Police Discipline Comes Before the Court of Appeals

The state’s top court will settle disputes between Rochester, Syracuse, New York City, and their police unions next week in three cases that could reshape police discipline across the state.

Nathan Porceng   ·   October 13, 2023
NYPD Vans in front of the New York County Surrogate's Court at 31 Chambers Street.
NYPD vans in front of the New York County Surrogate's Court at 31 Chambers Street. | Can Pac Swire

Update 10/24: Shortly before oral argument, the city of Syracuse reached an agreement with its police and fire unions and withdrew its appeal. The Court of Appeals heard the Rochester and New York City cases as scheduled.

Donovan Richards was 13 years old when, he said, New York Police Department officers drew their guns on him and his cousin, subjected them to an illegal search, and told the two Black boys they looked like armed robbers. In 2006, NYPD officers gunned down Richards’s neighbor, Sean Bell. Richards says he emceed Bell’s funeral and later threw a birthday party for his newly fatherless daughter.

“Those are things that always stuck with me,” Richards, now the Queens borough president, told New York Focus. In 2020, as racial justice protests swept the nation, Richards — then the chair of the New York City Council’s public safety committee — spearheaded a sweeping package of police reform bills, including chokehold and diaphragm-compression bans aimed at eliminating the restraint techniques that killed George Floyd and Eric Garner.

Next week, those bans will go before the state’s highest court, along with two other cases related to police discipline and civilian oversight of law enforcement agencies. Over two days, the Court of Appeals will hear not only from New York City and its police unions, but also Syracuse, Rochester, and their respective police unions. Together, the cases could significantly reshape police discipline — dictating what kind of police misconduct laws municipalities can enact, how municipalities can discipline abusive officers, and who can do the disciplining.

New York City — bloodied from fighting its own police union — weighed in on the Syracuse and Rochester disputes, filing advisory briefs that ask the court to use the upstate cases to reinforce municipal authority and discretion over police discipline. Wary, perhaps, that the outcomes of the Syracuse and Rochester cases could affect other municipalities, the city further urged the court to clarify when a city government forfeits its exemption from collective bargaining over disciplinary provisions.

The New York City Police Benevolent Association, Syracuse Police Benevolent Association, Rochester Police Locust Club, New York City Law Department, and the city of Rochester did not respond to New York Focus’s requests for comment. The city of Syracuse declined to comment on ongoing litigation.

Three years have passed since Floyd’s death, and nine since Garner’s. The police reform movement has faced a fast and fierce backlash. Support for once-popular reforms has plummeted, progressive legislation has stalled, and police budgets have ballooned back and beyond their pre-2020 levels. Depending on its decisions, the newly configured court could provide a boost to criminal justice reformers struggling against retrenchment, or another crushing blow.

“New York is behind,” said Josh Parker, senior counsel at the New York University School of Law’s Policing Project, which partners with communities to promote police accountability. The state lags even conservative jurisdictions like Florida and Texas in providing basic civilian protections, he said, such as a robust statewide police discipline and decertification system. “An officer could punch someone in the face … and not required to be reported unless the person is hospitalized and suffers serious injury.”

Reformers have fared a little better at the municipal level, though progress has been slow. A majority of New York City legislators supported a chokehold ban following Garner’s death in 2014, but then-Mayor Bill de Blasio indicated he would veto the bill if it reached his desk, and the council never brought it to a vote.

In 2020, spurred by Floyd’s murder, the council revived the chokehold ban. This time, they included an additional provision prohibiting all restraints compressing the windpipe, diaphragm, or carotid arteries on each side of the neck. After making amendments to address concerns raised by the NYPD, city legislators passed the bill by a vote of 47–3, and De Blasio signed it into law.

The city’s police unions filed a lawsuit challenging the bans, arguing that its language was too vague for officers to understand. Rafael Mangual, a senior fellow at the Manhattan Institute, agreed that the bill was “ridiculously broad.”

“It’s not just a ban on … a neck restraint …or …placing a knee on somebody’s neck for eight minutes the way that was done to George Floyd. This is a ban on placing any pressure on the diaphragm, presumably even from any position,” Mangual said.

Richards tried to amend the bill again to clarify that it only applied to officers who acted recklessly, but the City Council never voted on his changes.

A lower court judge found the vagueness argument persuasive: An ordinary police officer, the judge reasoned, has no way of knowing if they are compressing someone’s diaphragm since the diaphragm is an internal muscle. The judge struck down the entire bill, including the separate chokehold ban, since there was “insufficient evidence” that the New York City Council would want the chokehold ban enforced absent the language on diaphragm compression.

New York City appealed, arguing that “highly trained law enforcement officers should have no difficulty discerning what conduct the law prohibits.” An appeals court agreed, ruling that “just as a driver should be able to tell when the amount of alcohol he consumed is making it unsafe for him or her to drive,” a trained police officer should be able to tell when they are suffocating someone. The court overturned the lower court’s decision and reinstated the chokehold and diaphragm compression bans.

Back on the defensive, the police unions appealed to the state’s high court to settle the matter once and for all.

The New York City dispute is just one of three police oversight cases on the Court of Appeals’ October docket. First, the court will hear separate disputes between the cities of Syracuse and Rochester and their respective police unions.

The court will start with Syracuse. Elected in 2017, Mayor Ben Walsh talked a big game about reforming the city’s police department, which had lost a string of brutality lawsuits. Walsh and his appointees began rooting out abusive officers over stiff opposition from union leadership.

Between 2018 and 2019, the city suspended four police officers — Joseph Moran, Mark Shea, Patrick Moore, and David Craw — for various conduct infractions. The police union challenged the suspensions. Under the union’s collective bargaining agreement, disputes over officer discipline required third party arbitration. Walsh found the arbitration process too secretive and wanted to conduct public disciplinary hearings, overseen by mayoral appointees.

The city filed a state court motion to stay arbitration, beginning a half-decade of litigation. A parallel case between Syracuse and its firefighters union quickly followed. The city claims, and the unions deny, that state law prohibits the collective bargaining of police and firefighter discipline.

“An officer could punch someone in the face and not required to be reported.”

—Josh Parker, NYU Policing Project

Parker of the Policing Project, an experienced appellate lawyer, declined to comment on the legal merits of the Syracuse case. But he emphasized that police collective bargaining agreements provide disciplinary protections “above and beyond” those received by other public employees — CBAs can prohibit investigators from interviewing officers for five to 30 days after a use of force incident, for example, and allow officers to access body camera footage and other critical evidence before their initial interview so they “can get their story straight.”

Parker said he supports enhancing state and municipal control over police discipline and making disciplinary proceedings more transparent to the public — similar to Syracuse’s desired outcomes.

Lower courts sided with the unions and ordered Syracuse back to arbitration. Syracuse’s attorneys hope the Court of Appeals will see things differently. They claim the court’s past precedent displays a preference for “municipal control over police and fire discipline,” pointing to a 2017 case permitting Schenectady to enact its own police disciplinary procedures, regardless of its collective bargaining agreement. A favorable ruling would allow the city to buck its police union and conduct transparent public disciplinary hearings.

After Syracuse, the court will turn to Rochester to settle that city’s dispute over the disciplinary authority of its Police Accountability Board. Like Syracuse, Rochester has a long history of abusive policing. In 2019, the city held a public referendum on whether to establish an all-civilian PAB — charged, among other responsibilities, with holding public hearings and disciplining offending officers.

“The voters overwhelmingly voted … to have a police accountability board, so there could be greater transparency and more importantly, greater accountability,” Sherry Walker-Cowart, the board’s interim executive director, told New York Focus. “When people call police officers to their neighborhoods, they want to feel safe.”

While over 75 percent of Rochester voters approved the board’s creation, the city’s police union did not.

First, the union tried to stop the referendum. When that failed, the union filed a lawsuit challenging the board’s disciplinary authority, winning consecutive lower court victories. The Rochester dispute differs from Syracuse slightly in its specifics, but the parties’ arguments are largely the same. The city contends that state statutes and Court of Appeals precedent prohibit collective bargaining of police discipline and that the municipal government retains the right to discipline officers as it sees fit. The union argues that their collective bargaining agreement controls the process. A ruling for the city would restore the board’s disciplinary powers.

Richards worries that the urgency following Floyd’s murder is fading. He says that fluctuations in the nation’s crime rate have squelched the public’s appetite for police accountability and that it’s become too difficult to have an honest conversation about police reform. Still, he says, reformers need to press forward.

“We have to still be vigilant,” said Richards. “We still have to work hard to make sure that we’re bringing transparency and accountability.”

Walker-Cowart also sees the movement at a crossroads. “Major change can happen,” she said. “If there’s going to be any changes and policies and practices and behaviors, this is the time to make those changes.”

Nathan Porceng is a writer and journalist living in New York City. His work has appeared in Balls & Strikes, Grist, The Daily Beast, and more. Nathan grew up in Central New York and spent five years as a submarine officer in the… more
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