Three New York City events in the past two years have demonstrated how hiding information related to police misconduct harms its residents. In April 2016, the New York Police Department (“NYPD”) eliminated public access to misconduct information by taking down a clipboard in the Deputy Commissioner of Public Information’s office that posted disciplinary summaries and removing decades worth of archives of those same summaries from City Hall. In September 2017, an Administrative Law Judge employed by the NYPD closed from the public a courtroom where a former officer was about to be impeached with his prior disciplinary record. In April 2018, four plainclothes police officers shot Mr. Saheed Vassell dead in broad daylight. The Mayor and Police Commissioner never named these officers, while the NYPD aggressively sought to manipulate public opinion towards a conclusion that the officers’ shooting was justified and more generally that NYPD officers are restrained in using violence against unarmed civilians. This article argues that police privacy protections enacted in state statutes across the country cause greater harm to individuals, public trust in justice systems, and democratic decision-making than access to police misconduct information harms individual police officers. People harmed by hiding police officer misconduct include families who lost loved ones to police violence, communities uncertain if dangerous officers are still a threat, and everyone who witnesses how impossible it seems to hold officers accountable. These harms spread across cities and states and are passed down through generations. Previously prioritized police privacy concerns will be examined closely and weighed carefully in relation to the actual harms they can cause. A new balance will conclude that the harms caused by police privacy protections to the public significantly outweigh transparency’s potential harm to police officers’ privacy.
For planting the seed of this article and sending some initial legal research to get her started, she is grateful to Amanda Woog; for meandering brainstorming sessions on evolving definitions of privacy, she thanks Rebecca Wexler; for calling her out when she mindlessly repeated harmful headlines, she thanks Steve Zeidman; for multiple rounds of endless legal research, she is indebted to Benjamin Rutkin-Becker; for tenderly excavating this article’s soul and surgically deconstructing hardened jargon, unexplained assumptions and unreasoned blind spots, Cynthia is grateful to Gail Gray; for pushing her to articulate the best arguments against her positions, she thanks Barry Scheck; thank you to Craig Futterman and Jamie Kalven for many related inspiring conversations about transparency, accountability and privacy that have contributed to this article, along with everyone from the Chicago convening that volleyed early ideas for this article with her; as well as members of Communities United for Police Reform who fight for a transparent system of police accountability; Cynthia thanks Victor Dempsey for his reading and thoughtful reflections on secrecy, asymmetry of information on police killings, trauma and the meaning of community safety; thank you to Julie Ciccolini for her thoughtful feedback. She also greatly appreciates and respects the many efforts, rigorous reviews, careful comments, citation recommendations and unworldly patience of the editing staff at CUNY Law School, especially the insights and hard work of Cassie Hazelip and Zoni Rockoff who stewarded this project from an unruly herd of random thoughts into a coherent set of sentences. More personally, for editing everything she has ever written, teaching her about the very human harms of state violence, and cultivating her pen’s moral compass, she sends all her love and gratitude to her parents for late night Socratic conversations, tolerance of her writing moods and always helping her name what hides in plain sight, Cynthia thanks and sends love to her husband.
A New Balance: Weighing Harms of Hiding Police Misconduct Information from the Public,
CUNY L. Rev.
Available at: https://academicworks.cuny.edu/clr/vol22/iss1/15