Gaining Access to Police Personnel Records

September 13, 2013 in Freedom of Information ACCESS TO POLICE PERSONNEL RECORDS: AN IMPORTANT DEFENSE TOOL

An Important Criminal Defense Tool

In defending clients’ charged with criminal offenses, we routinely search the federal and state courts for any civil rights cases brought against arresting officers and other police personnel involved in the case.  Often, this information helps us uncover whether police officers have a history of excessive force or other constitutional rights violations.  If a police officer has a prior civil rights case, we speak with the plaintiffs’ attorneys in those cases to see whether the officers had to sit for questioning under oath at depositions or trial.  There is a new tool of discovery, however, that may be developing through a Brooklyn case where a judge has issued a subpoena requiring the NYPD to turnover actual NYPD personnel records.  This case may represent an important development in obtaining evidence against officers.

In the case of People of the State of New York v. Threstan Ralph, 2012KN063065, the Legal Aid Society filed a “Gissander” motion to obtain a judge-signed subpoena for personnel NYPD records.  The Brooklyn District Attorney’s Office filed an opposition to the motion, which the Court denied and ordered the NYPD to comply with the subpoena.  The Legal Aid Society then served the subpoena.  The NYPD responded by seeking to “quash” the subpoena arguing that it did not have the chance to be heard, which the NYPD claimed violated a provision of New York Civil Rights Law section 50-a(2) that provides “[p]rior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard.”  Legal Aid responded that the NYPD failed to acknowledge that it had been served with the “Gissander” motion and subpoena, and therefore the NYPD had waived its right to be heard on the issue.  The Court found on due process grounds, however, that the NYPD had a right to be heard.  Specifically, the Court noted that despite the NYPD offering no explanation for its failure to respond, fairness required the opportunity to be heard as required under section 50-a(2) of the Civil Rights Law.  Therefore, the Court ordered that the NYPD had 10 days to respond to the matter.

While the ultimate outcome of this matter is yet to be decided, we are going to monitor the Ralph case to see whether it forges a new pathway to discovering more information about the police officers that come into our clients.  This may develop into an important new tool of discovery, especially if there are significant leadership changes at the NYPD with a new mayor in 2014.  If the Ralph case develops the way we hope, our clients can be assured that we will be exploring every opportunity to bring “Gissander” motions to obtain these records.