators determined the incident did not happen as the complainant alleged. There were about 3,200 allegations listed as unfounded in the data we were provided, about 9% of the total.
And for some context, CCRB complaints barely scratch the surface of police misconduct, as most people never bother to file a complaint since the CCRB is a toothless tiger and it’s a big waste of time. Moreover, the data released by Pro Publica wasn’t about where to locate cop’s mothers, spouses and children to harass or attack, or their social security numbers to sell on the dark web, but rather their misconduct.
Of course, one substantiated complaint no more validates ten unfounded complaints than does a defendant convicted once validate the ten cases dismissed. Still, these are cops, public employees given enormous power to do grave harm to people, and complaints against them are hardly some big cop secret to keep from the public that pays their salaries and suffers their misconduct, from beatings and killings to being called “motherfucker” for walking on the sidewalk while black.
It’s not that anyone should shed a tear for the release of the poor officer’s complaint files, per se. This should always have been public information, and its concealment is unjustifiable and inexcusable. But, and this is a big but (I cannot lie), was it up to Pro Publica to decide that the process by which lawfulness is determined, with a TRO in effect by Judge Failla even if not directly applicable to its conduct, to decide for itself what serves the greater good?
The bell rung cannot be unrung, and now the information is out. It’s a done deal. But was it right that Pro Publica made a decision that undermined the court, that circumvented the law, that deprived a litigant of the opportunity to challenge the disclosure, because in its opinion, it best served the greater good? Are we all now laws unto ourselves, and no longer need courts or judges to tell us what the law provides?
Update: On July 30, Judge Failla reversed the TRO so that the NYCLU could publish the data. Two days delay and we would have had a full opportunity for the legal system to work before mooting the issue.
*Tuesday Talk rules apply, but do not test me.