On Wednesday, WAMC News spoke with New York state Assemblyman Daniel O’Donnell, the longtime sponsor of the measure to repeal 50-a, which is now on the governor’s desk. O'Donnell is a New York City Democrat from the 69th district.
Tell us a little bit about what you expect to change once the governor signs this repeal of 50-A, which he has said he'll do.
50-A was passed in 1976, at a very obviously different time that we live in today to shield and protect police, police records from being disclosed publicly. And we, in the 70s passed the FOIL laws, Freedom of Information Law that allowed citizens and the press to have access to documents that the government has, but they- these were excluded, excluded. In the 40 years since that happened, the courts have increasingly interpreted 50-A to not be a limited disclosure, but an outright ban. And so this bill repeals 50-a in its entirety, in so doing it, repeals the entire 45 year court cases, and what their holdings were, and it means that both individuals, lawyers, and the press will be able to request documents that have long been held in secret.
You introduced a bill to do this several years ago. What has changed politically to make it now feasible that the legislature has taken this action?
Well, a number of things have changed. One, it was a very long haul, and a very long fight- I must only like hard fights, because it took me five years to pass marriage equality. So that took five years, I didn't really know that it was going to take that long. Obviously, for the first three years of that fight, the State Senate was controlled by the Republicans. And that was not going to be an easy lift. But I was committed to try, and the last two years, the Democrats control the State Senate. And this year, it was my top priority to get passed. And we finally got it done. We were able to get it done despite huge opposition from the police unions, and the police unions have historically given a lot of money to elected officials. I guess I'm fortunate that they've never given money to me. So therefore, I didn't have to worry about losing their money. And when the Republicans controlled the State Senate, they were a wholly owned subsidiary of the police union and the DA's Association and so, that got passed. Once we finished the budget, it was my intention originally to begin a full-court press on the DA and then the virus happened. And I, when I left Albany after I voted for the budget, I actually didn't think that we were coming back 'til September. And sometimes life intervenes. So, Mr. Floyd was murdered in Minneapolis, and we all watched with horror as that murder took place.
His murderer, who was a police officer, within days, the press the public knew what that officer’s disciplinary record, record history was, because in Minnesota, they don't have a 50-A kind of law. We, up until the when the governor signs it, are- It's only one of three states that has restrictive laws as ours, New York, California and Delaware, Minnesota has none. And so in Minnesota, both volunteer, people in the community, keep their own database, but the City of Minneapolis has a database of its own police department that they keep that and that is available to the public. And when that occurred, the families that have been in my office expressing their grief and sadness that their loved ones were murdered by police officers, who still don't know what happened on those days, and don't know what the history of the person who killed their son was, were at a severe disadvantage than the family of Mr. Floyd. When that occurred, there was a movement in this country.
And I would like to tell you that I, I created it, but I did not create it. All of a sudden "Repeal 50-A" is on signs all over the country. And, you know, most people before then didn't even know what 50-A was. And so, I'm very relieved that after all this hard work, I was able to get it done. We, and I agreed to write into the FOIL statute protections. So that personal information, with an "A-L" not an "E-L-L", personal information like cell phones, social security numbers, home addresses, are not included in what's accessible, and that's never what the family wanted. But the families I hope, have some sense of relief and they will have some sense of knowing what if anything, was the disciplinary record of the officers involved in their family's death.
I want to get back in a moment to the police unions. But first, let me bring up the third party to any piece of legislation and that's the governor. How did the governor make this a priority? To be fair, he's in his third term. We all listen closely to what he says, and he hasn't always been trumpeting repealing 50-A.
Ha-ha, I'm sorry. No, he hasn't. He has never been a supporter of repealing 50-A. And neither has the mayor of the City of New York. And one of the things that is frustrating to me as a legislator, is I spent those five years meeting with different people, meeting with the mayor and his staff, and meeting with different people to say, "Well, what do you want? How can I fix this?" And there was never any assistance from the governor in those five years, there was never any outreach from the governor saying, "I would consider doing this-" This is a case where the people demanded that the governor take a position and now he has said he will. And I hope he keeps his word and invites me to this bill signing because like I said, I've spent five years trying to get it to this point.
Now let's get back to the police unions. They are flatly furious over this and they say, you know, "This is going to be used to railroad police. There may be, you know, a couple of bad apples so to speak, but this is going to deprive police who are involved in a high stress situation or a split second decision of their due process." What's your answer to that?
And anybody who knows me and knows my history, will tell you that I would never deprive anyone of due process. I spent seven years as a public defender in Brooklyn, during the crack years, I understand the criminal justice system, backwards and forwards. For four years, I was in charge of the corrections committee in the state Assembly, and in that time, I visited 38 state prisons and took tours of those prisons. There are severe limitations on what a defense lawyer is allowed to ask of a police officer during the trial, the idea that something frivolous or something from 30 years ago, would be brought up in a trial is just plain wrong. I don't know a judge from my time that would ever consider that. I agree. It is not that most police officers are bad, and it's absolutely not the case.
However, there are some police officers who sometimes overreact and there are sometimes people who bring a pattern to their work. And so this- because FOIL is an already existing statute, with severe limitations written into it, those will all still apply. What- How do you get the information? You send a foil request to an agency, the agency says "I'm not giving it to you." Then you have to appeal that, there's an appeals officer at the agency, and then the appeals officer redacts probably 90% of what's on the form that you asked for, and then you have to go to court to give them the un-redacted form. So those protections are very strict, and very clear and it seems to me that we have a problem. There's something like 4000 complaints in the last two years in New York City about racial profiling and the police department has found that zero, were substantiated, and that just simply can't be. So I have confidence in, in the FOIL process. I have confidence in the agencies are designed to administer it. I have confidence in the courts, to nature people's private information is protected and no harm is done. And it's sad to me that a good police officer would be willing or expected, to protect a bad one.
Well, Senate Minority Leader John Flanagan, who also opposed this bill, now is in the minority, of course. He says that it will include everything. It'll include false allegations against police officers and the public won't be able to differentiate between what might be, you know, a troubling aspect of a police officer’s past given a situation and something that was was not eventually true.
I want to assure your listeners, we have been very clear that minor violations are not included. The New York City patrol guide for police officers, all police forces have rules about things, like shiny shoes and other things that are, I suppose, necessary for discipline in order, but are not relevant to the public information. So we have an entire paragraph about what is a "minor infraction", and if it's a minor infraction, there's no way to know about it. You can't, the rules don't let you. Secondly, the police departments themselves have an ability when reviewing these things to say "We're not going to give that to you, for this reason," and then it is incumbent upon the person who wants the information to be able to go to court and say this is why I'm entitled to this information, under the FOIL, and under the with the repeal of 50-A. I have the utmost respect for John Flanagan, and I consider him a close personal friend. He represents where I grew up, I just don't think that he is in fact correct about this. And let me just assure you, that if that comes to be the first person who going to talk about fixing it.
OK, last thing for you, Assemblyman. Let's say, God forbid, we have a situation like George Floyd's here in New York. We've certainly seen them in the past, and in all likelihood, we'll see another one in the future. We have a police-involved killing of a civilian, and now we have the ability to look back into that police officer's history with 50-a. What do you hope that we will do with that information once we are now able to access it?
Well- I'd try to make it like Minnesota, so that if you have the information- For example, if somebody has never been accused of overuse of force, that will tell us an awful lot about whether or not this new allegation of excessive force is accurate. The reason that the former sheriff in Albany has an endorsed my bill is because he feels strongly that that all police officers are being painted with the brush of the bad police officers. Right? And so you know, nothing in this process changes the disciplinary process within the police departments. But I would hope that the police departments all across the state, and the correction department that runs our prisons will look more closely at the conduct of their officers and make determinations as to whether or not someone is either appropriate for the force, or maybe even doing the right job. There are lots of different jobs in the correctional system. And there are lots of different jobs from the police department. Maybe there's somebody shouldn't be where they're currently assigned. And so I think that... all this does, is it puts police- Takes away the special rights and rules 50-A gave them and makes the light all other public employees, which is that the public that pays their salaries have some right to know whether or not they have been up to misdeeds. And certainly, there was discussion on the floor yesterday, that debate lasted six hours, you know, without an allegation that somebody, you know, bangs somebody's head on the back of a car of a cop car. And they said, "Well, what, you know, that's not really fair." I said, "Well, what if they have 15 of them in one month?" Right? that tells you that becomes a pa- pattern and practice, that I think should inform all of us in how we do things and inform us about the ways to do this better. Clearly. The murder of Mr. Floyd was the lightning rod, but it wasn't the first one. And they go back as far as Eleanor Bumpurs, who African American woman in New York City who was shot by the police, when I was a law student. It's a long standing history. We need to know more information and that information will now be selectively available to the public.
Same-sex marriage is the law of the land and in New York State. 50-A awaits Governor Cuomo's signature. What's your next uphill battle, Assemblyman?
Yeah, what's that saying? "I want to go to Disney World." Now I want to go on vacation. But I don't know if I'm gonna be able to go on vacation anytime soon. You know, I, I love my job. I love legislating and if there's a problem out there, I'm the kind of person who wants to try to find a solution. Marriage Equality fell to me, because I would get married. I am now married and my husband and I were plaintiffs in the marriage lawsuit. 50-A came to my attention and it cried out for somebody who could fight and fight hard, and that's me. So I don't know yet but I'm sure something will present itself.