Revision of A controversial statute is being misused to keep the public in the dark from Thu, 09/05/2019 - 17:29

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On May 23, a 24-year-old woman was killed when her car rolled over after she fled from police who tried to stop her.

Eniyah Simmons of Albany had been arrested several times before for larceny. Her mother told us that Eniyah came home from the hospital on May 22 after delivering her baby prematurely; her second day home, she stayed in an SUV in the Crossgates Mall parking lot with a friend while another man went in and took a baby stroller, then joined them in the sport utility vehicle.

We certainly don’t condone shoplifting but neither do we think a death sentence is appropriate punishment.

We have no way of knowing if police did anything wrong. At the time of the crash, our Guilderland reporter, Eliabeth Floyd Mair, reported as much as police would tell her:

Just after 4 p.m. on Thursday, May 23, Guilderland Police were investigating a larceny complaint at Burlington Coat Factory in Crossgates Mall when store security gave a description of the suspect and a vehicle. A Guilderland Police officer then saw the suspect’s sport utility vehicle driving near the new hotels on the Crossgates Mall ring road.

The driver, Simmons, disregarded the officer’s attempt to stop her and sped away onto the Northway, said Guilderland Police Deputy Chief Curtis Cox, noting that the SUV made it onto the ramp for Exit 1E “long before” the Guilderland officer was able to catch up with her there. By the time the Guilderland officer reached the exit ramp, the SUV had already crashed, Cox said. Two injured passengers were hospitalized.

Soon after writing the story, Floyd Mair submitted a Freedom of Information Law request to obtain the video, if any, taken by the dashboard camera of the police car in pursuit. Looking at the video might be a way of finding out how fast the patrol car was going and also if the officer — police would not release the officer’s name — followed the department’s policy on car chases.

“Vehicle pursuit is one of the most dangerous duties a police officer must perform,” the Guilderland Police policy states.

We agree, and we commend the department for having such a policy, which continues: “When a decision to pursue is made, the safety of all concerned must be considered. The seriousness of the offense must be weighed against the hazards of the health and welfare of citizens who might be affected by the chase. During the pursuit, continuous balancing of the seriousness versus safety is mandatory.”

The policy also states that the department expects an officer, or his or her supervisor, to stop a pursuit whenever the risks to the safety of the officers or citizens outweigh the danger to the community if the offender is not caught.

Certainly a shoplifting charge would not be worth risking lives. But perhaps the officer in pursuit did nothing wrong. Perhaps the officer drove sensibly and Simmons herself was on what amounted to a suicide mission.

Seeing the video could help determine what happened.

Public safety and police actions are matters of public concern. Hence, The Enterprise sought access to the video.

The request was denied by Guilderland Police Chief Carol Lawlor “because camera footage is considered part of an officer’s personnel file pursuant to section 50a of the NYS Civil Rights Law.” 

Section 50-a of the state’s Civil Rights Law applies to “all personnel records used to evaluate performance toward continued employment or promotion” for a “police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections.” Such “personnel records” cannot be released without the officer’s permission or a judge’s ruling.

Enacted in 1976, the statute was meant to protect police serving as witnesses for the prosecution in criminal trials so that defense attorneys couldn’t access the officer’s records for use during cross-examination.

But over the years, it is not just performance reviews that have been shielded by the law but also investigations into misconduct as well as informational items like the requested chase video.

Taxpayers locally and across the nation have paid for dash cams on patrol cars and body cameras on officers. One of the reasons given for these expenditures is to make police accountable to the public, as they should be. Police officers have great power over the lives of ordinary citizens. They should welcome the chance to have their work reviewed. This is a good way to build trust between police and the public they serve.

When the City of New York Police Department would not release the personnel files of the officer who choked Eric Garner to death in 2014, the movement to reform 50-a gained momentum. Across the nation, criminal justice activists have highlighted not just individual police officer’s acts of violence but also their departments’ penchant to overlook or cover up problems.

Last month, NYPD Commissioner James O’Neill sided with the departmental trial judge who recommended firing Daniel Pantaleo, the officer accused of using a banned chokehold on Garner.

Earlier, O’Neill had formed a panel that found “almost a complete lack of transparency and public accountability” in the NYPD’s disciplinary system. He and the city’s mayor, Bill de Blasio, called for changes to the 50-a statue.

“I believe in transparency,” O’Neill said in a statement. “I also believe that making information about disciplinary proceedings public will help build trust in the community.”

Several bills have recently been proposed in the state legislature to increase transparency, but none have yet been passed. One bill in the State Senate would limit the 50-a exemption to its original intent, covering records related just to officer performance evaluations and promotions. Another bill in the State Assembly would maintain the current law but allow civilian review boards to seek release of specific records. Finally, two companion bills — one in the State Senate and another in the State Assembly — would repeal Section 50-a altogether.

Until our legislators adopt the needed reform, and our governor backs it, the public will be in the dark about the performance of the very people hired to protect them.

Meanwhile, we count on our local police departments to do the right thing.

Floyd Mair has filed an appeal to her denied FOIL request. While police unions have argued that Section 50-a is needed to protect officers — and we can understand the validity of this if the information requested would allow criminals to access personal information that could be used to harm an officer or an officer’s family — answering a request like ours would in no way endanger an officer.

The public deserves to know what happened during the May 23 chase that ended in Eniyah Simmons’s death. As we noted at the outset, the video may well clear up any doubt that the officer’s behavior caused her death. It may well show that he followed his department’s policy.

The decision rests now in the hands of Guilderland’s town attorney, James Melita. That, in itself, is a flaw in the system, since Melita, as the town attorney, may well have been the person the town’s police chief turned to for legal advice in denying the FOIL request in the first place.

We hope Melita has the good sense to see the wisdom of transparency. It would, of course, be easy just to use the same reason for denial the police chief used, citing Section 50-A, but no civil rights are being protected here. The harder and better course would be to put the public first. And let the truth shine bright.

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