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(;+,%,7 A 

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
BUFFALO POLICE BENEVOLENT ASSOCIATION,
INC.; and BUFFALO PROFESSIONAL
FIREFIGHTERS ASSOCIATION INC., LOCAL 282,
IAFF, AFL-CIO,
Petitioners/Plaintiffs,
v.
BYRON W. BROWN, in his official capacity as Mayor INDEX NO: 807664/2020
of the City of Buffalo; the CITY OF BUFFALO;
Hon. Frank A. Sedita, III
BYRON C. LOCKWOOD, in his official capacity as
Commissioner of the Buffalo Police Department; the
BUFFALO POLICE DEPARTMENT; WILLIAM
RENALDO, in his official capacity as Commissioner of
the Buffalo Fire Department; and the BUFFALO FIRE
DEPARTMENT,
Respondents/Defendants.

[PROPOSED] BRIEF OF BLACK LOVE RESISTS IN THE RUST, THE BUFFALO
POLICE ADVISORY BOARD, THE CENTER FOR CONSTITUTIONAL RIGHTS,
CITIZEN ACTION OF NEW YORK, ERIE COUNTY RESTORATIVE JUSTICE
COALITION, INCARCERATED NETWORK NATION, INC., THE NATIONAL
CENTER FOR LAW AND ECONOMIC JUSTICE, OPEN BUFFALO, INC.,
PARTNERSHIP FOR THE PUBLIC GOOD, THE WESTERN NEW YORK LAW
CENTER, THE WESTERN NEW YORK PEACE CENTER, AND THIRTEEN
CONCERNED CITIZENS OF BUFFALO AS AMICI CURIAE IN OPPOSITION TO
PETITIONERS/PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION AND
IN SUPPORT OF THE NEW YORK CIVIL LIBERTY UNION’S MOTION TO
INTERVENE

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TABLE OF CONTENTS
Page
I.

PRELIMINARY STATEMENT..................................................................................... 1

II.

INTERESTS OF AMICI CURIAE .................................................................................. 3

III.

BACKGROUND ............................................................................................................ 4
A.

Section 50-a’s Categorical Bar on Public Release of All Police Officer
Misconduct and Disciplinary Records Made New York State an Outlier. ............. 4

B.

Section 50-a Frustrated Police Accountability Efforts in Buffalo and
Allowed Police Misconduct to Proceed Unchecked. .............................................. 5

C.

By Repealing Section 50-a, the Legislature Manifested the Will of New
Yorkers to Make Police Misconduct Records, Including Unsubstantiated
Records, Presumptively Public. .............................................................................. 7

D.

The Repeal of Section 50-a Has Already Led to Greater Transparency in
Buffalo. ................................................................................................................. 12

E.

The Release of Unsubstantiated Records Is Especially Important in
Buffalo to Promote its Development of Adequate Investigation Practices. ........ 13

IV.

V.

ARGUMENT ................................................................................................................ 16
A.

Plaintiffs’ Request for a Preliminary Injunction Thwarts the Clear Intent of
the Section 50-a Repeal, and Ignores Privacy Safeguards the Legislature
Put in Place under FOIL. ...................................................................................... 17

B.

Access to Unsubstantiated Police Misconduct Records Is Critical to
Ensuring Public Safety and Necessary Police Reform. ........................................ 20
1.

Reviewing records from unsubstantiated BPD Internal Affairs
misconduct investigations will help identify problems with and
inform improvements to how those investigations are conducted. ........... 20

2.

Unsubstantiated police misconduct records provide critical
information for identifying those officers most at risk for
committing future misconduct and thus requiring intervention................ 23

3.

Public access to unsubstantiated BPD officer misconduct cases will
enhance, not threaten, officer and public safety. ...................................... 25

CONCLUSION ............................................................................................................. 27

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TABLE OF AUTHORITIES
Page(s)
Cases
Beck v. City of Pittsburgh,
89 F.3d 966 (3d Cir. 1996).......................................................................................................22
Matter of Beyah v. Goord,
766 N.Y.S.2d 222 (3d Dep’t 2003) ..........................................................................................18
Matter of Fappiano v. N.Y.C. Police Dep’t,
95 N.Y.2d 738 (2001) ..............................................................................................................17
Fiacco v. City of Rensselaer, N.Y.,
783 F.2d 319 (2d Cir. 1986).....................................................................................................22
Matter of Gould v. N.Y.C. Police Dep’t,
89 N.Y.2d 267 (1996) ........................................................................................................17, 18
Matter of Hanig v. State of N.Y. Dep’t of Motor Vehs.,
79 N.Y.2d 106 (1992) ..............................................................................................................17
Hepps v. N.Y. State Dep’t of Health,
122 N.Y.S.3d 446 (3d Dep’t 2020) ..........................................................................................18
Jenkins v. City of New York,
388 F. Supp. 3d 179 (E.D.N.Y. 2019) .....................................................................................22
Kalven v. City of Chicago,
7 N.E.3d 741 (Ill. App. Ct. 2014) ............................................................................................26
Luongo v. Recs. Access Officer, Civilian Complaint Rev. Bd.
51 N.Y.S.3d 46 (N.Y. App. Div. 2017) .....................................................................................5
N.Y Civ. Liberties Union v. N.Y. City Police Dep’t,
32 N.Y.3d 556 (2018) ................................................................................................................5
People v. Ramirez,
180 A.D.3d 811, 117 N.Y.S.3d 696 (2020) .............................................................................19
Physicians Comm. for Responsible Med. v. Hogan,
No. 439–10, 2010 WL 4536802 (N.Y. Sup. Ct. Nov. 3, 2010) ...............................................20
Thomas v. N.Y.C. Dep’t of Educ.,
962 N.Y.S.2d 29 (1st Dep’t 2013) .....................................................................................18, 19

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PRIVILEGED AND CONFIDENTIAL
TABLE OF AUTHORITIES (continued)
Page(s)
Vann v. City of New York,
72 F.3d 1040 (2d Cir. 1995).....................................................................................................22
Statutes
Fla. Stat. § 112.533(2)(a)–(b) ........................................................................................................26
Minn. Stat. § 13.43(2)(a)(4) ...........................................................................................................27
N.Y. Pub. Off. L. § 87(4-a) ............................................................................................................18
N.Y. Pub. Off. L. § 89(2-b)............................................................................................................18
N.Y. Pub. Off. L. § 87(2)(b) ..........................................................................................................18
N.Y. Pub. Off. L. § 89(b) ...............................................................................................................17
Rules
Fed. R. Evid. 401 ...........................................................................................................................19
Fed R. Evid. 403 ............................................................................................................................19
Fed. R. Evid. 404(b) .......................................................................................................................19
N.Y. Evid. R. 4.01..........................................................................................................................19
N.Y. Evid. R. 4.07..........................................................................................................................19
N.Y. Evid. R. 4.11(1) .....................................................................................................................19
Other Authorities
Aaron Besecker, Officer Ronald Ammerman’s Disciplinary Card, Buffalo News
(July 14, 2020) .........................................................................................................................13
Aaron Besecker & Phil Fairbanks, DA: Buffalo officer was justified in fatal
shooting of shoplifting suspect, Buffalo News (Mar. 14, 2019) ................................................6
Assemb. A.B. 10611, 2019–2020 Legis. Sess. § 4 (N.Y. 2020) ....................................................25
Assembly Bill A10611, New York Senate,
https://www.nysenate.gov/legislation/bills/2019/a10611 ........................................................11

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PRIVILEGED AND CONFIDENTIAL
TABLE OF AUTHORITIES (continued)
Page(s)
Assemblymember Crystal D. Peoples-Stokes, New York Assembly,
https://nyassembly.gov/mem/Crystal-D-Peoples-Stokes/map/ ................................................11
Attorney General’s Special Investigations and Prosecutions Unit Releases Report
on the Death of Wardel Davis, N.Y. Attorney General (Dec. 13, 2017),
https://ag.ny.gov/press-release/2017/attorney-generals-special-investigationsand-prosecutions-unit-releases-report ......................................................................................14
Barbara O’Brien, Mayor ‘Concerned’ over Video Showing Police Hitting Man,
Wants Expedited Investigation, The Buffalo News (June 28, 2020) .........................................6
Carolyn Thompson, Buffalo police officer fired for intervening pushes for reform,
AP (June 18, 2020),
https://apnews.com/0c853807108fea2f66749811a9be843b ....................................................15
Charlie Specht, Excessive Force Report, WBKW,
http://www.documentcloud.org/documents/6999866-Excessive-ForceReport.html ..............................................................................................................................12
Charlie Specht, I-Team: Buffalo Police’s Internal Affairs system debated:
Officers not faulted in many complaints, WKBW Buffalo (July 22, 2020),
https://www.wkbw.com/news/i-team/i-team-buffalo-polices-internal-affairssystem-debated ...................................................................................................................13, 21
Charlie Specht, Suspended Buffalo Police Lt. Delong was subject of 36
complaints, WKBW (July 7, 2020), https://www.wkbw.com/news/localnews/suspended-buffalo-police-lt-delong-was-subject-of-36-citizencomplaints ............................................................................................................................7, 12
Collaboration, Communication and Community-Building: A New Model of
Policing for 21st Century Buffalo, Partnership for the Public Good (2016),
https://openbuffalo.org/files/documents/community_policing_report_2016_fin
al.pdf ............................................................................................................................15, 16, 27
Comm. on Open Government, State of N.Y. Dep’t of State, Annual Report to the
Governor and State Legislature (Dec. 2014),
https://www.dos.ny.gov/coog/pdfs/2014AnnualReport.pdf ..................................................4, 5
Community Relations Services Toolkit for Policing: Importance of PoliceCommunity Relationships and Resources for Further Readings, U.S. Dep’t of
Justice Community Relations Service,
https://www.justice.gov/crs/file/836486/download ...........................................................16, 27

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ATTORNEY WORK PRODUCT -- DRAFT
PRIVILEGED AND CONFIDENTIAL
TABLE OF AUTHORITIES (continued)
Page(s)
Dan Herbeck, Wrongful death suit filed against Buffalo a year after police shot
suspect, Buffalo News (Sept. 12, 2019),
https://buffalonews.com/news/local/wrongful-death-suit-filed-against-buffaloa-year-after-police-shot-suspect/article_d432c833-9774-54a6-b35c728dc677cf94.html ....................................................................................................................6
Daniela Porat, Scant oversight of Buffalo police, Investigative Post (Feb. 15,
2017), https://www.investigativepost.org/2017/02/15/scant-oversight-ofbuffalo-police/ ....................................................................................................................13, 21
Deidre Williams & Barbara O’Brien, Buffalo police advisory board calls for
investigation into violent arrest, Buffalo News (May 11, 2020) ...............................................7
Distrust of Police Is Major Driver of US Gun Violence, Report Warns, The
Guardian (Jan. 21, 2020), https://www.theguardian.com/usnews/2020/jan/21/police-gun-violence-trust-report.................................................................27
Elizabeth Olson, Law Firms Push New York to Drop Police Misconduct Report
Shield, Bloomberg Law (June 8, 2020, 8:25 PM),
https://news.bloomberglaw.com/us-law-week/law-firms-push-new-york-todrop-police-misconduct-report-shield........................................................................................1
Exec. Order No. 147, 37 N.Y. Reg. 73 (July 29, 2015),
https://docs.dos.ny.gov/info/register/2015/july29/pdf/exec.pdf ................................................6
FBI, 2019 Law Enforcement Officers Killed & Assaulted: Law Enforcement
Officers Feloniously Killed, https://ucr.fbi.gov/leoka/2019/tables/table-24.xls
(last visited Aug. 26, 2020) ......................................................................................................26
FINRA, About BrokerCheck, https://www.finra.org/investors/learn-toinvest/choosing-investment-professional/about-brokercheck (accessed Aug.
19, 2020) ..................................................................................................................................20
Former Buffalo Police Lieutenant Sentenced On Federal Civil Rights Conviction,
U.S. Dep’t of Justice (Dec. 12, 2018), https://www.justice.gov/usaowdny/pr/former-buffalo-police-lieutenant-sentenced-federal-civil-rightsconviction.................................................................................................................................16
Former Erie County Sheriff’s Deputy Kenneth Achtyl sentenced, will not serve jail
time, WKBW (Jan. 23, 2020), https://www.wkbw.com/news/localnews/former-erie-county-sheriffs-deputy-kenneth-achtyl-sentenced-will-notserve-jail-time ............................................................................................................................7

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ATTORNEY WORK PRODUCT -- DRAFT
PRIVILEGED AND CONFIDENTIAL
TABLE OF AUTHORITIES (continued)
Page(s)
Hannah Buehler, Buffalo Man Punched in Head Repeatedly by Officer Plans to
Sue City, BPD and Arresting Officers, WKBW Buffalo (June 26, 2020, 6:50
PM), https://www.wkbw.com/news/local-news/buffalo-man-punched-in-headrepeatedly-by-officer-plans-to-sue-city-bpd-and-arresting-officers ..........................................6
Internal Affairs Division – Semi-Annual Statistics, Buffalo Police Department,
https://www.bpdny.org/189/Internal-Affairs-Division-Semi-Annual-St (last
visited Aug. 26, 2020)................................................................................................................3
John D. McCluskey & William Terrill, Departmental and citizen complaints as
predictors of police coercion, 28-3 Policing: An Int’l J. of Police Strategies &
Mgmt. 513 (2005) ....................................................................................................................24
Kyle Rozema & Max Schanzenbach, Good Cop, Bad Cop: Using Civilian
Allegations to Predict Police Misconduct, 11-2 Am. Econ. J. 225 (2019),
https://doi.org/10.1257/pol.20160573......................................................................................23
Maki Becker, AG’s Wardel Davis probe clears officers, faults lack of body cams,
Buffalo News (Dec. 13, 2017) ...................................................................................................6
Maki Becker, Buffalo man who was shot by police indicted for having a gun,
Buffalo News, Feb. 20, 2020 .....................................................................................................6
Marsha McLeod, No prosecution in deadly police shooting, Investigative Post
(Dec. 3, 2018), https://www.investigativepost.org/2018/12/03/no-prosecutionin-deadly-police-shooting/ .........................................................................................................6
Mary B. Pasciak, Key moments in a violent arrest: ‘I don’t have him in a
chokehold’, Buffalo News (June 27, 2020) .............................................................................12
Michael Mroziak, Family of man killed in Buffalo police encounter demands
‘Justice for Jose .........................................................................................................................6
N.Y. Assembly Hear’g Tr. (June 9, 2020),
https://nystateassembly.granicus.com/DocumentViewer.php?file=nystateasse
mbly_e9af7a3d256bee2d470e331a2a0dd9ae.pdf&view=1 .................................................9, 10
N.Y. S.B. 8496, 243 Leg. Sess. (N.Y. 2020) ...................................................................................8
N.Y. S.B. 8496, Floor Votes (June 9, 2020),
https://www.nysenate.gov/legislation/bills/2019/s8496 ..........................................................11
N.Y. Senate, Floor Debate (June 9, 2020),
https://legislation.nysenate.gov/pdf/transcripts/2020-06-09T11%3A53 .................................10
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PRIVILEGED AND CONFIDENTIAL
TABLE OF AUTHORITIES (continued)
Page(s)
Neil Vigdor, Daniel Victor & Christine Hauser, Buffalo Police Officers
Suspended After Shoving 75-Year-Old Protestor, NY Times (June 5, 2020),
https://www.nytimes.com/2020/06/05/us/buffalo-police-shove-protesterunrest.html ...........................................................................................................................7, 15
New York State Senator Timothy M. Kennedy, New York Senate,
https://www.nysenate.gov/district/63 ......................................................................................11
Nine months after deadly traffic stop, no criminal charges for officers, Spectrum
News (Feb. 1, 2018), https://spectrumlocalnews.com/nys/buffalo/crimesafety/2018/02/01/hernandez-rossy .........................................................................................12
Omar Fetouh & Mike Desmond, Buffalo police officers cleared in shooting death
of unarmed man, WBFO Buffalo (Feb. 1, 2018),
https://news.wbfo.org/post/buffalo-police-officers-cleared-shooting-deathunarmed-man .............................................................................................................................6
Phil McCausland & Allan Smith, Buffalo officials ask state to probe firing of
Black officer who stopped white colleague’s chokehold, NBC News (June 13,
2020), https://www.nbcnews.com/news/us-news/buffalo-officials-ask-stateprobe-firing-black-officer-who-stopped-n1231016 .................................................................16
Policing (S3695), repeals provisions relating to personnel records of police
officers, firefighters, and correctional officers: Hearing Before the S. Standing
Comm. on Codes New York Senate (Oct. 17, 2019),
https://www.nysenate.gov/sites/default/files/testimonies_on_policing_s3695_r
epeals_provisions_101719.pdf.................................................................................................11
Policing (S3695), repeals provisions relating to personnel records of police
officers, firefighters, and correctional officers: Hearing Before the S. Standing
Comm. on Codes, New York Senate (Oct. 24, 2019),
https://www.nysenate.gov/sites/default/files/oct_24th_public_hearing_on_disc
overy_reform.pdf .....................................................................................................................11
Proposed N.Y. S.B. 2413 § 5 (2019) .............................................................................................11
Proposed N.Y. S.B. 3398A (2019) ................................................................................................10
Proposed N.Y. S.B. 4214 (2019) ...................................................................................................10
Proposed N.Y. S.B. 4215 § 1 (2019) .............................................................................................10
Proposed N.Y. S.B. 8496 § 1 (2020) .............................................................................................11

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PRIVILEGED AND CONFIDENTIAL
TABLE OF AUTHORITIES (continued)
Page(s)
Rachel Moran, Ending the Internal Affairs Farce, 64 Buffalo L. Rev. 837 (2016) ......................20
Report on the Investigation into the Death of Wardel Davis III, NYAG Special
Investigations and Prosecutions Unit (Dec. 13, 2017),
https://ag.ny.gov/sites/default/files/oag_report_-_wardel_davis_iii.pdf .................................14
Report on Legislation by the Civil Rights Committee; Criminal Courts
Committee; Communications & Media Law Committee; Corrections &
Community Reentry Committee; Criminal Justice Operations Committee;
Diversity, Equity & Inclusion Committee; Drugs & The Law Committee;
Government Ethics & State Affairs Committee; Immigration & Nationality
Law Committee; Juvenile Justice Committee; Lesbian, Gay, Bisexual,
Transgender & Queer Rights Committee; Mass Incarceration Task Force;
New York City Affairs Committee; Pro Bono & Legal Services Committee;
and Sex & Law Committee, N.Y. City Bar (June 2020),
https://s3.amazonaws.com/documents.nycbar.org/files/201728550aPoliceRecordsTransparency.pdf.......................................................................................4, 5
Robert Lewis, et al., New York Leads in Shielding Police Misconduct, WNYC
News (Oct. 5, 2015), https://www.wnyc.org/story/new-york-leads-shieldingpolice-misconduct ......................................................................................................................5
Samuel Walker, Geoffrey P. Alpert & Dennis J. Kenney, Early Warning Systems:
Responding to the Problem Police Officer, National Institute of Justice:
Research in Brief (July 2001), https://www.ncjrs.gov/pdffiles1/nij/188565.pdf.....................24
Senate Majority Advances Policing Reforms Legislative Package, The New York
State Senate (June 8, 2020), https://www.nysenate.gov/newsroom/pressreleases/senate-majority-advances-policing-reforms-legislative-package; ...............................1
N.Y.S., Sponsor Memorandum, S.B. 8496, 243 Leg. Sess. (N.Y. 2020),
https://www.nysenate.gov/legislation/bills/2019/s8496 ............................................................8
SteVon Felton, Criticism and Transparency Are Good for Police Departments, R
Street (Oct. 25, 2018), https://www.rstreet.org/2018/10/25/criticism-andtransparency-are-good-for-police-departments/ ......................................................................27
Tom Robbins, How a Coalition of New York Activists Revealed PoliceDepartment Secrets, The New Yorker (July 17, 2020) .............................................................1
WFBO NPR (June 1, 2017), https://news.wbfo.org/post/family-man-killedbuffalo-police-encounter-demands-justice-jose .........................................................................7

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I.

PRELIMINARY STATEMENT1

For forty-seven years, N.Y. C.R.L. § 50-a (“Section 50-a”) shielded law enforcement in
New York from accountability for misconduct. That changed on June 9, 2020, when the New
York Legislature voted to repeal Section 50-a at the urging of, among others, relatives of New
Yorkers who died at the hands of police; the Legal Aid Society; the New York Civil Liberties
Union (“NYCLU”); the Black, Puerto Rican, Hispanic, and Asian Legislative Caucus; a diverse
coalition of more than 200 nonprofits, labor unions, police officer affinity groups, victims’ rights
advocates, faith institutions, think tanks, legal services providers, and grassroots advocacy groups;
and leaders of thirty major New York law firms, including the undersigned.2 The Legislature’s
repeal of Section 50-a was unequivocal, making certain that any protections previously warranted
under Section 50-a are no longer in effect and all police misconduct records—including
unsubstantiated records (as defined herein)—are presumptively public. Plaintiffs/Petitioners, the
Buffalo Police Benevolent Association, Inc. and Buffalo Professional Firefighters Association
Inc., Local 282, IAFF, AFL-CIO (“Plaintiffs”), in seeking an injunction to bar the release of
unsubstantiated records, are ignoring that plain, express legislative determination, and pushing for
a shadow reversal of the recent repeal of Section 50-a to once again shroud the vast majority of
Buffalo police officer misconduct records in a veil of secrecy.

1

No party’s counsel authored this brief in whole or in part, and no party, party’s counsel, or any person other
than amici curiae or their counsel contributed money that was intended to fund preparing or submitting this
brief.

2

See Tom Robbins, How a Coalition of New York Activists Revealed Police-Department Secrets, The New
Yorker (July 17, 2020), https://www.newyorker.com/news/our-local-correspondents/how-a-coalition-of-newyork-activists-revealed-police-department-secrets; see also Senate Majority Advances Policing Reforms
Legislative Package, The New York State Senate (June 8, 2020), https://www.nysenate.gov/newsroom/pressreleases/senate-majority-advances-policing-reforms-legislative-package; Elizabeth Olson, Law Firms Push New
York to Drop Police Misconduct Report Shield, Bloomberg Law (June 8, 2020, 8:25 PM),
https://news.bloomberglaw.com/us-law-week/law-firms-push-new-york-to-drop-police-misconduct-reportshield.

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Not only would such an outcome fly in the face of Legislative action, it would
tremendously damage the cause of transparency and accountability in the Buffalo Police
Department (“BPD”), create a patchwork approach to police misconduct records across the state,
undermine community trust in the BPD, and would, in fact, threaten police officer and community
safety. As such, the injunction sought by Plaintiffs should be denied.
Just one week ago, after hearing arguments almost identical to those advanced by Plaintiffs,
Southern District of New York Judge Katherine Polk Failla rejected the New York City Police
Union’s request for an injunction barring the release of unsubstantiated police misconduct records.
Judge Failla ruled that the Police Union’s injunction request was contrary to the public interest in
a statement that resonates powerfully here:
More broadly, I find that injunction disserves the public interests. After years of discussion
and debate, New York’s legislature determined to repeal Section 50-a, and thereby bring
themselves in line with most of the other states in their treatment of disciplinary
records. . . . [T]he decision to amend Section 50-a was not made haphazardly. It was
designed to promote transparency and accountability, to improve relations between New
York’s law enforcement communities and their first-responders and the actual
communities of people that they serve, to aid law makers in arriving at policy-making
decisions, to aid underserved elements of New York’s population and ultimately, to better
protect the officers themselves. The decision to amend was also made with due regard for
the safety and privacy interests of the affected officers. Amendments were made to the
Public Officers’ Law that mandated the redaction of certain categories of information that
permitted the withholding of other categories of information. And I reject the foundational
argument that no one – law enforcement or civilian – can appreciate the distinctions
between substantiated, unsubstantiated, exonerated, unfounded and non-final claims.3
Amici curiae Black Love Resists in the Rust (“BLRR”), the Buffalo Police Advisory Board,
the Center for Constitutional Rights (“CCR”), Citizen Action of New York, Erie County
Restorative Justice Coalition, Incarcerated Network Nation, Inc., the National Center for Law and
Economic Justice (“NCLEJ”), Open Buffalo, Inc., Partnership for the Public Good, the Western

3

Oral Decision at 41:11–42:11, Uniformed Fire Officers Ass’n v. De Blasio, No. 20-Civ.-05441-KPF (S.D.N.Y.
Aug. 21, 2020).

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New York Law Center, the Western New York Peace Center, and thirteen concerned citizens of
Buffalo (collectively, the “Community Amici”) urge this Court to similarly deny Plaintiffs’ request
to prevent the public disclosure of BPD officer disciplinary records that are non-final,
unsubstantiated, unfounded, or resulted in a finding of not sustained.4 As this amicus brief
underscores, providing the public with access to law enforcement disciplinary records, including
unsubstantiated records, is particularly important for the communities served by Community
Amici—communities that experience disproportionate mistreatment by law enforcement. Access
to such records enables the victims and the public to hold accountable not only specific officers,
but also departments and policymakers, who may be more likely to effectuate change when faced
with data showing persistent wrongdoing. Community Amici further urge the court to grant
NYCLU’s motion to intervene. NYCLU represents a critical voice in the Buffalo community that
may otherwise go unheard, particularly given the fact that the City of Buffalo has announced that
it does not intend to defend this action or oppose Plaintiffs’ request for a preliminary injunction.
Accordingly, and for the reasons explained further below, Plaintiffs’ request for a preliminary
injunction should be denied and NYCLU’s motion to intervene should be granted.
II.

INTERESTS OF AMICI CURIAE

Community Amici represent a diverse group of concerned Buffalo citizens and community
organizations that have strong interests in this case.5

4

The BPD’s Internal Affairs Division categorizes complaint dispositions as “sustained,” “not sustained,”
“exonerated,” “unfounded,” “termination,” or “other.” As relevant here, a complaint is “sustained” if “[the]
allegation [was] proven,” and is “not sustained” if “insufficient evidence exists to clearly prove [the]
allegation.” An officer is “exonerated” if “[the] alleged facts were justified.” Only the “unfounded” disposition
indicates that “alleged facts did not occur” or that “[the] officer was not involved.” See Internal Affairs
Division – Semi-Annual Statistics, Buffalo Police Department, https://www.bpdny.org/189/Internal-AffairsDivision-Semi-Annual-St (last visited Aug. 26, 2020). Throughout this brief, the term “unsubstantiated” is used
to refer to all dispositions in which the complaint was not “sustained.”

5

The Statements of Interest of the Community Amici are included as Appendix A.

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III.

BACKGROUND

As background and context to the present case, Community Amici will first address: 1) the
history of Section 50-a; 2) how Section 50-a frustrated police accountability efforts in Buffalo; 3)
the Legislature’s repeal of Section 50-a; 4) how the repeal of Section 50-a has already led to greater
transparency in Buffalo; and 5) why the repeal of Section 50-a is particularly critical for the City
of Buffalo.
A.

Section 50-a’s Categorical Bar on Public Release of All Police Officer Misconduct
and Disciplinary Records Made New York State an Outlier.
Nearly half a century ago, the Legislature enacted Section 50-a with a modest goal—

preventing potential abuse by criminal defense attorneys seeking to impeach officers with prior
bad acts.6 Following its enactment, however, the scope of Section 50-a was expanded far beyond
that to withhold from the public essentially all records and information that could have conceivably
been used to evaluate the performance of a police officer, creating a de facto categorical bar on
disclosure of police misconduct.7 In 2017, the Appellate Division, First Department held that
Section 50-a precluded disclosures pertaining to whether police officers had been accused of
misconduct, whether such accusations were substantiated, and whether there were related

6

See Report on Legislation by the Civil Rights Committee; Criminal Courts Committee; Communications &
Media Law Committee; Corrections & Community Reentry Committee; Criminal Justice Operations
Committee; Diversity, Equity & Inclusion Committee; Drugs & The Law Committee; Government Ethics &
State Affairs Committee; Immigration & Nationality Law Committee; Juvenile Justice Committee; Lesbian,
Gay, Bisexual, Transgender & Queer Rights Committee; Mass Incarceration Task Force; New York City Affairs
Committee; Pro Bono & Legal Services Committee; and Sex & Law Committee at 2, N.Y. City Bar (June 2020),
https://s3.amazonaws.com/documents.nycbar.org/files/2017285-50aPoliceRecordsTransparency.pdf [hereinafter
NYC Civil Rights Report].

7

See Comm. on Open Government, State of N.Y. Dep’t of State, Annual Report to the Governor and State
Legislature at 4 (Dec. 2014), https://www.dos.ny.gov/coog/pdfs/2014AnnualReport.pdf (“Courts have
permitted police departments to withhold virtually any information that could potentially reflect upon a future
decision to promote or retain an officer.”).

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administrative proceedings addressing and potentially penalizing the officers’ misconduct.8 In
2018, the New York Court of Appeals went even farther, holding that even final opinions arising
out of cases in which there were substantiated charges were protected under Section 50-a.9
As a result, New York became an outlier in the realm of disclosure of police misconduct
and disciplinary records.10 New York was one of only two states that had a law comparable to
Section 50-a “restrict[ing] the scope of law enforcement information available to the public,”11
making New York “virtually unique” in its refusal to “apply the same transparency to police and
other uniformed services as applies to all other public employees.”12 In 2014, the New York State
Committee on Open Government conducted a study of the laws of all 50 states, revealing “that the
great majority treat records pertaining to police officers in exactly the same manner as the
treatment of records pertaining to other public employees.”13 The Committee concluded from its
study that “[n]o other state provides the unique protection afforded in § 50-a.”14
B.

Section 50-a Frustrated Police Accountability Efforts in Buffalo and Allowed Police
Misconduct to Proceed Unchecked.
Historically, victims of police violence and their families in Buffalo have not had access to

officers’ disciplinary records to shed light on whether officers have engaged in abuse. As a
consequence, incidents of police misconduct generally only received public attention when they

8

See Luongo v. Recs. Access Officer, Civilian Complaint Rev. Bd., 51 N.Y.S.3d 46, 50, 52–56 (N.Y. App. Div.
2017).

9

See N.Y Civ. Liberties Union v. N.Y. City Police Dep’t, 32 N.Y.3d 556, 564–65 (2018).

10

See Robert Lewis, et al., New York Leads in Shielding Police Misconduct, WNYC News (Oct. 5, 2015),
https://www.wnyc.org/story/new-york-leads-shielding-police-misconduct.

11

See NYC Civil Rights Report, supra n.6, at 2 (“Delaware is the only other state in the country that also has a law
comparable to [Section] 50-a . . . .”).

12

Comm. on Open Government, supra n.7, at 5.

13

Id.

14

Id. (emphasis added).

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resulted in a death15 or were caught on camera.16 And even then, Buffalo communities have
repeatedly witnessed officers who shot and killed unarmed and/or fleeing black and brown men
evade criminal charges and remain on duty. BLRR has advocated on behalf of families on issues
surrounding BPD-involved assaults and killings, including the beating of Quentin Suttles;17 the
killings of Wardel Davis III,18 Jose Hernandez-Rossy,19 Raphael Rivera,20 and Marcus Neal;21 and
the shooting of William Fugate.22 All of the officers involved in these killings and other incidents
of violence escaped criminal liability, remain on the BPD, and some have since been promoted.23

15

On July 8, 2015, New York Governor Andrew Cuomo signed Executive Order No. 147, appointing the
Attorney General as special prosecutor “to investigate, and if warranted, prosecute certain matters involving the
death of an unarmed civilian . . . caused by a law enforcement officer. . . .” Exec. Order No. 147, 37 N.Y. Reg.
73 (July 29, 2015), https://docs.dos.ny.gov/info/register/2015/july29/pdf/exec.pdf.

16

See, e.g., Barbara O’Brien, Mayor ‘Concerned’ over Video Showing Police Hitting Man, Wants Expedited
Investigation, The Buffalo News (June 28, 2020), https://buffalonews.com/news/local/mayor-concerned-overvideo-showing-police-hitting-man-wants-expedited-investigation/article_2793acb6-8d51-5308-876f8deec7553465.html.

17

See, e.g., Hannah Buehler, Buffalo Man Punched in Head Repeatedly by Officer Plans to Sue City, BPD and
Arresting Officers, WKBW Buffalo (June 26, 2020, 6:50 PM), https://www.wkbw.com/news/localnews/buffalo-man-punched-in-head-repeatedly-by-officer-plans-to-sue-city-bpd-and-arresting-officers.

18

See, e.g., Maki Becker, AG’s Wardel Davis probe clears officers, faults lack of body cams, Buffalo News (Dec.
13, 2017), https://buffalonews.com/news/local/ags-wardel-davis-probe-clears-officers-faults-lack-of-bodycams/article_30957a7b-c492-590e-b164-be0afed6d165.html.

19

See Michael Mroziak, Family of man killed in Buffalo police encounter demands ‘Justice for Jose,’ WFBO
NPR (June 1, 2017), https://news.wbfo.org/post/family-man-killed-buffalo-police-encounter-demands-justicejose.

20

See Dan Herbeck, Wrongful death suit filed against Buffalo a year after police shot suspect, Buffalo News
(Sept. 12, 2019), https://buffalonews.com/news/local/wrongful-death-suit-filed-against-buffalo-a-year-afterpolice-shot-suspect/article_d432c833-9774-54a6-b35c-728dc677cf94.html.

21

See, e.g., Aaron Besecker & Phil Fairbanks, DA: Buffalo officer was justified in fatal shooting of shoplifting
suspect, Buffalo News (Mar. 14, 2019), https://buffalonews.com/news/local/crime-and-courts/da-buffaloofficer-was-justified-in-fatal-shooting-of-shoplifting-suspect/article_dd745949-47db-58c9-9492f986c75d5f48.html.

22

See, e.g., Maki Becker, Buffalo man who was shot by police indicted for having a gun, Buffalo News, Feb. 20,
2020, https://buffalonews.com/news/local/crime-and-courts/buffalo-man-who-was-shot-by-police-indicted-forhaving-a-gun/article_da3e7a7b-8ef8-592d-9d46-d453f04f824f.html.

23

See, e.g., Buehler, supra n.17; Becker, supra n.18; Omar Fetouh & Mike Desmond, Buffalo police officers
cleared in shooting death of unarmed man, WBFO Buffalo (Feb. 1, 2018), https://news.wbfo.org/post/buffalopolice-officers-cleared-shooting-death-unarmed-man; Marsha McLeod, No prosecution in deadly police
shooting, Investigative Post (Dec. 3, 2018), https://www.investigativepost.org/2018/12/03/no-prosecution-indeadly-police-shooting/; Besecker & Fairbanks, supra n.21; Becker, supra n.22.

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Several recent incidents lay bare the gravity of the situation:

C.



In May 2020, two BPD officers held down Quentin Suttles during a traffic stop while
one officer repeatedly hit him in the face, resulting in severe injury.24



A month later, BPD officers pushed 75-year-old Martin Gugino to the ground during a
peaceful protest, causing a severe head injury.25



At the end of June 2020, BPD Lieutenant Mike Delong was videotaped calling an
innocent woman vulgar and misogynist names.26



In 2017, former Erie County Sheriff’s deputy Kenneth Achtyl was caught on camera
assaulting a Buffalo Bills fan.27 Erie County Sheriff Tim Howard called Achtyl a hero,
saying, “I will acknowledge that sometimes heroic behavior isn’t always totally
appropriate, but yet it’s intended to benefit others and for the majority of his career, he
worked in a way to benefit others.”28

By Repealing Section 50-a, the Legislature Manifested the Will of New Yorkers to
Make Police Misconduct Records, Including Unsubstantiated Records,
Presumptively Public.
The repeal of Section 50-a was widely supported by a range of communities and

constituents. In contrast, the only entities that opposed the repeal of Section 50-a were Plaintiffs
and other similar law enforcement agencies and unions. The repeal of Section 50-a was also
unequivocal.

24

Deidre Williams & Barbara O’Brien, Buffalo police advisory board calls for investigation into violent arrest,
Buffalo News (May 11, 2020), https://buffalonews.com/news/local/buffalo-police-advisory-board-calls-forinvestigation-into-violent-arrest/article_460c9f1c-4749-5478-b369-69f24ccccbba.html.

25

See Neil Vigdor, Daniel Victor & Christine Hauser, Buffalo Police Officers Suspended After Shoving 75-YearOld Protestor, NY Times (June 5, 2020), https://www.nytimes.com/2020/06/05/us/buffalo-police-shoveprotester-unrest.html.

26

Charlie Specht, Suspended Buffalo Police Lt. Delong was subject of 36 complaints, WKBW (July 7, 2020),
https://www.wkbw.com/news/local-news/suspended-buffalo-police-lt-delong-was-subject-of-36-citizencomplaints.

27

Former Erie County Sheriff’s Deputy Kenneth Achtyl sentenced, will not serve jail time, WKBW (Jan. 23,
2020), https://www.wkbw.com/news/local-news/former-erie-county-sheriffs-deputy-kenneth-achtyl-sentencedwill-not-serve-jail-time.

28

Id.

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Senate Bill S8496, which was voted into law by the Legislature on June 9, 2020, clearly
states without distinction or condition that “Section 50-a of the civil rights law is REPEALED.”29
Senate Bill S8496 makes no disposition-based distinctions, and makes absolutely certain that any
protections previously warranted under Section 50-a are no longer in effect. The bill goes even
further and defines law enforcement disciplinary records to mean “any record created in
furtherance of a law enforcement disciplinary proceeding,” specifically including “complaints,
allegations, and charges against” an officer.30

The bill neither requires that complaints or

allegations be substantiated, nor exempts unsubstantiated complaints from disclosure. Moreover,
the definition of law enforcement disciplinary records specifically includes “the disposition of any
disciplinary proceeding,” which, under a plain reading, clearly encompasses findings that an
allegation was unsubstantiated.31
This clear language is supported by a review of the legislative intent behind the repeal. For
example, the Senate’s Committee Report states that Section 50-a created a “special right of
privacy” of police officers and that the “broad prohibition on disclosure created by § 50-a is
therefore unnecessary, and can be repealed as contrary to public policy.”32

The Senate’s

Committee Report further explains that disclosure of police misconduct records should be
governed by New York’s Freedom of Information Law (“FOIL”), which already provides defined
protections for law enforcement agencies.33 After the repeal of Section 50-a, the only privacy
rights and non-disclosure protections available to police officers are those available under FOIL.

29

See N.Y. S.B. 8496 § 1.

30

See id. at § 2.

31

See id.

32

N.Y. S.B. 8496, 243 Leg. Sess. (N.Y. 2020); N.Y.S., Sponsor Memorandum, S.B. 8496, 243 Leg. Sess. (N.Y.
2020), https://www.nysenate.gov/legislation/bills/2019/s8496.

33

Id.

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Under the FOIL framework, which is codified in Article 6 of New York’s Public Officers Law, as
amended by Senate Bill 8496, any record created in furtherance of a law enforcement disciplinary
proceeding is now available to the public, which unequivocally includes unsubstantiated
misconduct reports.
Furthermore, in addition to the unambiguous statutory text, the legislative history
specifically addresses and affirms the Legislature’s intent to disclose unsubstantiated records in
particular. During the New York State Assembly hearing, Assemblymember Daniel O’Donnell
testified, “I can address the substantiated versus unsubstantiated question. . . . [N]o we don’t
distinguish between those two things in this law.”34 Assemblymember Phil Ramos testified he
would not dismiss unsubstantiated cases as unimportant, noting:
If an officer has 30 cases that are unsubstantiated complaints, and out of those 30
cases, 20 of them were people who didn’t know each other who all said, “This
officer came up to me and started harassing me, and when I wouldn’t cooperate he
stepped on my toes and when I tried to push him away he arrested me for assaulting
a police officer.” Twenty unsubstantiated cases. Now they’re unsubstantiated, but
isn’t it relevant that there is a pattern here? Isn’t there some value to weed out
an officer who might have a problem? Who might be a problem and might be a
risk to the public?35
Assemblymember Thomas Abinanti similarly noted that “it’s not just about substantiating
complaints, it’s about a history. And those who are watching carefully will see a pattern
emerge . . . .”36 Assemblymember Rodneyse Bichotte also testified that she “fully support[ed] the

34

See N.Y. Assembly Hear’g Tr., at 60–61 (June 9, 2020),
https://nystateassembly.granicus.com/DocumentViewer.php?file=nystateassembly_e9af7a3d256bee2d470e331a
2a0dd9ae.pdf&view=1.

35

Id. at 100 (emphasis added).

36

Id. at 206.

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repeal of the 50-a as a standalone bill” and noted that she was “happy to know that unsubstantiated
[records] will be also open to the public.”37
The Senate floor debates further substantiate that the repeal of Section 50-a warrants broad
disclosure of police disciplinary records, including unsubstantiated misconduct reports. For
example, Senator Jamaal Bailey, the sponsor of the bill repealing Section 50-a, testified that
unsubstantiated complaints should not be expunged from records.38 And Senator George Borrello,
in opposing the bill, recognized that the repeal of Section 50-a will open “personnel records,
including reports of unsubstantiated and unfounded complaints.”39
Prior to repealing Section 50-a in its entirety, the Legislature also considered and rejected
several narrower bills amending Section 50-a, including a bill which would have amended Section
50-a to allow members of the Civilian Complaint Review Board to petition the court for permission
to disclose personnel records of officers involved in police shooting or misconduct cases,40 a bill
which would have limited the scope of Section 50-a to “records created and used solely to evaluate
performance toward continued employment or promotion,”41 a bill which would have excluded
police officer body camera recordings from Section 50-a’s protections,42 and a bill which would
have amended Section 50-a to allow disciplinary records to be released after the conclusion of an

37

Id. at 197–98.

38

See N.Y. Senate, Floor Debate, at 1808–09, 1812–13 (June 9, 2020),
https://legislation.nysenate.gov/pdf/transcripts/2020-06-09T11%3A53; see also id. at 1857 (Senator Luis
Sepulveda, in support of the bill, testifying on the disclosure of substantiated and unsubstantiated disciplinary
hearings).

39

Id. at 1836; see also id. at 1850 (comments of Senator Patrick Gallivan opposing the bill and implicitly
recognizing that under the bill, unsubstantiated complaints would be available for disclosure).

40

Proposed N.Y. S.B. 4214 (2019).

41

Proposed N.Y. S.B. 4215 § 1 (2019).

42

Proposed N.Y. S.B. 3398A (2019).

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administrative disciplinary process.43 Rather than accepting any of these bills, the Legislature
voted into law Senate Bill S8496, which repealed Section 50-a entirely.44
Police departments and unions fully participated in the legislative process to repeal Section
50-a, voicing the same concerns and arguments about officer safety, reputation, and future
employment prospects that Plaintiffs raise here.45 After hearing and weighing these concerns the
Legislature, acting on behalf of the people, rejected those arguments and voted to repeal Section
50-a. In fact, State Senator Timothy M. Kennedy, representative of the 63rd Senate District, which
encompasses part of Buffalo,46 voted in favor of Senate Bill S8496 and the total repeal of Section
50-a,47 and Assemblywoman Crystal Peoples-Stokes, representative of Assembly District 141,
which encompasses part of Buffalo,48 was a co-sponsor of Assembly Bill A10611, the Assembly
version of Senate Bill S8496.49

43

Proposed N.Y. S.B. 2413 § 5 (2019).

44

Proposed N.Y. S.B. 8496 § 1 (2020).

45

See Policing (S3695), repeals provisions relating to personnel records of police officers, firefighters, and
correctional officers: Hearing Before the S. Standing Comm. on Codes New York Senate, (Oct. 17, 2019),
https://www.nysenate.gov/sites/default/files/testimonies_on_policing_s3695_repeals_provisions_101719.pdf, at
*37 (New York City Police Benevolent Association representative discussing “serious risks to police officer
safety,” . . . “reputational harm” and “impact [on] careers” should 50-a be repealed); see also Policing (S3695),
repeals provisions relating to personnel records of police officers, firefighters, and correctional officers:
Hearing Before the S. Standing Comm. on Codes, New York Senate (Oct. 24, 2019),
https://www.nysenate.gov/sites/default/files/oct_24th_public_hearing_on_discovery_reform.pdf, *81–82 (New
York City Benevolent Association representative stating, “In the current climate, the publication of outrageous
false accusations will only embolden those who believe it is acceptable to assault and even murder police
officers. . . . And it is a matter of basic common sense that the release of unsubstantiated misconduct
allegations—which is exactly what the repeal of CRL § 50-a would do—will unfairly villainize all police
officers (not just those accused of misconduct) and exponentially increase the risk of random ‘revenge’ or
‘retaliatory’ attacks against them”); id. at *43–44 (New York City Police Department representative stating,
“releasing personnel records in cases where there are allegations but the facts are not fully known . . . is a risk to
officer safety”).

46

See New York State Senator Timothy M. Kennedy, New York Senate, https://www.nysenate.gov/district/63.

47

See N.Y. S.B. 8496, Floor Votes (June 9, 2020), https://www.nysenate.gov/legislation/bills/2019/s8496.

48

See Assemblymember Crystal D. Peoples-Stokes, New York Assembly, https://nyassembly.gov/mem/Crystal-DPeoples-Stokes/map/.

49

See Assembly Bill A10611, New York Senate, https://www.nysenate.gov/legislation/bills/2019/a10611.

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The Repeal of Section 50-a Has Already Led to Greater Transparency in Buffalo.
The repeal of Section 50-a only two-and-a-half months ago has already led to greater

transparency within the BPD, as Buffalo residents now have access to some data concerning prior
officer misconduct complaints and outcomes. For example:


Lieutenant Mike Delong (discussed above): Released disciplinary records reveal that he
was subject to 36 prior complaints, including improper use of force and domestic violence,
and was suspended four times prior to his suspension for calling an innocent woman a
vulgar name.50 Of these complaints, while six were considered “sustained” complaints, 22
were not sustained, and another five were resolved by conference or administratively.51
This means that if the public only had access to the six complaints that were sustained—as
advocated for by Plaintiffs—the public would have a very limited view of the true scope
of misconduct alleged against Lieutenant Delong. With the full record now available, the
public, potential employers, and others potentially affected by his alleged misconduct can
better assess whether a new complaint is an outlier, or whether it is consistent with his
previous transgressions.



Officer Tedesco (shot and killed civilian Jose Hernandez-Rossy):52 Prior to the repeal
of Section 50-a, BLRR unsuccessfully sought to obtain his BPD records. Following the
repeal of Section 50-a, Officer Tedesco’s disciplinary records were released, revealing 20
complaints, including a February 7, 2020 racial profiling and improper arrest complaint
requiring a conference with the Deputy Police Commissioner.53 Of the 20 complaints, only
six were sustained, while 11 were not sustained, two remained pending, and two more were
resolved by “other” means.54 Here, again, Plaintiffs’ request for relief would prevent the
public from access to the true extent of Officer’s Tedesco’s alleged misconduct.



Officer Ronald Ammerman (videotaped in a widely publicized beating of unarmed
civilian Quentin Suttles):55 Newly released disciplinary records show that in 2019 alone,
Officer Ammerman was the subject of five complaints, including a complaint for excessive

50

Specht, supra n.26.

51

Id.

52

Nine months after deadly traffic stop, no criminal charges for officers, Spectrum News (Feb. 1, 2018),
https://spectrumlocalnews.com/nys/buffalo/crime-safety/2018/02/01/hernandez-rossy.

53

Charlie Specht, Excessive Force Report, WBKW, http://www.documentcloud.org/documents/6999866Excessive-Force-Report.html

54

Id.

55

Mary B. Pasciak, Key moments in a violent arrest: ‘I don’t have him in a chokehold’, Buffalo News (June 27,
2020), https://buffalonews.com/news/key-moments-in-a-violent-arrest-i-dont-have-him-in-achokehold/article_94575656-b8b3-11ea-8d28-53042571288f.html.

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force, which was not sustained, but nevertheless required a letter to the victim.56 Under
Plaintiffs’ requested relief, such information would remain hidden from public view.
With visibility into the frequency and types of complaints against officers, the public can
more effectively monitor, and potentially prevent, the most extreme and public forms of police
misconduct.
E.

The Release of Unsubstantiated Records Is Especially Important in Buffalo to
Promote Its Development of Adequate Investigation Practices.
The lack of accountability of the BPD and the necessity for police disciplinary records to

be publicly disclosed in their entirety is amplified by Buffalo’s lack of an independent civilian
oversight body to investigate civilian police misconduct complaints. Instead, the BPD is largely
responsible for policing itself, with a long history of delay and a lack of thoroughness in its internal
officer misconduct investigations. Data shows that BPD’s Internal Affairs Unit substantiated
almost none of the civilian misconduct complaints presented to it over a nearly two-year period of
time—finding no wrongdoing in 58 of the 62 complaints filed between January 2014 and midSeptember 2016.57 And BPD data published following the repeal of Section 50-a shows that BPD’s
Internal Affairs Unit did not fault police officers for alleged misconduct nearly 75% of the time
between January 1 and December 31, 2019.58 Extrapolating from that data, we know that if
Plaintiffs were to prevail here, records for at least 75% of police misconduct allegations would be
categorically shielded from public view. This means that at least 75% of police misconduct
allegations would go unreviewed by anyone other than the BPD itself, making it impossible to
56

Aaron Besecker, Officer Ronald Ammerman’s Disciplinary Card, Buffalo News (July 14, 2020),
https://buffalonews.com/news/local/officer-ronald-ammermans-disciplinary-card/pdf_cc5ec4c8-c608-11ea9375-3731f6f292c2.html.

57

Daniela Porat, Scant oversight of Buffalo police, Investigative Post (Feb. 15, 2017),
https://www.investigativepost.org/2017/02/15/scant-oversight-of-buffalo-police/.

58

Charlie Specht, I-Team: Buffalo Police’s Internal Affairs system debated: Officers not faulted in many
complaints, WKBW Buffalo (July 22, 2020), https://www.wkbw.com/news/i-team/i-team-buffalo-policesinternal-affairs-system-debated.

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know whether the vast majority of allegations against Buffalo police officers are indeed properly
deemed unsubstantiated or, instead, whether there is a larger, systemic problem at play within
BPD.
Indeed, even when violence by police is investigated outside of the BPD—such as by the
New York State Attorney General in the case of police-involved killings—these investigations are
stymied by the BPD’s deficient policing practices.59 For example, Former Attorney General Eric
Schneiderman “uncovered policies in real need of reform by the [BPD]” in investigating Wardel
Davis III’s death.60 As a result of these deficiencies in the BPD’s internal review system, officers
have evaded criminal responsibility for killings committed by police due to a lack of evidence, and
in some cases, based solely on the officers’ own recollections of what happened.61
In addition to the lack of an adequate system for investigating police misconduct in Buffalo,
the police officers and unions have formed a powerful alliance to further insulate officers from
discipline following misconduct and evade public scrutiny—the filing of this suit is powerful
evidence of said efforts.
The handling of the recent assault of Mr. Gugino, an elderly Buffalo resident who sustained
a critical head injury at the hands of the BPD while attending a peaceful protest on June 4, 2020,
is yet another example of the BPD’s and unions’ instincts to close ranks in times of public scrutiny.

59

See, e.g., Report on the Investigation into the Death of Wardel Davis III at 3, NYAG Special Investigations and
Prosecutions Unit (Dec. 13, 2017), https://ag.ny.gov/sites/default/files/oag_report_-_wardel_davis_iii.pdf
(laying out recommendations for “systemic reform arising from the investigation” and noting “the BPD’s
investigation of this matter had shortcomings in the areas of collecting evidence and photographing the scene.”)
[hereinafter “Report on the Investigation into the Death of Wardel Davis III”].

60

See Attorney General’s Special Investigations and Prosecutions Unit Releases Report on the Death of Wardel
Davis, N.Y. Attorney General (Dec. 13, 2017), https://ag.ny.gov/press-release/2017/attorney-generals-specialinvestigations-and-prosecutions-unit-releases-report.

61

Report on the Investigation into the Death of Wardel Davis III supra n.59, at 2–3 (finding insufficient evidence
to warrant criminal charges for Mr. Davis’s death where the only witnesses were the officers themselves and
noting, “[v]ideotaped evidence would have greatly facilitated the investigation”).

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Despite video footage showing a BPD officer violently shove Mr. Gugino to the ground, the BPD
issued a statement indicating that Mr. Gugino “tripped and fell,” even though it was plainly false.62
If there were no video of the incident, and the public were to rely solely on the BPD’s assertions,
the truth would have never seen the light of day, the officers would have remained unpunished,
and Mr. Gugino’s critical injuries could have been dismissed as his own accidental clumsiness.
This incident lays bare that but for shedding light on these disciplinary actions, the BPD will not
fix this problem on their own. Indeed, rather than demanding accountability for the officer caught
on videotape needlessly shoving Mr. Gugino, BPD officers denied Mr. Gugino aid as he lay
bleeding, and 57 members of Buffalo’s Emergency Response Team resigned to protest the
suspension of the two BPD officers involved.63
Officers banding around their brethren accused of misconduct is not new to Buffalo, even
when the individual complaining of the misconduct is another officer. In 2008, a black BPD officer
of 19 years, Officer Cariol Horne, was fired by the BPD after she reportedly tried to stop a white
police officer, Lieutenant Gregory Kwiatkowski, from holding a detained black man in a
chokehold in 2006.64 Following the incident, Officer Horne was accused of obstructing police
duty, among other things, and fired from the force without her pension.65 Ten years later, in 2018,
Lieutenant Kwiatkowski was arrested and sentenced to four months in prison after admitting he

62

See Neil Vigdor, Daniel Victor & Christine Hauser, supra n.25.

63

See id.

64

See Carolyn Thompson, Buffalo police officer fired for intervening pushes for reform, AP (June 18, 2020),
https://apnews.com/0c853807108fea2f66749811a9be843b.

65

Collaboration, Communication and Community-Building: A New Model of Policing for 21st Century Buffalo at
13, Partnership for the Public Good (2016),
https://openbuffalo.org/files/documents/community_policing_report_2016_final.pdf [hereinafter
“Collaboration, Communication and Community-Building”].

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used excessive force against four black teenagers in May 2009.66 Buffalo’s Common Council
recently passed a resolution asking the New York Attorney General to investigate Ms. Horne’s
case.67 In a comment to the media, Officer Horne poignantly summarized the state of affairs: If
police “are going to back out when you have an officer stop police brutality, and they step up when
you have officers knocking over 75-year-old men, then we have a big problem in Buffalo.”68
The Department of Justice’s Community Relations Service (“CRS”) advised that
transparency, not obfuscation, is the best practice when an incident with police occurs.69 While
the repeal of Section 50-a opened the door to the kind of transparency and accountability needed
to begin to address police misconduct, Plaintiffs seek to shut the door, and with it, the potential for
much-needed progress. It is unsurprising that a 2016 survey by the Partnership for Public Good
found that less than half of Buffalo’s black residents feel they can trust the police, and only 20%
of Buffalo residents believe that the police respect people of color.70
IV.

ARGUMENT

Through this lawsuit and the requested preliminary injunction, Plaintiffs seek to effectuate
a shadow repeal of the Section 50-a repeal legislation and establish a new, judicially-created
categorical bar on public release of all records from unsubstantiated BPD misconduct cases. They

66

Former Buffalo Police Lieutenant Sentenced On Federal Civil Rights Conviction, U.S. Dep’t of Justice
(Dec. 12, 2018), https://www.justice.gov/usao-wdny/pr/former-buffalo-police-lieutenant-sentenced-federalcivil-rights-conviction.

67

Phil McCausland & Allan Smith, Buffalo officials ask state to probe firing of Black officer who stopped white
colleague’s chokehold, NBC News (June 13, 2020), https://www.nbcnews.com/news/us-news/buffalo-officialsask-state-probe-firing-black-officer-who-stopped-n1231016.

68

Id.

69

Community Relations Services Toolkit for Policing: Importance of Police-Community Relationships and
Resources for Further Readings at 2-3, U.S. Dep’t of Justice Community Relations Service,
https://www.justice.gov/crs/file/836486/download.

70

See Collaboration, Communication and Community-Building, supra n.65, at 16, 41.

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seek to do so by relying on the same concerns regarding officer privacy and safety already
considered and rejected by the Legislature.71 Community Amici argue that (1) the preliminary
injunction would thwart the clear intention of the Legislature to subject police misconduct records
to the same disclosure principles and protections as other public records subject to FOIL and (2)
providing public access to unsubstantiated police misconduct records is critical to ensuring public
safety and necessary police reform. For these reasons, Plaintiffs’ request for a preliminary
injunction should be denied.
A.

Plaintiffs’ Request for a Preliminary Injunction Thwarts the Clear Intent of the
Section 50-a Repeal, and Ignores Privacy Safeguards the Legislature Put in Place
under FOIL.
With the repeal of Section 50-a, the Legislature clearly intended that unsubstantiated police

misconduct records be available to the public, which—despite Plaintiffs’ protestations—does not
deprive police records of reasonable protections from disclosure of sensitive information.72
Pursuant to FOIL, which is now the source of non-disclosure protections for police officer
records, government records are presumptively available to the public unless they are statutorily
exempted by Public Officers Law § 87(2).73 “Those exemptions are to be narrowly construed, with
the burden resting on the agency to demonstrate that the requested material indeed qualifies for
exemption.”74 Public Officers Law § 87(2)(b) permits an agency to deny access to a document or

71

See Proposed N.Y. S.B. 4214 (2019), supra n.40.

72

See supra at Section III.C.

73

See Matter of Fappiano v. N.Y.C. Police Dep’t, 95 N.Y.2d 738, 746 (2001) (“All government records are
presumptively open for public inspection unless specifically exempted from disclosure as provided in the Public
Officers Law.”) (citing Matter of Gould v. N.Y.C. Police Dep’t, 89 N.Y.2d 267 (1996)).

74

Matter of Hanig v. State of N.Y. Dep’t of Motor Vehs., 79 N.Y.2d 106, 109 (1992) (citing N.Y. Pub. Off. L.
§ 89(b)).

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redact a document if disclosure “would constitute an unwarranted invasion of personal privacy.”75
Agencies may also withhold information that “does not fall squarely into any of the specifically
enumerated categories of exempt personal information,” and courts “balanc[e] the privacy interests
at stake against the public interest in disclosure of the information” to determine whether such
withholding is proper under FOIL.76 “[T]he ability to withhold records under FOIL can only be
based on the effects of disclosure in conjunction with attendant facts.”77
In addition to FOIL’s existing protections from unwarranted invasions of personal privacy,
the Legislature imposed meaningful additional protections for police officers when it repealed
Section 50-a, proactively addressing concerns related to police officer privacy and safety. The
Legislature amended FOIL to explicitly protect certain categories of information contained in “law
enforcement disciplinary records,” including the “home addresses, personal telephone numbers,
personal cell phone numbers, personal email addresses” of officers and their families, officers’
“social security numbers,” and records of officers’ “use of an employee assistance program, mental
health service, or substance abuse assistance service.”78 These safeguards are more than sufficient
to ensure officer safety.
Furthermore, while the repeal of Section 50-a made police misconduct records
presumptively public, it did nothing to affect the ability of courts to protect against improper cross-

75

Thomas v. N.Y.C. Dep’t of Educ., 962 N.Y.S.2d 29, 31 (1st Dep’t 2013) (quoting N.Y. Pub. Off. L. § 87(2)(b)
and citing Matter of Beyah v. Goord, 766 N.Y.S.2d 222 (3d Dep’t 2003) (“What constitutes an unwarranted
invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable [person]
of ordinary sensibilities[.]” (internal quotation marks omitted))).

76

Hepps v. N.Y. State Dep’t of Health, 122 N.Y.S.3d 446, 450–51 (3d Dep’t 2020) (internal quotation marks and
citations omitted).

77

Thomas, 962 N.Y.S.2d at 32 (citing Gould, 89 N.Y.2d at 275 (“[B]lanket exemptions for particular types of
documents are inimical to FOIL’s policy of open government[.]”)).

78

See N.Y. S.B. 8496, §§ 3–4; N.Y. Pub. Off. L. §§ 87(4-a), 89(2-b).

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examination of officers or to determine if police records are admissible in a trial. As with any use
of potentially sensitive personal information, courts and fact finders can be petitioned to balance—
and are experienced in balancing—the probative weight of such information against the potential
prejudice.79 Further, if a party sought to use police misconduct records in court to demonstrate the
predisposition of an officer toward a type of misconduct, that evidence would be inadmissible if
offered solely for that purpose.80 Plaintiffs ignore these preexisting safeguards that protect against
the improper use of police misconduct records in court.
Contrary to Plaintiffs’ claims, police officers are not unique among professionals whose
complaint histories are publicly available. Indeed, by repealing Section 50-a, the Legislature
simply ended a regime where police officers received significantly greater protection than many
other professions. New York State courts have long recognized the public’s right to review
unsubstantiated complaints against public employees ranging from school administrators to stateemployed researchers.81 In addition, for licensed financial advisors like amicus Caitlin Kahabka,

79

See Fed. R. Evid. 401 (Test for Relevant Evidence); N.Y. Evid. R. 4.01 (Relevant Evidence); Fed R. Evid. 403
(“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”); N.Y. Evid. R. 4.07 (“A court may exclude relevant evidence if
its probative value is outweighed by the danger that its admission would: (1) create undue prejudice to a party;
(2) confuse the issues and mislead the jury; (3) prolong the proceeding to an unreasonable extent without any
corresponding advantage to the offering party; or (4) unfairly surprise a party and no remedy other than
exclusion could cure the prejudice caused by the surprise.”).

80

See Fed. R. Evid. 404(b) (“Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the character.”);
N.Y. Evid. R. 4.11(1) (except in enumerated circumstances, “[e]vidence of a person’s character is not
admissible to prove that the person acted in conformity therewith on a particular occasion”). Courts have
recognized exceptions to this rule as when a record of prior charges may reveal “motive, intent, the absence of
mistake or accident, a common scheme or plan or the identity of the guilty party”—crucial exemptions in the
case of police officers who are inclined to walk to the very edge of sanctionable conduct. People v. Ramirez,
180 A.D.3d 811, 812, 117 N.Y.S.3d 696, 697 (2020).

81

See, e.g., Thomas, 962 N.Y.S.2d at 33 (ruling that investigatory report into unsubstantiated complaint against
public school administrators should nevertheless be released following possible redactions, reasoning that “[a]s
the Legislature declared in Public Officers Law § 84, ‘[t]he people’s right to know the process of governmental
decision-making and to review the documents and statistics leading to determinations is basic to our society.
Access to such information should not be thwarted by shrouding it with the cloak of secrecy or

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all employment history; any bankruptcies, judgments, or liens; and any customer complaints—
whether substantiated or not—are a matter of public record.82
B.

Access to Unsubstantiated Police Misconduct Records Is Critical to Ensuring Public
Safety and Necessary Police Reform.
Plaintiffs’ exaggerated claims of the alleged harm that could flow from public release of

unsubstantiated records are unsupported and do not outweigh the importance—and urgency—of
transparency and accountability to the public. Allowing for public access to all police misconduct
records, including the unsubstantiated records, will help inform improvements to internal police
investigative procedures, help identify officers most at risk for future misconduct, and allow for
appropriate interventions; and increase officer and public safety.
1.

Reviewing records from unsubstantiated BPD Internal Affairs misconduct
investigations will help identify problems with and inform improvements to
how those investigations are conducted.

The failure of police departments’ internal affairs offices to thoroughly and fairly
investigate complaints against their officers, even in cases of clear misconduct, is a welldocumented, systemic problem across the United States.83 In Buffalo specifically, as discussed in
Section III.E supra, the Internal Affairs Division, which is tasked with investigating citizen

confidentiality.’”); Physicians Comm. for Responsible Med. v. Hogan, No. 439–10, 2010 WL 4536802, at *8
(N.Y. Sup. Ct. Nov. 3, 2010) (finding no evidence that researchers were likely to “suffer professional or
personal harm through the disclosure of complaints that previously have been determined by regulatory
authorities to be unfounded”).
82

See FINRA, About BrokerCheck, https://www.finra.org/investors/learn-to-invest/choosing-investmentprofessional/about-brokercheck (accessed Aug. 19, 2020) (describing the disclosure section of a BrokerCheck
report, which includes information about customer disputes and disciplinary events, including “pending actions
or allegations that have not been resolved or proven”).

83

See, e.g., Rachel Moran, Ending the Internal Affairs Farce, 64 Buffalo L. Rev. 837 (2016),
https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=4586&context=buffalolawreview
(describing repeated incidents of police misconduct and the failure to hold officers accountable for that
misconduct).

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complaints of police misconduct, has a documented history of failing to thoroughly investigate
allegations of excessive use of force.84
Police department internal affairs units will be incentivized to conduct better misconduct
investigations if they know their investigation practices are subject to public scrutiny. Testifying
about the NYPD disciplinary system specifically, Michael J. Gennaco, an expert on police internal
investigations and discipline with nearly 20 years of experience, stated:
If the release of disciplinary records was limited to substantiated investigations, it would
provide a skewed public accounting of NYPD’s disciplinary system . . . . A complete data
set would provide an opportunity for public analysis, further examination of why so high a
percentage of disciplinary determinations by NYPD result in non-founded dispositions,
and whether disposition decisions on non-founded cases are supported by the evidence (or
not). Whether it is an examination of a single non-founded case or a series of non-founded
cases (or all non-founded cases), academics, statistical experts, public policy officials, and
the general public would all benefit from access to those records for further consideration,
analysis, criticism and recommendations for reform.85
Dr. Samuel Walker, another expert in police accountability, attested that “[t]he public
release of data on civilian complaints, whether substantiated or not, has the potential
for . . . identifying possible problems in police training and supervision and also in the complaint
review process, and thereby providing the basis for informed public discussions about necessary
reforms designed to improve the quality of policing.”86 According to Dr. Walker, if complete

84

See Daniela Porat, supra n.57 (reporting that Internal Affairs found no wrongdoing in 58 of the 62 complaints
filed against BPD officers between January 1, 2014 and mid-September 2016); Specht, supra n.58 (“[W]hen
Internal Affairs opens a case on officers in Buffalo, 75 percent of the time the officers are not faulted . . . .”).

85

Decl. of Michael J. Gennaco in Supp. of Communities United for Police Reform’s Opp’n to Pl.’s Req. for a
Prelim. Inj. ¶ 15, Uniformed Fire Officers Ass’n et al. v. De Blasio, No. 1:20-cv-05441-KPF (S.D.N.Y. Aug. 14,
2020), ECF 146 [hereinafter “Gennaco Decl.” ¶ 15].

86

Decl. of Dr. Samuel Walker in Supp. of Communities United for Police Reform’s Opp’n to Pl.’s Req. for a
Prelim. Inj. ¶ 31, Uniformed Fire Officers Ass’n et al. v. De Blasio, No. 1:20-cv-05441-KPF (S.D.N.Y. Aug. 14,
2020), ECF 143.(emphasis added) [hereinafter “Walker Decl.”]; see also id. ¶ 24 (“For public complaint data to
serve as a useful police accountability tool, it is important to include and to make public all complaints that are
received and recorded by a police department and/or an oversight agency, regardless of whether they are
ultimately substantiated.”).

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police misconduct records are released, “[t]he resulting ‘knowledge explosion’ can help lead to
evidence-based reforms that can improve complaint review procedures.”87
Courts have held that the number of claims of police misconduct, even if not substantiated,
is highly relevant to the inquiry of whether a police department is properly managing and
monitoring its officers.88 The Second Circuit succinctly summarized the point: “[w]hether or not
the claims had validity, the very assertion of a number of such claims” was relevant in determining
whether a city facing liability for negligently supervising its officers was “on notice that there was
a possibility that its police officers had used excessive force.”89 Moreover, courts have recognized
that repeated complaints of misconduct that are not substantiated through investigation provide
sufficient evidence that a municipality is indifferent or acquiescing to police wrongdoing.90

87

Id. ¶ 33.

88

See Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995); Fiacco v. City of Rensselaer, N.Y., 783 F.2d 319 (2d
Cir. 1986); see also Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996); Jenkins v. City of New York, 388 F.
Supp. 3d 179 (E.D.N.Y. 2019).

89

Fiacco, 783 F.2d at 328 (“The fact that none of the claims had yet been adjudicated in favor of the claimant
was not material; if the City’s efforts to evaluate the claims were so superficial as to suggest that its official
attitude was one of indifference to the truth of the claim, such an attitude would bespeak an indifference to the
rights asserted in those claims.”); see also Vann, 72 F.3d at 1049 (finding that deliberate indifference to need to
monitor abusive officers could be demonstrated through “proof of repeated complaints of civil rights violations;
deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of
the municipality to investigate or to forestall further incidents”).

90

See Jenkins, 388 F. Supp. 3d at 191 (holding that “a reasonable juror could conclude that the persistent
inadequacies in the CCRB and IAB investigations demonstrate that City officials ‘simply did not care what a
thorough investigation would reveal [and] were indeed indifferent to whether or not excessive force was
used’”); see also Beck, 89 F.3d at 976 (concluding that a “series of actual written civilian complaints,” most of
which had been investigated, was “sufficient evidence from which a reasonable jury could have inferred that the
City of Pittsburgh knew about and acquiesced in a custom tolerating the tacit use of excessive force by its police
officers”).

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Unsubstantiated police misconduct records provide critical information for
identifying those officers most at risk for committing future misconduct and
thus requiring intervention.

Allegations of past officer misconduct—whether or not substantiated—can predict an
increased likelihood of future misconduct by that same officer.91 If the public is aware that an
officer has had numerous complaints made against him or her, the public can act to ensure that the
officer is subject to proper and thorough investigation and any necessary intervention to prevent
the possibility of future misconduct. A study that examined civil rights litigation and over 50,000
civilian allegations of officer misconduct in Chicago found a strong relationship between the
number of civilian allegations and future civil rights litigation, especially among the 1% of officers
with the highest number of civilian allegations against them.92 These “worst offender” officers
generated almost five times the number of payouts and over four times the total damage payouts
in civil rights litigation.93 Based on these results, the study concluded that “the mere presence of
excessive civilian allegations, whether or not investigated or sustained, can be used to identify
officers who are at high risk of perpetrating serious misconduct and creating significant liability”
and that “intervention efforts could be fruitfully concentrated among a relatively small group of
officers.”94
Recognizing that unsubstantiated complaints can provide information that is useful to
evaluate whether a police officer needs counseling or monitoring, many police departments use
91

As discussed in Section IV.A, supra, any attempt to use this information against an officer in a court of law
would be limited by the Rules of Evidence. The reasons underlying the exclusion of predisposition evidence in
a trial or proceeding do not undercut the data demonstrating that allegations of past misconduct can predict an
increased likelihood that a police officer will commit misconduct in the future.

92

Kyle Rozema & Max Schanzenbach, Good Cop, Bad Cop: Using Civilian Allegations to Predict Police
Misconduct, 11-2 Am. Econ. J. 225, 225–27 (2019), https://doi.org/10.1257/pol.20160573.

93

Id. at 227.

94

Id. at 257 (emphasis added). Another study found that “complaints for verbal discourtesy are useful predictors
of officers’ coercive behaviors in day-to-day encounters with suspects,” meaning “officers who receive a

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such information as part of their “early intervention systems” (“EIS”).95 An EIS is a “data-based
police management tool designed to identify officers whose behavior is problematic and provide
a form of intervention to correct that performance.”96 An EIS generally contains data on 5–25
different factors that can be used to evaluate officers.97 Although the factors used can differ by
department, there is general agreement that citizen complaints are one factor that can help identify
problem officers.98 Most systems that consider citizen complaints require three complaints in a
given timeframe—for example, one year—to identify an officer as needing early intervention.99
Even if such complaints are unsubstantiated, they are a necessary component of an effective EIS
because “[i]t is the consensus of opinion in the law enforcement profession that it is critically
important to have a comprehensive picture of an officer’s performance, notwithstanding the
disposition” of a complaint.100 In fact, according to Dr. Walker:
There is also a consensus of opinion among experts on EIS that the vast number of
complaints that are not sustained represent an important part of the overall picture of a
police officer’s performance. For example, an officer with a sustained complaint and two
non-sustained in a two-year period represents a very different situation that [sic] a peer
officer with two sustained complaints and eight non-sustained complaints in the same two-

greater number of verbal discourtesy complaints are more apt to rely on higher levels of force in their
encounters with the public.” John D. McCluskey & William Terrill, Departmental and citizen complaints as
predictors of police coercion, 28-3 Policing: An Int’l J. of Police Strategies & Mgmt. 513, 519, n.3, 521, 524
(2005) (defining “coercion” as “acts that threaten or inflict physical harm on citizens” and analyzing both
internal and citizen complaints—whether substantiated or not—from 12 patrol areas in St. Petersburg, Florida
for the five years prior to the summer of 1997).
95

Walker Decl., supra n.86, at ¶ 27.

96

Samuel Walker, Geoffrey P. Alpert & Dennis J. Kenney, Early Warning Systems: Responding to the Problem
Police Officer, National Institute of Justice: Research in Brief, at 1 (July 2001),
https://www.ncjrs.gov/pdffiles1/nij/188565.pdf.

97

Walker Decl., supra n.86, at ¶ 27.

98

Walker, Alpert, & Kenney, supra n.96, at 2.

99

Id.

100

Walker Decl., supra n.86, ¶ 28.

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year period. There are reasonable grounds to suggest that the latter officer has performance
problems that the department has a responsibility to address and attempt to correct.101
Indeed, the NYPD’s EIS includes an officer’s entire complaint history—both substantiated and
unsubstantiated—among the indicators used to flag officers as at-risk and eligible for
intervention.102 The benefit of making an officer’s entire complaint history—both substantiated
and unsubstantiated—available to the public was explained by Mr. Gennaco: “Making use of force
history by officer, the results of investigations, and any information about non-disciplinary
remedial measures public will help the City’s public better understand how effectively (or not)
NYPD is addressing officers who have an outsized number of such incidents.”103
3.

Public access to unsubstantiated BPD officer misconduct cases will enhance,
not threaten, officer and public safety.

Plaintiffs’ claims of harm resulting from disclosure of full disciplinary records are
exaggerated and unfounded. As discussed above, police unions raised these same concerns about
safety before the Legislature as Section 50-a was being repealed, and the Legislature addressed
these concerns by providing for the redaction of sensitive information.104 In states like Minnesota,
Florida, and Illinois that already grant the public full access to the types of disciplinary records at

101

Walker Decl., supra n.86, ¶ 29; see also Gennaco Decl., supra n.85, ¶¶ 8–9 (“With regard to non-substantiated
cases, knowledge of an officers’ [sic] full misconduct complaint and disciplinary history is critical for purposes
of non-disciplinary remediation and intervention. For example, if an officer receives numerous complaints of
discourtesy while other officers assigned to the same precinct do not, the number of complaints provide an
important data set in and of themselves. Even if the individual cases are not sustained, the pattern suggests a
need to further consider remedial non-disciplinary intervention…. In the same way, the performance history of
officers who have numerous use of force incidents provides a potential source of insight, even if each force
usage was found to be within policy, as may be the case with allegations that are deemed ‘exonerated.’ Again,
officers who use force frequently may need additional non-disciplinary guidance and/or training on deescalation, tactical decision-making, and/or communication skills in an effort to reduce future instances.”).

102

See Resp. to Pls.’ Submissions on Department’s Resp. to Ct. Order Regarding Facilitator’s Recommendation
No. 1 at 9, Floyd et al. v. City of New York, 1:08-cv-01034-AT (S.D.N.Y. Aug. 2, 2019), ECF 729-1.

103

Gennaco Decl., supra n.85, ¶ 9.

104

See, e.g., N.Y. Senate, supra n.38, at *36–45; Assemb. A.B. 10611, 2019–2020 Legis. Sess. § 4 (N.Y. 2020).

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issue here,105 unprovoked attacks on law enforcement officers are incredibly rare.106 Indeed, Mr.
Gennaco attested that he is aware of “no case in which an officer has been subjected to actual harm
as a result of the officer’s discipline records being disclosed.”107
Contrary to Plaintiffs’ claims, allowing the public access to all records of police
misconduct, including unsubstantiated complaints, will improve the safety of both police officers
and the communities they serve. As described in Section IV.B.2 supra, if the public is aware that
an officer has received numerous complaints, they can ensure Respondents engage in oversight
that reduces the likelihood of future misconduct. As the citizens of Buffalo have repeatedly
witnessed, by the time problematic police officers like Lieutenant DeLong or Officer Tedesco
come to public attention, they have often amassed lengthy records of prior complaints.
Transparency into police misconduct is crucial to protecting public safety more broadly.
As the United States Department of Justice has observed, and recent experience underlines,
“community members’ willingness to trust the police depends on whether they believe that police
actions reflect community values and incorporate the principles of procedural justice and

105

See Minn. Stat. § 13.43(2)(a)(4) (making personnel data public, including “the existence and status of any
complaints or charges against the employee, regardless of whether the complaint or charge resulted in a
disciplinary action”); Fla. Stat. § 112.533(2)(a)–(b) (making police records public whether or not a complaint
results in disciplinary action, or when no finding has been made after 45 days); Kalven v. City of Chicago, 7
N.E.3d 741, 749 (Ill. App. Ct. 2014) (recognizing the public’s right to access complaint records as well as lists
of officers who have amassed the most misconduct complaints), overruled on other grounds by Perry v. Dep’t
of Fin. & Prof’l Regulation, 106 N.E.3d 1016 (Ill. 2018).

106

FBI, 2019 Law Enforcement Officers Killed & Assaulted: Law Enforcement Officers Feloniously Killed,
https://ucr.fbi.gov/leoka/2019/tables/table-24.xls (last visited Aug. 26, 2020) (reporting five officers killed in
unprovoked attacks in 2019).

107

Gennaco Decl., supra n.85, at ¶ 12; see also Oral Decision, supra n.3, at 16:12–17:20 (“there are numerous
states with more robust disclosure practices than New York’s have been, with no correlative uptick in violence
or threats of violence to officers and their families”) (noting lack of evidence of increased violence or threats of
violence against officers after: (1) database containing disciplinary records for more than 30,000 officers and
almost 23,000 complaints filed between 2000 and 2018 for officers from the Chicago Police Department was
made available to the public; (2) Buzzfeed News uploaded 1,800 officer disciplinary dispositions to a publicly
available online database; and (3) the Legal Aid Society made public an online database that includes data from
lawsuits against NYPD officers over several years as well as the Buzzfeed data).

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legitimacy.”108 When this trust is eroded, and the legitimacy of police is called into question, as in
the case of over-policing and unaddressed police brutality, estranged communities are less likely
to report crimes or cooperate with officers, resulting in higher rates of unsolved crime.109 As the
Partnership for Public Good has found, community confidence in the BPD is in crisis. Only 20%
of respondents believe the BPD respect people of color, and less than 28% believe the BPD
respond well to community concerns.110 As Max Anderson of amicus Open Buffalo Inc. notes,
instances of excessive force and brutality carried out by the police further the rift between law
enforcement and our citizens, and it is no coincidence that Buffalo police investigators have so
much difficulty compelling residents to come forward with information that could help to solve
crimes and get dangerous people off the street. Without transparency and accountability, policecommunity relations will continue to suffer, increasing risk for community members and police
alike.111
V.

CONCLUSION

Plaintiffs’ attempt to subvert the Legislature’s will by preventing the public from accessing
the complete disciplinary records of the officers who serve them ignores the express legislative
intent of the New York Legislature after hearing the very same arguments from police
representatives and others, fails to address the protections that exist in courts to weigh the use of
such information, and disregards the additional protections the Legislature added for police to
FOIL as it rescinded Section 50-a. As if this were not enough, the reasons advanced by Plaintiffs

108

Community Relations Services Toolkit for Policing: Importance of Police-Community Relationships and
Resources for Further Readings, supra n.69, at 1.

109

Distrust of Police Is Major Driver of US Gun Violence, Report Warns, The Guardian (Jan. 21, 2020),
https://www.theguardian.com/us-news/2020/jan/21/police-gun-violence-trust-report.

110

Collaboration, Communication and Community-Building, supra n.65, at 101, 115.

111

See SteVon Felton, Criticism and Transparency Are Good for Police Departments, R Street (Oct. 25, 2018),
https://www.rstreet.org/2018/10/25/criticism-and-transparency-are-good-for-police-departments/.

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ignore the overwhelming statistical and narrative evidence demonstrating the critical need for
disclosure of the information the BPD desperately seeks to hide. Members of the public can best
advocate for systemic reform and hold police departments accountable for change only when they
are equipped with the full picture of misconduct claims against a department regardless of the
disposition of the claims.

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Dated: August 28, 2020
New York, New York

Respectfully submitted,
/s/ Joel M. Cohen
Joel M. Cohen
Shireen Barday
Katherine M. Marquart
Elizabeth Niles
Kelly Herbert
Taonga Leslie
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166
Telephone: (212) 351-4000
Fax: (212) 351-4035
Counsel for the Center for Constitutional
Rights, Black Love Resists in the Rust, the
Buffalo Police Advisory Board, Erie County
Restorative Justice Coalition, Incarcerated
Network Nation, Inc., the National Center for
Law and Economic Justice, Open Buffalo, Inc.,
Partnership for the Public Good, the Western
New York Law Center, and the Western New
York Peace Center
/s/ A. Chinyere Ezie
A. Chinyere Ezie
Darius Charney
Brittany Thomas
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
Telephone: (212) 614-6467
Counsel for Citizen Action of New York and
thirteen concerned citizens of Buffalo
/s/ Claudia Wilner
Claudia Wilner
Britney Wilson
Edward Krugman
NATIONAL CENTER FOR LAW AND
ECONOMIC JUSTICE
275 Seventh Avenue, Suite 1506
New York, New York 10001-6860
Telephone: (212) 633-6967
Counsel for Citizen Action of New York and
thirteen concerned citizens of Buffalo

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APPENDIX A
STATEMENTS OF INTEREST OF AMICI CURIAE
Black Love Resists in the Rust (“BLRR”) is a grassroots organization led by people of
color who are advocating for a more equal, just, and free City of Buffalo. Since its inception in
2017, BLRR has worked to end discriminatory policing practices that harm people of color in
Buffalo.
BLRR routinely works on issues of police-involved killings and abuse, and has mounted
campaigns on redefining safety, abolishing the Buffalo Strike Force, participatory budgeting and
education, and releasing Erie County Jail prisoners due to COVID-19, among other issues.
BLRR has a concrete stake in this litigation because it works to support victims of police
brutality, including Wardel Davis III, Jose Hernandez-Rossy, Raphael Rivera, Marcus Neal,
William Fugate, and Quentin Suttles. These victims or their families repeatedly face roadblocks
when trying to hold the Buffalo Police Department accountable. Upholding the repeal of Section
50-a and giving the public access to police records that have long been hidden will help victims of
police brutality and the broader community that BLRR serves begin their long march to justice.
The Buffalo Police Advisory Board (“PAB”) is an independent advisory committee
created by the Buffalo Common Council to focus on policing and community-police relations in
the City of Buffalo.

The PAB engages community residents and makes research-based

recommendations to the Common Council and Buffalo Police Department about how policing
policy and community-police relationships can be improved.
Over the past three years, the PAB has issued reports and testified to the Common Council
on issues including the police body-worn camera policy, police officer performance evaluations,
community policing, officer training, the police union contract, use of force, and the creation of a

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new policing oversight model. The PAB supports the repeal of Section 50-a as a crucial step
toward increased transparency and accountability in policing practices and administration.
The Center for Constitutional Rights (“CCR”) is a national, not-for-profit legal,
educational, and advocacy organization headquartered in New York that is dedicated to protecting
and advancing rights guaranteed by the United States Constitution and international law. Founded
in 1966 to represent civil rights activists in the South, CCR has litigated numerous landmark civil
and human rights cases on behalf of individuals impacted by arbitrary and discriminatory state
policies that criminalize poverty and target communities of color. CCR is counsel in Black Love
Resists in the Rust v. City of Buffalo, et al., No. 18-00719 (W.D.N.Y. June 28, 2018), a lawsuit
challenging the Buffalo Police Department’s unconstitutional use of checkpoints and racially
discriminatory traffic stops. CCR is also lead counsel in Floyd v. City of New York, 959 F. Supp.
2d 540 (S.D.N.Y. 2013), a landmark case that successfully challenged the NYPD’s intrusive
practice of profiling Black and Latinx New Yorkers and subjecting them to stops and frisks in
violation of the Fourth and Fourteenth Amendments.
Citizen Action of New York (“Citizen Action NY”) is a grassroots membership
organization that fights for social, racial, economic, and environmental justice in pursuit of
winning a world we want, where everyone is able to reach their fullest potential. Citizen Action
NY is committed to dismantling systemic racism in Buffalo, New York and statewide, and
ensuring that police officers are accountable to the community.
Erie County Restorative Justice Coalition (“ECRJC”) is an organization that promotes
racial justice through the dissemination of restorative practices to build communities in which
people can thrive.

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ECRJC believes police accountability is essential to achieving a world in which residents
of Buffalo can feel safe and protected from state-sanctioned violence.
Incarcerated Nation Network, Inc. (“INN”) is a non-profit organization of postincarcerated leaders who work to combat mass incarceration and discriminatory policing in New
York State and nationwide.
INN’s mission is to produce a world where torture is no longer a means for correction,
where race and economics are not deciding factors within the justice system. In addition, INN
envisions a torture-free world where the human rights and dignity of all persons, including those
deprived of liberty, are respected.
The National Center for Law and Economic Justice (“NCLEJ”) advances economic
justice for low-income families, individuals, and communities across the country through impact
litigation, policy advocacy, and support for grassroots organizing. NCLEJ fights discrimination
against people of color, women, and immigrants, and works to build systems that provide
economic security and full participation in society for all. NCLEJ has worked extensively to
challenge discriminatory and abusive debt collection practices nationwide, including by filing
class action litigation, Black Love Resists in the Rust v. City of Buffalo, against the Buffalo Police
Department and the City of Buffalo.
Open Buffalo Inc. (“Open Buffalo”) is a 501(c)(3) non-profit organization dedicated to
advancing racial, economic, and ecological justice.

Open Buffalo works to build safer

neighborhoods, increase grassroots power in frontline communities, and remove barriers to civic
participation in collaboration with Buffalo residents and community-based organizations.
Open Buffalo is committed to ensuring that the Buffalo Police Department is transparent
and accountable to the community, and dismantling the system of mass incarceration. Open

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Buffalo helped compel the creation of the Buffalo Police Advisory Board, the reinstatement of the
Buffalo Common Council’s Committee on Police Oversight, and the revival of Buffalo’s
Commission on Citizens’ Rights and Community Relations. Open Buffalo also surveyed more
than 2,000 Buffalo residents about community-police relations and opportunities for
improvement/reform and published 32 recommendations on community-oriented policing that
garnered broad support within the City of Buffalo.
Partnership for the Public Good (“PPG”) is a community-based think tank with over
300 local partner organizations working to strengthen the Western New York community. PPG’s
partner organizations, which include non-profits, block clubs, churches, and businesses, are
focused on protecting the assets of the Buffalo region while addressing its challenges.
PPG works to address issues such as the concentration of poverty in Buffalo
neighborhoods affected by redlining and racial segregation, and the deep social, economic, and
health inequities that communities of color experience in Buffalo. PPG is also active in the
movement to halt discriminatory policing, traffic stops, ticketing, and excessive use of force by
law enforcement in the City of Buffalo.
The Western New York Law Center (“WNY Law Center”) is a Buffalo not-for-profit
law firm organized to advance the legal interests of the most vulnerable and marginalized members
of the communities it serves through direct representation, advocacy, and education. In the City
of Buffalo, WNY Law Center’s clients are at a greater risk for being profiled, fined, and arrested
for minor offenses, as a result many of WNY Law Center’s clients are saddled with high traffic
fines and fees which, when they cannot afford to pay, affects their ability to drive, find a job and
housing. WNY Law Center’s clients and the communities it serves hold an interest in the
transparency and accountability afforded them through the repeal of Section 50-a.

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The Western New York Peace Center (“WNY Peace Center”) is an organization that
works to achieve peace and justice in Buffalo, New York and abroad. Founded in 1967 as a chapter
of Rev. Dr. King’s Clergy and Laity Concerned, the WNY Peace Center seeks to uphold human
rights and challenge oppression, power imbalances, and systemic issues that hurt the quality of life
for all. WNY Peace Center strives for racial, gender, and economic justice, and respect for people
of all cultures.
Concerned Citizens of Buffalo. The following list of individuals are residents of the
City of Buffalo who are concerned about police accountability and whose rights will be affected
by the Court’s decision on Plaintiffs’ request for a preliminary injunction and thus they have a
vested interest in the outcome of this litigation:
●

Rev. George F. Nicholas, Senior Pastor of the Lincoln Memorial United Methodist

Church & Chairperson of the Buffalo Center for Health Equity
●

De’Jon Hall, Juris Doctorate and Member of the Buffalo Police Advisory Board

and Black Love Resists in the Rust
●

Caitlin Kahabka, Financial Advisor

●

Darryl Scott, Organizer at HALT

●

Mary Allyn, Sales Assistant

●

Rebekah Calhoun, Teacher Aide

●

Sarah Wooton, Community Researcher at Partnership for the Public Good

●

Stephanie Klaver, Family Self-Sufficiency Coordinator

●

Alexandra Dombrowski, Buffalo Resident

●

Mia Parks, Buffalo Resident

●

Alfred H. Karney, Buffalo Resident

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●

Rachael Snyder, Buffalo Resident

●

Alexandra Dombrowski, Buffalo Resident

35