Thread by @georgejoseph94

STARTING NOW in SDNY: Police unions are arguing that a preliminary injunction should be issued to further prevent city agencies from releasing thousands of police misconduct records online or via FOIL (yes this is the 2nd hearing related to this subject today):

This is the bigger case, not just about one body of records obtained by NYCLU from the CCRB. Note: this is being led by Judge Failla, who temporarily blocked the NYC’s planned release of 1000s of misconduct records, once shielded by 50-a (repealed by Albany earlier this year)

More on that here:
gothamist.com/news/federal-j…

Judge notes that since the last hearing there has been a lotta discovery. Asks union attorney what records are the subject of this injunction consideration.

Union says they want to blockNon-final, Exonerated, unsubstantiated, and unfounded complaints and settlement agreements

Judge Failla notes that some of these materials have already been released, such as in the ProPublica release. For those records, she asks why should she “muzzle” those?

Union attorney says the City still has to follow the restrictions it is seeking, even for those already released records.

Union attorney says the @propublica release of records has already caused damage, refers to a “cartoon” published by Gotham (maybe he means @Gothamist) —I am unsure what he’s referring to?

Union attorney suggests that the media publishing articles about these misconduct records causes irreparable harm to his clients. Not sure, but his comment may refer to this article about NYPD officers with the most separate substantiated complaints:
gothamist.com/news/here-are-…

Its also possible the police union attorney believes dataviz = cartoons, which may be from this piece. Graphics by @ZGottehrerCohen and @jakedobkin
gothamist.com/news/nypd-poli…

Ok just got word from @jenchung that the union attorney is probably referring to this cartoon illustration in the Guardian:
theguardian.com/us-news/databl…

Union attorney now pivots to argument that the data release would create the possibility of danger for officers. Says criminals could use officer names, find their addresses, then attack them. Refers to rising wave of threats to police officers.

Refers to 6 officers being killed on the last 5 years. Says the CCRB should have done a “file by file” review of the 81,000 records to do a risk assessment for each part of the release. (Note: these records do not include addresses, but names, misconduct types, precinct # s etc.)

Judge responds by noting that CCRB redacts sensitive info. Union attorney says releasing the names of officers alone is too dangerous and that they should not be released.

Union attorney now argues that the release of misconduct allegations would hurt police officers’ chances at getting future employment opportunities elsewhere

Note: An unsubstantiated finding does not mean an allegation didn’t happen (or did happen). A he said /she said allegation without other evidence such as CCTV will often be unsubstantiated.

City attorney says individualized reviews are done before releases of complaint narratives.

City attorney concedes to judge that the city agencies have different views on how to release these records (hint hint NYPD vs CCRB) Judge says “I think you’re arguing to me that though they are all different, they are all lawful.”

City attorney responds that the 50-a repeal allows them to produce the records in the way they feel they should (different agencies may have more discretion).

City attorney says the CCRB is an outlier in terms of the FOIL requests it has received. Says discovery shows CCRB has taken pains to deliberate over what should and shouldn’t be produced based on FOIL exemptions.

City attorney says the risk has to be imminent. Notes that for 17 years firefighters and corrections officials’ disciplinary records have been available for years, but the unions haven’t shown any examples of harm. Also refers to @LegalAidNYC CAPSTAT database for this arg

City attorney notes that union has not pointed to any specific examples of physical danger to officers following publishing of records by @propublica

In response to question from judge, city attorney says that NYPD charges and specifications (for internal dept trials) would be published at the same time as officers learn of them, but notes this would be after an Internal Affairs investigation had been conducted

Judge says @guardian story with cartoon of officers with high number of complaints sounds “disturbing”. Asks how CCRB is educating the public on meanings of unsubstantiated, exonerated etc.
theguardian.com/us-news/databl…

Union attorney now up again, argues that the collective bargaining agreements for most NYPD officers have similar protections

Judge says that if an officer through arbitration gets a record removed from a personal file then that information wouldn’t necessarily be removed from a CCRB database.

Union attorney says it should be.

Judge says this would run counter to the independence of the CCRB.
Union attorney says as a city agency it would be subject to the rules of a CBA.

Citing contract law principle, union attorney argues that settlement agreements protect certain misconduct records from being released regardless of repeal of 50-a.

City attorney says the police unions CBAs are not uniform, says majority of plaintiffs don’t have record expungement rights.

Judge: are there CCRB findings that could be removed from an officer’s personnel file as a result of arbitration?

City attorney: No.
Says CCRB is watchdog of NYPD.

City attorney says the expungement powers in some union contracts do not cover most of the kinds of records kept by the CCRB.

City attorney says there is a standing problem here. Police officers enter into settlement agreements with the NYPD, not agencies like the CCRB.

Judge notes many other states allow for these types of misconduct records to be public. Asks if other states are therefore violating their officers’ rights.

Union attorney says he can only speak about NY officers.

Judge: “what is the stigma if the allegation is designated as unsubstantiated or non-final?”

Union attorney: “the answer... is they certainly call into question the professionalism the integrity and the job performance of these police officers....“

Union attorney continues “the public doesn’t get the difference. The media groups it all as one type of allegation.”

Also refers to 92% of allegations, presumably including unsubstantiated ones, as being “false.”

City attorney responds that unions haven’t shown employment consequence in response to release of these types of records. Says an allegation is not false, as union attorney said, just bc it could not be proved or disproved (“unsubstantiated” in CCRB jargon)

Therefore, city argues, a release of an unsubstantiated record would not be defamatory.

Judge distinguishes between accusations of discourtesy vs excessive force. Asks if claims like excessive force allegations could be necessarily cause stigma. City attorneys responds that civil lawsuits with similar claims are already available on public court dockets.

5 minute break... this is going to take a long time....

Judge asks union attorney about govt’s interest in transparency.

Union attorney says other city employees do not suffer from mass releases of misconduct allegation data.

Judge notes that police + corrections officers are different from other city employees.

Union attorney turns to CBA/safety arguments. Police officers shouldn’t lose their rights to CBA agreements and safety, just as other workers would not.

City attorney argues that police officers as city workers do not have protected rights as a class.

Judge says she is concerned that the CCRB could have released 81k records (given to NYCLU) without properly redacting it. City attorney notes these records are on a spreadsheet that was created by only including safe records (such as allegation types, etc)

City attorney notes that info like tax ids, email addresses, complainant names, etc have been properly redacted by the CCRB.

Union atty suggests that the spreadsheet released to @NYCLU could be dangerous + that each name, precinct # etc should have been vetted for danger before release.

Judge says this seems like a a stretch. Union says it should still be an individualized review for each excel row.

Judge: “I am concerned that a group of legislators knew the arguments you’re making to me” and decided to pass this nonetheless.

Asks if unions are asking her to overturn the decision of the legislature.

Union attorney says nobody said that the 50a repeal would nullify police officers’ other rights, such as those from the collective bargaining agreements.

City attorney dismisses “rights” referred to by the union attorney. Says those CBA rights do not block wholesale release of these records. Also says officers don’t have privacy rights re these records, which they only got from 50-a.

City attorney refers to demands for change made by protesters over the killings of George Floyd and Breonna Taylor. Says legislators repealed 50-a in response to years of protests —without the carveouts the unions are now pushing for from the courts.

Judge is now questioning Amici attorney from @CPRAction. He argues that the unions’ broad injunction demands are not in accord with FOIL. Says that unions do not have “backdoor” power to shape agencies’ FOIL release processes through this lawsuit.

Judge again says she is concerned about mass releases of misconduct records bc they do not go through enough individual review. Again, this is referring to spreadsheets released to ProPublica + NYCLU that includes names, allegation types, etc not addresses, contact info, etc

@CPRAction attorney says this is about the “literal safety” of members of the public, who he says have a right to know about police misconduct.

@CPRAction attorney says that officers can explain their complaints truthfully to future employers, says public has interest in seeing these records

City attorney tries to explain released CCRB spreadsheets to judge again, explaining they were not “redacted” with a “few key strokes” as judge mistakenly believed.

@CoreyStoughton of @LegalAidNYC says that the unions have failed to show any specific harms that resulted from @propublica’s release of thousands of misconduct records:
projects.propublica.org/nypd-ccrb/

@CoreyStoughton continues sayinf the unions are arguing over interests not rights, and these are interests that the legislature balanced against those of transparency in its decision to repeal 50-a.

Judge now moves to question @NYCLU. @msisitzky argues that this case boils down to an attempt by police unions to reverse Albany’s repeal of 50-a. Notes that legislators explicitly understood that the repeal would allow the release of unsubstantiated records.

@msisitzky says Albany previously considered earlier legislation that would have excluded many of the records that the unions now want to exempt through this lawsuit.

Saint-Fort, city attorney, now making final arg. Says union is not likely to succeed on merits, reminds court it doesn’t need to impose a preliminary injunction. “These are simply not rights that exist... that plaintiffs can use to obviate FOIL or the repeal of 50-a”

Coles, union attorney, has the last word in oral arguments:
“It is arbitrary and dangerous for defendants to create a risk of safety to police officers” (by publishing unverified records” —all we are asking for is a prelim injunction so that we can have a trial to explore this

Union attorney says the “the status quo” should stay in place for now with an injunction so that agencies don’t rush out records before they can have a trial.

Judges promises an oral decision this week on whether to impose a preliminary injunction, “hopefully in the next few days”