ALBANY — A series of police reform bills passed both houses of the state Legislature in the wake of protests across the globe advocating for change in policing policies and tactics.
While some of these laws, if signed by Gov. Andrew Cuomo, could bring about controversial changes, such as making the personnel records of law enforcement available to the general public, other seemingly “new” laws have been on the books for years or are being slightly modified.
One of the most debated pieces of the reform package is known as “50-a.”
Civil Rights Law Section 50-a protects the personnel records of police officers, firefighters and corrections officers.
“[Records] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision or probation department except as may be mandated by court order,” according to the law.
The records are accessible to defense attorneys.
“Right now due to bail reform, officers’ personnel records are open to the defense,” Hudson Police Commissioner Peter Volkmann said. “So people are saying get rid of 50-a, there’s already access to that.”
The information can also be obtained by court order, Greene County Sheriff Peter Kusminsky said.
“The law is not there to protect bad officers,” he said. “This is evident because the statute provides a method of obtaining information contained in an officer’s personnel file when it is appropriate and relevant. An individual may petition a court and be granted access when it is warranted.”
The difference with the new law is that the general public would be able to access these records through Freedom of Information Law requests. The New York Coalition for Open Government voiced its support for repealing the law in a letter to the state Legislature dated June 7.
“The New York Coalition For Open Government supports repealing New York Civil Rights Law 50-a, to allow for the public disclosure of police records relating to police misconduct,” according to the letter. “Transparency is critical for improving public trust in our police departments and for bringing about greater accountability in addressing the performance of police services.”
The death of George Floyd brought to light differences in FOIL law between the states of Minnesota and New York, according to the letter.
“The death of Eric Garner in 2014, brought to light how CRL 50-a shields police officers from public accountability,” according to the letter. “While being arrested for a minor offense Mr. Garner, an African-American man, was placed in a chokehold by a New York City police officer. Mr. Garner died after repeatedly shouting, “I can’t breathe.” Efforts by Mr. Garner’s family to obtain disciplinary records through FOIL requests were denied under CRL 50-a.
“In Minnesota, unlike New York, police disciplinary records are accessible to the public and through this transparency; the public was able to learn that the officer responsible for Mr. Floyd’s death was the subject of 18 police conduct complaints.”
Another reform would require officers — on or off duty — to report all incidents to their supervisor within six hours where they discharged a weapon near where people could be hit and file a written report within 48 hours.
This type of information is already logged by local agencies and required to be reported to the state.
An executive order that took effect in July 2019 requires agencies to report when an officer brandishes, uses or discharges a firearm at or in the direction of another person to the state Division of Criminal Justice Services.
The order also requires agencies to report when an officer uses a chokehold or similar restraint; displays, uses or deploys a chemical agent such as tear gas or pepper spray; brandishes, uses or deploys an impact weapon such as a baton or billy; brandishes, uses or deploys an electronic control weapon such as a stun gun, flash bomb or long-range acoustic device.
In addition to the type of force used, agencies must report the race, gender identity, sex, ethnicity and age of all persons engaging in use of force and all persons suffering from injury from the use of force.
DCJS is required to compile the data on an annual basis and publish it. The first report, which covers July 11 through Dec. 31, 2019, has not been published. During that time period, 229 agencies reported 2,231 use-of-force incidents to the state.
The Eric Garner Anti-Chokehold Act would ban the use of a chokehold by police and classifies this tactic as first-degree strangulation, a class B felony.
The proposed Police Statistics and Transparency (STAT) Act would require police departments to submit annual arrest-related death reports to the state Division of Criminal Justice Services, the Legislature and the governor.
An executive order that took effect in July 2019 requires agencies to report when an officer in engages in conduct that results in death or serious bodily harm.
Another component of the proposed STAT Act is to require courts statewide to collect and publish demographic data based on race, ethnicity, age and more for all low-level offenses including misdemeanors and violations.
The Division of Criminal Justice Services receives demographic information including race, sex and age on arrests that require fingerprinting — felonies and misdemeanors — and makes this information available on its website. But the state Unified Court System does not collect this data, Unified Court System Director of Public Information Lucian Chalfen said.
The reforms would establish a Law Enforcement Misconduct Investigation Office within the state Department of Law, which would review, study, audit and make recommendations regarding the operations, policies, programs and practices of law enforcement, and create an Office of Special Investigation, under the Attorney General, to investigate and, if warranted, prosecute all deaths caused by a police officer.
Another proposed reform is to make false race-based 911 calls a crime. Falsely reporting an incident, regardless of race, is a crime, and depending on whether it is a third-, second- or first-degree charge, the individual would be charged with a class A misdemeanor, class E felony or class D felony.
The new bill, dubbed the Amy Cooper Bill, after a woman who called 911 on a black man in Central Park who had asked her to leash her dog, creates civil penalties for those who violate the law.
“Any person who intentionally summons a police officer or peace officer without reason to suspect a violation of the penal law, any other criminal conduct, or an imminent threat to a person or property, in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, whether or not the belief or perception is correct shall be liable in a civil action or proceeding,” according to the law.
The state Legislature also passed a bill to legalize filming of police.
Members of the public have a First Amendment right to record the police in public as they carry out their duties, according to the American Civil Liberties Union.
“When you are lawfully present in any public space, you have the right to photograph anything in plain view, including federal buildings and the police,” according to the ACLU. “Police officers may not confiscate or demand to view your photographs or video without a warrant, nor may they delete data under any circumstances. However, they may order citizens to cease activities that are truly interfering with legitimate law enforcement operations.”
The new bill, called New Yorker’s Right to Monitor Act, would “enforce the rights of individuals to film or record a police officer(s) in the act of making an arrest of other law enforcement activity and ensures that such police offices shall not intentionally block or obstruct recording devices being purposefully used for monitoring such arrests or other law activity,” according to the law.
The individuals would not be subject to harassment or arrest for filming, provided they do so without intentionally obstruction governmental administration.
The bill would add certain protections for individuals filming, preventing them from being with disorderly conduct or obstruction of governmental administration for recording in a manner that is reasonable and otherwise lawful.
The proposed State Police Body-Worn Cameras Program will require that the state police provide all troopers with body cameras.
Another new bill adds a section to the Civil Rights Law that guarantees a New Yorker’s right to medical and mental health attention while in custody.
The Eighth Amendment also provides these protections.
“The failure to provide needed medical care to an individual in custody, for example, can constitute cruel and unusual punishment where it results in harm to that person,” according to criminal.findlaw.com.