Tuesday Talk*: Pro Publica, Publish or Perish (Update)

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.

52 thoughts on “Tuesday Talk*: Pro Publica, Publish or Perish (Update)

  1. MelK

    None of you have an obligation to educate me, but it’s Tuesday-talk, so I will assume permission to ask.

    The TRO did not apply to Pro Publica, but did bar NYCLU from releasing what it had. Would the judge be able to include Pro Publica, and whatever other third parties might have the database, in a final ruling?

  2. Delurking

    Isn’t the lawfulness of ProPublica’s action already established? If they had gotten their hands on the data before the law was repealed, it would be no different, right?

  3. Joe

    The reaction by NYC police unions to stop the public from knowing the identities of “dirty and violent cops” is just another example of cop doublespeak that is happening across the country.

    Police spokesperson’s claim to want reform in public, but then fight it ever inch of the way in backroom negotiations. Meaningful police reform shouldn’t involve injunctions or forcing politicians to cave into union demands to shield bad cops.

    Should ProPublica have published most or part of the information? My vote is yes, this is not a WikiLeaks government document leak. It’s about exposing a pattern of abuse that is endemic to law enforcement. In the NYPD’s case it goes back decades.

    The Feds and police keep lists of alleged DWI/Drug drivers and post them publicly. They also post the names and addresses of people accused of sexual crimes, so why shouldn’t we have a nationwide database of dirty, lying cops?

    1. Miles

      Isn’t it amazing how blind one can be when the outcome is something you like, and you can bullshit your way around the only issue raised? Imagine the roles were reversed and it was the NYCLU getting an injunction against the PBA, and so the FOP published the names of every married man ever arrested for patronizing a prostitute provided he had any other blemish on his record.

      Same issue. Different side. Is it just the ends justify the means, like every warrior fighting for social justice no matter what?

      1. Joe

        Isn’t it amazing that you missed my point about having a NYC/nationwide database of lying, dirty cops? How would a juror know if a cop has a history of lying? Easy check the database.

        How would a city council member know about an abusive cop? Easy check the database. How do the the ends justify the means, when meaningful police reform is thwarted by a union injunction?

        Asking people to imagine if the rolls were reversed only proves my point. In an open society the public should have a right to see “substantiated” complaints against any cop.

        1. SHG Post author

          Psst, Joe: No one is disagreeing about the general rightness of making this specific information public. It’s the means.

  4. Charles

    The only way ProPublica could have “circumvented the law” is if they are bound by the scope of the injunction. Rule 65 states that the order “binds only the following who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).”

    (A) and (B) don’t apply to either NYCLU and ProPublica, as neither are parties to the case. It’s the unions fighting against DeBlasio, et al. (notably with the Firefighters as the lead plaintiff, not the cops, because everyone likes firefighters). So for either NYCLU and ProPublica to “circumvent the law,” they would have to fall under (C).

    If someone can find an actual written order setting forth the legal basis for the decision, that would be appreciated, as the docket only shows a minute order that mentions NYCLU:

    “Minute Entry for proceedings held before Judge Katherine Polk Failla: Temporary Restraining Order hearing held on 7/22/2020. Plaintiffs’ motion for TRO granted in part per oral decision. NYCL is found to be acting in concert with Defendants and is ordered to not disclose documents further, internally or externally.”

    While sparse—it doesn’t even use the word “active”—it at least mentions NYCLU but not ProPublica.

    As for whether ProPublica should have waited anyway, paragraph 3 of the Complaint states, “Petitioners bring this action seeking to temporarily and permanently enjoin Defendants from releasing unsubstantiated and non-final disciplinary records of firefighters, police and correction officers…” The prayer for relief in the complaint expressly is limited to “Temporarily and immediately restraining the publication of any records concerning Unsubstantiated and Non-Final Allegations or that regard settlement agreements entered into prior to June 12, 2020…”

    In other words, the unions aren’t even asking for the substantiated allegations to be enjoined. By limiting their disclosure to substantiated allegations, ProPublica’s action harms no one.

    Complaint: https://reason.com/wp-content/uploads/2020/07/NYlawsuit.pdf

  5. Erik H

    “In other words, who cares what a judge decides.”
    This is a surprising comment coming from you.

    ProPublica SHOULD care what a judge decides… which is to say that they should care whether they’re a party; whether they’ve been served, etc. If the plaintiffs thought that they could get a general pre-publication restraining order which would apply to non-parties, they should have moved for one.

  6. B. McLeod

    Not being a party is not being a party. This was a tactical failure on the union’s part to join and serve everyone they needed to join and serve. I think almost any journalist (even the real ones of bygone days) would not ignore this, and would drive their “exclusive” through the open gate. It looks to me like ProPublica was unusually responsible in limiting the release as it did.

  7. Sgt. Schultz

    The past week’s TT was, surprisingly, not nearly as stupid as they had been in recent weeks. The comments today are fucking idiotic, and studiously so as no one seems to want to face the question. They like the outcome and so they harp on the technicalities, ignoring that the issue is before the court and they’ve just fucked the legal system because they could get away with it.

    Are SJ readers this stupid or this blind? I would have expected better. I would have been pathetically disappointed. They’re just as full of shit as any other petty tyrant.

    1. SHG Post author

      I’m surprised, saddened and disappointed as well. Thus far, the comments are awful. This may be the last TT if it goes on this way.

      1. SHG Post author

        He didn’t answer once. You didn’t answer twice, though all of us lawyers deeply appreciate your explaining law to us in your first non-answer because we’re probably dumb lawyers, Charles.

      2. Sgt. Schultz

        Fair enough, Charles. As much as Pro Publica handled itself with about as much propriety as possible, while publishing the information (which I, like pretty much everyone else here, agree should be published), I’m deeply disturbed that they asserted that their view of the greater good precluded the court from ruling by rendering the outcome moot.

        The legal system is in a very precarious place at the moment. Even though it was obviously lawful, as Scott noted and you tediously yet needlessly explain, was it the right thing to do? I pick the legal system making decisions rather than everybody deciding for themselves what serves the greater good. Some I will agree with. Others I won’t. Still, I would rather such decisions be made by courts than mobs, shooters, crazies and anybody with a website.

        There ya go.

        1. Charles

          After reading your reply, I think the problem with my first answer comes down to two different readings of our host’s second question:

          “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?”

          I read “circumvented the law” to mean “unlawful” whereas I now see that our host merely means “bypassed.” I blame the constant winter and drafty barracks for my misreading.

          Can you get us some extra blankets, Sarge?

    2. B. McLeod

      The issue is “before the court” for the parties to the case. If we are to term that a “technicality,” it is a very substantial one. ProPublica could have waited for the outcome of the case, but it didn’t have to. There was not a legal rule that required it. There was not an established rule of journalistic ethics that required it. Yes, ProPublica basically stole the march on the court case, and effectively mooted it. It happens. If you’re going to use the courts to close the barn door, make sure the horse is in there.

    3. Erik H

      Bullshit. I don’t care one way or the other about the outcome, but I care quite a bit about the process.

      Your “technicalities” are what we call “laws.” Your “fucked the legal system” is what we call “winning the case and getting our client what they want.”

      What’s next? “Well, sure, the officers screwed up the case and they named the wrong defendant, but the matter is before the court and I guess the party may as well show up and get smacked because reasons?” It’d be a cold day in hell before Scott posted such a thing.

      This whole blog is focused–properly–on doing what is best for one’s clients. And on enforcing the laws which are written, as written. That is our job. Now you want to change that because reasons and you blame US for being outcome-focused? Yeah, right.

      1. SHG Post author

        Had Pro Publico been a litigant, this would be a different discussion. It wasn’t. It’s not a client, and it’s surely not a criminal defendants. The question was who gets to make extrajudicial decisions that can’t be unmade while litigation is ongoing. Carry on.

        1. Erik H

          “The question was who gets to make extrajudicial decisions that can’t be unmade while litigation is ongoing.”

          That’s the question? The answer is simple:

          Anyone can do anything at all, as a general rule. The major exceptions are those actions prohibited by law and those restrictions which stem from a court order–either to a party or, if the court claims such jurisdiction, to anyone else affected by the order. This is right, proper, and a key to a fully free society. I will defend that freedom for anyone, client or not,, so long as I am a lawyer.

          It does not mean such actions are wise (many things are not, quite possibly including the PP decision to publish.) It does not mean those actions are <i.free from consequences (PP may get sued, perhaps, if there’s a claim somewhere.)

          But that’s neither here nor there. Freedom to act is freedom to act.

          I am shocked to see you taking this position. Do you seriously want to try to preserve fundamental freedoms only for criminal law? Do you really think we should support some ill-defined expansion of extrajudicial power to non-parties?

          It sure seems like you would oppose this if your cause was on the block. But that isn’t the usual Scott who posts here. I don’t know PP, I don’t read PP, and I don’t care about the outcome of this case: I *DO* care, immensely, about fighting any additional expansion of governmental power.

          If Congress wants to put a requirement out there, in which non-parties have to follow the wishes of courts, they can pass a damn law. I’ll oppose its passage and I’ll follow it if it passes.

          Until then, let freedom reign. And bring back Scott.

          1. SHG Post author

            You should be more cautious in trying to tell me what the “usual Scott” would say. You’re not up to the task.

        2. delurking

          How is this extrajudicial? The Pentagon Papers were published, right? A pretty important court had its say on this sort of thing.

            1. Casual Lurker

              As I attempt to have lunch and catch up on some of the backlog…

              “Stick to pharmaceuticals.”

              Just curious, are you suggesting an investment strategy or that delurking has a problem with medication compliance? OR are you, once again, confusing your ‘lurkers’?

          1. David

            When the Pentagon Papers were published, there was neither a lawsuit pending about their release nor a TRO in place prohibiting disclosure.

            More importantly, the issue isn’t whether it was legal for Pro Publico to publish. It was, as has not been repeated over and over. The question was whether it was the right thing to do under these particular circumstances, which is what made that noise as it soared over your head.

    1. SHG Post author

      Or popular opinion supplants the courts, rendering the courts unnecessary and leaving decisions to the mob, as B.McLeod urges.

  8. John S

    NO, Pro Publica was not right to assume they had the right to skirt the law, and NO, we do not individually or in groups, have the right to assume what we believe is for the “greater good” trumps the law. The problem is no fear of accountability or consequences from violating the law. As a society, we have seen more and more instances of the law being ignored or flouted for the “greater good” with no real consequences. A president’s executive order on immigration found unconstitutional? Reword it and implement it anyway for the greater good. Police overworked with calls to stop drug use, vagrancy, and shoplifting in the city? Order the police to stop enforcing those laws for the greater good. People offended by a statue or memorial? Gather together in a mob and tear it down for the greater good, and so on.

    The law only has meaning when a society believes that the law protects them and is equally enforced with appropriate consequences to all offenders. The lack of societal outrage at the breakdown of the rule of law is feeding the hydra of chaos we see unfolding in the halls of government and our local streets. It doesn’t have to be this way. There will be a breaking point sometime in the future if this continues, and restoring order will be the easy part (if not necessarily peaceful). The more difficult task will be restoring society’s faith in a dysfunctional legal system and a government that selectively enforces it.

  9. PseudonymousKid

    We’re paid to find ways around those pesky laws for our clients despite the larger consequences. It’s hard to take that advocate hat off here apparently and especially when the decision is ultimately something most seem to support i.e. disclosure. So your barred commenters focus on saying “well technically” without seeing the bigger picture. It’s easy to have blinders on when diligently working for the objectives a client seeks. How many clients really want the wisdom rather than the technical answer and an evaluation of any possible short-term clapback?

    Don’t bemoan your commenters and my comrade too much please. I offer myself as tribute as always.

    In another life I would have been lauding Propublica for its disclosure. I can’t now. We aren’t laws unto ourselves. Courts still matter. Sober analysis and order and procedure are necessary. And technically Propublica could have sought declaratory relief prior to ringing the bell. Sorry I couldn’t help myself.

    1. SHG Post author

      That it was “technically” lawful was never in issue, even though the guild appears to have gotten stuck there. Apparently, I failed to make it sufficiently clear that the question was about the proriety of posting, not its legality.

      1. Alex S.

        It would seem that a lot of people are answering the wrong question – was the publishing in any way unlawful – because there isn’t much meat to chew on the question you asked – was the lawful publishing moral?

        I can say that the [redacted] Fox News spews is not moral, but unquestionably legal, and most lawyers who didn’t want to then discuss with me how much they hate Fox News would respond with something along the lines of “so what?”

        To answer your question – Pro Publica had every legal right to publish, and what they published seems newsworthy. So what if there was an ongoing court case that didn’t concern them that they mooted? Why would we expect the media to do any differently? While maybe it would have been nice if we could have had another Pentagon Papers 1st Amendment landmark decision, the cops screwed up and it’s moot now. Oh well.

  10. AJD

    > Are we all now laws unto ourselves,

    Always have been.

    > The question was who gets to make extrajudicial decisions that can’t be unmade while litigation is ongoing.

    Everyone who’s not bound by the court, law, or ethical rules to not do so. Heck, even those, if they’re willing to pay the price. (And there always should be a price!) But pretending that there is no choice, because of law, or superior orders is an abdication of moral responsibilities.

    Everyone, at all times, decides to obey or not, even if obey is the default. Factoring into their decision is the immediate pragmatism of “will I get away with it”. Those worried about longer term consequences of what kind of society they want to live in will consider the concern of “does this undermine the very important concept of rule-of-law”.

    The conflict between legality and morality has been one of the central ethical conflicts throughout the history of laws. There is a reason civil disobedience is both feared and revered. It’s a powerful tool that can destabilize the status quo, because law is not self-executing, and is just a very persistent illusion. We can try to minimize people acting against it, either by making the law align with the morals of more of society, or upping the costs of violating it (and the probability of getting caught). But it’s never going to be a 100% match for everyone.

    Protestors attacking police in the performance of their duties undermines rule-of-law. We almost always want people to defer to cops on scene, and if needed sort out everything later in court.

    But when it’s actually legal to do something that moots a court case? That doesn’t actually undermine rule-of-law. This isn’t William Roper cutting a great road through the law to get after the Devil. It’s racing down an existing road that no one has yet put a gate across. And that’s not going to make it harder to stand upright in the blowing winds. I’m trying to think what it does undermine, but the closest I can get is “all disputes must be decided by a judge in court”. Which I’m sure is an uncharitable gloss, but I can’t think of a more charitable one.

    1. SHG Post author

      A more charitable gloss would be, “once there’s a TRO in effect, such that there is sufficient potential for irreparable harm that a judge granted it, await the outcome even if you’re not a party to the action even if the law doesn’t require you to do so.”

      1. AJD

        Okay, but that’s just restating the existing claim. And maybe that’s all you want to do.

        I, and I think most of the commenters here, were looking for something to justify that rule, because it’s justification is not actually self-evident to all of us. I’m not saying it’s not a good rule, just that in trying to see why you think it is a good rule, we would need to fill in some argument. In attempting filling in that argument it’s unsurprising that we’ve gotten it wrong, hence all the comments about both legality and morality that you have disclaimed, as well as my rambling contribution that you so graciously allowed to be posted.

        Is there some other principle that leads to this rule? Is it just an empirical observation that acts like this lead to worse outcomes?

        1. SHG Post author

          Some got the point. Some didn’t. Contrary to your expectation, it’s not my job to continually restate the point in ever smaller words for the benefit of the latter group.

  11. phv3773

    If a publisher has the chance of scooping his competitors, he’s probably going to do so even if the ethics seem marginal.

  12. Ron

    Am I wrong to see an analogy here between Pro Publico deciding to publish despite knowing of the TRO with various efforts via protest and riot to compel governments to defund police, abolish prisons, etc., by coercion where they can’t accomplish their goals through the regular means by which government is normally functions?

    Is this about people deciding for themselves what’s best for the greater good and not having to go through the means crafted by society to reach that determination?

  13. Keith

    I can understand the stance that the Pro Publica folks are throwing a monkey wrench in a case they aren’t a party to. But can’t the question also be whether a case Pro Publica isn’t a party to should have any bearing on whether they should publish whenever they feel like it?

  14. Scarlet Pimpernel

    There was something humorous about clicking the link to the article and being immediately confronted with a pop-up proclaiming that Propublic is “Journalism That Hold Power to Account”., then reading an article about how those is power may have abused that power in allowing the release of certain information, but that Propublic was going to use the information in the way they wanted anyway. Kinda had to hold “Power to Account” when you are acting as a tool of that power.

    That being said, no, it was not responsible journalism and reeks of retaliation, especially in the current environment. The information could just as easily have been released sans the officers names and badge numbers and had just a big of an impact on the discussion around police misconduct. Then there would have been no need for such obviously incredulous justifications to excuse their actions. Does the fact that an officer failed to give their badge number 17 years ago provide any more cover for releasing 20 years of unsubstantiated complaints than if the had releases the entire data set sans their filtering.

    Now for the Gertruding, I personally have no issue with the information being made available to the public, however it is the method, timing and rational of the release that makes it icky.

    1. SHG Post author

      What made this particular case challenging, from my perspective, is that who doesn’t want access to the police misconduct complaints we’ve been denied forever under 50-a, a terrible law that conceals impropriety?

      This was very much a litmus test of confirmation bias. Most people failed.

      1. LocoYokel

        I may be smoking from the wrong pipe again, but this whole attempt by the police strikes me as a 3 year old not liking the rule dad made and running to mommy to get her to overturn it. It is a blatant attempt to get a judge to legislate from the bench and attempt to overturn an explicit law passed by the state legislature simply because it hurts their feelings. If he issues the requested permanent injunction barring the release of these records the legislature needs to immediately pass another law specifically (and I mean using the specific ruling and name of the judge in the bill) annulling the injunction and telling the court to keep out of the law-making business. There may be much not to like about the specifics of the law and some tweaking needed to clean it up but the overall effect of opening up disciplinary records is a good step in the correct direction.

        I’ll probably get slapped down by SHG for this but that’s my idiot on the street take of the situation.

  15. Rob

    As a journalist, I can tell you that, in its purest form (and a non-profit like ProPublica represents journalism in its purest form), your obligation is to your readers, just as a lawyer’s obligation is to his/her clients. If you have info you believe readers should know, you publish. That’s your professional obligation. Why should journalists wait for a judge to rule? Judges are often stupid, and often decide things on mind-numbing multi-pronged tests. A good journalist has two prongs, “is it true?” and “is it useful for readers?”

    The ProPublica journalists almost certainty consulted with their lawyers before publishing this material, and it’s quite likely the lawyers told them, if you really think this material will inform the public (which, again, is PP’s mission), publish it before the judge rules. Afterward, it might be too late. So, even if the journalists may have wanted to wait a few days to sift through the material and make a better call about what was in there, their counsel likely urged them to publish before the judge ruled, as that would minimize their legal exposure. If you want to blame anyone for his, blame ProPublica’s lawyers, because you can be certain they told them to do it this way.

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