Last month, police reform advocates in New York were delivered a victory when Gov. Andrew Cuomo signed into law a package of bills that included the repeal of 50-a, a 1976 measure that had allowed police departments to shield officer misconduct records from the public.
Considered to be one of the most restrictive of its kind in the nation, the law stated that police personnel records used to “evaluate performance toward continued employment or promotion” were virtually barred from being made public without the officer’s permission or a court order.
Over the years, it came to be interpreted as a broad ban on disclosing any officer misconduct under the state’s open records law, even for victims of police brutality or for those accused of crimes seeking access to the disciplinary records of officers testifying against them.
In the wake of nationwide protests over police misconduct, particularly in Black and Brown communities, many advocates nationwide have echoed New York’s call for police to be held more accountable for so-called “bad apples” among their ranks. The question of how to remove and keep the worst officers off the force has been central in conversations about reform.
But police records are completely confidential in about one-third of all states, according to state statutes, news reports and a 2015 report from WNYC. Even in states where the records are public, other accountability problems plague departments, including the practice of purging records and the ability of cops with histories of misconduct to transfer to other departments under the radar.
In many instances, officers’ past disciplinary records come into question after someone is killed.
That was the case with Ramarley Graham, an 18-year-old Black teenager who was fatally shot in 2012 at his home by Richard Haste, a white New York City police officer. According to a Vox article, Haste and other officers said they believed Graham had a gun, and forced their way in after following him home from a nearby bodega. It was determined that Graham was unarmed.
About 18 months after Graham’s death, a state grand jury decided not to indict Haste on charges of involuntary manslaughter, and the Department of Justice declined to file charges based on its investigation of the incident. When Graham’s mother Constance Malcolm sought information about Haste’s disciplinary history through a freedom of information law (FOIL) request, it was denied under 50-a.
“When my son Ramarley was murdered, it took us three years to find out the misconduct history of Richard Haste, the officer who shot and killed him – and that was only because a whistleblower leaked it to the media,” Malcolm testified to the New York State Senate last October in support of repealing the measure.
In 2015, the city settled a wrongful death lawsuit with Graham’s family for $3.9 million. In 2017, Haste resigned from the force several days after a departmental trial found he had used “poor judgment” and recommended his dismissal.
Haste’s defense attorney Stuart London claimed that “outside influences” had led to the NYPD trying to make an example out of the officer, Newsday reported. London did not respond to a request for comment on this article.
Two days after the internal ruling, the progressive news site Think Progress announced that an anonymous employee from the Civilian Complaint Review Board leaked Haste’s full disciplinary record, showing that he had six civilian complaints and a total of 10 allegations within 13 months, an abnormally high number when compared to other officers on the force. In each of the complaints and allegations, the board found no wrongdoing on the part of Haste.
“Families like mine shouldn’t have to rely on leaks to the media to get this kind of basic information,” Malcolm testified.
Laws prohibiting access to misconduct records may also hinder fair trials for people accused of crimes.
A 1963 Supreme Court precedent known as the Brady doctrine requires prosecutors to disclose information to defense attorneys that could help prove their clients’ innocence. In Giglio v. United States, that was expanded to include information that could call into question the credibility of officers testifying against the accused.
But according to research from California criminal defense attorney Jonathan Abel, even “well-meaning” prosecutors fail to carry out the obligation when it comes to what he calls a critical area of evidence: police personnel files.
"These files contain valuable evidence of police misconduct that can be used to attack an officer’s credibility on the witness stand and can make the difference between acquittal and conviction,” Abel wrote in a 2015 Stanford Law Review article. “But around the country, state statutes and local policies prevent prosecutors from accessing these files, much less disclosing the material they contain.”
Prior to its repeal, 50-a placed the burden on defense attorneys to prove during the discovery phase that the information from an officer’s file was relevant to their client’s case.
Dawit Getachew, a criminal defense policy counsel with Bronx Defenders, recalled past convictions of clients where judges denied motions to obtain the records, or when police departments denied records requests under 50-a.
One client accused of driving while intoxicated had an officer testifying against him who was separately accused of making a false arrest in a civil suit, Getachew said. But a motion to obtain the officer’s personnel file was deemed irrelevant to the current case and denied by the judge.
“The problem was that we must know what’s in the file, in the police record, even though we can’t see it. So it was a circular situation,” Getachew told Inside Edition Digital.
Despite New York’s repeal of 50-a, similar issues arise in the dozens of states where such records are still confidential.
“It’s important that we take every step that’s available to ensure that the process is fair and transparent,” Getachew said. “People have a constitutional right to confront the people who are accusing them of a crime, and that includes cross examining them with information that could be relevant to someone’s credibility, including with many of the cases, they rely solely on police officer testimony to prove their case.”
Problems in states where records are public point to the need for bigger solutions.
Most experts agree that making misconduct records easier to obtain would increase accountability in the areas of justice for victims of police brutality and preventing testimony from corrupt cops leading to the convictions of innocent people.
But even in states where records are open to the public, local departments are often tasked with holding their own officers accountable with little oversight.
In Arizona, where personnel records are generally available to the public, Phoenix police were found to be regularly purging the disciplinary records of cops accused of misconduct, according to an Arizona Republic report from last year.
In many cities, erasing disciplinary records is even mandated by police union contracts, some after just six months, according to a 2017 Reuters report examining 82 contracts in large cities across the country. Eighteen of the cities required an officer’s written consent before the department publicly releases documents involving prior discipline or internal investigations.
There’s also the problem of what past reports have dubbed “gypsy cops,” officers who have found jobs in other cities despite being fired from previous jobs for misconduct or displaying signs they weren't fit for police work.
Prior to being hired in Cleveland, Ohio, where disciplinary records are also public, Timothy Loehmann, the officer who fatally shot 12-year-old Tamir Rice in 2014, resigned from a suburban police force not long after his supervisor recommended he be fired for an inability to follow instructions, among other things, according to The New York Times.
Loehmann was not indicted in Tamir’s death. He was fired in May 2017 from the Cleveland Police Department for failing to disclose he had previously resigned from the suburban department, the Associated Press reported. Loehmann’s police union, Cleveland Police Patrolmen's Association, appealed the firing to an arbitrator, and it was upheld in Cuyahoga County Court in 2019.
The union, on behalf of Loehmann, is appealing the Cuyahoga ruling in the Eighth District Court of Appeals, the Plain Dealer reported. The union did not respond to a request for comment on this article.
The aftermath of Loehmann’s case highlights another issue: even police fired for misconduct or violating policies can get their jobs back by appealing the decision through arbitration, a process that is often bolstered by powerful police unions, the Associated Press reported. A Washington Post review of 1,881 officers fired between 2006 and 2016, nearly a quarter were reinstated through arbitration.
“There are a lot of problems,” Getachew said. “We have a broken criminal-legal system. There’s a lot of areas that we have to pay attention to. And it would be a mistake to say that it’s just policing, it’s just people who use excessive force or who kill Black and Brown people. I think there’s a tendency to focus on one area, but really, it’s all interconnected and requires a deep look into how the system is working...There’s been more attention paid to the issues, but we need action.”