Statute Of Limitations Has Run Out On Trump's Bogus Promise To Sue The NY Times

from the fake-news dept

A year ago, we wrote in great detail about just how ridiculous it was that then Presidential candidate Donald Trump's lawyers had threatened to sue the NY Times over a story about two women who claimed that Trump had groped them inappropriately. Trump insisted to the NY Times that none of it happened, and one of his favorite lawyers, Marc Kasowitz sent a letter calling the story "reckless, defamatory, and constitutes libel per se." It also demanded the article be removed from the Times' website and that a "full and immediate retraction and apology" be posted instead. The letter insisted that "failure to do so will leave my client with no option but to pursue all available actions and remedies."

Of course, as we noted at the time, there was basically no chance that Trump would actually sue. The NY Times hit back hard with its response, and it's not a paper easily intimidated by bogus legal threats. Still, it is noteworthy that this week the one year statute of limitations on defamation claims (in New York) passed... and no lawsuit has been filed (though, amusingly, as the Hollywood Reporter points out, the Kasowitz letter demanding a retraction is still posted to Trump's website).

As we said last year about this story, it was even more evidence for why we need a strong federal anti-SLAPP law (or, at the very least, stronger state anti-SLAPP laws). New York's anti-SLAPP law remains painfully weak. And while that might not matter directly, since Trump didn't sue, the rise in these kinds of lawsuits and similar threats of lawsuits would be helped tremendously with stronger laws protecting those who the powerful seek to censor and scare. Obviously, Trump might not be too keen on signing such a law right now, but Congress should be working on this. SLAPP suits are becoming an entire industry, helping the rich and powerful silence critics. Congress has the power to stop this abuse of judicial process, and it should follow through.

Filed Under: defamation, donald trump, marc kasowitz, new york, statute of limitations
Companies: ny times

Black Lives Matter Sues Police Department Over Illegal Surveillance Based On First Amendment Activities

from the wrong-thing-targeted dept

Members of a New York "Black Lives Matter" group are suing the town of Clarkstown and its police department over illegal surveillance. The plaintiffs allege they were placed under surveillance by the Clarkstown PD's Strategic Intelligence Unit (SIU) for a number of reasons, none of which were legal uses of the agency's spy wares.

It would seem the lawsuit [PDF] has a good chance of paying off. Allegations of racial profiling and illegally surveilling citizens for their First Amendment activities are backed by the results of investigations and one police official's own admissions.

A letter to the US Attorney's office in New York, attached as an exhibit, bolsters the claims made in the BLM lawsuit. In it, Clarkstown town Supervisor George Hoehman details a long list of surveillance violations and other police misconduct.

According to the letter [PDF], the SIU began surveillance of members of a play entitled "A Clean Shoot?" performed by a group called "We the People." The surveillance included constant monitoring of their social media profiles and the deployment of geofencing in hopes of capturing anyone else who might be involved with the group and/or the play.

The Clarkstown PD shared the information it gathered with the Haverstraw Police Department -- information that included the results of searches of criminal databases. Clarkstown's SIU "warned" Haverstraw the next production of the play would be in September, but noted that participants posed no threat of violence despite harboring "strong opinions."

When setting up the geofences, Clarkstown PD lumped BLM and We the People members in with gang members, terrorists, and other more legitimate targets of police surveillance. This continued even though they were told (repeatedly) by the local district attorney's office they should not have Black Lives Matter listed as a surveillance target.

In August 2016, the special prosecutor handling the investigation of this surveillance demanded Clarkstown PD hand over communications pertaining to its spying on the two groups. He never received anything. Instead, Police Chief Michael Sullivan deleted all of the data from his issued cellphone. He also allowed Sgt. Steven Cole-Hatcher (head of the SIU) to wipe his own cellphone and to delete possibly-incriminating files from his departmental computer. Sullivan was suspended for fifteen days. Cole-Hatcher was given the opportunity to retire. He's now suing to get his job back and it's his filings that have generated a lot of the evidence needed by BLM to successfully pursue this lawsuit.

The letter also alleges things unrelated to the BLM lawsuit, but equally disturbing. Local law enforcement officials have apparently engaged in election interference, surveillance of judges, and monitoring of the town supervisor's social media profiles with the department's surveillance software.

Much of what's in the most recent lawsuit retreads allegations made previously. Fortunately, some of those allegations have already been sustained. The lawsuit pleads violations of the First and Fourth Amendment and seeks damages and injunctions against future unlawful surveillance.

Chief Sullivan has (unhelpfully) explained BLM and We the People weren't singled out for unlawful surveillance. He stated "many other groups and individuals" were surveilled by the SIU -- a statement he made without clarifying whether these others instances were for legitimate reasons.

Adding the latest allegations to those already sustained suggests local law enforcement agencies have more in common with cancerous growths than the "protectors and servants" ideal.

Filed Under: black lives matter, clarkstown, first amendment, new york, surveillance

New York City Council Passes Bill Making NYPD's Forfeiture Process More Transparent

from the no-more-hiding-behind-clunky-software dept

For months now, the NYPD has been arguing in court it can't possibly hand over records related to its forfeitures. The problem appears to be the NYPD itself. The department spent millions on new software specifically to track the disposition of seized items. But when faced with a public records suit by the Bronx Defenders, the NYPD claimed the software can't do the one thing it's supposed to do: track the disposition of seized items.

The NYPD provides limited reporting on forfeitures, but the numbers produced have almost zero relation to reality. According to the NYPD, it only forfeited $12,000 in cash in 2015. According to numbers obtained by the Bronx Defenders, the NYPD's forfeiture office had nearly $69 million in cash on hand when queried in 2013 -- something that would take 5,750 years to amass at the rate cited by the NYPD. Not only that, but other documents showed NYPD property clerks were processing thousands of dollars every month, totaling $6 million in forfeiture transactions in 2013 alone. It seems unlikely the NYPD's forfeitures dropped to this impossibly-low level between 2013 and 2015.

But still the NYPD insists it can't make its cradle-to-grave forfeiture-tracking system produce the stats Bronx Defenders are looking for. It needs to figure out its issues soon. The city council is calling the NYPD's bluff.

Every year the NYPD seizes millions of dollars in assets from innocent New Yorkers, who often have to fight a dizzying bureaucracy to get their property back. But today the City Council is poised to pass legislation that would make the practice vastly more transparent.

The bill, which is expected to pass this afternoon, will require the NYPD to release annual reports on how much they seize from New Yorkers during stops and arrests and through the use of civil forfeiture, and account for what happens to the assets after they’re in custody.

"This first-of-its-kind transparency bill will shed light on the reasons why the NYPD has seized someone's property, whether revenue is generated from property seizure, and if an individual has been able to get their property back," said Bronx Councilman Ritchie Torres, the bill's primary sponsor. "The legislation will help ensure that the civil forfeiture process is used legitimately.”

The bill has indeed passed and institutes new reporting requirements for the NYPD.

This bill requires the NYPD to report on an annual basis on data relating to the property and money the department obtains possession of in the course of an arrest. The bill requires the data be broken down to include the amount of money or the property obtained and retained, the reason why the property or money is being held by the department, and whether or not the rightful owners of the property or money have failed to redeem such money or property. Additionally, the bill requires the NYPD to report on any sale or disposition of money or property seized during an arrest that was retained by the Department.

This forces the NYPD to provide information proactively. It can no longer hide behind claims of faulty software or a particularly labyrinthine public records process. It won't force the NYPD to say how the money's being spent, but will at least provide more transparency and accountability. The new data should make it slightly easier to identify abuse and could assist those fighting to reclaim their property. All it needs is the governor's signature to make it official.

Filed Under: asset forfeiture, forfeiture, new york, ny city, nyc, nypd, transparency

Freedom Of Information Lawsuit Results In NYPD Agreeing To Follow FOI Law

from the lol-'law-enforcers' dept

If you need any more proof the NYPD hates transparency, you need look no further than Keegan Stephan's victory in a Freedom of Information Law (FOIL) lawsuit:

If you can't see the tweet, it says:

Big win! To settle my lawsuit, NYPD has agreed to comply with critical component of NY Freedom of Information law

This is what we measure success with when it comes to FOIL and the NYPD: a victory is the department AGREEING TO FOLLOW THE LAW.

Stephan has been seeking information on the department's use of a sound cannon for crowd control. The NYPD, of course, had no interest in releasing these records. Central to the settlement is the department agreeing to accept FOI requests by email, something it's supposed to have been doing for more than a decade.

The man, Keegan Stephan, said in the suit that the department failed to justify withholding the records he requested and that a “policy and practice” not to accept or respond to Freedom of Information requests by email violated a 2006 provision of New York State law. Mr. Stephan also argued that by not allowing email requests, the police had increased “the time, effort, and expense involved” in obtaining records.

The department's settlement contains no admission of wrongdoing -- something common to government lawsuit settlements. This means it will accept zero responsibility for a decade-long run of FOI statute violations.

The "new" email request system will aid more New Yorkers in having their requests ignored by the NYPD. The NYPD's future use of email for FOI responses will ensure requesters are informed of denials in a much speedier fashion. The portal the NYPD is setting up on its website will provide instructions for requesters, as well as information on how to challenge denials and non-responses. If nothing else, the NYPD will be forced to follow the letter of the law a bit more closely, but it will take far more than a steady stream of FOI lawsuits for it to approach the law's spirit.

The NYPD has made a opacity a cottage industry. It has been dubbed the least responsive government agency in the US, worse than the CIA, FBI and NSA. It has developed an in-house classification system that allows pretty much anyone to designate almost any document "top secret" for almost any reason, and reached its nadir when it refused to release a copy of its FOIL response guidelines to a FOIL requester.

But this is an ugly victory -- one that should subject the department to a steady stream of ridicule. It takes a lawsuit to make a law enforcement agency follow the law. That's just depressing.

Filed Under: foia, freedom of information, new york, nypd, open records, transparency

Oversight Board Finds NYPD Officers Still Violating Citizens' Right To Film Police

from the NYPD:-any-and-all-cameras-should-be-aimed-at-'civilians' dept

The New York Civilian Complaint Review Board has just released a report [PDF] indicating NYPD officers are slow learners when it comes to recognizing citizens' right to record police officers. It's not that these officers have never been told. They have. The NYPD's "Finest Order" was handed down in 2014, telling officers citizens had a First Amendment right to film police. It's a response to a 2012 order by the Washington DC PD and a First Amendment lawsuit filed that year. It followed this up with internal policy changes two years later. And yet, problems persist.

In the three-year period from January 1, 2014 through December 31, 2016, the CCRB closed 257 complaints in which civilians reported that officers had interfered with their ability to record police activity. This police interference included, but was not limited to, officers instructing civilians to stop recording, searching civilians‘ phones for recordings of activity, deleting such footage, and damaging recording devices.

In fact, those with the most time on the job seem to have the greatest difficulty following instructions and policy changes.

Eighty-four percent of the officers named in interference-related allegations (180 subject officers) had more than two years on the force at the time the alleged incidents occurred. Of those, 53 percent (113 subject officers) had between three and 10 years on the force when they were alleged to have interfered with civilian recordings and the remaining 31 percent (67 subject officers) had more than 10 years on the force.

The NYPD "Finest Message" on recording distinctly notes what officers aren't supposed to do when encountering a citizen photographer:

Recognizing the affirmative right to record police action, UNDER NO CIRCUMSTANCES should a Member of the Service:

Threaten, intimidate, or otherwise discourage an observer from recording the police officer’s activities, assuming the observer is at a safe distance;

Intentionally block or obstruct cameras or other recording devices when there is no legitimate law enforcement reason to do so; or

Delete any pictures or videos from the observer’s camera, or order observer to delete such pictures or recordings.

But these orders were violated repeatedly. The most common excuse for violations was the officer didn't remember doing it or denied the violation had occurred.

NYPD officers who violate citizens' First Amendment rights do this in several ways. Intimidation is one tactic used to shut down recordings:

The CCRB also received multiple complaints of police officers pointing flashlights at civilians‘ recording devices to impede their ability to record. In one such case, the CCRB substantiated an interference allegation by a civilian and his wife who were walking down the street when they observed a police officer making an arrest. The civilian began taking photos of the arrest on his iPad and was instructed by the officer to stop taking photographs and to step back. The civilian stepped back but maintained that he had a First Amendment right to photograph the arrest. The officer then shone a flashlight at the iPad. The CCRB substantiated an interference allegation against the officer based on photographic evidence and the consistent testimony of the civilian witnesses.

In a similar 2015 case, an officer stopped a group of individuals suspected of fighting and gun possession. When a third party civilian began to record the stop, an officer turned and pointed a flashlight towards the civilian‘s camera for nearly three and a half minutes. In that case, the interfering officer never issued any commands toward the recording civilian and the Board substantiated the interference allegation.

[...]

Other forms of intimidation were more severe. In a 2015 case, a civilian called 911 after he was assaulted at a bar. Officers responded and the civilian became angry when officers could not find the assailant. After a heated verbal exchange, the responding officers told the civilian that he would be arrested if he did not leave the location. The officers then went back to their marked police vehicle to prepare their complaint paperwork, at which time the civilian stood in front of the vehicle and attempted to take a photograph of the officers‘ license plate. At that point, the officer in the driver‘s seat drove the vehicle toward the civilian and stopped within inches of his body before driving away. Finding that the video evidence proved that the officer intentionally drove the police vehicle towards the civilian in a threatening manner and with the intention of preventing him from taking a photo of the license plate, the CCRB substantiated allegations against the officer for interfering with the civilian‘s recording, and for threatening him with the use of physical force.

NYPD officers also illegally seized and searched cellphones while being filmed by citizens. Multiple confirmed allegations show officers took phones with the intent of accessing, if not deleting, recorded footage. The CCRB notes it's very difficult to substantiate claims of deleted footage thanks to the inherent nature of the violation. It's tough to prove a recording existed prior to an alleged deletion when recordings that survive officers' deletion attempts usually absolves them of attempted deletion allegations.

But searches/seizures with the intent of deleting recordings is actually the more subtle of the NYPD's anti-photography tactics.

Substantiated instances of damage or destruction of recording devices can be proven by video evidence from sources other than the recording civilian. In one incident, surveillance cameras captured officers physically grabbing a civilian‘s body as he began recording their stop and questioning of a woman on a sidewalk. After officers arrested the civilian, placed him in their patrol car, and began driving away, surveillance video captured one officer throwing his cell phone out of the car window. The phone landed on the sidewalk. The civilian was charged with Obstructing Governmental Administration, Disorderly Conduct and Resisting Arrest, but these charges were all eventually dismissed.

Some cops do this repeatedly:

In a 2014 incident, the officer‘s interference and destruction of a cell phone occurred simultaneously. The complainant sat in his car with two friends when officers approached him, told him the car smelled like marijuana, and asked him if he had been smoking it. When the complainant said no, officers removed the occupants from the car, frisked and searched them all, and then allowed them to return to the car. When an officer walked to the vehicle to return the complainant‘s identification, the complainant alleged that the officer saw his phone resting on his arm, assumed he was recording, grabbed his phone from his hand, and threw the phone to the ground, stomping on it. The officer then forcefully arrested the complainant. The CCRB found that the officer lacked credibility given three prior complaints of the same officer destroying civilian cell phones, and substantiated misconduct.

But the worse thing some NYPD officers do is shut down recordings with bullshit arrests, because it's always best to follow up a First Amendment violation with a severe curtailment of literal freedom:

In a 2014 incident, for example, a civilian began audio-recording an officer‘s stop of the civilian‘s friends. The officer grabbed the audio-recorder from the civilian‘s shirt pocket, then issued him a summons for possession of a box cutter under a section of the New York City Administrative Code that prohibits minors from possessing box cutters. The complainant was over 50 years old and clearly could not be mistaken for a minor and the CCRB substantiated the improper issuance of a summons.

The CCRB recommends more training, which is really all it can do. Officers have had close to three years to adjust to the constraints of the 2014 Finest Message, but it appears several officers still make up their own rules during encounters with citizen photographers. It's unrealistic to expect the number of violations to hit zero, but some disciplinary changes need to be made if these policies are going to have much effect on officer behavior. Otherwise, the same officers will keep deploying the same tactics and hoping citizens don't complain or the CCRB doesn't have enough to work with to substantiate the allegations.

Filed Under: filming police, freedom of expression, new york, nypd

New York Legislators Trying To Make A Bad Publicity Law Even Worse

from the sue-anyone,-anywhere,-from-New-York-state dept

If there's been a good right of publicity law enacted, we've yet to see it. Ostensibly enacted to prevent celebrities' likenesses, words, etc. being used in way they wouldn't approve of, the laws are usually deployed by dead celebrities' families to censor speech. Most of the censorship activity focuses on commercial use of dead public figures, implying endorsements from beyond the grave. But the laws have also been abused to shut down biographical projects and, in one notable case, was used by a deposed and jailed dictator who though Activision should have paid him something for using his likeness in a Call of Duty game.

This is why the EFF is warning people about another right of publicity bill being quickly and quietly ushered through the New York state legislature.

The New York State Legislature is considering a bill that would radically reshape its right of publicity law. Assembly Bill A08155 [PDF] would dramatically expand New York’s right of publicity, making it a property right that can be passed on to your heirs – even if you aren’t a New York resident. The bill was introduced less than two weeks ago and is being rushed through without any hearings. EFF is urging legislators to slow down before passing an unnecessary law that would threaten the freedom of expression of individuals, activists, artists, and journalists around the United States.

New York already has an abusable right of publicity law. This bill would make it worse. It expands the definition of "likeness" to include things like "mannerisms" and "gestures." It contains very few protections for free speech. It adds 40 years of postmortem protection, meaning those most likely to benefit from the law aren't those whose likeness is being used/abused, but rather their heirs.

Perhaps worst of all, it expands the law's jurisdiction, allowing out-of-state celebrities to file suits if their likenesses were used in the state of New York. This alone will encourage more litigation (even if most is dismissed early on), thanks to the internet's lack of boundaries. Simply posting something on a website anywhere could place the person posting it at risk if the website is accessible in New York. It's an invitation for forum-shopping, disguised as an extra layer of protection for public figures.

Filed Under: new york, publicity rights

Apple, Verizon Join Forces To Lobby Against New York's 'Right To Repair' Law

from the making-ownership-more-expensive dept

Over the last year, we've noted the surge in so-called "right to repair" laws, which would make it easier for consumers to repair their electronics and find replacement parts and tools. It's a direct response to the rising attempts by companies like John Deere, Apple, Microsoft and Sony to monopolize repair, hamstringing consumer rights over products consumers think they own, while driving up the cost of said product ownership. John Deere's draconian lockdown on its tractor firmware is a large part of the reason these efforts have gained steam over the last few months in states like Nebraska.

In New York, one of the first attempts at such a law (the "Fair Repair Act") has finally been making progress. But according to New York State's Joint Commission on Public Ethics, Apple, Verizon, Toyota, Lexmark, Caterpillar, Asurion, and Medtronic have all been busy lobbying to kill the law for various, but ultimately similar, reasons. And they're out-spending the consumer advocates and repair shops pushing for this legislation by a rather wide margin:

"The records show that companies and organizations lobbying against right to repair legislation spent $366,634 to retain lobbyists in the state between January and April of this year. Thus far, the Digital Right to Repair Coalition—which is generally made up of independent repair shops with several employees—is the only organization publicly lobbying for the legislation. It has spent $5,042 on the effort, according to the records."

To be clear, the vast majority of the time, companies lobbying against this kind of legislation don't like to even admit that they oppose it. But when they do go on the record, it usually features a trifecta of false claims that the bills will make users less safe, pose a cybersecurity risk, and open the door to cybersecurity theft. In Nebraska, for example, we've already noted how Apple claims that allowing people to repair and tinker with the hardware they own will somehow turn the state into a "mecca for bad actors and hackers," and that letting consumers repair their own electronics would cause lithium batteries to catch fire.

Of course, the real reason Apple opposes this legislation is that it stands to lose significant repair revenue once people no longer have to drive half an hour to the nearest Apple Genius bar and support team. The same is true for game console makers Sony and Microsoft, who obviously would prefer it if you're only able to use their significantly-more expensive repair programs. They'll ignore the fact that this kind of behavior not only allows companies to charge an arm and a leg for what very well may be superficial repairs, but helps prop up closed, proprietary ecosystems, hurting customers in a myriad of other ways as well.

And while supporters of these right to repair bills are very candid about the benefits they think users will see, it's telling that the companies lobbying against these rules refuse to comment whatsoever on their opposition, and when they are willing to talk can only trot out a parade of theoretical horribles that don't really make coherent sense.

Filed Under: license agreements, new york, ownership, right to repair
Companies: apple, lexmark, toyota, verizon

NY Senate Passes Bill That Would Add Cops And Firemen To List Of Protected Classes Under State's Hate Crime Law

from the those-poor-underprivileged-authority-figures dept

Because good ideas are rare but bad ideas eternal, the New York State Senate has just given its blessing to a stupid bill aimed at protecting people armed with guns, power, the weight of the law, and numerous immunity options. The "justification" for New York's addition of cops and first responders to the state's hate crime law is this:

There has been an increase in mortality rates of law enforcement officers, firefighters, corrections officers and emergency medical services personnel, within the past decade. In a report by the National Law Enforcement Officers Memorial Fund in 2014, statistics showed that approximately "126 federal, state, local, tribal and territorial officers died in the line of duty" which exhibited an increase in comparison to 2012 and 2013. The increase in the death toll has been in part, due to offenses intentionally aimed to harm first responders.

This is followed by a bunch of anecdotes about officers and first responders being on the receiving end of supposedly "targeted" violence. It adds nothing to the "justification" but a few presentation-worthy stories to sway emotions of fellow legislators. It doesn't make the preceding statement any more correct. It's actually misleading and wrong in equal parts.

First off, an increase in "mortality rates" is not the same thing as an increase in violence directed at law enforcement officers. The stats legislators are attempting to point to include all deaths in the line of duty, whether they were at the hands of civilians or not. So, this stat is already sort of misleading, albeit only because of the way this bill's sponsors have phrased it.

Second, the stats the justification quotes are wrong. There were 136 deaths in 2014, according to the National Law Enforcement Officers Memorial Fund. That's more than what's stated here. Worrying? Not even close. It's 20 more than 2013, but one less than 2012's total. In other words, the stats show no sort of increase that might justify giving police officers more protection. If these legislators weren't trying to cherry pick, they might have included 2011's total of 178, which is fifty more deaths than the supposedly-shocking number quoted in the bill's justification.

Just so everyone's aware who's pushing to make an abusable law even more easily-abused, here's the bipartisan group of sponsors.

Fred Akshar [R] - Longtime law enforcement officer, having served as undersheriff for Broome County before turning to politics.

Patrick M. Gallivan [R] - former Erie County Sheriff (1998-2005), preceded by 15 years with the New York State Police, and followed by a stint on the state parole board. One of several state legislators found to have faked leadership positions in the Senate to get a little unearned extra pay added onto their paychecks.

Tony Avella [D] - Last seen at Techdirt killing off his horrendous "Right to Be Forgotten" bill… but not in an honorable way. Rather than remove it from consideration, he simply revoked his sponsorship, leaving the orphaned bill to wander the Senate halls unattended.

Martin J. Golden [R] - A retired NYPD officer who has been instrumental in adding even more New Yorkers to the state's sex offender registry, as well as expanding the state's DNA databank to include people convicted of nothing more than a misdemeanor.

John J. Bonacic [R] - Former assistant district attorney and one of those guys who thinks something must be done about "anti-law enforcement rhetoric." Apparently, this bill is part of the solution -- a bill that could conceivably be twisted to turn "resisting arrest" into a felony-level hate crime. (Because what is "resisting arrest" if not "targeting" of law enforcement for abuse/violence/etc.?)

Here's the pertinent wording of the bill, which adds cops, firefighters, and EMTs to a long list of groups who have historically been victims of discrimination.

section 1, states that a person has committed a hate crime, when he or she commits a specified offense and either intentionally selects the person against whom the offense is committed or intended to be committed to, or in part because of a belief or perception regarding race, color, national origin, ancestry, gender, religion, religious practice, age, disability, sexual orientation of a person, or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel.

Guess who doesn't fit into that list: the shorter list of occupations that have long been revered, respected, and given considerable amount of leeway to perform their duties. Unlike those who have been singled out for abuse because of their age, disability, ancestry, race, color, national origin, or sexual orientation, the new protected class is entirely composed of voluntary "traits."

Adding to the ridiculousness is the bill's name -- a self-righteous, heart-tugging melange of authority-worshipping words: Community Heroes Protection Act.

Very few bills of this sort have become law. Many have attempted to give more protection to well-protected powerful classes, but very few have garnered enough support to make it past the introduction stage. This one has moved forward, which is a problem because bills like this that have passed have immediately been abused by law enforcement.

Filed Under: blue lives matter, firemen, hate crime, new york, police

NYPD Finally Comes Up With A Body Camera Policy, And It's Terrible

from the more-tech,-less-transparency dept

Nearly four years after the NYPD was ordered by a federal judge to implement body cameras, the department is finally getting around to finalizing its rule set for deployment. Part of the delay is due to the NYPD seeking input from the public -- input it has apparently decided to ignore.

As Scott Greenfield notes, the NYPD gets everything wrong about its policies, applying guidelines that directly contradict the responses received from everyone in New York City not wearing a blue uniform.

The first “big” question is when will cops be required to turn their body cams on, since having them doesn’t actually serve much of a purpose if they’re turned off.

Notice anything peculiar? Like the public wants them on a lot, and the cops, not so much? But this belies the problem: if body cams must be on for “use of force,” will cops call a “time out” when a situation develops where they decide to tune up a guy who isn’t sufficiently compliant so he can flip the switch? Sure. Who doesn’t honor the sacred “time out”?

But then, the “it depends” on witness interviews is somewhat disconcerting. After all, why record witness interviews, since they might say something inconsistent with the cop’s recollection or their testimony in court? That could be unpleasant.

The public also wants expansive footage release policies. Unsurprisingly, NYPD officers do not. From the NYPD's body-worn camera report [PDF]:

Officers and the public were asked whether they agreed or disagreed with this statement: “If a person has an interaction with an officer wearing a  body-worn camera, the NYPD should be required to show that person the footage upon request.” Here is how they responded:

Here are the responses for a similar question, but involving third parties like journalists and advocacy groups making requests for footage:

The split is obvious. The public wants access. The NYPD wants sole control. The "compromise" is this:

[T]he NYPD is refusing to take this step. Instead, it will require footage requesters go through the slow and ill-suited Freedom of Information Law public records process — the same one you’d have to use to get, say, the mayor’s travel records.

To date, when people have used the FOIL process to request footage from the tiny number of body cameras already deployed in an experiment, the NYPD has stood in the way, charging the public exorbitant fees and claiming broad exemptions.

When it comes to New York's open records law, approaching the NYPD for documents is an exercise in futility. The department has been called "worse than the FBI, CIA, and NSA" when it comes to responding to records requests. FOIL lawsuits are minimally effective, as the NYPD is as comfortable with slowly bleeding plaintiffs dry as it is ignoring their requests entirely.

The other twist is this: if you're facing criminal charges and want access to footage of your arrest, etc., you're not going to get any preferential treatment. You also will be forbidden from joining the FOIL line and hearing your request will be ignored in the order it's received. Scott Greenfield breaks this down:

But certainly the defendant is entitled to the video, right?

"There is an important exception with respect to release of body-worn camera footage: if a person is arrested and has a pending criminal case, and seeks body camera footage related to his or her arrest, he or she may not come to the NYPD to circumvent the standard discovery process between the prosecution and the defense. Discovery is governed by New York State Criminal Procedure Law. Criminal defendants are entitled to these recordings under the law, but such requests are handled by prosecutors in accordance with existing criminal discovery practices and procedures."

Discovery? That same criminal procedure process that has been the target of reform for decades because it’s nearly useless?

Unbelievably, the NYPD camera policy gets even worse, and even further away from the public's preferences. Here are the responses given to the question of when officers should be given access to body camera footage. Note that the largest split involves the viewing of camera footage before writing reports.

The NYPD policy sides with the 91% of officers who stated they should be given access before writing reports or issuing statements. The explanation of its decision to run contrary to public opinion cites two things:

1. Plenty of other law enforcement agencies have similarly bad camera policies.

The NYPD body-worn-camera working group has reviewed the body-worn camera policies of nearly 30 police departments. All of them allow officers, without restriction, to review body-worn camera video prior to filling reports when there has not been a significant use of force.

2. NYPD internal investigations are probably the most thorough, serious investigations in the history of internal investigations.

The propriety of this approach requires some understanding of how serious use-of-force investigations proceed in New York City… [two pages of Complicated Hypothetical Situation…]

So, the NYPD will join the 21st century, already in progress, with 1,000 cameras and policies that benefit no one but the officers wearing them. The presumption for footage will be nondisclosure and the only people guaranteed to see the footage will be those who can tailor their narratives to recordings after the fact. The NYPD believes it's the best police force in the nation, if not the world. But it's still far behind several smaller agencies, both in terms of tech adoption, as well as transparency and accountability.

Filed Under: accountability, body cameras, new york, nypd, transparency