Law Panel Says NYPD Discipline System Is Fair, but Needs Transparency

From left, Robert L. Capers, Mary Jo White and Barbara Jones at a press conference on the report of the NYPD's disciplinary system, held at Debevoise & Plimpton on Feb. 1. Photo: David Handschuh/NYLJ

Following a limited review of the New York City Police Department’s disciplinary system, a panel of three legal heavy-hitters has concluded that the system could use some work but that it is generally fair and that ultimate disciplinary authority should remain with the police commissioner.

The panelists—Mary Jo White, a former U.S. Attorney for the Southern District of New York; Robert Capers, a former U.S. Attorney for the Eastern District of New York; and Barbara Jones, a retired Southern District judge—said that the NYPD should be more transparent about officer discipline, but conceded that a controversial state law that allows police departments to keep disciplinary records out of the public eye, Civil Rights Law 50-a, stands in the way.

The panel found “an almost complete lack of transparency and public accountability in the NYPD disciplinary system,” White, a partner at Debevoise & Plimpton, said at a news conference Friday.

White said that both the courts and the department have “broadly interpreted” the language of 50-a. She noted that while the panel was completing its work over the last seven months, the state Court of Appeals ruled that the statute exempts officers’ personnel records from requests filed under the Freedom of Information Law.

The panel also said that the department needs to have a heavier hand in disciplining officers who make false statements in court—cases that the department treats “too leniently,” the panel said—or who are involved with incidents of domestic violence.

The panel found that, while the NYPD’s Patrol Guide prescribes dismissal for officers who knowingly make false statements, those caught lying on the stand are often charged under more permissive provisions of the guide. Plus, the NYPD has historically been reluctant to collect information about officers who have been given adverse credibility findings from prosecutors’ offices in the city.

To address under-prosecution of false-statement cases, the panel recommended the department aggressively pursue such cases. It suggested looking past accused officers’ explanations and then firing those found guilty of intentionally making false statements.

And as for where the buck stops in disciplinary proceedings, the panel said the police commissioner should still be the ultimate authority in the discipline system—an arrangement enshrined in the city charter.

“Perfect? It is not,” Capers said. “But does it work? It appears to.”

Police Commissioner James O’Neill, who appointed the panel, told reporters at a news conference at police headquarters in Lower Manhattan that the department “fully accepts” the panel’s recommendations and that it has appointed an internal implementation group to put the recommendations into action.

“We don’t fear scrutiny, we welcome it,” O’Neill said. “Our principal goal is to have a disciplinary system that it fair, clear and consistent for everyone involved.”

In calling for the state legislature to do something about 50-a, the panel has joined a growing list of organizations that say the statute should be changed or repealed altogether.

Among those advocates is O’Neill, who said at the news conference that the department is lobbying state legislators to change the law. Other advocates for change include the New York City Bar Association, the Legal Aid Society and the New York Civil Liberties Union. He said he would like the department to be able to release the names of disciplined officers, as well as their charges and the outcomes of their cases.

The list of those calling for change also includes Communities United for Police Reform, which issued a statement in which spokesman Anthonine Pierre applauded the panel’s work. Pierre said the NYPD has used 50-a to hide the lack of disciplinary action taken against officers who commit “egregious” acts like police brutality, sexual misconduct and lying in their official capacities.

“The NYPD’s overly broad and ever-expanding application of the 50-a police secrecy law has protected and empowered officers who engage in misconduct,” Pierre said. “That’s wrong and unacceptable.”

Bills that have been proposed in the State Assembly to repeal or amend 50-a have all met dead ends. Meanwhile, the law which has been on the books since the 1970s was given a broader application in recent years following an internal NYPD policy change.

State Assemblyman Daniel O’Donnell has proposed legislation in the current session to repeal 50-a. That bill has been referred to a committee.

The Policemen's Benevolent Association—which has stood firm against any changes, in the name of protecting officer safety—issued a statement blasting the panel’s report. Patrick Lynch, president of the police union, said in the statement the panel’s recommendations do not create heightened accountability for supervisors. He said the panel itself amounted to “distinguished law enforcement figures bowing to the demands of anti-police, pro-criminal advocates.”

“The panel’s recommendation to shred the confidentiality protections for police personnel records will put all New Yorkers in jeopardy,” Lynch said. “Criminals will exploit this supposed ‘transparency’ in order to escape justice, and police families will be exposed to even greater threats and harassment.”

Read more:

Appeals Court Rejects Bid for Open Access to Police Personnel Records

FOIL and Confidentiality of Law Enforcement Personnel Records

NYPD Can Withhold Disciplinary Records From Public, NY Court of Appeals Holds