From time to time, Keane & Beane, P.C., issues Legal Alerts pertaining to new legislation or recent cases of interest. Recently, Governor Andrew Cuomo signed various pieces of legislation in furtherance of police reform.
I. Repeal of Civil Rights Law § 50-a & Related Freedom of Information Law (FOIL) Amendments
New York Civil Rights Law § 50-a provided that all personnel records used to evaluate performance toward continued employment or promotion of police officers, correction officers and firefighters were confidential and not subject to inspection or review without the express written consent of such police officer, correction officer or firefighter. On June 12, 2020, Governor Cuomo signed New York Senate Bill S8496/Assembly Bill A10611 repealing New York Civil Rights Law § 50-a, thus making such personnel records subject to disclosure.
Additionally, this legislation made various amendments to the Freedom of Information Law (FOIL) requirements contained within New York Public Officers Law.
The amendments to the Public Officers Law define “law enforcement disciplinary records” as any record created in the furtherance of a law enforcement disciplinary proceeding, including:
- the complaints, allegations and charges against an employee;
- the name of the employee complained of or charged;
- the transcript of any disciplinary trial or hearing, including any exhibits;
- the disposition of any disciplinary proceeding; and
- the final written opinion or memorandum supporting the disposition and discipline imposed, including the factual findings, analysis of conduct and appropriate discipline.
Further, the amendments define “law enforcement disciplinary proceeding” to mean “the commencement of any investigation and any subsequent hearing or disciplinary action conducted by a law enforcement agency (which includes police departments, sheriff’s departments, departments of correction, probation departments and fire departments).
Under the new Public Officers Law, law enforcement agencies responding to a request for law enforcement disciplinary records must redact the following information from such records prior to disclosure:
- a police officer’s medical history (unless related to misconduct);
- any home addresses, personal telephone numbers, personal cell phone numbers and personal email addresses, including information about a complainant or any other person named in a law enforcement disciplinary record;
- any social security numbers; and
- the use of an employee assistance program, mental health service or substance abuse assistance service by a police officer, unless such use is mandated by a law enforcement disciplinary proceeding that may otherwise be disclosed.
Further, law enforcement agencies responding to a request for law enforcement disciplinary records may redact records pertaining to technical infractions. A technical infraction is defined as “a minor rule violation…solely related to the enforcement of administrative departmental rules that:
- do not involve interactions with members of the public;
- are not of public concern; and
- are not otherwise connected to such person’s investigative, enforcement, training, supervision, or reporting responsibilities
II. Other Fast Tracked Legislation
In addition to the above, the New York State Legislature has fast-tracked several bills involving law enforcement.
Senate Bill S6670B/Assembly Bill A6144 amends the Penal Law by adding a new section, § 121.13-a, which prohibits the use of chokeholds by law enforcement and establishes the crime of aggravated strangulation as a Class-C felony. It was signed into law by the Governor on June 12, 2020 and takes effect immediately.
Senate Bill S8492/Assembly Bill A1531 amends the Civil Rights Law § 79-n(2), which establishes a private right of action for a member of a protected class when another person summons a police or peace officer without reason to suspect a crime or an imminent threat to person or property existed. It was signed into law by the Governor on June 12, 2020 and takes effect immediately.
Senate Bill S2574C/Assembly Bill A1601 amends the Executive Law by adding a new section, § 70-b, which establishes an Office of Special Investigation within the Department of Law, under the Attorney General, to investigate, and, if warranted, prosecute any incident of a person whose death was caused by a police officer or peace officer on or off duty. It was signed into law by the Governor on June 12, 2020 and will take effect April 1, 2021.
Senate Bill S3253A/Assembly Bill A1360 amends the Civil Rights Law to add a new section, § 79-p, which states that a person not under arrest or in police custody has the right to record police activity and to maintain custody and control of that recording, and of any property or instruments used to record police activities, but further states that a person in custody or under arrest does not by their status alone forfeit such right. The bill, however, specifies that it should not be construed to permit a person to engage in actions that physically interfere with law enforcement activity or otherwise constitute a crime in the penal law involving obstructing governmental administration. If a police officer unlawfully interferes with a person’s lawful recording of law enforcement activity or confiscates/destroys the video footage, the person may bring an action for damages, including punitive damages. It was signed into law by the Governor on June 14, 2020 and will take effect in 30 days.
Senate Bill S6601A/Assembly Bill A8226 amends the Civil Rights Law by adding a new section, § 28, which affirms a person’s right to reasonable medical and mental health attention in good faith while in the custody of a law enforcement officer and which establishes a private right of action against the officer for a failure to receive reasonable and good faith attention and as a result suffers an exacerbated injury. It was signed into law by the Governor on June 15, 2020 and takes effect immediately.
Senate Bill S2575B/Assembly Bill A10608 amends the Executive Law by adding a new section, § 37-v, to require law enforcement officers to:
- report, within six (6) hours, when they discharge their weapon where a person could have been struck, to the officer’s superiors,
- report whether they were on or off duty, and
- file a written report within forty-eight (48) hours of the occurrence of the incident.
However, a law enforcement officer is not prevented from expressing his or her right to avoid self incrimination. It was signed into law by the Governor on June 15, 2020 and will take effect in 90 days.
Senate Bill S1830C/Assembly Bill A10609, also known as the Police Statistics and Accountability Act (STAT Act), amends the Criminal Procedure Law and Judiciary Law in relation to the function of the chief administrator of the court and amends the executive law in relation to reporting requirements. The bill will require courts to compile and publish racial and other demographic data of all low- level offenses, including misdemeanors and violations and make the data publicly available. The bill also requires police departments to submit annual reports on arrest-related deaths to the Department of Criminal Justice Services and to the Governor and the Legislature. It was signed into law by the Governor on June 15, 2020 and will take effect in 180 days, subject to certain conditions.
Senate Bill S8493/A8674 amends the Executive Law to add a new section, § 234, which establishes the New York State Police Body-Worn Cameras Program. Such bill directs the Division of State Police to provide all State police officers with body-worn cameras that are to be used any time an officer conducts a patrol and prescribes mandated situations when the camera is to be turned on and recording and, at the discretion of the officer, the camera should be turned off for confidential informants or strip searches. The Attorney General may investigate any instance where a body camera fails to record an event as required by the section. When a member of the public is being recorded the officer may choose to continue recording if in his/her discretion, he/she believes the interaction should be recorded. The Division of the State of Police is required to preserve the recordings and perform all upkeep on equipment used in body cameras, including (a) creating a secure record of the video or audio footage, (b) ensuring the officers have sufficient storage capacity on their cameras, and (c) ensuring officers have access to body-worn cameras for the recording of instances required under the section. The bill has passed in the Senate and Assembly and will take effect on the first of April in the year after the bill is passed into law.
Senate Bill S3595B amends Executive Law by adding a new section, § 75 which establishes the Law Enforcement Misconduct Investigative Office within the Department of Law to review, study, audit and make recommendations regarding operations, policies, programs and practices of local law enforcement agencies to enhance the effectiveness of law enforcement, increase public safety, protect civil liberties and civil rights, ensure compliance with constitutional protections and local, state and federal laws, and increase the public’s confidence in law enforcement. The bill has passed in the Senate and Assembly and will take effect on the first of April in the year after the bill is passed into law.
Executive Order 203 was issued on June 12, 2020, requiring local governments to modernize police strategies and programs by creating a plan that addresses the use of force, crowd management, de-escalation tactics and bias training with input from the local community. These plans must be adopted as local laws by April 1, 2021 in order to be eligible for state funding. https://www.governor.ny.gov/news/no-203-new-york-state-police-reform-and-reinvention-collaborative. Our office has prepared a Legal Alert on Executive Order 203, available on our website.
If there are any developments on this topic, we will provide an update.
Should you have any questions about the new and pending legislation, please contact Lance H. Klein or Jaclyn G. Goldberg, or any other attorney in our Labor Relations & Employment Law Practice.