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Federal Judge Walks Back Restraining Order, Allows Publication of NYPD Misconduct Complaints


Police, firefighters, and corrections officers are appealing a ruling handed down Tuesday by U.S. District Judge Katherine Polk Failla that will allow the public to access disciplinary records against members of the New York Police Department. Under the judge’s revised ruling, the New York Civil Liberties Union (a local chapter of the ACLU) has the right to obtain at least a portion of a cache of thousands of disciplinary records and misconduct complaints against New York police officers.

New York State had long prohibited the publication of police officers’ disciplinary records, including civilian complaints, investigators’ conclusions, or even internal department disciplinary matters against an officer. That all changed in early June. Following nationwide protests over the killing of George Floyd, the New York State Legislature voted to repeal Section 50-a of the state’s Civil Rights Law, the rule that kept the majority of police disciplinary records from the public.

In early July, the NYCLU obtained thousands of records of complaints and discipline in response to a Freedom of Information Act request. Unions representing police, firefighters, and corrections officers sued the NYCLU on July 15 to stop the publication of these records, arguing that only records of cases that constitute “proven and final disciplinary matters” should be available to the public. That July 15 filing would later be deemed too late by Judge Failla.

Judge Failla issued a temporary restraining order on July 22 to block the city from releasing any additional disciplinary records. The next day, the NYCLU formally requested that Judge Failla modify her order to remove the provision barring the NYCLU from publishing information it received prior to the the July 22 order. That request went on to argue that the July 22 order was not only a First Amendment violation, but also an improper use of Judge Failla’s legal authority.

On July 26, ProPublica — not named a party to any ongoing litigation on the matter — published the information obtained by the NYCLU as searchable database of police complaints. It listed approximately 4,000 officers against whom a complaint was deemed substantiated.

On Tuesday, July 28, Judge Failla walked back her ruling by stating that the timing had been off; she would not reach back and prevent the publication of records received by the NYCLU prior to the unions’ having filed suit.  At the hearing, the judge pointed out to litigants that the police unions could have filed their lawsuit earlier (at the point when it became clear New York would lift Section 50-A).

Tuesday’s hearing before Judge Failla was conducted via Skype, and the public could listen. Tensions were high, and patience appeared thin. Judge Failla did not seem amused when she reprimanded a listener for being “inconsiderate” for disrupting proceedings with a loud request for a corndog.

Judge Failla’s modified order allowing the disclosure of some disciplinary records was stayed until Wednesday afternoon, in order to give the police unions time to appeal. Those unions have already filed a notice of their intent to appeal, and the Legal Aid Society has already filed an intent to join the case as an amicus. You can read those documents here and here.

Oral arguments on the preliminary injunction have been scheduled for Aug. 18, and Judge Failla’s temporary order is likely to stay in effect until that time — unless the unions are successful in appearing the case to the Second Circuit Court of Appeals.

[image via Spencer Platt/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos