NYPD Officer Daniel Pantaleo leaves his Staten Island home on the first day of his administrative trial 

 

For the past week, reporters and members of the public have been lining up outside One Police Plaza early in the morning, in the hopes of catching a glimpse of the administrative trial of NYPD Officer Daniel Pantaleo, whose violent arrest of Eric Garner on Staten Island in 2014 resulted in Garner’s death and turned Garner’s last words—“I can’t breathe”—into a rallying cry of the Black Lives Matter movement.

In the absence of state or federal criminal prosecutions of Pantaleo, this administrative trial represents the closest thing to a public inquest or justice process that Garner’s family is likely to get. And for an ostensibly open hearing, it has proven to be surprisingly opaque.

“You’ve got this weird patchwork—weird is the wrong word—an unsettling patchwork, where you get a window into some things, and then some really significant things, no one can see it,” said Alvin Bragg, a visiting professor at New York Law School who previously headed the unit of the New York Attorney General’s office charged with investigating officer-involved deaths. “It’s not good for the public confidence in the administration of justice. It really undermines the faith in the system.”

While disciplinary trials for other city departments are conducted by the City’s Office of Administrative Trials and Hearings, the NYPD tries its cases in-house, on the fourth floor of its fortress-like headquarters. The room in which the trial is conducted seats around 70 onlookers, but NYPD press officials have been curating the audience allowed into the room. NYPD officials, police union bosses, Pantaleo’s closest supporters, Eric Garner’s family members, the mothers of other unarmed men killed by NYPD officers, and the occasional VIP (Al Sharpton, City Council President Corey Johnson), are all guaranteed seats. That leaves a handful of seats free for the otherwise unaffiliated public, and room for about a dozen reporters.

On several days, reporters seeking to cover the trial have been turned away for lack of space. In New York’s state and federal judicial courtrooms, when public interest exceeds the capacity of a courtroom’s gallery, the courts generally set up an overflow room where the proceedings are simulcast. The NYPD makes no such accommodation.

“It’s a space that they control, and there’s no reason that these proceedings have to be there,” said Christopher Dunn, a lawyer with the New York Civil Liberties Union who focuses on police issues. Moving the proceedings outside of One Police Plaza would be an important symbolic step as well, Dunn said.

“There’s already a concern that the process is not an objective process, that it’s controlled entirely by the police department, and the judge is actually just a puppet. When the court proceedings take place inside the Police Department, that just adds to that perception.”

An NYPD spokesperson, Sergeant Jessica McRorie, gave us this statement: “NYPD administrative trials are held at One Police Plaza and are open to the public. Seating is limited. Rules governing administrative trials are the Rules of the City of New York, Title 38, Chapter 15. DCPI assists credentialed members of the press in filling those seats available to the press.”

 

NYPD Headquarters at One Police Plaza

 

Judicial courts publish transcripts of their proceedings. A court reporter is making a transcript of Pantaleo’s trial each day, but it’s kept secret by the Department. (Buzzfeed is currently suing the NYPD for access to transcripts in another administrative trial, but the City is arguing in court the press has no right to them.) The NYPD also bars any audio recording of the proceedings, so only the people selected to be in the room at the time can know for certain what is said. Even those inside the room can only be as certain as their ear and hurried note-taking allows. During pauses in the proceedings last week, reporters often huddled to compare notes, hoping one of their colleagues had caught the snatch of testimony they had failed to transcribe.

TV and still cameras aren’t allowed inside the building, nor is any sort of cell phone documentation allowed. The Department’s media minders reminded reporters last week that police headquarters is often visited by witnesses, crime victims, confidential informants and other vulnerable people. Judicial courts too often restrict cameras, but they do generally allow courtroom artists to sketch the proceedings. Not so at the NYPD. Last week a professional courtroom artist, informed that she would not be allowed to sketch inside the courtroom, was reduced to trying to commit the scene to memory, then racing out to her car to try to record what she had witnessed before the memory faded.

Such is the opacity of the Pantaleo trial that no public documents even lay out the departmental charges he’s facing. Press accounts have reported that he is charged with violating the NYPD Patrol Guide prohibition on chokeholds and the prohibition on intentionally restricting breathing, and the NYPD now confirms these charges.

Before the trial began, Deputy Commissioner of Trials Rosemarie Maldonado, who is acting as judge in the case, ruled on a motion by Pantaleo’s lawyers to dismiss the case. That ruling too was secret, though it gave rise to dueling accounts from the Police Benevolent Association, Pantaleo’s union, and the Civilian Complaint Review Board, the agency acting as prosecutor in the case, as to what the ruling meant and how, if at all, it would shape the trial to come.

 

Gwen Carr, Eric Garner’s mother, outside One Police Plaza during Daniel Pantaleo’s administrative trial last week 

 

The idea that the public and the press should be able to observe governmental proceedings—whether they concern unemployment benefits or the possible presence of reckless killers on our police force—is enshrined in a 1983 ruling of the New York State Court of Appeals. In that case, Herald Company v. Weisenberg, the court noted that “All judicial proceedings in this state are presumptively open to the public and the press. This is so because public access to judicial proceedings promotes public participation in government and provides a safeguard for the integrity of the judicial process.”

The ruling states that it applies “with equal force to quasi-judicial proceedings” like Pantaleo’s administrative trial, “where the process of government is similarly at work and the integrity of the decision-making process is equally essential to citizen confidence in government.”

When it comes to matters concerning police, though, this presumption of transparency runs into Section 50-a of New York State’s Civil Rights law, which dictates that “All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department… shall be considered confidential and not subject to inspection or review.”

The collision of these two legal imperatives has made Pantaleo’s administrative trial a confusing and frustrating jumble of secrecy and transparency.

Originally intended when it was enacted in 1976 to protect police officers serving as witnesses in court from being embarrassed on the stand by minor disciplinary matters, a series of court rulings in the years since has expanded the scope of the law to make a broad swath of police information secret from the public.

“The result is that we don’t have the ability to know whether a police officer has been found to have engaged in misconduct,” said Bob Freeman, the executive director of the New York State Committee on Open Government, who has called for the repeal of 50-a. “It’s ironic that the public employees who have the most power over people’s lives are the least accountable. It should be the reverse.”

Under Mayor Bill de Blasio, the City has adopted an especially restrictive interpretation of what information section 50-a permits the NYPD to disclose. Both de Blasio and NYPD Commissioner James O’Neill have called for changes to 50-a, but insisted that in the meantime, the law ties their hands. In February, after a commission convened by O’Neill found “almost a complete lack of transparency and public accountability” in the NYPD’s disciplinary process, the Commissioner pledged to support efforts to change the law and to institute incremental reforms, including publishing the calendar for departmental trials and ceasing the practice of invoking 50-a to deny public requests for body camera footage.

Assembly Member Dan O’Donnell and State Senator Jamaal Bailey are sponsoring state legislation to abolish 50-a entirely, and other bills seek to narrow it, but progress on the issue has been slow and some observers wonder if the Mayor and his Commissioner are doing all they can to help.

New York Attorney General Tish James, who campaigned calling for the repeal of 50-a, has seemed to walk that position back since being elected. A spokesperson for the Attorney General’s office told Gothamist today that James supports the repeal of 50-a, but did not answer a question about what, if anything, she is doing about it.

The Mayor’s Office pointed us to de Blasio’s testimony at a budget hearing in Albany in February, when mentioned the “need for reform” to 50-a. Close observers haven’t been impressed with his follow-through.

“There has been no evidence in the last several years that the de Blasio administration has put any political capital into repealing 50-a,” said Joo-Hyun Kang, the director of Communities United for Police Reform, one of more than 100 organizations calling for the repeal of the law.

Dunn of the NYCLU agreed.

“It’s now almost June, and 50-a is still on the books,” he said. “I have not seen a lot of effort from the city—and it is the City’s responsibility—to push on 50-a reform. At this point it feels like an unfulfilled promise.”

Pantaleo’s trial continues on Tuesday. When the arguments conclude, as they are expected to this week, Deputy Commissioner Maldonado will make a decision about what disciplinary recommendation she makes to Commissioner O’Neill (though the very worst possible outcome for Pantaleo is that he will need to find new employment and that he no longer has a pension). That recommendation will be entirely secret. The Commissioner will then make a final decision on what departmental discipline, if any, Pantaleo should face.

That decision too, may well be secret. If Pantaleo leaves the force, the publicly available City payroll will ultimately reflect that fact, but we might not learn it from the NYPD.