Appeals Court Rejects New York Police Unions' Attempt To Block Disclosure Of Disciplinary Records

from the your-definitions-of-'irreparable'-and-'harm'-suck-equally dept

A bunch of New York City law enforcement unions have been suing to block the side effects of the repeal of 50-a, an ordinance passed in 1976 that exempted police departments and other agencies (like fire departments) from disclosing information about misconduct to the public.

For more than 40 years, the bad law remained in place. It took nationwide anger of the killing of another black man by a white cop to get it taken off the books. In response, a bunch of unions presiding over the New York City's police and fire departments lawyered up, hoping to continue withholding this information.

The legal battle has reached the Second Circuit Court of Appeals. And the Appeals Court doesn't find the plaintiffs' assertions about "irreparable harm" credible. The unions claim the repeal of 50-a (and the consequent release of disciplinary records) violates agreements they have with the city -- one that says findings in favor of officers/employees will be removed from employees' disciplinary records.

The Appeals Court [PDF] points out that the unions can't just decide the public employees they represent don't have to follow the law.

[T]o the extent that this claim implicates records that must be disclosed under FOIL, the NYPD cannot bargain away its disclosure obligations.

The Appeals Court affirms everything the district court already told the unions. "Irreparable harm" is not only not foreseeable, it's not even remotely credible.

The Unions assert that law enforcement officers will have fewer employment opportunities in the future if records of the allegations against them that prove to be unfounded or unsubstantiated are disclosed, even though each record will reveal the outcome of the investigation. But the District Court noted that future employers were unlikely to be misled by conduct records that contained “dispositional designations” specifying that allegations of misconduct were unsubstantiated, unfounded, or that the accused officer was exonerated. As the District Court also noted, despite evidence that numerous other States make similar records available to the public, the Unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities.

No harm foreseeable there. Unfortunately, that sort of means employers like the NYPD aren't all that selective in their hiring processes. Multiple allegations -- even if they ultimately resulted in exoneration -- should be a red flag. And the NYPD should definitely know this because its internal review process clears bad cops all the time, ensuring they can continue to engage in misconduct without fear of reprisal.

The same goes for the equally wild claim that disclosing these records will result in physical harm to officers.

We also address the Union’s more general assertion of heightened danger and safety risks to police officers. We fully and unequivocally respect the dangers and risks police officers face every day. But we cannot say that the District Court abused its discretion when it determined that the Unions have not sufficiently demonstrated that those dangers and risks are likely to increase because of the City’s planned disclosures. In arriving at that conclusion, we note again that many other States make similar misconduct records at least partially available to the public without any evidence of a resulting increase of danger to police officers.

The unions' argument only makes sense if they are asserting that New York City residents are far more prone to acts of violence targeting law enforcement officers following the release of public records than people living elsewhere in the company. And if that's the argument, it hasn't been preserved for appeal so...

The Appeals Court hands out even more rejection along state law lines. Simply asserting "diminished" employment opportunities on the presupposition of "damaged reputations" is not enough to engage state constitutional protections. There's also nothing in the unions' equal protection assertions since (despite the best efforts of a bunch of idiotic legislators at both state and federal levels) police officers and first responders are not a protected class.

Everything the unions argued is "without merit." That's the final call. (Note: It may not be the final call. But this doesn't look like the sort of the thing the Supreme Court is interested in entertaining.) 50-a is gone. The records can be made public. And if cops think it will hurt them to hand over records showing they've been exonerated will result in harm to themselves and their careers, they're not going to find any sympathy from the courts, much less the general public they've been hiding records from for years.

Filed Under: appeals court, disciplinary records, foia, foil, new york, nypd, public records, transparency

Court Tosses Devin Nunes' Silly SLAPP Lawsuit Against CNN

from the finally dept

As you may recall, Rep. Devin Nunes has spent the last few years suing all sorts of critics and journalists, in a vexatious bout of abusing the courts to try to stifle criticism. Most famously, Nunes sued a satirical cow on Twitter (that case is still ongoing). But in December of 2019 he sued CNN. As we noted at the time -- despite a weird column by a media critic at the Washington Post saying that this case was "halfway decent" -- the case seemed like the dumbest Nunes' suit we'd seen so far.

The filing was more performative nonsense, which seemed much more focused on spewing utter rubbish rather than making real defamation arguments. For example, a key part of the defamation claim involved statements on CNN about Nunes' contacts with Lev Parnas, the former Rudy Giuliani henchman who was arrested as part of a plot to get information from Ukraine to embarrass Joe Biden. Nunes' lawsuit argued that CNN defamed him... by getting the date wrong as to when Nunes and Parnas communicated. But... even if the date is wrong, that's not defamation. The case, like most other Nunes' cases, was filed in state court in Virginia, but thankfully, it was kicked up to federal court in NY. Bizarrely, Nunes went on TV claiming that CNN would be so scared to face him in court that the company likely wouldn't show up, talking tough on Fox News about how he was going to have to "track them down" to "hold them accountable." In fact, Nunes' "bet" Sean Hannity that CNN would "run" from this lawsuit and "not show up in court."

I don't think Hannity "took" the bet, but he would have won. CNN went to court and has now won the case. Easily. Let's just say Judge Laura Taylor Swain is not impressed by Nunes and whatever nonsense his lawyer, Steven Biss, presented to the court. Much of the opinion focuses on "choice of law" issues -- i.e., which state's defamation laws are at play here. There are four choices: Virginia, Washington DC, New York, or California. Nunes, basically wanted to apply any law except California's. You might think that's odd, because he (theoretically, at least) "lives" in California. He represents a district in California, and if any "damage" were actually done to his political chances, that damage would be done in California. But Nunes does not like the defamation laws of his own state -- in part because California requires that before you sue someone for defamation you first ask them to retract what they've written.

The judge notes that Nunes made the choice to file this case in Virginia, and it appears that his lawyer, Steven Biss, is so bad at this that he didn't even understand how Virginia's choice of law principles work -- because they make it pretty damn clear, that the proper state's laws to use are... California's.

Nunes makes two arguments against the application of California law, and in support of the application of either New York or Virginia law. In his supplemental briefing, Plaintiff argues that New York law should apply because CNN has a substantial presence there and Ward and Cuomo, who are generally located in New York, were present there when the statements were made. (See docket entry no. 43 at 5-6.) As a result, Plaintiff argues, the allegedly defamatory statements should be deemed to have been published exclusively in New York. As explained above, however, Virginia’s choice of law rules govern and, in Virginia and other lex loci jurisdictions, the place of publication is normally the location where statements are heard and understood. See Katz, 332 F. Supp. 2d at 915. In a multistate, mass media defamation case, it is impractical to determine that specific location; lex loci jurisdictions typically look in multistate circumstances to the place where the plaintiff suffers the most harm, which is usually held to be the state in which the plaintiff is domiciled, presumably based on an assumption that the information would be of most interest to third parties in that state and would be opened and read by a substantial number of persons there. Accordingly, the governing choice of law rule does not contemplate the application of New York state law based on the location of the reporters and the news organization.

In response to the argument that the laws that should be used are where the plaintiff suffered "the most harm" Nunes tried to argue that the real harm was in Virginia (?!?) or DC, not his "home" state of California. That's kinda telling:

Plaintiff further argues that, if the Court were to look to the place where he suffered the greatest injury, the laws of either Virginia or the District of Columbia should apply because that is where he performs his role overseeing the activities of the Intelligence Community.

But the judge basically says "lol, no."

Nunes does not proffer any additional facts that support his conclusory statement that he suffered substantial injury in either Virginia or District of Columbia, much less a greater injury there than in the home state that sends him to Congress as the representative of his district. His Amended Complaint alleges that he is a citizen of California and details his long family ties with, and extensive political service in and for, the state of California and its citizens.

Having considered persuasive authority and the legal and practical considerations underpinning Virginia’s application of the lex loci doctrine, the Court concludes that the Virginia Supreme Court would likely “follow the lead of other lex loci jurisdictions and pinpoint the place of greatest harm in this multistate libel case in the district where the plaintiff was domiciled, absent strong countervailing circumstances.” Hatfill v. Foster, 415 F. Supp. 2d at 365. Plaintiff has not alleged any facts or “strong countervailing circumstances” that militate against finding that Nunes was injured primarily in California, the state of his domicile, and where he stands for election. He has proffered no facts from which the Court could find that there are extraordinary circumstances indicating that he suffered greater harm, i.e., that the allegedly defamatory material garnered greater third-party attention in a single jurisdiction other than his home state. Accordingly, the Court finds that California law governs Plaintiff’s claims.

And, so, California defamation laws apply, and California's laws require you to first ask for a retraction. Nunes tries to argue around that... but not very successfully.

Plaintiff advances four arguments against the application of the retraction statute to his defamation claims. First, he contends that the retraction statute does not apply to the article and television news program at issue because the statute on its face is limited to “daily or weekly news publications [and] radio broadcasts.” (Opp. at 6.) This argument is contrary to the plain language of the retraction statute, which specifically defines “‘[d]aily or weekly news publication’ [to] mean[] a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”.... Given that CNN publishes multiple times a day and published the article in question in electronic form, this argument against the statute’s application is without merit.

Next, Plaintiff argues that the retraction statute does not apply to claims of defamation per se.... In support of his argument against the application of the statute to Plaintiff’s claims, Plaintiff cites inapposite cases that do not involve the retraction statute. See Todd v. Lovecruft, No. 19-CV-01751-DMR, 2020 WL 60199, at *20 (N.D. Cal. Jan. 6, 2020) (holding, in case involving application of anti-SLAPP statute to allegations of sexual misconduct, that common law elements of defamation cause of action did not require plaintiff to plead special damages for claim of defamation per se); Clark v. Hidden Valley Lake Ass’n, No. 16-CV-02009-SI, 2018 WL 3069285 (N.D. Cal. Apr. 18, 2018) (upholding damages verdict despite lack of proof of actual damages, where plaintiff had prevailed on claims of defamation per se). Neither of these cases involved news media publication of the allegedly defamatory material, nor did any of the authority Plaintiff cited in this connection construe the retraction statute.

The retraction statute expressly applies to “any action for damages for the publication of a libel in a daily or weekly news publication,” providing that “plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast,” and does not distinguish or exempt claims of defamation per se....

[....]

Finally, Plaintiff argues that the retraction statute is inapplicable because it violates Virginia’s public policy by “impos[ing] an added statutory requirement in defamation cases that has never been adopted by the Virginia General Assembly.” (Opp. at 8.) Plaintiff offers nothing more to support this assertion, and does not even specify the public policy that he believes would be violated by the application of California law. A mere difference between the respective defamation laws of Virginia and California “does not, ipso facto, justify refusal to adhere to comity principles.”

And thus, the court finds that Nunes failed to follow California defamation law and first demand a retraction. That means he can only plead special damages. "Special damages" are, basically "actual" damages -- a direct monetary loss that the plaintiff can attribute to the defendant's actions. And, guess what? Steven Biss's lawsuits didn't quite have that (because there were no actual damages):

Plaintiff’s AC fails to meet the minimum pleading requirements for special damages established by Rule 9(g). Plaintiff’s original Complaint, filed on December 3, 2019, made no mention of special damages at all.... CNN moved to dismiss the Complaint on substantially the same grounds as those presented in this Motion, thus alerting Plaintiff to CNN’s arguments and to a potentially critical deficiency in the Complaint. (See docket entry no. 15.) Thereafter, Plaintiff amended his Complaint to claim he has “suffered presumed damages and actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $435,000,000, or such greater amount as is determined by the Jury.”

While the AC uses the phrase “special damages,” refers to “out of pocket expenses,” and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim. A general “monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages.” Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *10 (S.D.N.Y. Mar. 30, 2012). Nor do such general allegations explain what the damages comprise or how they are calculated, denying both Defendant and the Court information as to the substance of the complaint. See Barrett v. U.S. Banknote Corp., No. 91 CIV. 7420 (RPP), 1992 WL 232055, at *8 (S.D.N.Y. Sept. 2, 1992) (holding that special damages allegation that proffered neither a specific damages figure nor a method of computing the damages was insufficient). In short, “[d]amage claims of this generality do not constitute adequate pleading of special damages[,]” id., and “without an allegation of special damages, the [AC] does not allege a legally sufficient cause of action [for defamation] under California law.” King v. Am. Broad. Companies, Inc., No. 97 CIV. 4963 (TPG), 1998 WL 665141, at *4 (S.D.N.Y. Sept. 28, 1998) (dismissing Plaintiff’s defamation claims where he failed to both comply with the California retraction statute and allege special damages in the complaint).

Oops.

And, then, of course, there was the utter nonsense of the "conspiracy" claim. Nunes' complaint basically tried to argue that CNN was out to get him, and that's not how any of this works.

Finally, the Defendant argues that Plaintiff’s conspiracy claims must also be dismissed because the AC fails to plead facts sufficient to allege plausibly that CNN engaged in a conspiracy to defame and injure Nunes. Under California law, conspiracy “[s]tanding alone [ ] does no harm and engenders no tort liability.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994). A conspiracy “must be activated by the commission of an actual tort,” and a “bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement.” Id. (internal quotation marks omitted). Specifically, in defamation cases, “plaintiffs have not been allowed to circumvent the statutory limitation[s],” such as those imposed by the retraction statute, by “proceeding on a theory other than defamation.” Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97, 101 (Cal. 1986). In light of Plaintiff’s failure to plead a viable defamation claim, there is no underlying tort to support a viable claim for conspiracy here.

I'm not entirely sure why CNN didn't also move to make use of California's anti-SLAPP law, since they were able to get California's defamation law applied to the case -- because that might have put Nunes in the position of having to pay for CNN's legal fees. But, either way, it's another big (but totally expected) loss for Nunes in his SLAPP crusade.

And... we still don't know who's paying for all of these lawsuits.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, free speech, new york, slapp, steven biss, virginia
Companies: cnn

New York Schools Putting Students In The Crosshairs Of Tech That Targets Minorities, Thinks Broom Handles Are Guns

from the if-at-first-you-don't-succeed,-victimize-minors-again dept

We're turning over discipline of school kids to cops and their tech and it's just making existing problems even worse. We've seen the problems inherent in facial recognition tech. And it's not just us -- this so-called leftist rag (according to our anonymous critics). It's also the National Institute of Standards and Technology (NIST). Its study of 189 facial recognition algorithms uncovered why most legislators seem unworried about the surveillance creep:

Middle-aged white men generally benefited from the highest accuracy rates.

When systems pose no risk to you personally, it's unlikely you'll object to rollouts of unproven AI and questionable tech. If it only hurts people who aren't you or your voter base, any incremental increase in law enforcement "effectiveness" is viewed as an acceptable tradeoff.

Destroying the lives of minorities has never been a major legislative concern. But if we all agree children are our future, it seems insanely destructive to turn a blind eye to the havoc this tech can create. Unless, of course, legislators believe only white children can secure the future (give or take 14 words). Then it's OK, even when it definitely isn't.

Documents obtained by Motherboard show few people care about minorities, no matter what government position they hold. Vetting contractors should be the first check against abuses. But it appears no one involved with regulating the lives of students (who are legally obligated to attend schools that view them as criminals) cares what happens to the minors they subject to the racist tendencies of law enforcement agencies and the tech they deploy.

Ever since they learned that Lockport City School District intended to install a network of facial recognition cameras in its buildings, parents in the upstate New York community—particularly families of color—have worried that the new system will lead to tragic and potentially fatal interactions between their children and police.

Now, documents newly obtained by Motherboard accentuate those fears. They show that SN Technologies, the Canadian company contracted to install Lockport’s facial recognition system, misled the district about the accuracy of the algorithm it uses and downplayed how often it misidentifies Black faces. The records, comprising hundreds of pages of emails between the district and the company, also detail numerous technical issues with SN Technologies’ AEGIS face and weapons detection system, including its propensity for misidentifying objects like broom handles as guns.

Wonderful. The collective shrug of legislators is feeding kids to racist tech with a proven track record of being unable to identify criminal suspects. This one goes a step further. It's unable to detect weapons accurately, which is probably why cops think it works great. Cops can't seem tell a cellphone or a Wii controller from a gun, so whatever justifies the use of force is an acceptable tradeoff for… um… not deploying force, I guess. So, when lives are actually on the line, cops will be chasing down broom handles being held by minorities, rather than weapons held by white people, who are far more likely to engage in school shootings.

The New York State Education Department (NYSED) stands by its approval of this questionable tech… sort of. Lockport officials have refused to comment. So has the police department making use of it. And so has their chosen facial recognition vendor, SN Technologies, which provides the AEGIS tech.

It's not like they didn't have any warning that the tech was faulty. Lockport officials received an email that discusses AEGIS's accuracy and propensity for aggravating racial biases. The AI finished 49 out of 139 respondents in the NIST's test for racial bias. But even that weak finish was overstated. As the NIST pointed out, the algorithm submitted by SN Technologies (which licenses its algorithm from French firm id3 Technologies) wasn't the same one that's being deployed in New York schools.

[A]ccording to Patrick Grother, the NIST scientist who oversaw the testing, the agency never tested an id3 Technologies algorithm that matches the description Flynn gave Lockport officials. “Those numbers don’t tally with our numbers. They’re not even close. What id3 sent to NIST is not what these people are talking about,” Grother told Motherboard.

The documents obtained by Motherboard show something even more nefarious than the submission of an algorithm that didn't actually represent what the company sold to clients. It appears SN Technology lied to school officials about the NIST's test results, claiming the algorithm was nearly twice as accurate as NIST testing actually showed.

But that hasn't stopped the rollout of facial recognition tech that disproportionately misidentifies minorities and/or their non-weapons. Other schools -- some in other states -- seem to believe faulty tech is better than no tech at all, especially if there's a chance the next false positive could prevent a school brooming.

At least 11 other districts in the state have since applied for Smart Schools money to purchase facial recognition systems, according to a NYCLU analysis of the applications. Schools in other states, such as South Carolina, have also deployed similar systems which claim the ability to detect weapons and stop school shootings.

We'll see if the spread of terrible tech slows in the future. Facial recognition is currently the target of lawsuits and legislation in New York. But if past performance is any indicator of future results, the tech isn't going to go away, no matter how poorly facial recognition tech, you know, recognizes faces.

Filed Under: facial recognition, new york, schools, surveillance

Cuomo's NY Broadband Pledge Under Audit After Coming Up Short

from the round-and-round-we-go dept

Back in 2015, NY Governor Andrew Cuomo unveiled a Broadband for All pledge the state proclaimed would invest $500 million to ensure statewide broadband access by 2018. The effort was to be funded largely by legal settlements struck with banks after the last recession, with dollar-per-dollar matching pledges by companies promising to deliver speeds of at least 100 Mbps down, 25 Mbps up across the state.

The problem (and tell me if you've heard this one before): ample subsidies and five years later and many New Yorkers say they still can't get even substandard broadband. And according to NY's own data on the project, the "matching funds" promised by industry wound up not materializing the majority of the time:

"Out of 53 broadband projects awarded, only 4 of them matched or exceeded state investment. A further breakdown of the contracts awarded shows that the state focused on addressing a set number of units, or census blocks, to connect. Approximately 256,000 “units” in New York were scheduled to be connected to high-speed broadband."

To pad the stats a bit, NY also deemed that traditional satellite broadband -- rife with slow speeds, high prices, very high latency, and daily usage caps and overage fees -- "broadband." And when local reporters asked the state why they'd given money to satellite providers instead of more reliable fixed fiber providers, the state wouldn't answer:

"A spokesperson from the Broadband Program Office told WGRZ in recent weeks that they ensured these "units" were connected with what they called “enhanced satellite service” with a connection of at least 25Mbps. But the spokesperson wouldn’t comment on why 30% of the units addressed in the program went to a satellite company rather than a provider that offered a fiber-to-the-home solution."

This is, if you're new to U.S. broadband, what the United States does. Politicians get easy brownie points by paying lip service to better, cheaper access. Subsidies fly fast and furiously, then, almost like clockwork, that money doesn't result in the promised outcomes, network improvements routinely wind up half-deployed, and accountability proves hard to come by. Rinse, wash, repeat. It's not hyperbole to suggest that between state and federal subsidies over the last two decades, American taxpayers have probably paid for undelivered fiber to the home service to every home in the country several times over by now.

Yet 42 million Americans remain disconnected during a public health crisis. 83 million live under a broadband monopoly. Tens of millions more live in a duopoly where your only choice is Comcast or a telco DSL line that literally hasn't been upgraded in a decade because doing so wasn't profitable enough, quickly enough, for Wall Street's liking. Regulators and lawmakers inundated with AT&T, Comcast, and Verizon financial affections happily look the other way. Rinse, wash, repeat. Meanwhile, actual people out of reach of service tell the same story, over and over again:

"It’s all a lot of empty promises with no sign of service,” Katy tells Stop the Cap! from her home near Dundee, in the Finger Lakes region of the state. “I’ve lived here since the days when the only phone line you could get was a party line shared with four other homes and I still have my rotary dial phone New York Telephone installed in 1965. These companies don’t want me to forget I am living in the past.”

Katy lives about 500 feet from the nearest address able to subscribe to Charter Spectrum and was quoted $9,000 to extend cable to her home, set far back from the main road. Verizon has never offered DSL in her neighborhood, because she is located too far away from the central office. Her property is set in a small forest, so satellite internet is not a possibility either."

Now, as U.S. kids huddle around Taco Bells just to attend school in a health crisis, the New York State Comptroller’s Office is conducting an audit of the state's Broadband Program to determine, once again, why state, federal, and industry promises mysteriously, routinely, come up short.

Filed Under: andrew cuomo, broadband, broadband for all, digital divide, failed promises, new york

'Make Him A Suspect:' Documents Show Rochester PD's Response To Officers' Killing Of An Unarmed Black Man

from the creative-writing-skills-officers-thought-they-wouldn't-need-in-the-real-worl dept

Before the killing of George Floyd by Minneapolis police officer Derek Chauvin touched off protests across the nation, the Rochester (NY) Police Department was dealing with a potential tinderbox of its own. Unfortunately for Daniel Prude -- the mentally ill man restrained to death by officers -- no bystanders recorded the incident as it unfolded. Instead, documents released to Prude's family show the Rochester PD worked with the city to keep this damning information hidden for as long as possible.

The body camera footage and documentation of the incident was buried by government employees, withheld for months under the moronic claim that releasing them would result in "misinterpretation" by members of the public. Police officials already knew how bad things were. Captain Frank Umbrino noted in an email that releasing the recordings of the killing of Prude would have "intense ramifications." The Deputy Chief, Mark Simmons, felt the same way. Deputy Chief Simmons claimed the public was too stupid to be trusted with this information.

"We certainly do not want people to misinterpret the officers’ actions and conflate this incident with any recent killings of unarmed black men by law enforcement nationally," Simmons wrote in an email. "That would simply be a false narrative, and could create animosity and potentially violent blow back in this community as a result."

There was only one false narrative in place, though -- one that was swiftly generated by police officers and officials to turn a wrongful killing into a possibly-justified homicide. This -- from the 325 pages of documents [PDF] released by the city to the Prude family's lawyer -- is pretty difficult to misinterpret.

"Make him a suspect." But of what? The original incident report detailed no suspected criminal activity. Daniel Prude was suffering from a mental health crisis when officers accosted him. He was naked and claimed he had the coronavirus. He told officers to give him a gun. Officers responded by placing a spit hood over his face. One officer then pressed Prude's hood-covered face into the asphalt and held it there until Prude stopped breathing. Two other officers held down Prude as well, placing their weight on his legs and back. Prude was declared brain dead by EMS personnel shortly after they responded from the scene. He was removed from life support six days later.

Once Rochester PD officials realized what they were dealing with -- the killing of an unarmed (and naked) Black man -- the narrative was altered and the city lent its assistance to the cover-up.

A new report was created. This one claimed Prude was a burglary suspect.

The original report stated officers intended to detain Prude under the state's mental hygiene law. The second report attempted to tie him to a broken window at a nearby business. But the recordings of the incident don't show officers approaching Prude as a criminal suspect. Only the second set of paperwork -- prompted by a handwritten note to "make him a suspect" -- describes Prude as a criminal suspect. This was the best the cops to do to cover up a very questionable incident. Then the PD leaned on the city's legal reps to help keep this hidden.

Rochester Police Chief La'Ron Singletary asked the city's lawyer to help the PD withhold the body camera recordings of Prude's killing for as long as possible. The first move was to abuse FOIA law. The Prude family's FOIA request for the recordings was denied by the PD, which claimed the recordings were part of an investigation, making them exempt from disclosure. The municipal attorney, Stephanie Prince, dragged things out longer by adding the Assistant Attorney General to the mix. A show of very selective transparency was used to delay the public release of these videos for another nine weeks.

In the email, Prince said Sommers had suggested a solution to avoid making the video public: Sommers was to invite Don Thompson, one of Prude's lawyers, to her office to view the footage on the condition that he not be given a copy of his own.

"This way, the City is not releasing anything pertaining to the case for at least a month (more like 2), and it will not be publicly available," Prince wrote, explaining that the file would require "heavy redacting," in part because Prude was naked. "After receiving the below I reached out to (Sommers) and asked her to hold off on contacting Don Thompson until I got back to you."

Prude's family didn't receive the recordings until mid-August. These were released three weeks later. The blow back" the Deputy Chief feared would accompany release of the videos has materialized. But it isn't because the public "misinterpreted" the content of the recordings. They showed exactly what happened during the arrest. And that's what Rochester residents -- who have engaged in protests since the release of the recordings -- are reacting to.

The PD and the city knew exactly how this would be received by the public, even before George Floyd's killing became a nationwide flash point. And when confronted with a crisis of their own making, city and PD officials decided to sacrifice their own credibility -- along with their relationship with the people they serve -- to stave off the inevitable for a few months.

Filed Under: daniel prude, foia, frank umbrino, la'ron singletary, mark simmons, new york, police, rochester, stephanie prince, transparency

Federal Court Temporarily Extends The NYPD's Famous Opacity, Blocks Release Of Misconduct Records

from the dammit dept

The NYPD barely bothers to punish officers who misbehave. This "misbehavior" often includes violations of rights and extrajudicial killings, but it appears the NYPD feels New York's "finest" should be above reproach. Consequently, NYPD internal investigations often conclude no officers should be reproached, allowing them to remain the "finest" even when they're really the worst.

A new wrinkle in the law fabric might change that. After years of doing nothing (and after years of the NYPD never bothering to invoke the law), the state repealed "50a," the statute that allowed the NYPD to withhold misconduct records from the public. For several years, the NYPD posted the outcome of internal investigations. Then it decided it was no longer going to do that. First, it blamed the high cost of printer ink. Then it cited the law that allowed it to stop posting reports where the press could access them.

Lawsuits followed. And -- as is the case whenever law enforcement opacity is threatened -- the NYPD's unions have intervened. It was too little too late. An injunction was sought and obtained, but ProPublica -- which wasn't a party to the lawsuit over 50a records -- published what it had already received from the NYPD. But the battle continues because future opacity is at stake. Unfortunately, a federal court has decided opacity must win out for the moment.

A federal court has halted the release of police misconduct records until a coalition of New York City’s police, fire and corrections unions can make their case to the United States Second Circuit of Appeals.

The ruling came Wednesday afternoon — just days after Manhattan Federal Judge Katherine Polk Failla ruled on a lawsuit brought by the unions over the repeal of the law shielding police personnel records known as 50a.

That's right. The union doesn't just want records blocked from release. It wants the law back on the books. This is all very procedural so it probably doesn't wipe away Judge Faila's distaste for this lawsuit. Five days prior to this temporary injunction, Faila had this to say about the union's challenge of the repeal.

The lawsuit, brought by the coalition of unions over the repeal of 50a, argued that releasing unsubstantiated or unfounded allegations would put officers and firefighters at risk and would affect their employment prospects if they leave their department.

But Failla said the unions failed to explain why an “officer in charge of hiring would be incapable of interpreting the records” and she had been “presented with no evidence of increased violence or threat of violence.”

The disclosures plaintiffs’ argument also seems to overlook the disclosures that have historically been made,” Failla said, noting that the NYPD had previously published disciplinary records in recent years at NYPD headquarters.

“Any injunctive relief that I would order, could not put that particular horse back in the barn,” she added.

And yet this ad hoc collection of union legal cowboys is desperate to do just that. The horse cannot be re-barned but maybe enough union members' money can be blown delaying the inevitable. This will be the trophy brought back to the rank-and-file. Money was spent in an attempt to thwart transparency. And -- in the absence of any real victories -- this will have to do.

Maybe in the end the courts will decide the repeal of 50a violates the many, many collective bargaining agreements the city has agreed to over the years. If so, New York City needs to let these expire and write new ones that actually give taxpayers a bit more bang for their buck. Accountability is a must. The city's unions continue to insist it's a luxury even the nation's largest city can't afford.

Filed Under: 50a, katherine polk failla, new york, nyc, nypd, police misconduct, police unions, transparency

New York State Leaders Finally Realize U.S. Broadband Availability Data Is Hot Garbage

from the can't-fix-what-you-don't-understand dept

We've noted for years how, despite a lot of pretense to the contrary, the federal government doesn't actually know where broadband is or isn't available. The FCC usually doesn't independently confirm that ISP-provided data is accurate, and the agency declares an entire area "served" with broadband if just one home in a zip code has service. Efforts to fix this problem have historically been undermined by telecom lobbying, since incumbent ISPs aren't keen on further highlighting the profound lack of competition (and high prices) that plague the sector.

In just the latest in a long line of discordant efforts to fix the problem, New York state has announced it will be conducting a new study to determine broadband availability, after a survey found that the federal and state government's existing broadband availability data was largely nonsense. It's a problem that has plagued the U.S. for roughly twenty years, but it is seeing renewed attention given that studies have shown that 42 million Americans lack access (double official FCC estimates) to any broadband whatsoever during a pandemic:

"This crisis is hurting our economy, our small businesses, our families, and our children," Rep. Brindisi said. "Shockingly, the Federal Communications Commission doesn't even know what areas have access to broadband and what areas don't."

It's not actually shocking. For twenty years the FCC has turned a blind eye toward our total failure to collect accurate broadband availability and pricing data, all while making major sweeping policy decisions (usually in favor of entrenched monopolies like AT&T, Comcast, and Verizon) based on that data anyway. The agency's $350 million broadband availability map all but hallucinates speeds and coverage, and fails to even catalog prices. In part because clearly showing Americans that they're paying more money for slower, patchier broadband than a long list of developed countries might just drive somebody to actually do something about it.

And it's not just FCC data, or one party that's the problem. State leaders like Andrew Cuomo have also parroted false claims that "98%" of New York state has access to broadband. When you bother to actually look, you'll find that most of those connections aren't broadband (25 Mbps down, 3 Mbps up as defined by the FCC at all), they're usually dial up, heavily capped, slow and expensive satellite, or aging DSL lines that haven't been meaningfully upgraded since the early aughts:

"You know there are percentages that you’ll hear that 98% or 99% of the state is covered, well it’s not really,” said Assembly Al Stirpe (D), “a lot of it is satellite coverage and some dial-up.”

The Governor’s Office has claimed that under the “New NY Broadband Program” which has invested $500 million dollars since 2015, New York’s broadband access is at 98%, a number both Stirpe and Crouch think is a stretch.

While the federal government finally mandated at least some broadband mapping improvements via the Broadband Data Act, the FCC currently lacks the funding to follow through (because we keep kneecapping our regulators), it will likely take years to implement, and the wireless industry is already lobbying to have 5G excluded from the improvements (they don't want the public to understand 5G availability will be patchy as well). And with regulatory capture being just so hot right now, there's not much incentive toward genuine accountability and reform without a dramatic Congressional shake up.

It's all part of this ingenious cycle of intentional American dysfunction that involves making bad decisions based on bad data, then throwing billions in unaccountable subsidies at entrenched monopolies that easily should have delivered a fiber connection to every home in America by now. But because AT&T, Verizon, Charter, CenturyLink, and Comcast very much like things this way for what should be obvious reasons, we don't implement genuine federal or state reform the vast majority of the time. Policy "experts" then ignore or pretend corruption isn't at the root of the problem.

Rinse, wash, and repeat.

Filed Under: broadband, broadband data, competition, fcc, new york