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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,

Index. No.: 807664/2020

-againstBYRON W. BROWN, in his official capacity as Mayor
of the City of Buffalo; the CITY OF BUFFALO;
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.
BRIEF AMICUS CURIAE OF LAW ENFORCEMENT ACTION PARTNERSHIP

AKERMAN LLP
Attorneys for Law Enforcement
Action Partnership
520 Madison Avenue, 20th Floor
New York, New York 10022
Tel. (212) 880-3800
Fax (212) 880-8965

Dated: September 1, 2020

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Amicus curiae Law Enforcement Action Partnership (“LEAP”), by and through its
undersigned counsel, Akerman LLP, hereby submits its brief in support of the position of the
Defendants-Respondents, and of giving effect to the repeal of Section 50-a of the New York Civil
Rights Law by the New York Legislature, as follows:
I.

STATEMENT OF INTEREST OF THE AMICUS CURIAE1

Law Enforcement Action Partnership (“LEAP”) is a nonprofit organization composed of
current and former police officers, prosecutors, judges, corrections officials, and others from around
the country with law enforcement backgrounds. LEAP’s mission is to unite and mobilize the voice of
law enforcement in support of reform of the criminal justice system, with the aim of making policing
and law enforcement more effective and making communities safer. LEAP advocates for these goals
by urging that law enforcement channel its resources toward the greatest threats to public safety, by
promoting alternatives to arrest and incarceration, by addressing the root causes of crime and,
perhaps as most relevant here, by working to better the relationships between police officers and
departments and the communities they serve.
LEAP draws on the considerable experience in and knowledge of its members and associates
in all parts and stages of the law enforcement process to propose, promote, and advocate for criminal
justice, drug policy and community relations reforms that will make our communities safer and our
system fairer and more constructive—and thus more just. Founded by five police officers in 2002
with an original focus on drug policy, today LEAP’s speakers bureau numbers more than 200 current
and former criminal justice professionals2 who write, speak and advise, in the U.S. and abroad, on a
1

This brief was not authored, in whole or in part, nor was money contributed for its preparation or
submission, by any party, a party’s counsel, or any person other than the amicus curiae, its members,
or its counsel.
2
A list of speakers associated with LEAP can be found at:
https://lawenforcementactionpartnership.org/category/speakers/ (last visited August 31, 2020).

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host of related issues, including police-community relations, incarceration and its alternatives,
strategies to reduce harm and changes to drug enforcement policies.3 As examples, LEAP has:
advocated regarding Proposition 1 in Michigan, which concerned the regulated adult use of
marijuana in the state; provided support for Amendment 4 in Florida, which was aimed at restoring
the voting rights of more than one million people who have served their time for felony convictions;
spoke out in favor of Louisiana’s Amendment 2, which ended the State’s acceptance of nonunanimous juries in felony trials, a change that took a significant step in correcting disproportionate
racial impact on juries; helped defeat Measure 105 in Oregon, and thus insuring that state and local
law enforcement would not be compelled to enforce federal immigration laws and policies; and
worked to pass Initiative 940 in Washington, which will require law enforcement to receive violence
de-escalation, mental-health, and first-aid training, and will also change standards for use of deadly
force.
When LEAP has addressed these issues, it has done so as a voice for law enforcement
professionals at all levels. The deep law enforcement experience of its members and speakers allows
LEAP to weigh in with credibility and insight. Through speaking engagements, media appearances,
court and legislative testimony, and support of allied efforts LEAP has been able to reach audiences
across a wide spectrum of affiliations and beliefs, calling for more practical and ethical policies from
a public safety perspective.
Given the backgrounds and experiences of its members and speakers, and because the
improvement of police-community relations is a core concern for us, LEAP is keenly interested in,
and uniquely positioned to address, the issues raised in this case. We see as our primary
3

LEAP’s principal issues of concern include police-community relations, incarceration, drug policy,
harm reduction, and global issues. See Law Enforcement Action Partnership Press Kit, available at:
https://lawenforcementactionpartnership.org/wp-content/uploads/2018/01/2018-LEAP-Press-Kit.pdf
(last visited August 31, 2020).
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responsibility the safety of the public, police officers and the communities they serve and work in.
The issues raised in this case, including the effect of the repeal of Section 50-a of the New York Civil
Rights Law, bear directly on this concern. The parties and other amici will no doubt fully address
relevant case law on the issues raised in this case. But the Petitioners/Plaintiffs’ arguments are also
grounded in factual assertions about the realities of policing. It is those realities that LEAP hopes to
help the Court understand.
II.

INTRODUCTION

In the aftermath of the killing of George Floyd by Minneapolis police officers on Memorial
Day of 2020, the New York legislature approved, and the Governor signed, Senate Bill S8496. That
bill repealed now-former Section 50-a of the New York Civil Rights Law, which had shielded from
public view the records of investigative and disciplinary proceedings involving New York law
enforcement officers. Prior efforts to repeal Section 50-a, like other bills aimed at increasing
transparency and curbing police misconduct, had been unable to garner enough legislative support,
especially in light of persistent, significant and seemingly knee-jerk opposition from powerful police
unions.4 In the wake of George Floyd’s death, and of other regrettably similar incidents, the
groundswell of activism seen in New York and across the country, including some of the largest
protests in the country’s history, finally propelled the bill through the Legislature.5
To what should be no one’s surprise, the position of the Petitioners/Plaintiffs in this case is
the same as it has always been: a reflexive opposition to transparency where the conduct, and
misconduct, of police officers is concerned. They should not be allowed to undo those legislative
4

See Reade Levinson, Across the U.S., police contracts shield officers from scrutiny, REUTERS UK,
Jan. 13, 2017, available at https://uk.reuters.com/article/uk-usa-police-unions-specialreport/specialreport-across-the-u-s-police-contracts-shield-officers-from-scrutiny-idUKKBN14X1SO?il=0.
5

Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest
Movement
in
U.S.
History,
N.Y.
TIMES,
July
3,
2020,
available
at
https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html.
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actions and thwart the will of the New York State Legislature, its Governor, and its people on this
issue of grave public concern. Because LEAP knows the positive value of transparency in matters of
police conduct, it supports the complete repeal of Section 50-a of the New York Civil Rights Law,
which will allow the public disclosure of records relating to law enforcement officers, including
information about accusations of misconduct, investigations of complaints, and their results. LEAP’s
members know that public access to this kind of information actually promotes the goals of effective
law enforcement, including—indeed, especially—effective policing and officer safety. The
transparency fostered by the repeal of Section 50-a is necessary to effective policing because it
supports and promotes police accountability. And accountability, in turn, is the key to what LEAP’s
members know is absolutely critical to the goals of policing: trust between police officers and
departments and the citizens and communities they serve.
In short, trust is critical to effective and cooperative policing. But it is just as important to
note that the antithesis is also true: lack of trust between police officers and departments and the
communities they serve, as is seen in so many communities these days, leads both to less effective
policing and to greater risk to police officers. Where trust is absent, officers and departments are, not
surprisingly, viewed categorically with suspicion and even seen as enemies. This creates more
hazardous environments in which officers operate, and also reduces the level of cooperation between
police and citizens that is often the key to effective policing.
The complete repeal of Section 50-a achieves the goal of fostering trust between the police
and their communities, not to mention the will of the elected representatives of the people of New
York. In an effort to undo those actions, Petitioners/Plaintiffs advocate for judge-made limitations on
the disclosure of law enforcement officers’ disciplinary records. They do so in part by arguing,
among other things, that the release of these records would invade the officers’ privacy and create

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greater risks to their safety – specifically, Petitioners/Plaintiffs assert that the release of information
concerning matters that are “non-final, unsubstantiated, unfounded, not sustained, resulting in a
finding of exoneration, or that otherwise resulted in a finding of ‘not guilty’” (Pet’rs’ Mem. Law at 9)
would result in those officers being “targeted, harassed, threatened, harmed, or attacked.” (Id. at 10).
Some of these arguments fail on their face; for example, the claims regarding officer privacy fail to
account for the fact that Section 3 of Senate Bill S8496 requires a law enforcement agency
responding to a request for law enforcement disciplinary records to redact specific categories of
personal information from the record before disclosing the record, and allows the agency to redact
portions of the record that only contain “minor, technical infractions that do not involve interactions
with the public, are not of public concern, and are not connected to the officer’s investigative,
enforcement, training, supervision, or reporting responsibilities.” Further, Section 4 provides the
specific types of personal information that must be redacted from a law enforcement agency’s
response to a request for disciplinary records. Other of these arguments – for example, that officers
will be threatened, harmed, or attacked – simply are factually unfounded, as LEAP knows from the
long experience of its members and speakers. Indeed, as we will explain, the very opposite is true.
III.

The Complete Repeal of Section 50-a of the New York Civil Rights Law Should be
Given Effect

1. Transparency Furthers Officer Safety, And Lack Of Transparency Places Their Safety At
Greater Risk.
On June 12, 2020, responding to the calls from the community locally and abroad, the New
York State Legislature and the Governor repealed Section 50-a. Where prior efforts to increase
transparency had failed over the years this one succeeded, no doubt in part as a result of an increased
level of awareness of issues raised by the use of force, and especially deadly force, by police officers

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in recent months. Despite the significant support that ultimately arose for this measure,6 the
Petitioners/Plaintiffs would thwart the legislative will to increase transparency and accountability by
law enforcement officers, as well as the soaring public sentiment behind it, by asking this Court to
bar the disclosure of substantial categories of disciplinary records. Specifically, Petitioners/Plaintiffs
seek the temporary, preliminary, and permanent injunction of the disclosure of law enforcement
officers’ records concerning disciplinary matters that are “non-final, unsubstantiated, unfounded,
exonerated, or resulted in a finding of not guilty,” (“Unsubstantiated and Non-Final Allegations”) or
that regard confidential settlement agreements entered into prior to June 12, 2020. (Verified Pet.,
Wherefore Clause; Mem. Law at 9). Their stated concern is that the disclosure of such information
will “serve to destroy the reputation and privacy (and imperil the safety) of many of those police
officers and firefighters, as well as their families.” Verified Pet. ¶ 2 (emphasis added).
LEAP has heard the claim that transparency puts officers in greater danger before, and in the
past this claim has often been accepted. But it is wrong, for two overarching reasons: because release
of these records will not increase (and can actually reduce) risks to officers, while the continued
suppression of these records will increase them.
a. Transparency Will Not Place Police Officers At Greater Risk.
The safety of law enforcement officers is not inappropriately, improperly, or unreasonably
impacted by the repeal of Section 50-a. Concerns about public disclosure of officers’ identifying
information are understandable, but are unfounded in this instance. This is in part true because the
authors of Senate Bill S8496 anticipated and addressed these concerns by requiring, in the same bill,
the redaction of such information from released records. In addition, New York law provides other

6

See Jake Bittle, The state legislature may repeal 50-a. Here’s what that means., QUEENS DAILY
EAGLE (June 4, 2020), https://queenseagle.com/all/50a-repeal-new-york-police-records-queens
(listing supporters of the repeal measure).
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legal protections, unaffected by the repeal of Section 50-a, that will protect the officers’ privacy and
safety. See Dunnigan v. Waverly Police Dep’t, 279 A.D.2d 833, 834, 719 N.Y.S.2d 399, 400 (2001)
(“Under Public Officers Law § 87(2)(a), an agency may deny access to public records which ‘are
specifically exempted from disclosure by state or federal statute’.”).
The Petitioners/Plaintiffs’ assertions that officer safety is placed at greater risk by public
disclosure of disciplinary records are unsupported by empirical data, and what data there is seems to
suggest the opposite.7 While privacy, generally and as relates to officer safety, is certainly a valid and
important concern, it is one for which protective measures are in place, and there is no evidence that
they do not work. Perhaps more to the point, though, the truth, as LEAP’s members and speakers
have learned through experience, is just the opposite of what the Petitioners/Plaintiffs claim. Because
shielding these records from public view has long promoted distrust between police and
communities, that very lack of transparency has put officers in greater danger, and will continue to do
so if the Petitioners/Plaintiffs have their way.
Petitioners/Plaintiffs argue that “this harm [retaliation for unproven wrongs] is not
speculative,” and cites to an article about the murder of New York City Police Officer Miosotis
Familia. (Pet’rs’ Mem. Law at 27-28). Rather than support Petitioners/Plaintiffs’ position, though,
the circumstances around Officer Familia’s death undercut it. As the article notes in its opening
paragraphs, Officer Familia “had earned a reputation as ‘a good policewoman’ in the short time she

7

Stephanie Wykstra, The fight for transparency in police misconduct, explained: New York’s repeal
of section 50-a — which allowed police to shield misconduct records — is a big win for activists, but
there is more work to be done., VOX (Jun 16, 2020, 7:30am EDT),
https://www.vox.com/2020/6/16/21291595/new-york-section-50-a-police-misconduct
(“But
advocates and researchers point out that there’s no evidence that disclosing records will lead to
physical harm against officers. In a recent survey of 344 police and sheriff offices in the 12 most
transparent states, legal scholars Rachel Moran and Jessica Hodge saw scant evidence of physical
harm to officers. As one criminologist put it, there’s a ‘total lack of data’ when it comes to the claim
that officers will be harmed as a result of disclosures.).
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was assigned to an R.V.-style police command post. . .” Benjamin Mueller & Al Baker, Police
Officer Is ‘Murdered for Her Uniform’ in the Bronx, N.Y. TIMES, July 5, 2017, available at
https://www.nytimes.com/2017/07/05/nyregion/nypd-bronx-police-shooting.html.

The

article

continues:
But long before [Officer Familia] arrived, a hostility toward law enforcement
personnel was building in Alexander Bonds, who had been in and out of prisons and
jails for 15 years and was slipping into severe mental illness. Last year he warned in a
Facebook video that he would not back down if he encountered police officers on the
streets: “I got broken ribs for a reason, son. We gonna shake.”
…
About three hours later, with Fourth of July fireworks still going off, Mr. Bonds
strode up to Officer Familia’s command post and fired a .38-caliber revolver through
a window, killing her with a bullet to the head. She was the first female New York
Police Department officer killed in the line of duty since the Sept. 11 attacks, and
only the third female officer killed in a combat-type encounter in the department’s
history.
Id. Accordingly Officer Familia was not killed as “retaliation for unproven wrongs,” or indeed for
anything about her; rather, she was killed by a mentally ill person who had a growing hostility and
mistrust of law enforcement in general. Mental illness aside, though, that general distrust of police
officers is exactly why the transparency that would be served by the release of these record is so
important. As LEAP explains below, law enforcement must build trust with its communities through
transparency and accountability. Officer Familia was at risk, and ultimately lost her life, because of
the mistrust in police that lack of transparency fosters. It is that lack of trust, not the release of
anyone’s disciplinary history, that places law enforcement officers’ safety at greater risk.
b. Shielding disciplinary records actually puts officers in peril.
The lack of transparency in police disciplinary matters in New York under Section 50-a has
made law enforcement officers’ jobs harder and less safe because it has fostered a lack of trust.
LEAP’s members and speakers, and especially those who have served as police officers or

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administrators, know this firsthand. Trust between officers and citizens, between police departments
and communities, is so critical to all the goals of effective policing—including officer safety—that its
importance is nearly impossible to overstate. Where there is trust, where police officers are seen as
protectors and not adversaries, officers are less threatened because there is less hostility to police
officers and police departments. “Trust-building is not an optional, feel-good extracurricular activity
for police, it is a core responsibility with a direct link to public safety.” Brendan Cox, Commentary:
Open misconduct records to improve public trust in police, TIMES UNION (Jan. 3, 2020), available at:
https://www.timesunion.com/opinion/article/Commentary-Open-misconduct-records-to-improve14948648.php. Experience tells us that where individuals and communities trust police officers and
departments to act fairly and responsibly, and to be straight up with them about what they do, the
police are seen as less threatening and more protective, whether on a block, in a neighborhood, or in
a city, county or State as a whole. And communities that feel less threatened are also less threatening.
Officers who operate in communities where there is trust between citizens and the police simply face
less risks.
Trust does not just arise, though; it must be earned. And where police officers and
departments are concerned, the route to trust is to a great extent through accountability. LEAP’s
members and speakers know that where officers and departments are seen as accountable, as
answerable for errors and for misconduct when they occur, they are simply trusted more. To some
degree this is just human nature. When an incident involving the use of force by police occurs, and
especially (though by no means exclusively) when someone’s life is lost, it is not reasonable to
expect communities to react to monolithic silence in any way other than to be distrustful. But even
where misconduct does occur police can build trust by being transparent about it, by making the

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community feel that they share their concern for respect for the law and that the police, like citizens
themselves, are accountable for their actions.
Moreover, Section 50-a, when it was in force, encouraged false narratives that themselves
increased risks to officer safety. This, again, is human nature: when an accusation is greeted by
silence, people naturally assume the worst. Lack of transparency on incidents involving use of force
encourages false narratives by suggesting, wrongly, that the police are always hiding something bad
or misrepresenting the facts. In truth, many incidents of use of force by police are justified, and
many of the records the Petitioners/Plaintiffs would shield from view would demonstrate this. But
Section 50-a shielded all records from view, virtually inviting citizens and communities to come to
the worst conclusion every time. In this respect it is ironic that the Petitioners/Plaintiffs assert, as
grounds for less transparency, that one reason to keep records of misconduct claims private is that
accusations against police officers are easy to make. See, e.g., Pet. ¶¶ 29. This argument insults the
intelligence of the communities that police officers serve. If the police do not have enough faith in
the people they serve and protect to expect them to be able to evaluate the results of investigations
fairly, why would those communities in turn have any faith in the police? And why would telling
people nothing work better to foster trust?
The police work for the communities that they serve. Shielding the disciplinary records of
officers, including the Unsubstantiated and Non-Final Allegations, does a disservice to the law
enforcement community because “what 50-a actually does is lump the honest, hard-working police
officers in with those officers who have betrayed the public trust by allowing their misconduct to be
shielded by outdated legislation.” Brendan Cox, Commentary, supra.
Communities know that law enforcement officers, when effective, protect them, and they
also understand that officers are human, and that mistakes, and even intentional misconduct, will

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happen. Officers and departments should be able to explain how and why something went wrong,
and when they do not, their silence will be perceived as an inability to do so that is a reason not to
trust officers generally. Conversely, when the community sees that their police will be open about
such incidents, even when an officer has made a mistake (or worse), they will become more open to
communicating with officers and developing constructive relationships with officers and police
departments. We do an injustice not only to the community, but to police officers themselves, by
shielding from everyone the results of these inquiries. And that lack of transparency breeds hostility,
which places officers in more, not less, danger.
2. Transparency is Critical to Effective and Safe Policing.
Trust between the police and their communities not only makes police officers safer; it also
makes them better at their jobs. When there is a lack of police accountability, which is how silence
about police misconduct claims is inevitably perceived, law enforcement officers lose legitimacy in
the eyes of those we serve.8 Another result of this loss of trust is a substantial reduction in policecommunity engagement that is an important part of any sensible policing strategy. “To prevent and
solve crime, police need community members to cooperate and provide information about what they
have witnessed. Folks will only cooperate if they trust us.” Id. Where trust is absent, though, the
chances of such cooperation are substantially diminished.
Our experience tells us that this is true on both a macro and micro level. Records of the
investigations of police incidents contain information that advocates on behalf of public safety and
8

See, e.g., Kim Bellware, et al., In Kenosha, Jacob Blake’s shooting deepens longstanding
resentments
and
fears,
WASH.
POST,
Aug.
28,
2020,
available
at
https://www.washingtonpost.com/national/jacob-blake-is-no-longer-handcuffed-in-wisconsinhospital-attorney-says/2020/08/28/3b188454-e953-11ea-bc79-834454439a44_story.html
(“Kenosha needed body cameras to make the work of its police department transparent. It needed
a system for communicating effectively with the public to head off damaging rumors. And,
especially after 2014 riots consumed Ferguson, Mo. — another modest Midwestern city cleaved
by race — it needed to build trust within an African American community where resentment and
suspicion of police ran rampant.”).
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communities alike need in order to hold public safety officers accountable to the communities they serve.
The State Committee on Open Government has stated that Section 50-a “creates a legal shield that
prohibits disclosure, even when it is known that misconduct has occurred.” Memorandum in Support of
Legislation Submitted in Accordance with Assembly Rule III, Sec 1(f), Bill Number: A2513, available at
https://assembly.state.ny.us/leg/?default_fld=&leg_video=&bn=A02513&term=2019&Summary=Y&M
emo=Y. Through the disclosure of these records, the public obtains information not only about past
complaints and disciplinary records, but also about who the officers are that are policing their
communities. Moreover, and even beyond what public disclosure may say about a particular officer, a
climate of transparency helps the community view the police in general as a partner in public safety. By
contrast, lack of transparency encourages communities to view the police as monolithic and unwilling to
subject themselves to review, which (as noted) fosters distrust.
Among our number LEAP is proud to count many who have helped to administer police
stations, districts and departments. We know that police departments and their managers have a
responsibility to their officers to do everything they can, and give them every tool available, to make
their work safer and more effective. In addition to promoting safety, trust is also an important tool in
furthering these goals. Thus, while the view that these records should be publicly available may seem
counterintuitive coming from law enforcement officers, and indeed it is not a view many in the law
enforcement community, including many of us at LEAP, would have taken some years ago, time and
experience have changed our view. Increased transparency actually furthers the goal of safe and
effective policing. This is what we have heard from communities we serve as we have tried, in
various ways, to build trust with them after excessive use of force incidents. Silence in the wake of an
incident involving use of force harmed our relationships with these communities, and this is true
whether or not there were indications of fault on the part of officers.

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The restoration and nurturing of that trust has long been a goal of LEAP, and that goal has
never been more important than in these difficult times. For that reason, LEAP recently made
increased transparency with regard to issues of police misconduct and increased accountability for
police officers for use of deadly force the first items in its National Policing Recommendations,
released on June 3, 2020 and available at:
https://lawenforcementactionpartnership.org/national-policing-recommendations/.
CONCLUSION
For the reasons expressed in this brief, LEAP respectfully urges the Court to deny the
Petitioners’ request for a temporary, preliminary, and permanent injunction against the disclosure of
law enforcement officers’ records, and to permit the repeal of Section 50-a of the New York Civil
Rights Law by the New York Legislature to take effect. Doing so will be good for both police
officers and the citizens and communities they serve.
Dated: New York, New York
September 1, 2020

Respectfully submitted,
AKERMAN LLP
/s/ Brian S. Fraser
Brian S. Fraser
520 Madison Avenue, 20th Floor
New York, New York 10103
Telephone: (212) 259-6472
Email: brian.fraser@akerman.com
Joel D. Bertocchi (pro hac vice application pending)
71 South Wacker Drive, 47th Floor
Chicago, IL 60606
Tel: (312) 870-8026
Facsimile: (312) 424-1900
Email: joel.bertocchi@akerman.com
Enjoliqué Aytch Lett (pro hac vice application
pending)

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Fla. Bar No. 0104881
Las Olas Centre II, Suite 1600
350 East Las Olas Boulevard
Fort Lauderdale, FL 33301-2229
Telephone: (954) 463-2700
Facsimile: (954) 463-2224
Email: enjolique.aytch@akerman.com
Attorneys for Law Enforcement Action Partnership

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CERTIFICATE OF SERVICE
I, Brian S. Fraser, certify that on September 1, 2020, a true and correct copy of the foregoing
document was filed through the NYSCEF system, which caused notice to be sent to all counsel of
record.

/s/ Brian S. Fraser

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