Lawsuit over NYPD discipline records highlights the tension between police and oversight agencies

NYPD police officers watch demonstrators in Times Square during a Black Lives Matter protest on June 1, 2020.

New York (CNN)On the heels of protests shining a light on police brutality, law enforcement agencies are under pressure to be more transparent when addressing accusations of bad behavior by their officers.

The issue is running hottest in the nation's most populous city, where thousands of New York Police Department disciplinary records are up for grabs in a court battle slated to begin later this month.
NYPD officers accused of overstepping their authority are now sitting down for virtual interviews with civilian investigators in what is the latest chapter of tension between law enforcement and the agencies that provide oversight of officer actions.
In a directive issued Wednesday, officers were ordered by NYPD Commissioner Dermot Shea to sit for virtual interviews and comply with the law or face unpaid suspension, according to a city official.
    Union representatives for NYPD officers, who said members would comply with the police commissioner's order, are worried that those very same virtual interviews could be illegally recorded and leaked.
    Shea's directive comes after a coalition of police, corrections department and fire department unions filed a lawsuit in July against New York City, looking to halt the release of what they say are unsubstantiated and unfounded allegations against roughly 81,000 retired and current members of the NYPD, firefighters and corrections officers.
    The relationship between the rank-and-file and the city has been contentious in the run-up to the August 18 court hearing to hear arguments by the police unions challenging the release of those disciplinary records.
    The fight over police records is among the battles taking place in cities around the country where there is growing demand for accountability from police departments and a push for independent civilian oversight agencies designed to have a say in police discipline.
    In Cleveland, lawmakers are looking for someone under the age of 30 to fill a seat on the city's review board, which was voted into existence in 2016.
    In 2018, an independent watchdog group was created in Austin, Texas, after a police officer was seen on video pulling a Black elementary school teacher out of her car and slamming her to the ground for an alleged speeding violation.
    And as the demand for more accountability increases, so does the desire to access discipline records, something that states such as Florida and Arizona already do for closed investigations.
    "This is the wave of the future. You can expect more of this. The public feels they have a right to know," said Chuck Wexler, executive director of the Police Executive Research Forum, a nonpartisan policing think tank. "The question is always, 'Is this an isolated incident or does this person have a history of these situations?'"

    Showdown in New York

    Previously, many NYPD officers had refused to do virtual interviews with the city's Civilian Complaint Review Board (CCRB), an independent agency that investigates complaints against police officers. The move forced the police commissioner to order officers to sit down for the virtual meetings.
    "This is a welcome move," said Fred Davie, chair of the review board. "This is as it should be, and this is what the law requires."
    More than 900 police officers need to be interviewed as part of the current backlog of complaints, review board officials said during the public hearing on Thursday.
    Davie said a plan to interview officers was derailed once the pandemic tightened its grip on the city and the police department, with many officers calling in sick after contracting the virus. Weeks later, an online interview process was developed with the NYPD, but demonstrations over the police killing of George Floyd in Minneapolis began in New York City, forcing many officers to work overtime while a flood of new complaints came in, Davie said.
    The officers then refused to sit down for the interviews, Davie said.
    In response, the CCRB scheduled a public hearing for Thursday to discuss the lack of cooperation by the officers and vote to add an additional CCRB charge of impeding an investigation, according to the city official. But a day before that public hearing, Shea issued his order, nullifying a need for the hearing.
    "Any failure to appear or cooperate with the CCRB without good cause may result in department disciplinary action," according to the NYPD memo obtained by CNN.
    In a statement, the NYPD cited the pandemic as a roadblock for in-person interviews and went on to note that officers have been sitting down for interviews with the department's own internal investigators who conduct separate probes into accusations of officer misconduct.
    "Internally, as our officers are essential workers who have been on the job to ensure the safety of all New Yorkers throughout this ongoing pandemic, they have been able to attend in-person interviews with our Internal Affairs Bureau," said NYPD spokesman Alfred Baker.
    Hank Sheinkopf, a spokesman for the coalition of unions suing the city, said in a statement that "CCRB has proven that they have no problem breaking rules to hurt cops. They have illegally leaked our members' information in the past. Why shouldn't we expect them to do the same with these remote interviews? Now that the police commissioner has ordered them to do so, our members will participate."

    Police unions take city to court

    Two detectives were interviewed on Wednesday, the first officers to sit down as part of the mandate, according to the city official. And those interviews happened beneath the backdrop of the repeal of a New York state law that protected NYPD disciplinary records from being publicly released without their written consent.
    The repeal of the law, touted as a win for critics of the police and lawmakers, has had ripple effects amongst NYPD members, who cite the move as another example of a burgeoning anti-police climate.
    Shea has been on the record saying he supports the repeal of the law known as 50a, as long as officer's addresses were not included in the release of disciplinary records. In June, Mayor Bill de Blasio announced that the NYPD would make disciplinary rulings on officers quicker and would release body camera and audio within 30 days of an officer using force that causes death or significant injuries.
    And while officers are now sitting down for virtual interviews, they are taking place as the group of unions is suing de Blasio, the city and others to block the release of the records.
    "These Unsubstantiated and Non-Final Allegations — unproven allegations at best and false allegations at worst — will be 'data dumped' on the internet, resulting in the publication and promotion of information that will absolutely destroy the reputation and privacy — and imperil the safety — of many of those firefighters and officers," according to the lawsuit filed on July 15.
    "It takes no evidence to make a complaint against a firefighter, corrections officer, or police officer," according to the suit. "Baseless claims can be levied for any number of nefarious motivations. Without the safeguards of proof and finality, the lives of firefighters, officers, and their families may be irreparably ruined."
    Beyond the safety arguments, the unions argued in the lawsuit that releasing the records would violate collective bargaining agreements between the city and police officers, and violate the due process and equal protection clauses of both the New York state and US constitutions.
    In New York, the battle isn't just between police unions and the cities that want to release those documents. Critics and advocates, like the New York chapter of the American Civil Liberties Union, have also jumped into the fray.
    A day before the unions filed suit, the NYCLU obtained 81,000 records of current and former officers from the CCRB. The independent non-profit news organization ProPublica was able to obtain a smaller chunk of this data, concerning roughly 4,000 officers. ProPublica has created a searchable online database of the records.
    The CCRB complaints are those filed by a person accusing an NYPD officer of wrongdoing. The records include all claims made against the officer, including those that are determined to be unsubstantiated, where there was not enough evidence against the officer, where the officer was exonerated and where the officer went through the process and the CCRB found that the officer acted within the law.
    This is different from the NYPD's discipline records, which includes only the claims found to be substantiated.
    In the time the NYCLU was able to obtain the records, it created a database where all 81,000 officers could be searched. The website was set to go live on July 22, but an injunction prevented the organization from posting the documents and the court later ruled that the NYCLU must hold off on publishing their records until the court rules on the lawsuit filed by the unions.
    NYCLU's legal director Chris Dunn says the point is to not only identify police officers who have abused their authority,