New York can take decisive action to honor George Floyd
June 01, 2020

New York can take decisive action to honor George Floyd

By Norman L. Reimer and Barry Scheck
New York Daily News | Jun 01, 2020 |

The ghastly video of George Floyd’s death in Minneapolis has led to heartbreak, outbreak and protests. It could also lead to new legislation here in New York that prevents future tragedies and increases accountability for law enforcement.

There is a disturbing frequency in many of the most egregious encounters between black and Hispanic citizens and the police: a hidden history of misconduct by the officer involved. Official reporting confirms that the officer in Minneapolis, who has now been charged with murder, had a long history of misconduct allegations over many years. He is not alone.

The NYPD officer who used an improper chokehold in the interaction that led to the death of Eric Garner in 2014 in Staten Island had a history of numerous complaints involving excessive force and abusive behavior, including a finding of an improper stop. The Chicago police officer who was convicted of second-degree murder in 2018 for shooting Laquan McDonald 16 times had a long history of misconduct allegations, including complaints of excessive force and racially insensitive conduct.

There was similarly secreted misconduct in the backgrounds of the two Cleveland police involved in the shooting death of Tamir Rice, a 12-year-old killed while playing with a toy gun in a playground. The shooting officer had withheld from his employment application that he had been deemed emotionally unstable and unfit for duty in a police department in a Cleveland suburb, and the more experienced partner was a defendant in an excessive force civil rights suit that was not in his personnel file.

In the state of New York, there is a law on the books that shields such misconduct from public disclosure. The culprit is New York Civil Rights Law Section 50-a. Indeed, not only is this information kept from the public, it is also kept from defense attorneys involved in the active defense of accused persons, and it is routinely kept from prosecutors as well. Even prominent law enforcement leaders decry this secrecy.

In 2018, counsel to New York District Attorney Cyrus Vance expressed frustration and called for all police misconduct data to be shared with prosecutors at the beginning of the case when charges are determined and bail is set. The Report of the Independent Panel on the Disciplinary System of the New York City Police Department chaired by former U.S. Attorney Mary Jo White found “a fundamental and pervasive lack of transparency into the disciplinary process and about disciplinary outcomes.”

Yet 50-a expressly provides that the personnel records of police officers (as well as firefighters, correction officers and other peace offers) are exempted from inspection or review without the consent of the officer or by a court order. This law perpetuates a culture of secrecy that systematically and pervasively shields police misconduct, and it should be repealed.

As a result, in cases that hinge on police credibility where there is no disclosure of prior misconduct or dishonesty, there can be no justice. Police credibility impacts every phase of a case from the initial charging decision to conditions of release, judicial determination about the lawfulness of stops and frisks, searches and seizures, identification procedures, interrogations that lead to confessions, the ultimate determination of guilt or innocence, and even the severity of the sentences.

But of greatest relevance in these troubling times, police credibility is vital to assess the use of force during a police encounter with a civilian. As the public reacts to the videotape of the arrest of Floyd, consider that most police arrests are not videotaped by third parties with an unobstructed view that provides more telling footage than bodycam videos do.

Reimer is chair of New Yorkers United for Justice, an advocacy coalition focused on criminal justice reforms, and executive director of the National Association of Criminal Defense Lawyers. Scheck is the co-founder of the Innocence Project.