Key Takeaways

• Andrew Cuomo has signed eight of 10 bills included in the legislature’s swift and sweeping “Say Their Name” law enforcement reform agenda

• This notably includes repeal of  Civil Rights Law § 50-a, the statute that shielded law enforcement personnel records from disclosure

• Multiple statutes involve oversight and accountability measures, while others establish penalties for non-emergency 911 calls, ban “chokeholds,” and stipulate that persons in law enforcement custody have a right to medical attention

• Additionally, Executive Order 203 requires localities to review and make plans for potentially sweeping police reforms

New York has responded to the social unrest and demand for changes in policing by enacting 10 pieces of legislation as a part of the “Say Their Name Reform” agenda. To date, eight of the bills have been signed by Gov. Andrew Cuomo and two await the governor’s review after having been passed by the state senate and assembly last week. Additionally, and potentially further reaching and more ambitious than the legislative package, the governor recently released Executive Order 203, which requires police departments in local government to develop a plan for reforming their police departments.

Repeal of Civil Rights Law § 50-a

Perhaps the most significant legislative change was the complete repeal of Civil Rights Law § 50-a, which relates to the disclosure of law enforcement disciplinary records. CRL § 50-a was enacted in 1976 in response to a court case where a police officer’s written reprimands were released to a citizen pursuant to a request under the Freedom of Information Law (FOIL), a state statute permitting public access to records generated by government agencies, including police departments. With its repeal through S.8496/A.10611, law enforcement personnel disciplinary records are now subject to disclosure.

The change to CRL §50-a includes an amendment to FOIL regarding the scope of disclosure of disciplinary records. Specifically, a law enforcement agency responding to a FOIL request for law enforcement disciplinary records must redact specific categories of personal information from the record before disclosing the record. The law further allows the agency to redact portions of the record that only contain minor, technical infractions that do not involve interactions with the public, are not of public concern, and are not connected to the officer’s investigative, enforcement, training, supervision, or reporting responsibilities.

The law further provides the specific types of personal information (e.g., social security numbers, medical history, home addresses, personal telephone numbers, personal cell phone numbers, personal e-mail address, or participation in an employee assistance program, mental health service, or substance abuse program) that must be redacted from a law enforcement agency’s response to a request for disciplinary records.

This legislation is effective immediately.

Reporting a Non-Emergency Incident Involving a Member of a Protected Class

Another measure, S.8492/A.1531, was enacted to prevent the misuse of 911 and other organizations that deal with emergencies. The law amends the Civil Rights Law (creating Subdivision 2 of Section 79-n), in relation to reporting a non-emergency incident involving a member of a protected class.

Specifically, the law covers situations where any person intentionally:

• Selects a person or property for harm;
• Causes damage to the property of another;
• Causes physical injury or death to another; or
• Summons a police officer or peace officer

without reason to suspect a violation of the penal law, any other criminal conduct, or any imminent threat to a person or property, if in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.

A person lacks reason to suspect a violation of the penal law, any other criminal conduct, or an imminent threat to a person or property where a reasonable person would not suspect such violation, conduct, or threat. Violators of the law may be subject to a civil action whereby injunction relief, damages, or any other appropriate relief in law may be sought.

This legislation is effective immediately.

Crime of Aggravated Strangulation

S.6670B/A.6144 amends the New York Penal Law to establish the crime of aggravated strangulation for police officers or peace officers, where such officer commits the crime of criminal obstruction of breathing or blood circulation, or uses a chokehold or similar restraint, and causes serious physical injury or death. The violation is otherwise identified as the “Eric Garner anti-chokehold act” and is a Class C Felony.

This legislation is effective immediately.

Office of Special Investigation Within the Office of the Attorney General

S.2574B amends New York Executive Law, in relation to creating an Office of Special Investigation within the office of the Attorney General with investigative authority and criminal jurisdiction over any incident in which the death of a person is caused by a police officer or correctional officer.

This legislation requires the new Office of Special Investigation to produce a report explaining the reasons for its decision regardless of whether it chooses to pursue charges.

Six months after the effective date of the law, and annually thereafter, the Office of Special Investigation will make available to the public and posted on the website of the Department of Law, a report that provides information about the matters that were investigated during the period and recommendations for systematic changes.

This legislation is effective April 1, 2021.

Recording Certain Law Enforcement Activities

S.3253A/A.1360 amends the Civil Rights Law to provide that a person not under arrest or in the custody of a law enforcement official has the right to record police activity and to maintain custody and control of that recording and of any property or instruments used by that person to record police activities. However, a person in custody or under arrest does not, by that status alone, forfeit such right to record. The law is otherwise known as “New Yorker’s Right to Monitor Act.”

This legislation is effective on the 30th day after it was signed by the governor.

Medical Attention of Persons Under Arrest

S.6601A/A.8226 amends the Civil Rights Law to provide that when a person is under arrest or otherwise in custody of a police officer, peace officer, or other law enforcement representative or entity, such officer, representative, or entity has a duty to provide attention to the medical and mental health needs of that person.

This legislation is effective immediately.

Police Statistics and Accountability Act (STAT Act)

S.1830C/A.10609 amends the Criminal Procedure Law, Judiciary Law, and Executive Law in relation to reporting requirements of misdemeanors and violations. The data in the reporting requirements includes but is not limited to the following: aggregate number of misdemeanors/violations; the offense/violation charged, the race ethnicity, age, and sex of individual charged; whether the individual was issued a summons or appearance ticket, was subject to custodial arrest, or whether an arraignment was held as a result of the misdemeanor/violation; the location where the alleged misdemeanor/violation occurred; the disposition of case; if the case is dismissed, why it was dismissed; and sentence imposed, including fines, fees, and surcharges.

The chief administrator of the courts shall include this information in its annual report submitted to the legislature. The data collected must be made available online, and updated monthly.

Additionally, the bill requires the chief of every police department, county sheriff, and superintendent of state police to promptly report to the New York State Division of Criminal Justice Services (DCJS) any arrest-related death, broken down by county. An arrest-related death is defined as a death that occurs during law enforcement custody or an attempt to establish custody, including, but not limited to, deaths caused by any use of force. This data will be presented in an annual report to the governor and legislature and is to be presented no later than February 1st of any year.

The data collected must be made available online and updated monthly. It must be in an alphanumeric form and cannot be in pdf form or scanned copies of originals.

This majority of this legislation is effective on the 180th day after it shall have become a law with one exception as it relates to the part of the legislation amending the criminal procedure law¹.

Required Reporting After Discharge of Weapon

S.2575B/A.10608 amends the New York Executive Law and requires a law enforcement officer or peace officer who discharges their weapon under circumstances where a person could be struck by a bullet to immediately report the incident to their superiors. Specifically, the officer must verbally report the incident to their supervisor within six hours and prepare and file a written report of within 48 hours of the incident. Notably, the law further provides that a law enforcement officer or peace officer is not prevented from invoking their constitutional right to avoid self-incrimination.

This legislation takes effect on the 90th day after it shall have become law.

Other Pending New York Bills

There are two other bills awaiting review by the governor, who has signaled that he supports the legislation. These address the following topics:

1. S.8493/A.8674: Body-worn cameras by New York State police officers.
2. S.3595B: Creates the law enforcement misconduct investigative office.

It is likely that Gov. Cuomo will review and decide whether to sign these laws in the coming weeks.

New York State Police Reform and Reinvention Collaboration

Executive Order 203 requires localities to review and make plans for potentially sweeping police reforms. Under EO 203 each local government with a police agency operating with police officers will need to perform a comprehensive review of current police force deployments, strategies, policies, procedures, and practices, and then develop a plan to improve such deployments, strategies, policies, procedures, and practices.

More specifically, each chief executive of such local government must convene the head of the local police agency and stakeholders in the community to develop the plan. The plan must be offered for public comment to all citizens in the locality. Thereafter the local government must ratify or adopt the plan by local law or resolution no later than April 1, 2021.

Governments that fail to enact a local law or resolution by the April 1, 2021 deadline risk losing state funding. The governor’s office is likely to issue guidance to local governments relating to this order.

It remains to be seen whether federal legislation will also pass in relation to police reform measures. Based on current indications, it is unlikely that federal legislation will include measures beyond what New York State has adopted thus far in the “Say Their Name Reform” agenda.

For more information on these changes or for immediate guidance, contact:

• Christopher P. Maugans
• Sean P. Beiter
• Matthew C. Van Vessem
• Kristin Klein Wheaton
• Or another member of Goldberg Segalla’s Municipal and Government Law practice

¹This act, shall be subject to  the  expiration  and  reversion  of  such section as provided in section 11 of chapter 237 of the laws of 2015, as amended, when upon such date the provisions of section one-a of this act shall take effect.