ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:20-cv-05441-KPF

Uniformed Fire Officers Association et al v. DeBlasio et al Assigned to: Judge Katherine Polk Failla Case in other court: State Court - Supreme, 154982-
2020E Cause: 28:1331 Fed. Question

Date Filed: 07/15/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Uniformed Fire Officers Association

represented by Anthony Paul Coles DLA Piper US LLP (NY) 1251 Avenue of the Americas, 27th Floor New York, NY 10020 (212) 335-4500 Email: anthony.coles@dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Gilligan Saleski DLA Piper US LLP ( Philadelphia ) One Liberty Place,1650 Market Street, Suite 4900 Philadelphia, PA 19103 (215)-656-2431 Fax: (215)-606-2046 Email: courtney.saleski@dlapiper.com ATTORNEY TO BE NOTICED

Michael Robert Hepworth DLA Piper US LLP (NY) 1251 Avenue of the Americas, 27th Floor New York, NY 10020 212-530-4466 Email: michael.hepworth@dlapiper.com ATTORNEY TO BE NOTICED

Plaintiff

Uniformed Firefighters Association of Greater New York

represented by Anthony Paul Coles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Gilligan Saleski (See above for address) ATTORNEY TO BE NOTICED

Michael Robert Hepworth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Police Benevolent Association of the City of New York, Inc.

represented by Anthony Paul Coles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Gilligan Saleski (See above for address) ATTORNEY TO BE NOTICED

Michael Robert Hepworth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Correction Officers' Benevolent Association of the City of New York, Inc.

represented by Anthony Paul Coles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Gilligan Saleski (See above for address) ATTORNEY TO BE NOTICED

Michael Robert Hepworth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sergeants Benevolent Association

represented by Anthony Paul Coles (See above for address) LEAD ATTORNEY

Plaintiff Lieutenants Benevolent Association
Plaintiff Captains Endowment Association
Plaintiff Detectives' Endowment Association

ATTORNEY TO BE NOTICED
Courtney Gilligan Saleski (See above for address) ATTORNEY TO BE NOTICED
Michael Robert Hepworth (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Paul Coles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney Gilligan Saleski (See above for address) ATTORNEY TO BE NOTICED
Michael Robert Hepworth (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Paul Coles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney Gilligan Saleski (See above for address) ATTORNEY TO BE NOTICED
Michael Robert Hepworth (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Paul Coles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney Gilligan Saleski

(See above for address) ATTORNEY TO BE NOTICED
Michael Robert Hepworth (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Bill de Blasio in his official capacity as Mayor of the City of New York

represented by Dominique F. Saint-Fort New York City Law Depart. Office of the Corporation Counsel 100 Church Street New York, NY 10007 212-356-2444 Fax: 212-356-2349 Email: dosaint@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kami Zumbach Barker NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212) 788-0303 Fax: (212) 788-8876 Email: kbarker@law.nyc.gov ATTORNEY TO BE NOTICED

Rebecca Gibson Quinn New York City Law Department 100 Church Street New York, NY 10007 (860)-508-4861 Email: rquinn@law.nyc.gov ATTORNEY TO BE NOTICED

Defendant City of New York

represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED

Rebecca Gibson Quinn (See above for address) ATTORNEY TO BE NOTICED

Defendant
Fire Department of the City of New York

represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED

Rebecca Gibson Quinn (See above for address) ATTORNEY TO BE NOTICED

Defendant
Daniel A. Nigro in his official capacity as the Commissioner of the Fire Department of the City of New York

represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED

Rebecca Gibson Quinn (See above for address) ATTORNEY TO BE NOTICED

Defendant
New York City Department of Correction

represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED

Defendant Cynthia Brann in her official capacity as the Commissioner of the New York City Department of Correction
Defendant Dermot F. Shea in his official capacity as the Commissioner of the New York City Police Department
Defendant New York City Police Department

Rebecca Gibson Quinn (See above for address) ATTORNEY TO BE NOTICED
represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED
Rebecca Gibson Quinn (See above for address) ATTORNEY TO BE NOTICED
represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED
Rebecca Gibson Quinn (See above for address) ATTORNEY TO BE NOTICED
represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED
Rebecca Gibson Quinn

(See above for address) ATTORNEY TO BE NOTICED

Defendant
Frederick Davie in his official capacity as the Chair of the Civilian Complaint Review Board

represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED

Rebecca Gibson Quinn (See above for address) ATTORNEY TO BE NOTICED

Defendant
Civilian Complaint Review Board

represented by Dominique F. Saint-Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kami Zumbach Barker (See above for address) ATTORNEY TO BE NOTICED

Rebecca Gibson Quinn (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant

Communities United for Police Reform

represented by Alex V. Chachkes Setty Chachkes PLLC 228 Park Ave S Ste 54517 New York, NY 10003-1502 917-428-1358 Email: alex@sechalaw.com TERMINATED: 01/27/2021 LEAD ATTORNEY

Caitlin Carey Sikes Orrick, Herrington & Sutcliffe LLP (NYC) 51 West 52nd Street

ADR Provider BetaNYC

New York, NY 10019 212.506.5016 Fax: 212.506.5151 Email: csikes@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Cariello Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, NY 10019 212-506-3778 Email: ccariello@orrick.com ATTORNEY TO BE NOTICED
Margaret Lee Wheeler-Frothingham Mayer Brown LLP 1221 Avenue of the Americas New York, NY 10020 212-506-2500 Email: MWheelerFrothingham@mayerbrown.com TERMINATED: 01/13/2021
Rene Kathawala Orrick, Herrington & Sutcliffe LLP (NYC) 51 West 52nd Street New York, NY 10019 212-506-5000 Fax: 212-506-5151 Email: rkathawala@orrick.com ATTORNEY TO BE NOTICED
Renee B. Phillips Orrick, Herrington & Sutcliffe LLP (NYC) 51 West 52nd Street New York, NY 10019 212-506-5000 Fax: 212-506-5151 Email: rphillips@orrick.com ATTORNEY TO BE NOTICED
represented by Sean Miles Murphy Milbank LLP 55 Hudson Yards

Amicus
New York Civil Liberties Union

New York, NY 10001 212-530-5688 Fax: 212-822-5688 Email: smurphy@milbank.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Thomas Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344-3005 Fax: (212) 344-3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED
Jamie Lynne Wine Latham & Watkins ,LLP 885 Third Avenue, Suite 1000 New York, NY 10022 (212)-906-2904 Fax: (212)-751-4864 Email: jamie.wine@lw.com ATTORNEY TO BE NOTICED
Jordan Laris Cohen New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10024 212-607-3343 Email: jlariscohen@nyclu.org ATTORNEY TO BE NOTICED
Lawrence Edward Buterman Latham & Watkins LLP (NY) 885 Third Avenue New York, NY 10022 212- 906-1200 Fax: 212-751-4864 Email: lawrence.buterman@lw.com ATTORNEY TO BE NOTICED
Michael Sisitzky New York Civil Liberties Union 1 Whitehall St FL 3

Amicus The Legal Aid Society

New York, NY 10004 212-607-3386 Email: msisitzky@nyclu.org ATTORNEY TO BE NOTICED
Molly Knopp Biklen New York Civil Liberties Union 125 Broad St. New York, NY 10004 212-607-3380 Email: mbiklen@nyclu.org ATTORNEY TO BE NOTICED
Samir Deger-Sen Latham & Watkins 885 Third Avenue New York, NY 10022 212-906-1200 Email: samir.deger-sen@lw.com ATTORNEY TO BE NOTICED
represented by Corey Stoughton Legal Aid Society 199 Water Street New York, NY 10036 646-884-2316 Email: cstoughton@legal-aid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger Allen Cooper Cleary Gottlieb One Liberty Plaza New York, NY 10006 (212) 225-2283 Fax: (212) 225-3999 Email: racooper@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M. Francis Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 212-225-2277

Amicus
Center on Race, Inequality, and the Law at New York University School of Law

Email: aafrancis@cgsh.com ATTORNEY TO BE NOTICED
Joseph Michael Kay Cleary Gottlieb Steen & Hamilton LLP (NYC) One Liberty Plaza New York, NY 10006 212 225 2745 Fax: 212 225 3999 Email: jkay@cgsh.com ATTORNEY TO BE NOTICED
Kayla Marie Rooney Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 570-972-6890 Email: krooney@cgsh.com ATTORNEY TO BE NOTICED
Molly Griffard The Legal Aid Society Special Litigation Unit 199 Water Street Ste 6th Floor New York, NY 11216 212-298-3242 Email: mgriffard@legal-aid.org ATTORNEY TO BE NOTICED
Ye Eun E Chun Cleary Gottlieb Steen & Hamilton One Liberty Plaza 34 Floor New York, NY 10006 212-225-2122 Email: chchun@cgsh.com ATTORNEY TO BE NOTICED
represented by Charlita Mays Spears & Imes LLP 51 Madison Avenue New York, NY 10281-2702 212 213-6673

Amicus
Law Enforcement Action Partnership

Fax: 212 213-0849 Email: cmays@spearsimes.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Chen Spears & Imes LLP 51 Madison Avenue New York, NY 10010 (212)-897-4487 Fax: (212)-213-0849 Email: cchen@spearsimes.com ATTORNEY TO BE NOTICED
represented by Brian S. Fraser Akerman LLP 520 Madison Avenue Ste 20th Floor New York, NY 10022 212-259-6472 Email: brian.fraser@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Enjolique D Aytch Lett Greenberg Traurig P.A. 333 S.E. 2nd Avenue Suite 4400 Miami, FL 33131 305-579-0640 Fax: 305-579-0717 Email: lette@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joel David Bertocchi Akerman LLP 71 South Wacker Drive Ste 47th Floor Chicago, IL 60606 312-634-5700 Fax: 312-424-1900 Email: joel.bertocchi@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Justice Committee Inc.
Amicus NAACP Legal Defense and Educational Fund, Inc.

represented by David Leon Kornblau Covington & Burling LLP (NYC) 620 Eighth Avenue New York, NY 10018-1405 (212) 841-1084 Fax: (646) 441-9084 Email: dkornblau@cov.com ATTORNEY TO BE NOTICED
Russell Matthew Squire Covington & Burling LLP (NYC) 620 Eighth Avenue New York, NY 10018-1405 (212)-841-1105 Email: rsquire@cov.com ATTORNEY TO BE NOTICED
represented by Chris Hollinger O'Melveny & Meyers LLP Two Embarcadero Center San Francisco, CA 94111-3823 415-984-8700 Fax: 415-984-8701 Email: chollinger@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec Schierenbeck Office of the New Jersey Attorney General O'Melveny and Myers LLP 124 Halsey Street Newark, NJ 07102 917-439-7313 Email: aschierenbeck@gmail.com ATTORNEY TO BE NOTICED
Ashok Chandran NAACP Legal Defense & Educational Fund Inc NAACP Legal Defense & Educational Fund Inc 40 Rector Street Ste 5th Fl.

New York, NY 10006 212-965-2238 Email: achandran@naacpldf.org ATTORNEY TO BE NOTICED

Bess Ibtisam Hanish Alto Litigation 4 Embarcadero Center Suite 1400 San Francisco, CA 94115 661-378-6117 Email: bess@altolit.com ATTORNEY TO BE NOTICED

Jin Hee Lee NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212)965-2200 Fax: (212)219-7592 Email: jlee@naacpldf.org ATTORNEY TO BE NOTICED

John Spencer Cusick Naacp Legal Defense & Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10005 (917)-858-2870 Email: jcusick@naacpldf.org ATTORNEY TO BE NOTICED

Racquel B. Martin O'Melveny & Myers LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 415-984-8714 Email: rmartin@omm.com ATTORNEY TO BE NOTICED

Amicus
Lawyers' Committee for Civil Rights Under Law

represented by Arthur Ago Lawyers' Committee for Civil Rights Under Law 1500 K St NW

Suite 900 Washington, DC 20005 202-662-8352 Email: aago@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chris Hollinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Fowler Lawyers' Committee for Civil Rights Under Law 1500 K St. NW, Suite 900 Washington, DC 20001 202-662-8340 Email: jfowler@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec Schierenbeck (See above for address) ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Bess Ibtisam Hanish (See above for address) ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Racquel B. Martin (See above for address) ATTORNEY TO BE NOTICED

Amicus LatinoJustice PRLDEF
Amicus Law for Black Lives

represented by Chris Hollinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec Schierenbeck (See above for address) ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Bess Ibtisam Hanish (See above for address) ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Nathalia Alejandra Varela Latinojustice Prldef 99 Hudson Street New York, NY 10013 (212)-739-7504 Email: nvarela@latinojustice.org ATTORNEY TO BE NOTICED
Racquel B. Martin (See above for address) ATTORNEY TO BE NOTICED
represented by Chris Hollinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec Schierenbeck

(See above for address) ATTORNEY TO BE NOTICED

Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED

Bess Ibtisam Hanish (See above for address) ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED

John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED

Racquel B. Martin (See above for address) ATTORNEY TO BE NOTICED

Amicus
New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,

represented by Pamela S. Reynolds Littler Mendelson, P.C. 2nd Floor 375 Woodcliff Drive Fairport, NY 14450 (585) 203-3415 Email: preynolds@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cassandra Natasha Branch Littler Mendelson, P.C. 290 Broadhollow Road Ste. 305 Melville, NY 11747 631-247-4702 Fax: 631-759-3827 Email: cbranch@littler.com ATTORNEY TO BE NOTICED

Jeremy F Wood Seattle City Attorney's Office

701 5th Ave Suite 2050 Seattle, WA 98104 206-684-8200 Fax: 206-684-8284 Email: jeremy.wood@seattle.gov ATTORNEY TO BE NOTICED

Joseph James Flanagan Littler Mendelson, P.C. 900 Third Avenue New York, NY 10022 212-471-4403 Email: jflanagan@littler.com ATTORNEY TO BE NOTICED

Amicus
former Civilian Complaint Review Board employees

represented by Jesse Curtis Rose The Rose Law Group, PLLC 3109 Newtown Avenue Suite 309 Astoria, NY 11102 718-989-1864 Email: JRose@theroselawgroup.com ATTORNEY TO BE NOTICED

Amicus
Reporters Committee for Freedom of the Press

represented by Katielynn Boyd Townsend Reporters Committee For Freedom of The Press 1156 15th Street NW Suite 1020 Washington, DC 20005 202-795-9300 Fax: 202-795-9310 Email: ktownsend@rcfp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Progressive Caucus of the New York City Council

represented by Aaron Harvey Marks Kirkland & Ellis LLP (NYC) 601 Lexington Avenue New York, NY 10022 212-446-4800 Fax: 212-446-4900

Email: aaron.marks@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Myer Sanderson Kirkland & Ellis LLP (NYC) 601 Lexington Avenue New York, NY 10022 (212)-446-4759 Fax: (212)-446-4900 Email: joseph.sanderson@kirkland.com ATTORNEY TO BE NOTICED

Amicus CommonCause/New York

represented by Sean Miles Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Reinvent Albany

represented by Sean Miles Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Citizens Union/Citizens Union Foundation

represented by Sean Miles Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Girls for Gender Equity, Inc.

represented by Joel M. Cohen Gibson, Dunn & Crutcher, LLP (NY) 200 Park Avenue New York, NY 10166 (212) 351-5391 Fax: (212) 351-5328 Email: jcohen@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Transgender Law Center

represented by Joel M. Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/15/2020
07/15/2020 07/15/2020 07/16/2020 07/16/2020

# Docket Text
1 FILING ERROR - PDF ERROR - NOTICE OF REMOVAL from State of New York Supreme Court, County of New York. Case Number: 154882/2020E. (Filing Fee $ 400.00, Receipt Number ANYSDC-20694801).Document filed by CITY OF NEW YORK, New York City Police Department, Frederick Davie, Dermot F. Shea, Daniel A. Nigro, Fire Department of the City of New York, Cynthia Brann, New York City Department Of Corrections, Bill DeBlasio, Civilian Complaint Review Board. (Attachments: # 1 Exhibit Complaint).(Quinn, Rebecca) Modified on 7/16/2020 (jgo). (Entered: 07/15/2020)
2 NOTICE OF APPEARANCE by Anthony Paul Coles on behalf of Captains Endowment Association, Correction Officers Benevolent Association, Inc., Detectives Endowment Association of New York City, Lieutenants Benevolent Association of the City of New York, Inc., Police Benevolent Association, Sergeants Benevolent Association of the City of New York, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 07/15/2020)
3 NOTICE of of Entry of State Court Order re: 1 Notice of Removal,. Document filed by Captains Endowment Association, Correction Officers Benevolent Association, Inc., Detectives Endowment Association of New York City, Lieutenants Benevolent Association of the City of New York, Inc., Police Benevolent Association, Sergeants Benevolent Association of the City of New York, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 07/15/2020)
4 NOTICE OF APPEARANCE by Dominique F. Saint-Fort on behalf of Cynthia Brann, CITY OF NEW YORK, Civilian Complaint Review Board, Frederick Davie, Bill DeBlasio, Fire Department of the City of New York, New York City Department Of Corrections, New York City Police Department, Daniel A. Nigro, Dermot F. Shea..(Saint-Fort, Dominique) (Entered: 07/16/2020)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Rebecca Gibson Quinn to RE-

07/16/2020
07/17/2020 07/17/2020 07/17/2020

FILE Document No. 1 Notice of Removal. The filing is deficient for the following reason(s): the PDF attached to the docket entry for the pleading is not correct; the incorrect party role was listed for Plaintiffs on the PDF case caption. Re-file the pleading using the event type Notice of Removal found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF select the individually named filer/filers - select the individually named party/parties the pleading is against. If the deficiency/deficiencies are not corrected within five (5) days per Amended Standing Order 15-mc-00131 this case will be administratively closed. Initial Pleading due by 7/21/2020. (jgo) (Entered: 07/16/2020)
5 NOTICE OF REMOVAL from Supreme Court of the State of New York, County of New York. Case Number: 154982/2020E..Document filed by CITY OF NEW YORK, New York City Police Department, Frederick Davie, Dermot F. Shea, Daniel A. Nigro, Fire Department of the City of New York, Cynthia Brann, New York City Department Of Corrections, Bill DeBlasio, Civilian Complaint Review Board. (Attachments: # 1 Exhibit Complaint).(Quinn, Rebecca) (Entered: 07/16/2020)
***NOTICE TO ATTORNEY TO ELECTRONICALLY FILE CIVIL COVER SHEET. Notice to Attorney Rebecca Gibson Quinn. Attorney must electronically file the Civil Cover Sheet. Use the event type Civil Cover Sheet found under the event list Other Documents. (jgo) (Entered: 07/17/2020)
***NOTICE TO ATTORNEY REGARDING REMOVAL OF PARTY. Notice to attorney Rebecca Gibson Quinn. The following party/parties has been removed from this case: Captains Endowment Association. The party was added to the case in error. (jgo) (Entered: 07/17/2020)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Rebecca Gibson Quinn. The party information for the following party/parties has been modified: Sergeants Benevolent Association of the City of New York; Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Police Benevolent Association; Correction Officers Benevolent Association, Inc.; Lieutenants Benevolent Association of the City of New York, Inc.;Captains Endowment Association; Detectives Endowment Association of New York City; Bill DeBlasio;CITY OF NEW YORK; Fire Department of the City of New York; Daniel A. Nigro; New York City Department Of Corrections; N.Y.C. D.O.C. Comm.

07/17/2020
07/17/2020
07/17/2020 07/17/2020 07/17/2020
07/17/2020 07/17/2020

Cynthia Brann; Dermot F. Shea; New York City Police Department; Frederick Davie; Civilian Complaint Review Board. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; party name was entered in all caps; party role was entered incorrectly; party text was omitted;. (jgo) (Entered: 07/17/2020)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Katherine Polk Failla. Please download and review the Individual Practices of the assigned District Judge, located at https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at https://nysd.uscourts.gov/rules/ecf-related-instructions..(jgo) (Entered: 07/17/2020)
Magistrate Judge Robert W. Lehrburger is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (jgo) (Entered: 07/17/2020)
Case Designated ECF. (jgo) (Entered: 07/17/2020)
6 CIVIL COVER SHEET filed..(Saint-Fort, Dominique) (Entered: 07/17/2020)
7 LETTER MOTION for Conference addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 17, 2020. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. (Attachments: # 1 Exhibit State Court Order, # 2 Exhibit PBA Collective Bargaining Agreement).(Quinn, Rebecca) (Entered: 07/17/2020)
8 LETTER addressed to Judge Katherine Polk Failla from Christopher Dunn dated July 17, 2020 re: Request to Participate as Amicus Curiae. Document filed by New York Civil Liberties Union..(Dunn, Christopher) (Entered: 07/17/2020)
9 LETTER addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 7/17/2020 re: Response to Defendants/Respondents July

07/17/2020 07/20/2020

17, 2020 letter. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit 1 - TRO issued by State Supreme Court Justice Carol R. Edmead on July 15, 2020, # 2 Exhibit 2 -Order on Motion, State Troopers Fraternal Assoc. v. State of New Jersey, et al., Superior Court of New Jersey, Appellate Div.).(Coles, Anthony) (Entered: 07/17/2020)
10 NOTICE of of State Court Papers Filed by Petitioners/Plaintiffs Prior to Removal. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Petitioners/Plaintiffs' Proposed Order to Show Cause, # 2 Petitioners/Plaintiffs' Verified Petition/Complaint, # 3 Exhibit 1 to Petitioners/Plaintiffs Verified Petition/Complaint (Grievances), # 4 Exhibit 2 to Petitioners/Plaintiffs Verified Petition/Complaint (SBA), # 5 Exhibit 3 to Petitioners/Plaintiffs Verified Petition/Complaint (PBA), # 6 Exhibit 4 to Petitioners/Plaintiffs Verified Petition/Complaint (LBA), # 7 Exhibit 5 to Petitioners/Plaintiffs Verified Petition/Complaint (CEA), # 8 Exhibit 6 to Petitioners/Plaintiffs Verified Petition/Complaint (DEA), # 9 Exhibit 7 to Petitioners/Plaintiffs Verified Petition/Complaint (COBA), # 10 Exhibit 8 to Petitioners/Plaintiffs Verified Petition/Complaint (UFA), # 11 Exhibit 9 to Petitioners/Plaintiffs Verified Petition/Complaint (UFAO), # 12 Memorandum of Law in Support of Verified Petition/Complaint and Proposed Order to Show Cause Seeking Temporary Restraining Order and Preliminary Injunction, # 13 Affirmation in Support of Emergency Relief, # 14 Rule 202.7(f) Affirmation of Notice of Application for a Temporary Restraining Order, # 15 UCS-840, Request for Judicial Intervention;, # 16 Summons).(Coles, Anthony) (Entered: 07/17/2020)
11 LETTER REPLY to Response to Motion addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 20, 2020 re: 7 LETTER MOTION for Conference addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 17, 2020. . Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of

07/20/2020
07/21/2020 07/22/2020 07/22/2020

Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. (Attachments: # 1 Exhibit Exhibit A).(Saint-Fort, Dominique) (Entered: 07/20/2020)
12 LETTER RESPONSE to Motion addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/20/2020 re: 7 LETTER MOTION for Conference addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 17, 2020. . Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A - Justice Edmead's July 15 Order, # 2 Exhibit B - July 8, 2020 Letter from Police Benevolent Association of the City of New York, Inc., # 3 Exhibit C - Order on Motion, No. A003950-19T4 (N.J. Super., App. Div. July 8, 2020)).(Coles, Anthony) (Entered: 07/20/2020)
13 LETTER REPLY to Response to Motion addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 21, 2020 re: 7 LETTER MOTION for Conference addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 17, 2020. . Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Saint-Fort, Dominique) (Entered: 07/21/2020)
14 ORDER granting 7 Letter Motion for Conference. The parties in this matter are hereby ORDERED to appear for a videoconference on July 22, 2020, at 4:00 p.m. The conference will proceed via videoconference, with audio access as follows: Dial-in: (917) 9332166; Conference ID: 801588117. The Court will provide instructions for accessing the conference for video participants separately. SO ORDERED. Telephone Conference set for 7/22/2020 at 04:00 PM before Judge Katherine Polk Failla.. (Signed by Judge Katherine Polk Failla on 7/22/2020) (kv) (Entered: 07/22/2020)
NOTICE OF CONFERENCE DIAL-IN re: 14 Order on Motion for Conference: The dial-in information for the oral ruling with regard to the oral arguments presented today in this matter is (888) 363-4749, access code 5123533. ***No PDF is attached to this entry. (tn) (Entered: 07/22/2020)

07/22/2020
07/22/2020 07/23/2020
07/24/2020 07/24/2020 07/24/2020 07/24/2020 07/24/2020

Minute Entry for proceedings held before Judge Katherine Polk Failla: Temporary Restraining Order hearing held on 7/22/2020. Plaintiffs' motion for TRO granted in part per oral decision. NYCL is found to be acting in concert with Defendants and is ordered to not disclose documents further, internally or externally. Plaintiff's request for discovery is granted on the limited basis as set forth on the record. Supplemental briefing, and amicus brief, if any are due by 8/14/2020. Preliminary Injunction hearing is set for 8/18/2020 at 2:00 p.m. (Court Reporter Andrew Walker) (tn) (Entered: 07/23/2020)
Set/Reset Hearings: Preliminary Injunction Hearing set for 8/18/2020 at 02:00 PM before Judge Katherine Polk Failla. (tn) (Entered: 07/23/2020)
15 NOTICE OF APPEARANCE by Michael Robert Hepworth on behalf of Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Hepworth, Michael) (Entered: 07/23/2020)
16 LETTER addressed to Judge Katherine Polk Failla from Christopher Dunn dated July 23, 2020 re: Letter Motion by NYCLU to Modify Temporary Restraining Order. Document filed by New York Civil Liberties Union. (Attachments: # 1 Affidavit of Christopher Dunn).(Dunn, Christopher) (Entered: 07/24/2020)
17 MEMO ENDORSEMENT on re: 16 Letter, filed by New York Civil Liberties Union. ENDORSEMENT: The Court is in receipt of the above-letter from NYCLU. (Dkt. #16). As discussed at the hearing on July 22, 2020, Plaintiffs are ordered to respond by today, July 24, 2020. (Signed by Judge Katherine Polk Failla on 7/24/2020) (tn) (Entered: 07/24/2020)
18 NOTICE OF APPEARANCE by Christopher Thomas Dunn on behalf of New York Civil Liberties Union..(Dunn, Christopher) (Entered: 07/24/2020)
19 NOTICE OF APPEARANCE by Molly Knopp Biklen on behalf of New York Civil Liberties Union..(Biklen, Molly) (Entered: 07/24/2020)
20 NOTICE OF APPEARANCE by Jordan Laris Cohen on behalf of New York Civil Liberties Union..(Cohen, Jordan) (Entered: 07/24/2020)

07/24/2020 07/24/2020 07/25/2020 07/25/2020 07/26/2020

21 LETTER MOTION for Discovery addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/24/2020. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3).(Coles, Anthony) (Entered: 07/24/2020)
22 LETTER addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/24/2020 re: in response to Christopher Dunns letter to the Court of July 23, 2020. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 07/24/2020)
23 LETTER addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 25, 2020 re: Response to Anthony Coles's Letter in Response to Christopher Dunn's Letter to the Court of July 23, 2020. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Quinn, Rebecca) (Entered: 07/25/2020)
24 LETTER RESPONSE to Motion addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 25, 2020 re: 21 LETTER MOTION for Discovery addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/24/2020. . Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B).(Saint-Fort, Dominique) (Entered: 07/25/2020)
25 LETTER addressed to Judge Katherine Polk Failla from Anthony P. Coles dated July 26, 2020 re: Reply Letter in response to Defendants Letter of July 25 concerning discovery. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association

07/27/2020 07/27/2020 07/27/2020 07/27/2020

of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 07/26/2020)
26 LETTER addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 27, 2020 re: Plaintiffs' Letter Dated Juy 26, 2020 Dkt # 25. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Quinn, Rebecca) (Entered: 07/27/2020)
27 NOTICE OF APPEARANCE by Kami Zumbach Barker on behalf of Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 07/27/2020)
28 ORDER: The parties in this matter are hereby ORDERED to appear for a videoconference on July 28, 2020, at 2:00 p.m. The conference will proceed via videoconference, with audio access as follows: Dial-in: (888) 363-4749; Conference ID: 5123533. The Court will provide instructions for accessing the conference for video participants separately. (Telephone Conference set for 7/28/2020 at 02:00 PM before Judge Katherine Polk Failla.) (Signed by Judge Katherine Polk Failla on 7/27/2020) (jwh) (Entered: 07/27/2020)
29 LETTER addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/27/2020 re: Supplemental authority in support of Plaintiffs' motion for a preliminary injunction.. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A - Buffalo Police Benevolent Assn et al. v. Byron W. Brown et al., No. 807664/2020 (July 24, 2020)).(Coles, Anthony) (Entered: 07/27/2020)

07/28/2020
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30 LETTER addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/28/2020 re: Supplemental authority in support of Plaintiffs' motion for a preliminary injunction. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A - July 27, 2020 New York State Committee on Open Government Advisory Opinion).(Coles, Anthony) (Entered: 07/28/2020)
31 LETTER addressed to Judge Katherine Polk Failla from Dominique Saint-Fort dated July 28, 2020 re: Discovery. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. (Attachments: # 1 Exhibit Exhibit A).(Saint-Fort, Dominique) (Entered: 07/28/2020)
32 LETTER addressed to Judge Katherine Polk Failla from Christopher Dunn dated July 28, 2020 re: NYCLU letter about motion to modify temporary restraining order. Document filed by New York Civil Liberties Union..(Dunn, Christopher) (Entered: 07/28/2020)
33 LETTER MOTION to File Amicus Brief addressed to Judge Katherine Polk Failla from Roger A. Cooper and Corey Stoughton dated July 28, 2020. Document filed by The Legal Aid Society. (Attachments: # 1 Attachment A - June 5, 2018 Transcript, # 2 Attachment B February 19, 2020 Memorandum of Support, # 3 Attachment C - June 15, 2020 Letter).(Cooper, Roger) (Entered: 07/28/2020)
34 FILING ERROR - NO ORDER SELECTED FOR APPEAL - NOTICE OF INTERLOCUTORY APPEAL. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. Filing fee $ 505.00, receipt number ANYSDC-20895063. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Coles, Anthony) Modified on 7/29/2020 (tp). (Entered: 07/28/2020)

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07/29/2020 07/29/2020 07/29/2020 07/29/2020

Minute Entry for proceedings held before Judge Katherine Polk Failla: Oral Argument held on 7/28/2020 re: 36 FIRST LETTER MOTION for Conference or to lift the TRO against defendant, as it applies to the CCRB database addressed to Judge Katherine Polk Failla from Kami Zumbach Barker, for defendants dated July 29, 2020 filed by Cynthia Brann, Dermot F. Shea, Fire Department of the City of New York, New York City Police Department, New York City Department of Correction, Civilian Complaint Review Board, City of New York, Bill de Blasio, Daniel A. Nigro, Frederick Davie: the temporary restraining order entered by the Court on July 22, 2020 is modified such that it no longer applies to NYCLU. Discovery disputes were resolved as set forth on the record. (Court Reporter Raquel Robles) (tn) (Entered: 07/29/2020)
***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Coles, Anthony to RE-FILE Document No. 34 Notice of Interlocutory Appeal. The filing is deficient for the following reason(s): the order/judgment being appealed was not selected. Re-file the appeal using the event type Corrected Notice of Appeal found under the event list Appeal Documents - attach the correct signed PDF - select the correct named filer/filers - select the correct order/judgment being appealed. (tp) (Entered: 07/29/2020)
35 ORDER granting 33 Letter Motion to File Amicus Brief. Application GRANTED. The Court will permit Legal Aid to file a brief on the same timeline as the parties to this action, due by August 14, 2020, and will hear from Legal Aid as appropriate at the August 18, 2020 hearing. (Signed by Judge Katherine Polk Failla on 7/29/2020) (rro) (Entered: 07/29/2020)
36 FIRST LETTER MOTION for Conference or to lift the TRO against defendant, as it applies to the CCRB database addressed to Judge Katherine Polk Failla from Kami Zumbach Barker, for defendants dated July 29, 2020. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. (Attachments: # 1 Exhibit A).(Barker, Kami) (Entered: 07/29/2020)
37 LETTER addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated July 29, 2020 re: Correction to Letter to Plaintiffs Dated July 28, 2020. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City

07/29/2020 07/29/2020
07/29/2020 07/29/2020 07/29/2020 07/29/2020
07/29/2020

Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Quinn, Rebecca) (Entered: 07/29/2020)
38 ORDER: For the reasons stated in open court during the hearing on July 28, 2020, the temporary restraining order entered by the Court on July 22, 2020 is modified such that it no longer applies to non-party New York Civil Liberties Union. SO ORDERED. (Signed by Judge Katherine Polk Failla on 7/29/2020) (rro) (Entered: 07/29/2020)
39 CORRECTED NOTICE OF APPEAL re: 34 Notice of Interlocutory Appeal,, 38 Order,. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 07/29/2020)
40 NOTICE OF APPEARANCE by Alex V. Chachkes on behalf of Communities United for Police Reform..(Chachkes, Alex) (Entered: 07/29/2020)
Appeal Fee Paid electronically via Pay.gov: for 39 Corrected Notice of Appeal. Filing fee $ 505.00. Pay.gov receipt number ANYSDC20895063, paid on 7/28/2020. (tp) (Entered: 07/29/2020)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 39 Corrected Notice of Appeal. (tp) (Entered: 07/29/2020)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 39 Corrected Notice of Appeal, filed by Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Captains Endowment Association, Sergeants Benevolent Association were transmitted to the U.S. Court of Appeals. (tp) (Entered: 07/29/2020)
41 EMERGENCY MOTION to Intervene as Defendant. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 07/29/2020)

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42 MEMORANDUM OF LAW in Support re: 41 EMERGENCY MOTION to Intervene as Defendant. . Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 07/29/2020)
43 DECLARATION of Alex V. Chachkes in Support re: 41 EMERGENCY MOTION to Intervene as Defendant.. Document filed by Communities United for Police Reform. (Attachments: # 1 Exhibit A, # 2 Exhibit B).(Chachkes, Alex) (Entered: 07/29/2020)
44 DECLARATION of Joo-Hyun Kang in Support re: 41 EMERGENCY MOTION to Intervene as Defendant.. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 07/29/2020)
45 DECLARATION of Jumaane D. Williams in Support re: 41 EMERGENCY MOTION to Intervene as Defendant.. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 07/29/2020)
46 DECLARATION of Constance Malcolm in Support re: 41 EMERGENCY MOTION to Intervene as Defendant.. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 07/29/2020)
47 DECLARATION of James Blake in Support re: 41 EMERGENCY MOTION to Intervene as Defendant.. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 07/29/2020)
48 DECLARATION of Natasha Duncan in Support re: 41 EMERGENCY MOTION to Intervene as Defendant.. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 07/29/2020)
49 NOTICE OF APPEARANCE by Rene Kathawala on behalf of Communities United for Police Reform..(Kathawala, Rene) (Entered: 07/29/2020)
50 NOTICE OF APPEARANCE by Margaret Lee Wheeler-Frothingham on behalf of Communities United for Police Reform..(WheelerFrothingham, Margaret) (Entered: 07/29/2020)
51 ORDER with respect to 36 Letter Motion for Conference. The Court is in receipt of the above letter from Defendants. (Dkt. #36). Plaintiffs are hereby ORDERED to respond within 7 days of the Second Circuit resolving Plaintiff's interlocutory appeal. (See Dkt. #39). (Signed by Judge Katherine Polk Failla on 7/29/2020) (rro) (Entered: 07/29/2020)
52 NOTICE OF APPEARANCE by Joseph Michael Kay on behalf of The Legal Aid Society..(Kay, Joseph) (Entered: 07/29/2020)

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53 NOTICE OF APPEARANCE by Ye Eun E Chun on behalf of The Legal Aid Society..(Chun, Ye Eun) (Entered: 07/29/2020)
54 LETTER MOTION to Stay re: 38 Order, Emergency letter motion asking for reconsideration of the Courts July 29, 2020 Order addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/29/2020. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A).(Coles, Anthony) (Entered: 07/29/2020)
55 ORDER denying 54 Letter Motion to Stay: Plaintiffs' above emergency letter motion for reconsideration of its modification of the temporary restraining order (Dkt. #54) is DENIED. It appears that all sides are in agreement that the materials at issue were disclosed by the CCRB to NYCLU on July 14, 2020, which is prior to any injunctive order being entered by the state court. (See Dkt. 16, 36, 54). That said, the Court is concerned that Mr. Dunn may have been incorrect in his statements to the Court and it instructs him to file a letter by July 30, 2020, at 5:00 p.m. advising the Court as to whether any of the answers he provided to the Court at the hearing on July 28, 2020, and is contained in Plaintiff's letter of July 29, 2020, is incorrect or omits material information. (Signed by Judge Katherine Polk Failla on 7/29/2020) (tn) (Entered: 07/29/2020)
56 LETTER addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/29/2020 re: in response to the Court's Order of this evening (ECF No. 55). Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 07/29/2020)
57 FIRST LETTER addressed to Judge Katherine Polk Failla from Kami Zumbach Barker, for defendants, dated July 29, 2020 re: clarification of defendants' typo in footnote and response to plaintiffs' emergency letter to reconsider. Document filed by Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. (Attachments: # 1 Exhibit A, # 2 Exhibit B).(Barker, Kami) (Entered: 07/29/2020)

07/30/2020 07/30/2020
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58 NOTICE OF APPEARANCE by Corey Stoughton on behalf of The Legal Aid Society..(Stoughton, Corey) (Entered: 07/30/2020)
59 ORDER of USCA (Certified Copy) USCA Case Number 20-2400. IT IS HEREBY ORDERED that the District Court's order dated July 29, 2020 is stayed pending determination by a three-judge panel of Appellants' motion to stay the order pending appeal. An expedited schedule for the submission of the parties' papers in support of, and opposition to, the motion will issue later today. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 7/30/2020. (tp) (Entered: 07/30/2020)
60 LETTER MOTION for Discovery Plaintiffs' Document Requests Nos. 5 and 6 addressed to Judge Katherine Polk Failla from Dominique SaintFort and Rebecca Quinn dated July 30, 2020. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Saint-Fort, Dominique) (Entered: 07/30/2020)
61 LETTER addressed to Judge Katherine Polk Failla from Christopher Dunn dated July 30, 2020 re: NYCLU Receipt of CCRB Database. Document filed by New York Civil Liberties Union..(Dunn, Christopher) (Entered: 07/30/2020)
62 ORDER with respect to 60 Letter Motion for Discovery. The Court is in receipt of the above letter from Defendants. (Dkt. #60). Plaintiffs are hereby ORDERED to respond to this letter by July 31, 2020. (Signed by Judge Katherine Polk Failla on 7/30/2020) (rro) (Entered: 07/31/2020)
63 LETTER RESPONSE in Opposition to Motion addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 07/31/2020 re: 60 LETTER MOTION for Discovery Plaintiffs' Document Requests Nos. 5 and 6 addressed to Judge Katherine Polk Failla from Dominique Saint-Fort and Rebecca Quinn dated July 30, 2020. . Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A - Draft Stipulation).(Coles, Anthony) (Entered: 07/31/2020)

07/31/2020 08/03/2020 08/04/2020
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64 ORDER: On July 29, 2020, Communities for Police Reform ("CPR") filed an emergency motion to intervene in this action. (See Dkt. #4148). The parties to this action are hereby ORDERED to respond to CPR's motion on or before August 7, 2020. CPR may reply on or before August 11, 2020. SO ORDERED. (Responses due by 8/7/2020, Replies due by 8/11/2020.) (Signed by Judge Katherine Polk Failla on 7/31/2020) (rro) (Entered: 07/31/2020)
65 LETTER addressed to Judge Katherine Polk Failla from Towaki Komatsu, dated 7/31/20 re: I am filing this letter motion to further supplement the application which I submitted to you earlier today to be granted permissive intervention in the case referenced above as an interested party or to appear as an amicus curiae in the altenative. (Attachments: # 1 Supplement)(sc) (Entered: 08/03/2020)
66 LETTER MOTION for Discovery addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 08/04/2020. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3).(Coles, Anthony) (Entered: 08/04/2020)
67 MEMO ENDORSEMENT on 88 granting 60 Letter Motion for Discovery; terminating 66 Letter Motion for Discovery. The Court has reviewed Defendants' motion for reconsideration of the Court's discovery rulings (Dkt. #60), Plaintiffs' July 31, 2020 response letter (Dkt. #63), and Plaintiffs' August 4, 2020 letter (Dkt. #66). Given the burdens that Defendants' have outlined with respect to Document Request #5, and Defendants' representation that "before the repeal of Civil Rights Law §50-a, NYPD would deny requests for disciplinary records of members of the service solely on the basis that that they were protected from disclosure by § 50-a" (Dkt. #60 at 2), the Court agrees that the Request as it applies to NYPD and FDNY is unduly burdensome and disproportionate to the needs of this case. Accordingly, Defendants' motion for reconsideration of Document Request #5 is GRANTED: Defendants shall produce responsive documents from the CCRB and DOC; but Defendants need not produce such documents from the NYPD and FDNY. Defendants' request with respect to Document Request #6 is GRANTED IN PART AND DENIED IN PART. Defendants are ORDERED to, as Plaintiff suggested, produce the responsive documents for 10 of the City agencies that use a computerized system and produce the requested

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08/06/2020

denials based on searches reasonably designed to find denials of requests for disciplinary records. Further, the Court is concerned that, three days before the discovery deadline, Defendants have yet to produce any documents to Plaintiffs. Defendants should begin rolling out their document production as soon as possible. (Signed by Judge Katherine Polk Failla on 8/4/2020) (rro) (Entered: 08/05/2020)
68 LETTER MOTION to File Amicus Brief addressed to Judge Katherine Polk Failla from Charlita Mays dated August 5, 2020. Document filed by Center on Race, Inequality, and the Law at New York University School of Law..(Mays, Charlita) (Entered: 08/05/2020)
69 ORDER granting 68 Letter Motion to File Amicus Brief. Application GRANTED. The Center may submit an amicus brief in this case on or before August 14, 2020. (Signed by Judge Katherine Polk Failla on 8/5/2020) (rro) (Entered: 08/05/2020)
70 NOTICE OF APPEARANCE by Charlita Mays on behalf of Center on Race, Inequality, and the Law at New York University School of Law..(Mays, Charlita) (Entered: 08/05/2020)
71 NOTICE OF APPEARANCE by Cynthia Chen on behalf of Center on Race, Inequality, and the Law at New York University School of Law..(Chen, Cynthia) (Entered: 08/05/2020)
72 PROPOSED PROTECTIVE ORDER. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Saint-Fort, Dominique) (Entered: 08/05/2020)
73 STIPULATION AND CONFIDENTIALITY ORDER:...regarding procedures to be followed that shall govern the handling of confidential material. This confidentiality agreement does not bind the Court or any of its personnel. The Court can modify this stipulation at any time. The Court will retain jurisdiction over the terms and conditions of this agreement only for the pendency of this litigation. Any party wishing to make redacted or sealed submissions shall comply with Rule 6(A) of this Court's Individual Rules of Civil Procedure. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/05/2020) (ama) (Entered: 08/06/2020)
74 MOTION for Courtney Gilligan Saleski to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21035602. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Captains Endowment Association, Correction Officers'

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Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A - Certificate of Good Standing, # 2 Exhibit B - Certificate of Good Standing, # 3 Exhibit C - Certificate of Good Standing, # 4 Exhibit D - Affidavit in Support, # 5 Exhibit E - Proposed Order).(Saleski, Courtney) (Entered: 08/06/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 74 MOTION for Courtney Gilligan Saleski to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21035602. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/06/2020)
75 FIRST LETTER addressed to Judge Katherine Polk Failla from Kami Zumbach Barker, for defendants, dated August 7, 2020 re: requesting a pre-motion conference. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. (Attachments: # 1 A, # 2 B, # 3 C).(Barker, Kami) (Entered: 08/07/2020)
76 ORDER FOR ADMISSION PRO HAC VICE granting 74 Motion for Courtney G. Saleski to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/7/2020) (rro) (Entered: 08/07/2020)
77 FIRST MEMORANDUM OF LAW in Opposition re: 41 EMERGENCY MOTION to Intervene as Defendant. . Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 08/07/2020)
78 RESPONSE in Opposition to Motion re: 41 EMERGENCY MOTION to Intervene as Defendant. . Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 08/07/2020)

08/07/2020
08/10/2020 08/10/2020
08/10/2020 08/10/2020 08/10/2020 08/10/2020

79 MEMO ENDORSEMENT on re: 75 Letter, filed by Cynthia Brann, Dermot F. Shea, Fire Department of the City of New York, New York City Police Department, New York City Department of Correction, Civilian Complaint Review Board, City of New York, Bill de Blasio, Daniel A. Nigro, Frederick Davie. ENDORSEMENT: The Court is in receipt of the above letter from Defendants seeking a pre-motion conference concerning their anticipated motion to dismiss the complaint. (Dkt. #75). Plaintiffs need not respond to the letter at this time, but should be prepared to discuss the contents of such letter at the preliminary injunction hearing on August 18, 2020. (Signed by Judge Katherine Polk Failla on 8/7/2020) (rro) (Entered: 08/07/2020)
80 LETTER MOTION to File Amicus Brief addressed to Judge Katherine Polk Failla from Brian S. Fraser dated August 10, 2020. Document filed by Law Enforcement Action Partnership..(Fraser, Brian) (Entered: 08/10/2020)
81 MEMO ENDORSEMENT on re: 75 Letter, filed by Cynthia Brann, Dermot F. Shea, Fire Department of the City of New York, New York City Police Department, New York City Department of Correction, Civilian Complaint Review Board, City of New York, Bill de Blasio, Daniel A. Nigro, Frederick Davie. ENDORSEMENT: The Court is in receipt of the above letter from Defendants seeking a pre-motion conference concerning their anticipated motion to dismiss the complaint. (Dkt. #75). Plaintiffs need not respond to the letter at this time, but should be prepared to discuss the contents of such letter at the preliminary injunction hearing on August 18, 2020. (Signed by Judge Katherine Polk Failla on 8/7/2020) (rro) (Entered: 08/10/2020)
82 LETTER MOTION to File Amicus Brief addressed to Judge Katherine Polk Failla from David L. Kornblau dated August 10, 2020. Document filed by Justice Committee Inc...(Kornblau, David) (Entered: 08/10/2020)
***DELETED DOCUMENT. Deleted document number 83 ORDER. The document was incorrectly filed in this case. (rro) (Entered: 08/10/2020)
83 ORDER granting 80 Letter Motion to File Amicus Brief. Application GRANTED. LEAP may submit an amicus brief in this case on or before August 14, 2020. (Signed by Judge Katherine Polk Failla on 8/10/2020) (rro) (Entered: 08/10/2020)
84 NOTICE OF APPEARANCE by Brian S. Fraser on behalf of Law Enforcement Action Partnership..(Fraser, Brian) (Entered: 08/10/2020)

08/10/2020 08/10/2020 08/10/2020 08/11/2020 08/11/2020 08/11/2020
08/11/2020 08/11/2020 08/11/2020 08/11/2020

85 ORDER granting 82 Letter Motion to File Amicus Brief. The Court is in receipt of the above request from Justice Committee Inc. (Dkt. #82). The application is GRANTED. Justice Committee Inc. may file an amicus brief on or before August 14, 2020. (Signed by Judge Katherine Polk Failla on 8/10/2020) (rro) (Entered: 08/10/2020)
86 REPLY MEMORANDUM OF LAW in Support re: 41 EMERGENCY MOTION to Intervene as Defendant. . Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/10/2020)
87 DECLARATION of Alex V. Chachkes in Support re: 86 Reply Memorandum of Law in Support of Motion. Document filed by Communities United for Police Reform. (Attachments: # 1 Exhibit A to Chachkes Declaration).(Chachkes, Alex) (Entered: 08/10/2020)
88 NOTICE OF APPEARANCE by David Leon Kornblau on behalf of Justice Committee Inc...(Kornblau, David) (Entered: 08/11/2020)
89 NOTICE OF APPEARANCE by Russell Matthew Squire on behalf of Justice Committee Inc...(Squire, Russell) (Entered: 08/11/2020)
90 LETTER MOTION for Discovery addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 08/11/2020. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A - Plaintiffs' First Request for Production of Documents).(Coles, Anthony) (Entered: 08/11/2020)
***DELETED DOCUMENT. Deleted document number 91 TRANSCRIPT. The document was incorrectly filed in this case. (rro) (Entered: 08/11/2020)
***DELETED DOCUMENT. Deleted document number 92 NOTICE OF FILING OFFICIAL TRANSCRIPT. The document was incorrectly filed in this case. (rro) (Entered: 08/11/2020)
***DELETED DOCUMENT. Deleted document number 93 TRANSCRIPT. The document was incorrectly filed in this case. (rro) (Entered: 08/11/2020)
***DELETED DOCUMENT. Deleted document number 94 NOTICE OF FILING OFFICIAL TRANSCRIPT. The

08/11/2020 08/11/2020 08/11/2020 08/11/2020 08/11/2020

document was incorrectly filed in this case. (rro) (Entered: 08/11/2020)
91 TRANSCRIPT of Proceedings re: CONFERENCE held on 7/22/2020 before Judge Katherine Polk Failla. Court Reporter/Transcriber: Andrew Walker, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/1/2020. Redacted Transcript Deadline set for 9/11/2020. Release of Transcript Restriction set for 11/9/2020..(McGuirk, Kelly) (Entered: 08/11/2020)
92 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 7/22/2020 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 08/11/2020)
93 TRANSCRIPT of Proceedings re: CONFERENCE held on 7/28/2020 before Judge Katherine Polk Failla. Court Reporter/Transcriber: Raquel Robles, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/1/2020. Redacted Transcript Deadline set for 9/11/2020. Release of Transcript Restriction set for 11/9/2020..(McGuirk, Kelly) (Entered: 08/11/2020)
94 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 7/28/2020 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 08/11/2020)
95 ORDER granting 90 Letter Motion for Discovery. Application GRANTED. Defendants are hereby ORDERED to produce all documents, including but not limited to communications with NYCLU, concerning the release of Disciplinary Records by the CCRB, or any of the Defendants, for the period June 12, 2020 to the present, no later than 12:00 p.m. on Friday, August 14. (Signed by Judge Katherine Polk Failla on 8/11/2020) (rro) (Entered: 08/11/2020)

08/11/2020 08/11/2020
08/12/2020 08/12/2020 08/12/2020

96 LETTER MOTION for Discovery in Opposition to Plaintiffs' Motion and Requesting Reconsideration of Order dated August 11, 2020 addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique Saint-Fort dated August 11, 2020. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Quinn, Rebecca) (Entered: 08/11/2020)
97 ORDER: The Court is in receipt of Communities for Police Reform's ("CPR") motion to intervene in this action (Dkt. #41-48), Defendants' brief in opposition (Dkt. #77), Plaintiffs' brief in opposition (Dkt. #78), and CPR's reply brief and declaration. (Dkt. #86-87). In its reply brief, CPR states: CPR will provisionally file papers opposing Plaintiffs' preliminary injunction request on the parties' timetable. If this Court finds that those papers raise significant legal arguments and meaningfully aid in development of a full recordas CPR contendsthe Court should at a minimum allow permissive intervention. This approach is fair to all parties and solves any concerns that intervention would cause delay. (Dkt. #86 at 9). The Court agrees that this is the fairest and most expeditious way to resolve the pending motion. Accordingly, the Court will hold the motion over until the preliminary injunction motion is resolved. (Signed by Judge Katherine Polk Failla on 8/11/2020) (rj) (Entered: 08/12/2020)
98 MOTION for Chris A. Hollinger to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21118938. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by NAACP Legal Defense and Educational Fund, Inc., Lawyers' Committee for Civil Rights Under Law, LatinoJustice PRLDEF, Law for Black Lives. (Attachments: # 1 Declaration of Chris A. Hollinger, # 2 California Certificate of Good Standing, # 3 Text of Proposed Order).(Hollinger, Chris) (Entered: 08/12/2020)
99 LETTER MOTION for Leave to File Amicus Brief addressed to Judge Katherine Polk Failla from Chris A. Hollinger dated August 12, 2020. Document filed by LatinoJustice PRLDEF, Law for Black Lives, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc...(Hollinger, Chris) (Entered: 08/12/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 98 MOTION for Chris A. Hollinger to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21118938. Motion and supporting papers to be reviewed

by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (vba) (Entered: 08/12/2020)

08/12/2020

100 ORDER: granting 99 Letter Motion for Leave to File Document. Application GRANTED. Proposed Amici may file an amicus brief on orbefore August 14, 2020. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/12/2020) (ama) (Entered: 08/12/2020)

08/12/2020

101 NOTICE OF APPEARANCE by Pamela S. Reynolds on behalf of New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,..(Reynolds, Pamela) (Entered: 08/12/2020)

08/12/2020

102 LETTER MOTION to File Amicus Brief addressed to Judge Katherine Polk Failla from Pamela S.C. Reynolds dated 8/12/2020. Document filed by New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,..(Reynolds, Pamela) (Entered: 08/12/2020)

08/12/2020

103 FIRST LETTER addressed to Judge Katherine Polk Failla from Kami Zumbach Barker, for defendants, dated August 12, 2020 re: request for page-limit extension. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 08/12/2020)

08/12/2020

104 ORDER granting 102 Letter Motion to File Amicus Brief. Application GRANTED. The Caucus may file its amicus brief on or before August 14, 2020. (Signed by Judge Katherine Polk Failla on 8/12/2020) (rro) (Entered: 08/12/2020)

08/12/2020

105 MEMO ENDORSEMENT on re: 103 Letter, filed by Cynthia Brann, Dermot F. Shea, Fire Department of the City of New York, New York City Police Department, New York City Department of Correction, Civilian Complaint Review Board, City of New York, Bill de Blasio, Daniel A. Nigro, Frederick Davie. ENDORSEMENT: Application GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/12/2020) (rro) (Entered: 08/12/2020)

08/12/2020

Set/Reset Deadlines: Brief due by 8/14/2020. (rro) (Entered: 08/18/2020)

08/13/2020

106 LETTER addressed to Judge Katherine Polk Failla from T. Komatsu, dated 8/12/20 re: Docket number 65 in the case reference above(as indicated) confirms that I filed a letter motion dated 7/31/20 in it on 8/3/20 for authorization for permissive intervention in it, or to appear as an amicus curiae in it. In the nine days since that submission was

processed, there has been no regular response from your side in regard to that. (sc) (Entered: 08/13/2020)

08/13/2020

107 ORDER FOR ADMISSION PRO HAC VICE granting 98 Motion for Chris A. Hollinger to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/13/2020) (rro) (Entered: 08/13/2020)

08/13/2020

108 MEMO ENDORSEMENT on re: 106 Letter re: Docket number 65 in the case reference above(as indicated) confirms that I filed a letter motion dated 7/31/20 in it on 8/3/20 for authorization for permissive intervention in it, or to appear as an amicus curiae in it. In the nine days since that submission was processed, there has been no regular response from your side in regard to that. ENDORSEMENT: The Court is in receipt of the above letter from proposed intervenor-Towaki Komatsu. (Dkt. #106). Mr. Komatsu filed a letter motion, which was received by the Court on August 3, 2020, seeking permissive intervention in this lawsuit, or in the alternative to appear as amicus. (Dkt. #65). The Court's failure to respond to Mr. Komatsu's motion after 10 days violates neither his Fourteenth Amendment nor First Amendment rights. Rule 24(b) of the Federal Rules of Civil Procedure allows a court to exercise its discretion and permit intervention under certain circumstances. It provides in pertinent part that "[o]n timely motion, the court may permit anyone to intervene who... has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B); Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 103 n.7 (2d Cir. 2013). In exercising its discretion, the court must consider "whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties,... the nature and extent of the intervenors' interests, the degree to which those interests are adequately represented by other parties, and whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented." Citizens Against Casino Gambling in Erie Cty. v. Hogen, 417 F. App'x 49, 50 (2d Cir. 2011) (summary order) (quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986)). Permissive intervention is wholly within the court's discretion. See St. John's Univ., N.Y. v. Bolton, 450 F. App'x 81, 84 (2d Cir. 2011) (summary order) ("A district court has broad discretion under Rule 24(b) to determine whether to permit intervention[.]"). Mr. Komatsu claims he has a right to intervene because: (i) he experienced a retaliatory criminal prosecution for defending himself against members of the NYPD; (ii) he provided testimony before the City Council against the CCRB and NYPD, which was recorded; and (iii) his Constitutional rights were violated when he attended a proceeding at City Hall on March 18, 2019. (See Dkt. #65). Mr. Komatsu does not meet the requirements for

intervention as of right under Rule 24(a) because he fails to show that he has a legally cognizable interest in the subject matter of the pending action. The pending action is specifically about the personnel records of law enforcement personnel, including police officers, which have become accessible to the public by virtue of the repeal of New York Civil Rights Law § 50-a. Mr. Komatsu's motion does not present any common question of law or fact with the above captioned action, the Court declines to exercise its discretion to permit intervention under Rule 24(b). To the extent that Mr. Komatsu would like to file an amicus brief on the timeline set out by the Court for the parties, due August 14, 2020, he may do so. SO ORDERED., (Signed by Judge Katherine Polk Failla on 8/13/2020) (rj) (Entered: 08/13/2020)

08/13/2020

109 LETTER MOTION for Leave to File Amicus Brief addressed to Judge Katherine Polk Failla from Jesse C. Rose & Janos Marton dated August 13, 2020. Document filed by former Civilian Complaint Review Board employees..(Rose, Jesse) (Entered: 08/13/2020)

08/13/2020

First Supplemental ROA Sent to USCA (Electronic File). Certified Supplemental Indexed record on Appeal Electronic Files for all documents filed after the 39 Notice of Appeal including 109 LETTER MOTION for Leave to File Amicus Brief addressed to Judge Katherine Polk Failla from Jesse C. Rose & Janos Marton dated August 13, 2020, filed by former Civilian Complaint Review Board employees USCA Case Number 20-2400, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 08/13/2020)

08/13/2020

110 ORDER granting 109 Letter Motion for Leave to File Document. Application GRANTED. The former CCRB employees may submit their amicus brief on or before August 14, 2020. (Signed by Judge Katherine Polk Failla on 8/13/2020) (rro) (Entered: 08/13/2020)

08/13/2020

111 MOTION for Bess Ibtisam Hanish to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21145429. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by LatinoJustice PRLDEF, Law for Black Lives, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc.. (Attachments: # 1 Declaration of Bess Ibtisam Hanish, # 2 California Certificate of Good Standing, # 3 Text of Proposed Order).(Hanish, Bess) (Entered: 08/13/2020)

08/13/2020

Set/Reset Deadlines: Brief due by 8/14/2020. (rro) (Entered: 08/18/2020)

08/14/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 111 MOTION for Bess Ibtisam Hanish to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number

ANYSDC-21145429. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/14/2020)

08/14/2020

112 LETTER addressed to Judge Katherine Polk Failla from T. Komatsu, dated 8/14/20 re: This letter is in response to the memo endorsement which you issued yesterday in the case referenced above that corresponds to docket number 108. Procedural Due Process requires judges to comply with the rights pursuant to the First Amendment and Fourteenth Amendment that people have to be heard by them in an orderly manner in the absence of compelling and valid reasons etc. (sc) (Entered: 08/14/2020)

08/14/2020

113 ORDER FOR ADMISSION PRO HAC VICE granting 111 MOTION for Bess Ibtisam Hanish to Appear Pro Hac Vice. Accordingly, it is hereby ORDERED that Ms. Hanish is admitted to practice Pro Hac Vice in the above-captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/14/2020) (jca) (Entered: 08/14/2020)

08/14/2020

114 LETTER MOTION for Discovery to be provided today. addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique SaintFort dated August 14, 2020. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Quinn, Rebecca) (Entered: 08/14/2020)

08/14/2020

115 ORDER granting 114 Letter Motion for Discovery. Application GRANTED. (Signed by Judge Katherine Polk Failla on 8/14/2020) (cf) (Entered: 08/14/2020)

08/14/2020 116 NOTICE OF APPEARANCE by Nathalia Alejandra Varela on behalf of LatinoJustice PRLDEF..(Varela, Nathalia) (Entered: 08/14/2020)

08/14/2020

117 MOTION for Enjoliqu D. Aytch Lett to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21159459. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Law Enforcement Action Partnership. (Attachments: # 1 Affidavit of Enjolique A. Lett, # 2 Exhibit A, # 3 Text of Proposed Order).(Aytch Lett, Enjolique) (Entered: 08/14/2020)

08/14/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 117 MOTION for Enjoliqu D. Aytch Lett

to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21159459. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/14/2020)

08/14/2020 118 MOTION to File Amicus Brief . Document filed by Reporters Committee for Freedom of the Press. (Attachments: # 1 Proposed Amicus Brief).(Townsend, Katielynn) (Entered: 08/14/2020)

08/14/2020

119 NOTICE OF APPEARANCE by Cassandra Natasha Branch on behalf of New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,..(Branch, Cassandra) (Entered: 08/14/2020)

08/14/2020

120 LETTER MOTION for Leave to File Amicus Curiae Brief of the Progressive Caucus of the New York City Council addressed to Judge Katherine Polk Failla from Aaron Marks, P.C. dated 08/14/2020. Document filed by Progressive Caucus of the New York City Council. (Attachments: # 1 Proposed Amicus Curiae Brief).(Marks, Aaron) (Entered: 08/14/2020)

08/14/2020

121 NOTICE OF APPEARANCE by Aaron Harvey Marks on behalf of Progressive Caucus of the New York City Council..(Marks, Aaron) (Entered: 08/14/2020)

08/14/2020 122 NOTICE OF APPEARANCE by Joseph Myer Sanderson on behalf of Progressive Caucus of the New York City Council..(Sanderson, Joseph) (Entered: 08/14/2020)

08/14/2020

123 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Jeremy F. Wood to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21161957. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,. (Attachments: # 1 Affidavit of Jeremy Wood, # 2 Certificate of Good Standing, # 3 Text of Proposed Order).(Reynolds, Pamela) Modified on 8/14/2020 (bcu). (Entered: 08/14/2020)

08/14/2020 124 BRIEF re: 83 Order on Motion to File Amicus Brief . Document filed by Law Enforcement Action Partnership..(Fraser, Brian) (Entered: 08/14/2020)

08/14/2020

125 MEMORANDUM OF LAW in Support re: 109 LETTER MOTION for Leave to File Amicus Brief addressed to Judge Katherine Polk Failla from Jesse C. Rose & Janos Marton dated August 13, 2020. BRIEF OF AMICI CURIAE FORMER COUNSELS AND INVESTIGATORS OF THE CIVILIAN COMPLAINT REVIEW BOARD IN OPPOSITION TO PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION.

Document filed by former Civilian Complaint Review Board employees. (Attachments: # 1 Exhibit A).(Rose, Jesse) (Entered: 08/14/2020)

08/14/2020

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 123 MOTION for Jeremy F. Wood to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21161957. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Washington;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (bcu) (Entered: 08/14/2020)

08/14/2020

126 LETTER MOTION for Leave to File Excess Pages addressed to Judge Katherine Polk Failla from Pamela S.C. Reynolds dated August 14, 2020. Document filed by New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,..(Reynolds, Pamela) (Entered: 08/14/2020)

08/14/2020 127 NOTICE OF APPEARANCE by Joseph James Flanagan on behalf of New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,..(Flanagan, Joseph) (Entered: 08/14/2020)

08/14/2020

128 ORDER granting 120 Letter Motion for Leave to File Document. Application Granted. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/14/2020) (ama) (Entered: 08/14/2020)

08/14/2020

129 BRIEF re: 128 Order on Motion for Leave to File Document Amicus Curiae Brief of the Progressive Caucus of the New York City Council. Document filed by Progressive Caucus of the New York City Council..(Marks, Aaron) (Entered: 08/14/2020)

08/14/2020 130 NOTICE OF APPEARANCE by Christopher Cariello on behalf of Communities United for Police Reform..(Cariello, Christopher) (Entered: 08/14/2020)

08/14/2020

131 BRIEF re: 100 Order on Motion for Leave to File Document (Brief of Amici Curiae NAACP Legal Defense and Educational Fund, Inc., Lawyers' Committee for Civil Rights Under Law, LatinoJustice PRLDEF, and Law for Black Lives in Opposition to Plaintiffs' Motion for a Preliminary Injunction). Document filed by LatinoJustice PRLDEF, Law for Black Lives, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc...(Hollinger, Chris) (Entered: 08/14/2020)

08/14/2020

132 FILING ERROR - DEFICIENT DOCKET ENTRY - AMENDED MOTION for Jeremy F. Wood to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,. (Attachments: # 1 Affidavit Jeremy F. Wood, # 2 Certificate of Good Standing, # 3 Text of Proposed Order).(Wood, Jeremy) Modified on 8/17/2020 (bcu). (Entered: 08/14/2020)

08/14/2020

133 RESPONSE re: 97 Order,,,, PROPOSED INTERVENOR'S MEMORANDUM OF LAW OF PROPOSED INTERVENOR COMMUNITIES UNITED FOR POLICE REFORM IN OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

134 FIRST MEMORANDUM OF LAW in Opposition to Plaintiffs' Motion for a Preliminary Injunction. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 08/14/2020)

08/14/2020

135 DECLARATION of Kami Z. Barker in Opposition re: 134 Memorandum of Law in Opposition,. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. (Attachments: # 1 A, # 2 B, # 3 C, # 4 D, # 5 E, # 6 F, # 7 G, # 8 H, # 9 I, # 10 J, # 11 K, # 12 L, # 13 M, # 14 N, # 15 O, # 16 P, # 17 Q, # 18 R, # 19 S, # 20 T, # 21 U, # 22 V, # 23 W, # 24 X).(Barker, Kami) (Entered: 08/14/2020)

08/14/2020

136 DECLARATION of ANDREA RITCHIE re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORMS OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

137 DECLARATION of ASSEMBLYMAN MICHAEL BLAKE re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORMS OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

138 DECLARATION of BRENDAN COX re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORMS OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY

INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

139 BRIEF re: 104 Order on Motion to File Amicus Brief . Document filed by New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,..(Reynolds, Pamela) (Entered: 08/14/2020)

08/14/2020

140 DECLARATION of COUNCILMAN DONOVAN RICHARDS re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORMS OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

141 MOTION for Leave to File Brief of Amici Curiae . Document filed by CommonCause/New York, Reinvent Albany, Citizens Union/Citizens Union Foundation, BetaNYC. (Attachments: # 1 Brief of Amici Curiae Common Cause/New York, Reinvent Albany, Citizens Union/Citizens Union Foundation, and BetaNYC in Support of Defendants and Dismissal).(Murphy, Sean) (Entered: 08/14/2020)

08/14/2020

142 DECLARATION of DELORES JONES-BROWN re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORMS OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

143 DECLARATION of DR. SAMUEL WALKER re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORM'S OPPOSITION TO PLAINTIFF'S REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

144 DECLARATION of JAMIE KALVEN re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORM'S OPPOSITION TO PLAINTIFF'S REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

145 DECLARATION of KADIATOU DIALLO re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORM'S OPPOSITION TO PLAINTIFF'S REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020 146 DECLARATION of MICHAEL J. GENNACO re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORM'S OPPOSITION TO PLAINTIFF'S REQUEST FOR A PRELIMINARY

INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

147 DECLARATION of JUMAANE D. WILLIAMS re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORM'S OPPOSITION TO PLAINTIFF'S REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

148 DECLARATION of SENATOR JULIA SALAZAR re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORM'S OPPOSITION TO PLAINTIFF'S REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

149 DECLARATION of SUSAN LERNER re: 133 Response, IN SUPPORT OF COMMUNITIES UNITED FOR POLICE REFORM'S OPPOSITION TO PLAINTIFF'S REQUEST FOR A PRELIMINARY INJUNCTION. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/14/2020)

08/14/2020

150 LETTER MOTION to File Amicus Brief addressed to Judge Katherine Polk Failla from Joel M. Cohen dated August 14, 2020. Document filed by Girls for Gender Equity, Inc., Transgender Law Center. (Attachments: # 1 Exhibit A- Proposed Amicus Brief).(Cohen, Joel) (Entered: 08/14/2020)

08/14/2020

151 RESPONSE re: 85 Order on Motion to File Amicus Brief, [Brief of Justice Committee Inc. as Amicus Curiae in Opposition to Plaintiff's Motion for a Preliminary Injunction]. Document filed by Justice Committee Inc...(Squire, Russell) (Entered: 08/14/2020)

08/14/2020

152 BRIEF re: 85 Order on Motion to File Amicus Brief, [Brief of Justice Committee Inc. as Amicus Curiae in Opposition to Plaintiff's Motion for a Preliminary Injunction]. Document filed by Justice Committee Inc...(Kornblau, David) (Entered: 08/14/2020)

08/14/2020

153 DECLARATION of Royce Russell re: 152 Brief of Justice Committee Inc. as Amicus Curiae in Opposition to Plaintiff's Motion for a Preliminary Injunction. Document filed by Justice Committee Inc...(Kornblau, David) (Entered: 08/14/2020)

08/14/2020

154 DECLARATION of Loyda Colon re: 152 Brief of Justice Committee Inc. as Amicus Curiae in Opposition to Plaintiff's Motion for a Preliminary Injunction. Document filed by Justice Committee Inc.. (Attachments: # 1 Exhibit A. Justice Committee June 2018 Memo, # 2 Exhibit B. Justice Committee April 2019 Memo, # 3 Exhibit C.

Loyda Colon testimony, # 4 Exhibit D. Constance Malcolm October 17, 2019 Testimony, # 5 Exhibit E. Constance Malcolm October 24, 2019 Testimony, # 6 Exhibit F. Gwen Carr October 17, 2019 Testimony, # 7 Exhibit G. Gwen Carr October 24, 2019 Testimony).(Kornblau, David) (Entered: 08/14/2020)

08/14/2020

155 DECLARATION of Russell M. Squire re: 152 Brief of Justice Committee Inc. as Amicus Curiae in Opposition to Plaintiff's Motion for a Preliminary Injunction. Document filed by Justice Committee Inc.. (Attachments: # 1 Exhibit A. N.Y. Times article dated June 14, 2012, # 2 Exhibit B. CCRB findings for Philip Atkins, # 3 Exhibit C. Think Progress article dated Mar. 28, 2017, # 4 Exhibit D. N.Y. Times article dated Mar. 13, 2013, # 5 Exhibit E. N.Y. Daily News article dated Mar. 15, 2013, # 6 Exhibit F. CCRB findings for Mourad Mourad, # 7 Exhibit G. CCRB findings for Jovaniel Cordova, # 8 Exhibit H. AP article dated July 16, 2019, # 9 Exhibit I. Think Progress article dated Mar. 21, 2017, # 10 Exhibit J. N.Y. Daily News article dated July 8, 2016, # 11 Exhibit K. N.Y. Times article dated Oct. 9, 1998).(Squire, Russell) (Entered: 08/14/2020)

08/14/2020

156 SUPPLEMENTAL MEMORANDUM OF LAW in Support of Motion for a Preliminary Injunction. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A (Initial Memorandum of Law)).(Coles, Anthony) (Entered: 08/14/2020)

08/14/2020

157 DECLARATION of Anthony P. Coles in Support re: 156 Memorandum of Law in Support,,. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit 1 (Declaration of Heidi Grossman), # 2 Exhibit 2 (First Jamieson Declaration), # 3 Exhibit 3 (Declaration of Robert Barrows), # 4 Exhibit 4 (NYPD 30(b)(6) Deposition Excerpts), # 5 Exhibit 5 (Declaration of Terryl L. Brown), # 6 Exhibit 6 (Expert Report of Dr. Jon Shane), # 7 Exhibit 7 (Municipal Labor Committee Position), # 8 Exhibit 8 (July 8, 2020 PBA Letter), # 9 Exhibit 9 (June 29, 2020 PBA Letter), # 10 Exhibit 10 (CCRB 30(b)(6) Deposition Excerpts), # 11 Exhibit 11 (DOC 30(b)(6) Deposition Excerpts), # 12 Exhibit 12

(FDNY 30(b)(6) Deposition Excerpts), # 13 Exhibit 13 (Second Jamieson Declaration), # 14 Exhibit 14 (U.S. DOJ Press Release), # 15 Exhibit 15 (PBA Request for Arbitration), # 16 Exhibit 16 (SBA Request for Arbitration), # 17 Exhibit 17 (LBA Request for Arbitration), # 18 Exhibit 18 (CEA Request for Arbitration)).(Coles, Anthony) (Entered: 08/14/2020)

08/14/2020

158 AFFIDAVIT of Joseph Alejandro in Support re: 156 Memorandum of Law in Support,,. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 08/14/2020)

08/14/2020 159 NOTICE OF APPEARANCE by Lawrence Edward Buterman on behalf of New York Civil Liberties Union..(Buterman, Lawrence) (Entered: 08/14/2020)

08/14/2020 160 NOTICE OF APPEARANCE by Jamie Lynne Wine on behalf of New York Civil Liberties Union..(Wine, Jamie) (Entered: 08/14/2020)

08/14/2020 161 BRIEF of Amicus Curiae The New York Civil Liberties Union in Support of Respondents/Defendants. Document filed by New York Civil Liberties Union..(Wine, Jamie) (Entered: 08/14/2020)

08/14/2020 162 NOTICE OF APPEARANCE by Kayla Marie Rooney on behalf of The Legal Aid Society..(Rooney, Kayla) (Entered: 08/14/2020)

08/14/2020 163 BRIEF re: 69 Order on Motion to File Amicus Brief . Document filed by Center on Race, Inequality, and the Law at New York University School of Law..(Mays, Charlita) (Entered: 08/14/2020)

08/14/2020 164 BRIEF of Amicus Curiae The Legal Aid Society. Document filed by The Legal Aid Society..(Cooper, Roger) (Entered: 08/14/2020)

08/15/2020 165 NOTICE OF APPEARANCE by Aaron M. Francis on behalf of The Legal Aid Society..(Francis, Aaron) (Entered: 08/15/2020)

08/17/2020

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 132 AMENDED MOTION for Jeremy F. Wood to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from SUPREME COURT OF WASHINGTON;. Re-file the motion as a Corrected Motion to

Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (bcu) (Entered: 08/17/2020)

08/17/2020

166 LETTER MOTION for Conference re: 157 Declaration in Support,,,,, regarding Expert Report of Dr. Jon Shane addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique SaintFort dated August 17, 2020. Document filed by Cynthia Brann, City of New York, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Quinn, Rebecca) (Entered: 08/17/2020)

08/17/2020

167 ORDER granting 126 Letter Motion for Leave to File Excess Pages. Application GRANTED. The Caucus may have a two-page extension, but nothing more. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/14/2020) (rro) (Entered: 08/17/2020)

08/17/2020

168 LETTER MOTION for Oral Argument (Request to Participate in the August 18, 2020 hearing on Plaintiffs' application for preliminary injunction) addressed to Judge Katherine Polk Failla from Alex V. Chachkes and Christopher J. Cariello dated 8/17/2020. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/17/2020)

08/17/2020

169 MOTION for Joel D. Bertocchi to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21186386. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Law Enforcement Action Partnership. (Attachments: # 1 Affidavit of Joel D. Bertocchi, # 2 Exhibit A, # 3 Text of Proposed Order).(Bertocchi, Joel) (Entered: 08/17/2020)

08/17/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 169 MOTION for Joel D. Bertocchi to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21186386. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/17/2020)

08/17/2020

170 MOTION for John R. Fowler to Appear Pro Hac Vice for Lawyers' Committee for Civil Rights Under Law. Filing fee $ 200.00, receipt number ANYSDC-21187936. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Lawyers' Committee for Civil Rights Under Law. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order).(Fowler, John) (Entered: 08/17/2020)

08/17/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 170 MOTION for John R. Fowler to Appear Pro Hac Vice for Lawyers' Committee for Civil Rights Under Law. Filing fee $ 200.00, receipt number ANYSDC21187936. Motion and supporting papers to be reviewed by Clerk'. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/17/2020)

08/17/2020

171 ORDER: The hearing in this matter, scheduled for August 18, 2020, at 2:00 p.m., will proceed by video conference with audio access as follows: Dial-in: (888) 363-4749 with Access Code: 5123533. The Court will provide instructions for accessing the conference for video participants separately. SO ORDERED. (Telephone Conference set for 8/18/2020 at 02:00 PM before Judge Katherine Polk Failla.) (Signed by Judge Katherine Polk Failla on 8/17/2020) (rro) (Entered: 08/17/2020)

08/17/2020

172 MOTION for Samir Deger-Sen to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21189233. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York Civil Liberties Union. (Attachments: # 1 Declaration of Samir Deger-Sen in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit A - Certificate of Good Standing, # 3 Text of Proposed Order).(Deger-Sen, Samir) (Entered: 08/17/2020)

08/17/2020

173 BRIEF re: 69 Order on Motion to File Amicus Brief, 163 Brief , Corrected Amicus Brief. Document filed by Center on Race, Inequality, and the Law at New York University School of Law..(Mays, Charlita) (Entered: 08/17/2020)

08/17/2020

174 NOTICE OF APPEARANCE by Ashok Chandran on behalf of LatinoJustice PRLDEF, Law for Black Lives, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc...(Chandran, Ashok) (Entered: 08/17/2020)

08/17/2020

175 NOTICE OF APPEARANCE by Jin Hee Lee on behalf of LatinoJustice PRLDEF, Law for Black Lives, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc...(Lee, Jin Hee) (Entered: 08/17/2020)

08/17/2020

176 NOTICE OF APPEARANCE by John Spencer Cusick on behalf of LatinoJustice PRLDEF, Law for Black Lives, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc...(Cusick, John) (Entered: 08/17/2020)

08/17/2020

177 LETTER RESPONSE in Opposition to Motion addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 08/17/2020 re: 166 LETTER MOTION for Conference re: 157 Declaration in

Support,,,,, regarding Expert Report of Dr. Jon Shane addressed to Judge Katherine Polk Failla from Rebecca Quinn and Dominique SaintFort dated August 17, 2020. . Document filed by Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 08/17/2020)

08/17/2020

178 ORDER FOR ADMISSION PRO HAC VICE granting 117 Motion for Enjolique Aytch Lett to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/17/2020) (rro) Modified on 8/18/2020 (rro). (Entered: 08/18/2020)

08/17/2020 179 ORDER FOR ADMISSION PRO HAC VICE granting 170 Motion for John R. Fowler to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/17/2020) (rro) (Entered: 08/18/2020)

08/17/2020

180 ORDER FOR ADMISSION PRO HAC VICE granting 172 Motion for Samir Deger-Sen to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/17/2020) (rro) (Entered: 08/18/2020)

08/17/2020 181 ORDER FOR ADMISSION PRO HAC VICE granting 169 Motion for Joel D. Bertocchi to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/17/2020) (rro) (Entered: 08/18/2020)

08/17/2020

182 ORDER granting 150 Letter Motion to File Amicus Brief. Application GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/17/2020) (rro) (Entered: 08/18/2020)

08/17/2020

183 ORDER granting 168 Letter Motion for Oral Argument. The Court is in receipt of the above-letter request from proposed intervenors CPR. Counsel for CPR should appear at the hearing on August 18, 2020, at 2:00 p.m. At that time, the Court will hear from CPR as appropriate. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/17/20) (yv) (Entered: 08/18/2020)

08/17/2020

184 MEMO ENDORSEMENT granting 141 Motion for Leave to File Document. ENDORSEMENT: Application GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/17/2020) (rro) (Entered: 08/18/2020)

08/17/2020

185 MEMO ENDORSED ORDER granting 118 Motion to File Amicus Brief. ENDORSEMENT: Application GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/17/20) (yv) (Entered: 08/18/2020)

08/18/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 172 MOTION for Samir Deger-Sen to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21189233. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/18/2020)

08/18/2020

186 NOTICE OF APPEARANCE by Alec Schierenbeck on behalf of LatinoJustice PRLDEF, Law for Black Lives, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc...(Schierenbeck, Alec) (Entered: 08/18/2020)

08/18/2020

187 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Arthur E. Ago to Appear Pro Hac Vice for Lawyers' Committee for Civil Rights Under Law. Filing fee $ 200.00, receipt number ANYSDC21210837. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Lawyers' Committee for Civil Rights Under Law. Return Date set for 8/18/2020 at 05:00 PM. (Attachments: # 1 Pro hac vice - proposed order, # 2 Certificate of good standing, # 3 Personal statement/affidavit).(Ago, Arthur) Modified on 8/19/2020 (bcu). (Entered: 08/18/2020)

08/18/2020

188 MOTION for Michael Alan Sisitzky to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21211917. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York Civil Liberties Union. (Attachments: # 1 Affidavit of Michael Sisitzky, # 2 Certificate of Good Standing, # 3 Text of Proposed Order).(Sisitzky, Michael) (Entered: 08/18/2020)

08/18/2020

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 187 MOTION for Arthur E. Ago to Appear Pro Hac Vice for Lawyers' Committee for Civil Rights Under Law. Filing fee $ 200.00, receipt number ANYSDC-21210837. Motion and supporting papers to be reviewed by Clerk's.. The filing is deficient for the following reason(s): Missing Attorney Affidavit/Declaration per local rule 1.3. Please do not attach admission application which is not required.;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days attach Proposed Order.. (bcu) (Entered: 08/18/2020)

08/18/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 188 MOTION for Michael Alan Sisitzky to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21211917. Motion and supporting papers to be reviewed

by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/18/2020)

08/18/2020

Minute Entry for proceedings held before Judge Katherine Polk Failla: Preliminary Conference Hearing held on 8/18/2020. Anthony Paul Coles and Courtney Gilligan Saleski representing Plaintiff present. Dominique F. Saint-Fort, Kami Zumbach Barker, and Rebecca Gibson Quinn representing Defendants present. Christopher Dunn, Michael Sisitzky, and Samir Deger-Sen representing NYCLU present. Christopher Cariello representing Communities United for Police Reform present. Corey Stoughton representing The Legal Aid Society present. Charlita Mays representing NYU School of Law Center on Race, Inequality, and the Law present. Enjolique D. Aytch Lett representing Law Enforcement Action Partnership present. David Leon Kornblau representing Justice Committee Inc. present. Pamela S. Reynolds representing New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus present. Joseph Myer Sanderson representing Progressive Caucus of the New York City Council present. Joel M. Cohen representing Girls for Gender Equity, Inc. and Transgender Law Center present. The Court will issue its decision at its earliest opportunity. Defendants are to coordinate a motion briefing schedule with Plaintiffs once the Court has rendered its decision. (See transcript). (Court Reporter Paula Speer) (tn) (Entered: 08/19/2020)

08/19/2020

189 AMENDED MOTION for Arthur E. Ago to Appear Pro Hac Vice for Lawyers' Committee for Civil Rights Under Law. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Lawyers' Committee for Civil Rights Under Law. Return Date set for 8/19/2020 at 05:00 PM. (Attachments: # 1 Affidavit of admission pro hac vice, # 2 Certificate of good standing, # 3 Proposed order of admission pro hac vice).(Ago, Arthur) (Entered: 08/19/2020)

08/19/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 189 AMENDED MOTION for Arthur E. Ago to Appear Pro Hac Vice for Lawyers' Committee for Civil Rights Under Law. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/19/2020)

08/19/2020

190 ORDER FOR ADMISSION PRO HAC VICE granting 188 Motion for Michael Alan Sisitzky to Appear Pro Hac Vice. Accordingly, it is hereby ORDERED that Mr. Sisitzky is admitted to practice Pro Hac Vice in the above-captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules

governing discipline of attorneys. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/19/2020) (kv) (Entered: 08/19/2020)

08/20/2020

191 LETTER addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 08/20/2020 re: New development concerning the Request for Arbitration by the Police Benevolent Association ("PBA") discussed in the hearing on the Union's motion for a preliminary injunction.. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A - Petition Challenging Arbitrability).(Coles, Anthony) (Entered: 08/20/2020)

08/20/2020

192 ORDER of USCA (Certified Copy) as to 39 Corrected Notice of Appeal, filed by Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Captains Endowment Association, Sergeants Benevolent Association. USCA Case Number 20-2400. Upon due consideration, and after oral argument, the Plaintiff-Appellant's motion for a stay, pending appeal, of the district court's order entered July 29, 2020, is DENIED. This denial terminates this Court's order, entered July 30, 2020, which stayed the District Court's July 29, 2020, order pending disposition by this panel of the motion for a stay pending appeal. This panel's opinion will follow. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 08/20/2020..(nd) (Entered: 08/20/2020)

08/20/2020 193 ORDER FOR ADMISSION PRO HAC VICE granting 189 Motion for Arthur E. Ago to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/20/2020) (rro) (Entered: 08/20/2020)

08/20/2020

NOTICE OF HEARING: A conference has been scheduled for August 21, 2020 at 12:00 p.m., which will be held telephonically, wherein the Court will issue its oral ruling. At the scheduled time, the parties are to call (888) 363-4749 and enter access code 5123533. Please note that the conference will not be available until 12:00 p.m. ***No PDF is attached to this entry. (Telephone Conference set for 8/21/2020 at 12:00 PM before Judge Katherine Polk Failla.).(tn) (Entered: 08/20/2020)

08/20/2020 194 AMENDED MOTION for Jeremy F. Wood to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's

Office staff. Document filed by New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,. (Attachments: # 1 Affidavit of Jeremy F. Wood, # 2 Certificate of Good Standing, # 3 Text of Proposed Order).(Wood, Jeremy) (Entered: 08/20/2020)

08/20/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 194 AMENDED MOTION for Jeremy F. Wood to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/20/2020)

08/20/2020 195 NOTICE OF APPEARANCE by Jeremy F Wood on behalf of New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus,..(Wood, Jeremy) (Entered: 08/20/2020)

08/21/2020

196 LETTER MOTION to Stay Letter from Plaintiffs asking the Court to extend the stay of the Courts Order issued today until Wednesday, August 26, 2020, at 2pm addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 08/21/2020. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 08/21/2020)

08/21/2020

Minute Entry for proceedings held before Judge Katherine Polk Failla: Telephonic Oral Ruling held on 8/21/2020. Anthony Paul Coles and Courtney Gilligan Saleski representing Plaintiff present. Dominique F. Saint-Fort, Kami Zumbach Barker, and Rebecca Gibson Quinn representing Defendants present. Christopher Dunn representing NYCLU present. Christopher Cariello representing Communities United for Police Reform present. Corey Stoughton representing The Legal Aid Society present. Cynthia Chen representing NYU School of Law Center on Race, Inequality, and the Law present. Enjolique D. Aytch Lett representing Law Enforcement Action Partnership present. Russell Matthew Squire representing Justice Committee Inc. present. Nathalia Varela representing Latino Justice PRLDEF present. Jin Hee representing NAACP Legal Defense and Educational Fund, Inc. Cassandra Branch and Jeremy Wood representing New York State Black, Puerto Rican, Hispanic & Asian Legislative Caucus present. Plaintiffs' motion for a preliminary injunction is DENIED IN PART and GRANTED IN PART as set forth on the record. The Court's ruling is STAYED until Monday, August 24, 2020 at 2:00 p.m., to afford Plaintiffs the opportunity to appeal its decision. Defendants are to

coordinate a motion briefing schedule with Plaintiffs and submit a proposed joint schedule to the Court. (See transcript). (Court Reporter Lisa Smith) (tn) (Entered: 08/21/2020)

08/21/2020

197 ORDER: For the reasons stated in open court during the conference on August 21, 2020, Plaintiffs' motion for a preliminary injunction is DENIED IN PART and GRANTED IN PART. Plaintiffs' request for an injunction is granted to the extent that Defendants NYPD and CCRB may not disclose records of "Schedule A" command discipline violations, for cases heard in the Trial Room, and for which the disposition of the charge at trial or on review or appeal therefrom is other than "guilty," which records have been, are currently, or could in the future be the subject of a request to expunge the record of the case pursuant to§ 8, for those officers covered by the Police Benevolent Association, Sergeants Benevolent Association, and Lieutenants Benevolent Association collective bargaining agreements. Plaintiffs' request for an injunction is denied in all other respects. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/21/2020) (rro) (Entered: 08/21/2020)

08/21/2020 198 ORDER FOR ADMISSION PRO HAC VICE granting 194 Motion for Jeremy F. Wood to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/21/2020) (rro) (Entered: 08/21/2020)

08/21/2020

199 ORDER granting 196 Letter Motion to Stay. Application GRANTED. The stay is extended to August 26, 2020, at 2:00 p.m. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/21/2020) (rro) (Entered: 08/21/2020)

08/24/2020

200 NOTICE OF INTERLOCUTORY APPEAL from 197 Order,,,. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. Filing fee $ 505.00, receipt number ANYSDC-21295681. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(Coles, Anthony) (Entered: 08/24/2020)

08/24/2020

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 200 Notice of Interlocutory Appeal. (tp) (Entered: 08/24/2020)

08/24/2020

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 200 Notice of Interlocutory Appeal,, filed by Police Benevolent Association of the City of New

York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Captains Endowment Association, Sergeants Benevolent Association were transmitted to the U.S. Court of Appeals..(tp) (Entered: 08/24/2020)

08/24/2020

201 LETTER addressed to Judge Katherine Polk Failla from Alex V. Chachkes and Christopher J. Cariello dated 8/24/2020 re: Ruling on pending Motion to Intervene. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/24/2020)

08/24/2020

202 MOTION for Racquel B. Martin to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21299095. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by LatinoJustice PRLDEF, Law for Black Lives, Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc.. (Attachments: # 1 Declaration of Racquel B. Martin in Support of Motion for Admission Pro Hac Vice, # 2 California Certificate of Good Standing, # 3 Tennessee Certificate of Good Standing, # 4 Text of Proposed Order).(Martin, Racquel) (Entered: 08/24/2020)

08/24/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 202 MOTION for Racquel B. Martin to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21299095. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (vba) (Entered: 08/24/2020)

08/24/2020

203 FIRST LETTER addressed to Judge Katherine Polk Failla from Kami Zumbach Barker, for defendants, dated August 24, 2020 re: briefing schedule for defendants' motion to dismiss. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 08/24/2020)

08/24/2020

204 ORDER FOR ADMISSION PRO HAC VICE granting 202 Motion for Racquel B. Martin to Appear Pro Hac Vice. (Signed by Judge Katherine Polk Failla on 8/24/2020) (rro) (Entered: 08/24/2020)

08/25/2020

205 MEMO ENDORSEMENT on re: 203 Letter, filed by Cynthia Brann, Dermot F. Shea, Fire Department of the City of New York, New York City Police Department, New York City Department of Correction, Civilian Complaint Review Board, City of New York, Bill de Blasio, Daniel A. Nigro, Frederick Davie. ENDORSEMENT: The Court is in

receipt of the above letter from the parties proposing a briefing schedule for the Defendants' motion to dismiss. (Dkt. #203). The proposed schedule is approved. Defendants' will file their motion by September 4, 2020; Plaintiffs' opposition is due by October 2, 2020; and Defendants' reply is due by October 16, 2020. ( Motions due by 9/4/2020., Responses due by 10/2/2020, Replies due by 10/16/2020.) (Signed by Judge Katherine Polk Failla on 8/25/2020) (cf) (Entered: 08/25/2020)

08/25/2020

206 ORDER granting in part and denying in part 41 Motion to Intervene.With respect to the standard for intervention of right, the Courtconcludes that CPR has not overcome the "presumption of adequaterepresentation" that exists "when there is an identity of interest between theputative intervenor and an existing party to the action." Butler, Fitzgerald &Potter v. Sequa Corp., 250 F.3d 171, 180 (2d Cir. 2001). The existingDefendants share CPR's interest in ensuring the affected public agencies'compliance with New York's Freedom of Information Law following repeal ofN.Y. Civil Rights Law § 50-a, and CPR has not shown evidence of "collusion,adversity of interest, nonfeasance, or incompetence" sufficient to overcome thepresumption of adequacy of representation. Id. CPR's request to intervene asa matter of right is therefore DENIED. Nonetheless, the Court found CPR's briefing opposing the Defendants'motion for a preliminary injunction to be substantially helpful in resolving thepreliminary injunction motion because it presented unique information andinsights. Thus, the Court concludes that CPR's participation moving forwardwould "significantly contribute to full development of the underlying factualissues in the suit and to the just and equitable adjudication of the legalquestions presented." H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc.,797 F.2d 85, 89 (2d Cir. 1986). Accordingly, CPR's motion for permissiveintervention is GRANTED. (Signed by Judge Katherine Polk Failla on 8/25/2020) (rro) (Entered: 08/25/2020)

08/26/2020

207 ORDER of USCA (Certified Copy) as to 200 Notice of Interlocutory Appeal, filed by Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Captains Endowment Association, Sergeants Benevolent Association USCA Case Number 20-2789. IT IS HEREBY ORDERED that, to the extent Appellants request an administrative stay of the district court's order until this motion is determined by a panel, that request is granted. The motion for a stay pending appeal is REFERRED to a three-judge motions panel. Any response to the stay motion must be filed by 5 p.m. on September 4, 2020, and any reply must be filed by 9 a.m. on

September 11, 2020. The motion shall be heard by the next available motions panel after briefing is completed. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 8/26/2020..(tp) (Entered: 08/26/2020)

08/27/2020

208 OPINION of USCA (Certified Copy) as to 39 Corrected Notice of Appeal, filed by Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Captains Endowment Association, Sergeants Benevolent Association USCA Case Number 20-2400. The motion for a stay of the District Courts July 29 order pending appeal is denied, thereby terminating the emergency stay entered July 30. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 8/27/2020..(tp) (Entered: 08/27/2020)

08/28/2020

209 LETTER MOTION for Conference re: Request for Pre-Motion Conference On Scheduling for Anticipated Motion to Dismiss addressed to Judge Katherine Polk Failla from Alex V. Chachkes dated 8/28/2020. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 08/28/2020)

08/28/2020

210 LETTER RESPONSE to Motion addressed to Judge Katherine Polk Failla from Anthony Paul Coles dated August 28, 2020 re: 209 LETTER MOTION for Conference re: Request for Pre-Motion Conference On Scheduling for Anticipated Motion to Dismiss addressed to Judge Katherine Polk Failla from Alex V. Chachkes dated 8/28/2020. . Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 08/28/2020)

08/28/2020

211 TRANSCRIPT of Proceedings re: ORAL ARGUMENT held on 8/18/2020 before Judge Katherine Polk Failla. Court Reporter/Transcriber: Paula Speer, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/18/2020. Redacted Transcript Deadline set for 9/28/2020. Release of Transcript Restriction set for 11/27/2020..(McGuirk, Kelly) (Entered: 08/28/2020)

08/28/2020

212 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ORAL ARGUMENT proceeding held on 8/18/2020 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 08/28/2020)

08/28/2020

213 FIRST LETTER addressed to Judge Katherine Polk Failla from Kami Zumbach Barker, for defendants, dated August 28, 2020 re: proposed amended briefing schedule. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 08/28/2020)

08/28/2020

214 MEMO ENDORSEMENT on re: 213 Letter, filed by Cynthia Brann, Dermot F. Shea, Fire Department of the City of New York, New York City Police Department, New York City Department of Correction, Civilian Complaint Review Board, City of New York, Bill de Blasio, Daniel A. Nigro, Frederick Davie. ENDORSEMENT: The Court is in receipt of Intervenor Communities United for Police Reform's letter requesting a pre-motion conference on scheduling for anticipated motions to dismiss (Dkt. #209), the Plaintiffs' letter in response (Dkt. #210), and the above letter from Defendants (Dkt. #213). The Court will dispense with the pre-motion conference and amend the briefing schedule as follows: Defendants will file their motion by September 4, 2020; CPR will file their motion by September 11, 2020; Plaintiffs will file their opposition by October 16, 2020; and Defendants and CPR will file their replies by October 30, 2020. Plaintiffs are directed to file a consolidated opposition brief of no longer than 40 pages. (Motions due by 9/11/2020., Responses due by 10/16/2020, Replies due by 10/30/2020.) (Signed by Judge Katherine Polk Failla on 8/28/2020) (rro) (Entered: 08/28/2020)

08/28/2020

215 MEMO ENDORSEMENT on re: 112 Letter. ENDORSEMENT: The Court is in receipt of the above letter from Mr. Komatsu (Dkt. 122). The Court will not alter its prior decision denying Mr. Komatsu intervention by right under Federal Rule of Civil Procedure 24(a) or permissive intervention under Rule 24(b). The Court believes all interests are adequately represented by the existing parties, including Intervenor Communities United for Police Reform ("CPR"). By separate order today (Dkt. #214), the Court set the following briefing schedule on expected motions to dismiss: Defendants' motion is due by September 4, 2020; CPR's motion is due by September 11, 2020;

Plaintiffs' opposition is due by October 16, 2020; and Defendants' and CPR's replies are due by October 30, 2020. Any party seeking to participate as amicus curiae may seek to do so in accordance with this briefing schedule. ( Motions due by 9/4/2020., Responses due by 9/11/2020, Replies due by 10/30/2020.) (Signed by Judge Katherine Polk Failla on 8/28/2020) Copies Mailed By Chambers. (rro) (Entered: 08/28/2020)

08/31/2020

216 TRANSCRIPT of Proceedings re: DECISON held on 8/21/2020 before Judge Katherine Polk Failla. Court Reporter/Transcriber: Lisa Smith, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/21/2020. Redacted Transcript Deadline set for 10/1/2020. Release of Transcript Restriction set for 11/30/2020..(McGuirk, Kelly) (Entered: 08/31/2020)

08/31/2020

217 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a DECISON proceeding held on 8/21/2020 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 08/31/2020)

09/01/2020

218 MANDATE of USCA (Certified Copy) as to 39 Correction Notice of Appeal,, filed by Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Captains Endowment Association, Sergeants Benevolent Association USCA Case Number 20-2400. The parties in the above-referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered".. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 09/01/2020..(nd) (Entered: 09/01/2020)

09/04/2020

219 FIRST MOTION to Dismiss plaintiffs' Complaint/Petition. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. Responses due by 10/16/2020 Return Date set for 10/30/2020 at 05:00 PM..(Barker, Kami) (Entered: 09/04/2020)

09/04/2020

220 FIRST MEMORANDUM OF LAW in Support re: 219 FIRST MOTION to Dismiss plaintiffs' Complaint/Petition. . Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 09/04/2020)

09/08/2020 221 NOTICE OF APPEARANCE by Molly Griffard on behalf of The Legal Aid Society..(Griffard, Molly) (Entered: 09/08/2020)

09/11/2020 222 MOTION to Dismiss . Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 09/11/2020)

09/11/2020

223 MEMORANDUM OF LAW in Support re: 222 MOTION to Dismiss . . Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 09/11/2020)

09/17/2020

224 ORDER of USCA (Certified Copy) USCA Case Number 20-2789. Plaintiffs-Appellants seek a stay of the district court's August 21, 2020 order pending appeal. Upon due consideration, it is hereby ORDERED that the motion is GRANTED. See U.S. Sec. & Exch. Comm'n v. Citigroup Glob. Mkts. Inc., 673 F.3d 158, 162 (2d Cir. 2012). It is further ORDERED that the Clerks Office shall confer with the parties and enter an expedited briefing schedule for the appeal. Judge Lynch would deny the stay. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 9/17/2020. (tp) (Entered: 09/17/2020)

09/21/2020

225 NOTICE OF INTERLOCUTORY APPEAL from 197 Order,,,. Document filed by Communities United for Police Reform. Filing fee $ 505.00, receipt number ANYSDC-21751952. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(Chachkes, Alex) (Entered: 09/21/2020)

09/21/2020

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 225 Notice of Interlocutory Appeal,..(nd) (Entered: 09/21/2020)

09/21/2020

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 225 Notice of Interlocutory Appeal, filed by Communities United for Police Reform were transmitted to the U.S. Court of Appeals..(nd) (Entered: 09/21/2020)

09/25/2020

226 FIRST AMENDED COMPLAINT against Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro,

Dermot F. Shea, Bill de Blasio.Document filed by Captains Endowment Association, Uniformed Firefighters Association of Greater New York, Uniformed Fire Officers Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association..(Coles, Anthony) (Entered: 09/25/2020)

10/02/2020

227 LETTER MOTION for Conference re: Anticipated Motion to Dismiss the First Amended Complaint addressed to Judge Katherine Polk Failla from Alex V. Chachkes dated 10/2/2020. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 10/02/2020)

10/05/2020

228 ORDER terminating 227 LETTER MOTION for Conference re: Anticipated Motion to Dismiss the First Amended Complaint. The Court is in receipt of the above letter from Intervenor CPR. Given the extensive prior briefing and argument on the issues likely to be addressed in a motion to dismiss, the Court will dispense with the premotion conference and adopt the parties' proposed briefing schedule. The City Defendants and CPR are hereby ORDERED to file any motion to dismiss the First Amended Complaint on or before October 16, 2020; Plaintiffs will file their opposition on or before November 6, 2020; and the City and CPR will file their replies on or before November 20, 2020. SO ORDERED.. (Signed by Judge Katherine Polk Failla on 10/5/2020) (jca) (Entered: 10/05/2020)

10/05/2020

Set/Reset Deadlines: Motions due by 10/16/2020. Responses due by 11/6/2020, Replies due by 11/20/2020. (jca) (Entered: 10/05/2020)

10/13/2020

229 LETTER addressed to Judge Katherine Polk Failla from Kami Z. Barker dated October 13, 2020 re: request for page-limit extension. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 10/13/2020)

10/14/2020

230 MEMO ENDORSEMENT on re: 229 Letter, filed by Cynthia Brann, Dermot F. Shea, Fire Department of the City of New York, New York City Police Department, New York City Department of Correction, Civilian Complaint Review Board, City of New York, Bill de Blasio, Daniel A. Nigro, Frederick Davie. ENDORSEMENT: Application GRANTED. Defendants are authorized a 35-page opening submission; Plaintiffs are likewise authorized a 35-page opposition; and Defendants

are authorized a 15-page reply. The parties are cautioned not to employ any font-size or formatting stratagems to reduce the number of pages in their submissions. (Signed by Judge Katherine Polk Failla on 10/14/2020) (rro) (Entered: 10/14/2020)

10/16/2020

231 LETTER MOTION for Leave to File Excess Pages addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 10/16/2020. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 10/16/2020)

10/16/2020

232 FIRST MOTION to Dismiss Plaintiffs' First Amended Complaint. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio. Responses due by 11/6/2020 Return Date set for 11/20/2020 at 05:00 PM..(Barker, Kami) (Entered: 10/16/2020)

10/16/2020

233 MEMORANDUM OF LAW in Support re: 232 FIRST MOTION to Dismiss Plaintiffs' First Amended Complaint. . Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 10/16/2020)

10/16/2020

234 MOTION to Dismiss First Amended Complaint. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 10/16/2020)

10/16/2020 235 MEMORANDUM OF LAW in Support re: 234 MOTION to Dismiss First Amended Complaint. . Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 10/16/2020)

10/16/2020

236 ORDER granting 231 Letter Motion for Leave to File Excess Pages: Application GRANTED. Plaintiffs shall file a consolidated opposition brief of no longer than 50 pages. (Signed by Judge Katherine Polk Failla on 10/16/2020) (jwh) (Entered: 10/16/2020)

11/06/2020

237 MEMORANDUM OF LAW in Opposition re: 234 MOTION to Dismiss First Amended Complaint., 232 FIRST MOTION to Dismiss Plaintiffs' First Amended Complaint. . Document filed by

Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York..(Coles, Anthony) (Entered: 11/06/2020)

11/17/2020

238 LETTER addressed to Judge Katherine Polk Failla from Kami Z. Barker dated November 17, 2020 re: reply page limit extension. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 11/17/2020)

11/17/2020

239 MEMO ENDORSEMENT on re: 238 Letter, filed by Cynthia Brann, Dermot F. Shea, Fire Department of the City of New York, New York City Police Department, New York City Department of Correction, Civilian Complaint Review Board, City of New York, Bill de Blasio, Daniel A. Nigro, Frederick Davie. ENDORSEMENT: Application GRANTED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/17/2020) (mml) (Entered: 11/18/2020)

11/20/2020

240 REPLY MEMORANDUM OF LAW in Support re: 232 FIRST MOTION to Dismiss Plaintiffs' First Amended Complaint. . Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 11/20/2020)

11/20/2020

241 REPLY MEMORANDUM OF LAW in Support re: 234 MOTION to Dismiss First Amended Complaint. . Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 11/20/2020)

12/04/2020

242 LETTER addressed to Judge Katherine Polk Failla from Anthony P. Coles dated 12/04/2020 re: Supplemental authority which bears on the pending motions to dismiss the First Amended Complaint. Document filed by Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York. (Attachments: # 1 Exhibit A - Empire Center for Public Policy v. New

York City Police Pension Fund, Case No. 2020-01575 (Nov. 24, 2020)).(Coles, Anthony) (Entered: 12/04/2020)

12/07/2020

243 LETTER addressed to Judge Katherine Polk Failla from Kami Z. Barker dated December 7, 2020 re: plaintiffs' December 4, 2020 letter. Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Barker, Kami) (Entered: 12/07/2020)

12/21/2020

244 MOTION for Guadalupe V. Aguirre to Withdraw as Attorney . Document filed by Communities United for Police Reform. (Attachments: # 1 Certificate of Service).(Chachkes, Alex) (Entered: 12/21/2020)

12/21/2020

245 DECLARATION of Guadalupe V. Aguirre in Support re: 244 MOTION for Guadalupe V. Aguirre to Withdraw as Attorney .. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 12/21/2020)

12/22/2020

246 MEMO ENDORSEMENT granting 244 Motion to Withdraw as Attorney. ENDORSEMENT: Application GRANTED. The Clerk of Court is directed to terminate Ms. Aguirre as counsel of record for Intervenor-Respondent/Defendant Communities United for Police Reform. (Signed by Judge Katherine Polk Failla on 12/22/2020) (rro) (Entered: 12/22/2020)

01/12/2021

247 MOTION for Margaret Wheeler-Frothingham to Withdraw as Attorney . Document filed by Communities United for Police Reform. (Attachments: # 1 Certificate of Service).(Chachkes, Alex) (Entered: 01/12/2021)

01/12/2021

248 DECLARATION of Margaret Wheeler-Frothingham in Support re: 247 MOTION for Margaret Wheeler-Frothingham to Withdraw as Attorney .. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 01/12/2021)

01/13/2021

249 MEMO ENDORSEMENT granting 247 Motion to Withdraw as Attorney. ENDORSEMENT: Application GRANTED. The Clerk of Court is directed to terminate Ms. Wheeler-Frothingham as counsel of record for Intervenor-Respondent/Defendant Communities United for Police Reform. (Attorney Margaret Lee Wheeler-Frothingham terminated.0 (Signed by Judge Katherine Polk Failla on 1/13/2021) (rro) (Entered: 01/13/2021)

01/14/2021

250 LETTER addressed to Judge Katherine Polk Failla from Alex V. Chachkes dated 1/14/2021 re: Supplemental Authority. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 01/14/2021)

01/26/2021

251 FILING ERROR - DEFICIENT DOCKET ENTRY (SEE DOCUMENT #252) - NOTICE OF APPEARANCE by Rene Kathawala on behalf of Communities United for Police Reform..(Kathawala, Rene) Modified on 1/26/2021 (ldi). (Entered: 01/26/2021)

01/26/2021 252 NOTICE OF APPEARANCE by Renee B. Phillips on behalf of Communities United for Police Reform..(Phillips, Renee) (Entered: 01/26/2021)

01/26/2021

253 MOTION for Alex V. Chachkes to Withdraw as Attorney . Document filed by Communities United for Police Reform. (Attachments: # 1 Certificate of Service).(Chachkes, Alex) (Entered: 01/26/2021)

01/26/2021

254 DECLARATION of Alex. V. Chachkes in Support re: 253 MOTION for Alex V. Chachkes to Withdraw as Attorney .. Document filed by Communities United for Police Reform..(Chachkes, Alex) (Entered: 01/26/2021)

01/27/2021

255 ORDER granting 253 Motion to Withdraw as Attorney. Application GRANTED. The Clerk of Court is directed to terminate Mr. Chachkes as counsel of record for Intervenor-Defendant Communities United for Police Reform. Attorney Alex V. Chachkes terminated. (Signed by Judge Katherine Polk Failla on 1/27/2021) (nb) (Entered: 01/27/2021)

03/09/2021

256 MANDATE of USCA (Certified Copy) as to 225 Notice of Interlocutory Appeal, filed by Communities United for Police Reform, 200 Notice of Interlocutory Appeal,, filed by Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Captains Endowment Association, Sergeants Benevolent Association. USCA Case Number 20-2789-cv(L); 20-3177-cv(Xap). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 3/9/2021..(nd) (Entered: 03/09/2021)

03/09/2021

Transmission of USCA Mandate to the District Judge re: 256 USCA Mandate,,,..(nd) (Entered: 03/09/2021)

03/17/2021

257 LETTER MOTION for Conference re: anticipated Motion to Modify the Preliminary Injunction addressed to Judge Katherine Polk Failla from Renee Phillips dated 3/17/2021. Document filed by Communities United for Police Reform..(Phillips, Renee) (Entered: 03/17/2021)

03/22/2021

258 LETTER RESPONSE to Motion addressed to Judge Katherine Polk Failla from Dominique F. Saint-Fort and Kami Barker dated March 22, 2021 re: 257 LETTER MOTION for Conference re: anticipated Motion to Modify the Preliminary Injunction addressed to Judge Katherine Polk Failla from Renee Phillips dated 3/17/2021. . Document filed by Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Fire Department of the City of New York, New York City Department of Correction, New York City Police Department, Daniel A. Nigro, Dermot F. Shea, Bill de Blasio..(Saint-Fort, Dominique) (Entered: 03/22/2021)

03/29/2021

259 MEMO ENDORSED ORDER on 258 LETTER RESPONSE; granting 257 Letter Motion for Conference re: 257 LETTER MOTION for Conference re: anticipated Motion to Modify the Preliminary Injunction addressed to Judge Katherine Polk Failla from Renee Phillips dated 3/17/2021. ENDORSEMENT: The Court is in receipt of the letter motion from Intervenor Communities United for Police Reform ("CPR") requesting a premotion conference regarding its anticipated Motion to Modify the Injunction (Dkt. #257), as well as Defendants' above response (Dkt. #258). Plaintiffs declined to submit a responsive letter. CPR's request for a conference is GRANTED. The parties are ORDERED to appear for a telephonic conference on April 13, 2021, at 12:00 p.m. At the specified date and time, the parties shall call (888) 363-4749 and enter access code 5123533#. Please note, the conference line will not be available before 12:00 p.m. The Clerk of Court is directed to terminate the motion at docket entry 257. Telephone Conference set for 4/13/2021 at 12:00 PM before Judge Katherine Polk Failla.. (Signed by Judge Katherine Polk Failla on 3/29/2021) (nb) (Entered: 03/29/2021)

03/29/2021

260 NOTICE OF APPEARANCE by Caitlin Carey Sikes on behalf of Communities United for Police Reform..(Sikes, Caitlin) (Entered: 03/29/2021)

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1:20-cv-05441KPF 3.00

 
  
 Case 1:20-cv-05441 Document 5 Filed 07/16/20 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Correction Officers’ Benevolent Association of the City of New York, Inc.; Police Benevolent Association of the City of New York, Inc.; Sergeants Benevolent Association; Lieutenants Benevolent Association; Captains Endowment Association; and Detectives’ Endowment Association,

NOTICE OF REMOVAL Case No. 20 CV 05441

Plaintiffs,

-against-

Bill de Blasio, in his official capacity as Mayor of the City of New York; the City of New York; Fire Department of the City of New York; Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York; New York City Department of Correction; Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department; the New York City Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board; and the Civilian Complaint Review Board,

Defendants. – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X
TO: THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK

Defendants Bill de Blasio, in his official capacity as Mayor of the City of New

York; the City of New York; Fire Department of the City of New York; Daniel A. Nigro, in his

official capacity as the Commissioner of the Fire Department of the City of New York; New

York City Department of Correction; Cynthia Brann, in her official capacity as the

Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official

capacity as the Commissioner of the New York City Police Department; the New York City

Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian

Case 1:20-cv-05441 Document 5 Filed 07/16/20 Page 2 of 6
Complaint Review Board; and the Civilian Complaint Review Board, (collectively “Defendants”), by and through their attorney, James E. Johnson, Corporation Counsel of the City of New York, respectfully moves this Court as follows:
1. On July 14, 2020, Defendant City of New York received a Summons and Petition by e-mailed service on the Office of the Corporation Counsel, filed in the Supreme Court of the State of New York, County of New York, under Index No. 154982/2020E, naming the Defendants therein, and setting forth the claims for relief upon which the action is based.
2. A copy of Plaintiff’s Summons and Complaint is annexed hereto as Exhibit “A.”
3. Petitioners bring this action seeking to temporarily and permanently enjoin Defendants from releasing unsubstantiated and non-final disciplinary records of firefighters, police and correction officers and alleging, among other things, potential violations under 42 U.S.C. §1983 of both the Due Process Clause and the Equal Protection Clause of Fourteenth Amendment. Petitioners also allege a breach of their respective collective bargaining agreements, a breach of contract claim and allege that Defendants’ acts were affected by an error of law or are arbitrary and capricious in violation of New York Civil Practice Law and Rules § 7803. Finally, Petitioners request declaratory relief. See Exhibit “A.”
4. The above-captioned action is a civil action of which the District Court has original jurisdiction pursuant to 28 U.S.C. § 1331, in that it alleges claims which arise under the laws of the United States. This action is therefore removable to the District Court without regard to the citizenship or residence of the parties, pursuant to 28 U.S.C. §§ 1441 and 1443.
5. This Notice of Removal is timely because it is being filed within thirty (30) days of Defendant’s receipt of the Summons and Complaint. See 28 U.S.C. § 1446 (b).
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6. Defendant will promptly file a copy of this Notice of Removal with the

Clerk of the State Court in which the action is pending.

WHEREFORE, Defendants respectfully request that the above-captioned action

be removed from the Supreme Court of the State of New York, County of New York, to the

United States District Court for the Southern District of New York.

Dated:

New York, New York July 15, 2020

JAMES E. JOHNSON Corporation Counsel
of the City of New York Attorney for Defendant City of New York 100 Church Street, Room 2-186/2-317 New York, New York 10007 (212) 356-2444/4328 dosaint@law.nyc.gov

By: /s/ Dominique F. Saint-Fort Dominique F. Saint-Fort Assistant Corporation Counsel
By: /s/ Rebecca Jo Quinn Rebecca Jo Quinn Assistant Corporation Counsel

TO: DLA PIPER LLP (US) New York, New York Anthony P. Coles Michael R. Hepworth 1251 6th Avenue New York, NY 10020 Telephone: (212) 335-4844 Facsimile: (212) 884-8644 Email: anthony.coles@dlapiper.com Email: michael.hepworth@dlapiper.com
Courtney G. Saleski (pro hac vice to be filed) 1650 Market Street, Suite 5000 Philadelphia, PA 19103-7300 Telephone: (215) 656-2431
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Case 1:20-cv-05441 Document 5 Filed 07/16/20 Page 4 of 6 Facsimile: (215) 606-2046 Email: courtney.saleski@dlapiper.com
4

Case 1:20-cv-05441 Document 5 Filed 07/16/20 Page 5 of 6 Docket No. 20 CV 05441
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Correction Officers’ Benevolent Association of the City of New York, Inc.; Police Benevolent Association of the City of New York, Inc.; Sergeants Benevolent Association; Lieutenants Benevolent Association; Captains Endowment Association; and Detectives’ Endowment Association,
Petitioners,
-against-
Bill de Blasio, in his official capacity as Mayor of the City of New York; the City of New York; Fire Department of the City of New York; Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York; New York City Department of Correction; Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department; the New York City Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board; and the Civilian Complaint Review Board,
Defendants.
NOTICE OF REMOVAL

Case 1:20-cv-05441 Document 5 Filed 07/16/20 Page 6 of 6 JAMES E. JOHNSON
Corporation Counsel of the City of New York Attorney for Defendant City of New York 100 Church Street, Rm. 2-186/2-317 New York, N.Y. 10007 Of Counsel: Dominique F. Saint-Fort Rebecca Jo Quinn Tel: (212) 356-2444/4382
Due and timely service is hereby admitted. New York, N.Y.................................................., 2020 ........................................................................... Esq. Attorney for................................................................
- 7 -

 
 Case 1:20-cv-05441 Document 5-1 Filed 07/16/20 Page 1 of 34

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Correction Officers’ Benevolent Association of the City of New York, Inc.; Police Benevolent Association of the City of New York, Inc.; Sergeants Benevolent Association; Lieutenants Benevolent Association; Captains Endowment Association; and Detectives’ Endowment Association,
Petitioners/Plaintiffs,

Index No.:
VERIFIED PETITION/ COMPLAINT UNDER ARTICLE 75, UNITED STATES AND NEW YORK CONSTITUTIONS, COMMON LAW, AND ARTICLE 78 SEEKING INJUNCTIVE AND DECLARATORY RELIEF

-against-

ORAL ARGUMENT REQUESTED

Bill de Blasio, in his official capacity as Mayor of the City of New York; the City of New York; Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York, Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department; the Fire Department of the City of New York; the New York City Department of Correction; the New York City Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board; and the Civilian Complaint Review Board,

Respondents/Defendants.

Petitioners/Plaintiffs Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Correction Officers’ Benevolent Association of the City of New York, Inc., Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Lieutenants Benevolent Association, Captains Endowment Association, and Detectives’ Endowment Association (“Petitioners” or the “Unions”), by and through their undersigned attorneys, as and for their Verified Petition and Complaint, allege as follows:
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PRELIMINARY STATEMENT 1. This case challenges Respondents/Defendants’ (“Respondents”) unilateral pronouncements that they will begin the release as soon as July 15, 2020, of records concerning disciplinary matters against retired and active individual New York City police officers, firefighters, and corrections officers, including those that are non-final, unsubstantiated, unfounded, exonerated, or resulted in a finding of not guilty (“Unsubstantiated and Non-Final Allegations”) and confidential settlement agreements, in the wake of the repeal of Civil Rights Law § 50-a. These Unsubstantiated and Non-Final Allegations—unproven allegations at best and false allegations at worst—will be “data dumped” on the internet, resulting in the publication and promotion of information that will absolutely destroy the reputation and privacy—and imperil the safety—of many of those firefighters and officers. This indiscriminate release would, among other harms:
 Violate Petitioners’ Collective Bargaining Agreements with the Respondents;  Violate the Due Process Clauses of the United States and New York State
Constitutions, and irrevocably and unfairly stigmatize Petitioners’ members;  Breach thousands of settlement agreements entered into in good faith with the
Respondents with the promise and expectation of confidentiality; and  Arbitrarily and capriciously reverse longstanding city and State practice of deeming
unsubstantiated allegations to be protected from disclosure, separate and apart from the provisions of § 50-a. 2. This is not a challenge to disclosure of proven and final disciplinary matters—i.e., those that at least have been vetted through an evidence-based investigative and adjudicatory process that includes basic due process protections. This is a challenge to protect Petitioners’
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members’ rights that will be violated when Respondents release these Unsubstantiated and NonFinal Allegations within days, in what amounts to a massive public data dump.
3. It takes no evidence to make a complaint against a firefighter, corrections officer, or police officer. Baseless claims can be levied for any number of nefarious motivations. Without the safeguards of proof and finality, the lives of firefighters, officers, and their families may be irreparably ruined. Take, for example, the privacy violation and damage to firefighters’ or officers’ families of releasing unfounded allegations relating to domestic disputes, or an unfounded accusation of racial bias. If Respondents are permitted to promote and publish on the internet these Unsubstantiated and Non-Final Allegations, Petitioners’ members will suffer irreparable harm. The Unsubstantiated and Non-Final Allegations will remain forever in the public domain creating limitless and eternal notoriety, even if they are found to be false and unproven.
4. Although the repeal of Civil Rights Law § 50-a eliminates a categorical prohibition to the public review of law enforcement records, it does not obliterate pre-existing contractual rights or constitutional and common law protections that all citizens, including the Petitioners, share, which forbid Respondents from promoting unproven, defamatory allegations to the world at large.
5. Collective Bargaining Agreements/CPLR Article 75: Each of the Petitioners has entered into a Collective Bargaining Agreement (“CBA”) with their respective agencies and the City governing the terms and conditions of their employment. The CBAs protect Petitioners against the release of Unsubstantiated and Non-Final Allegations. The Respondents have no lawful right to unilaterally violate those terms, and render them null and void, or to impose new terms, without following the provisions of the NYC Collective Bargaining Law, including those laws relating to the arbitration of grievances. In addition, at least some of the Petitioners have
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filed (or will be filing) grievances under their respective CBAs. Pending final determination of those grievances through the collective bargaining process, Respondents must be enjoined under Article 75 of the CPLR.
6. Due Process and Equal Protection: The indiscriminate disclosure on the internet of unproven allegations without due process of law is functionally irreversible, and will create unfair, unlawful, and limitless notoriety for the Petitioners, with substantial impact to their future employment prospects. Such a release would destroy the reputations and imperil the safety of those firefighters and officers and their families forever—all while the Respondents treat other City employees fairly by protecting their privacy. The release of Unsubstantiated and Non-Final Allegations constitutes a violation of the Due Process and Equal Protection Clauses of the United States and New York State Constitutions, and treats law enforcement officers different than other city employees for whom unsubstantiated allegations are maintained as private.
7. Contract Rights for Past Settlements: The data dump will also include accusations that resulted in settlement agreements. Such disclosure will breach those settlement contracts. Any settlement agreement entered into before June 2020—when Civil Rights Law § 50a, which shielded disclosure of disciplinary records, was repealed—necessarily incorporated § 50a’s protections against disclosure of this very type of information. New York’s recent repeal of § 50-a does not alter these existing contracts, nor was it ever intended to do so.
8. CPLR Article 78: In addition, release of such Unsubstantiated and Non-Final Allegations would also constitute errors of law and be arbitrary and capricious agency action as an unwarranted and irreversible invasion of the right to privacy. Respondents themselves have asserted for decades that release of Unsubstantiated and Non-Final Allegations would be an unwarranted invasion of privacy. It is an error of law and arbitrary and capricious for the
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Respondents to change decades of agency practice on the protections afforded Unsubstantiated and Non-Final Allegations under the pretext of the repeal of § 50-a. Thus, Respondents’ actions violate Article 78 of the CPLR.
9. The Respondents have not identified whose records will be released, the content of those records, or made any determination of the consequences to the safety, reputation, or privacy of the implicated officers. Pending a determination of the claims asserted in this action, the Respondents must be restrained from the release and promotion on the internet of Unsubstantiated and Non-Final Allegations and confidential settlement agreements—otherwise, the Respondents would make this lawsuit an empty ritual, incapable of protecting the reputation, privacy, and safety of hundreds of New York City’s firefighters, police, and corrections officers. There would be no material prejudice to the Respondents from the entry of provisional relief, but in the absence of provisional relief, the damage to the Petitioners would be irreversible. To protect Petitioners’ rights, Petitioners respectfully request temporary, preliminary, and permanent injunctive relief on all claims, barring the release of records regarding Unsubstantiated and Non-Final Allegations or that regard settlement agreements entered into prior to June 12, 2020.
PARTIES 10. Petitioner Uniformed Fire Officers Association (“UFOA”) is the duly certified collective bargaining representative of officers of the Fire Department of the City of New York in the rank of Lieutenant, Captain, Battalion Chief, Deputy Chief (except those Deputy Chiefs designated as Deputy Assistant Chief of Department, Assistant Chief of Department and Chief in Charge), Fire Medical Officer, and Supervising Fire Marshal. Upon information and belief, UFOA members will be named in the data that Respondents plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, UFOA seeks to protect the interest of these and other UFOA members.
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11. Petitioner Uniformed Firefighters Association of Greater New York (“UFA”) is the duly certified collective bargaining representative of officers Fire Department of the City of New York in the rank of Firefighter and Fire Marshal. Upon information and belief, UFA members will be named in the data that Respondents plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, UFA seeks to protect the interest of these and other UFA members.
12. Petitioner Correction Officers’ Benevolent Association of the City of New York, Inc. (“COBA”) is the duly certified collective bargaining representative of officers of the New York City Department of Correction (“NYCDOC”) in the rank of Correction Officer. Upon information and belief, COBA members will be named in the data that Respondents plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, COBA seeks to protect the interest of these and other COBA members.
13. Petitioner Police Benevolent Association of the City of New York, Inc. (“PBA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Police Officer. Upon information and belief, PBA members will be named in the data that Respondents plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, PBA seeks to protect the interests of these and other PBA members.
14. Petitioner Sergeants Benevolent Association (“SBA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Sergeant. Upon information and belief, SBA members will be named in the data that Respondents plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, SBA seeks to protect the interests of these and other
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SBA members 15. Petitioner Lieutenants Benevolent Association (“LBA”) is the duly certified
collective bargaining representative of all officers of the New York City Police Department in the rank of Lieutenant. Upon information and belief, LBA members will be named in the data that Respondents plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, LBA seeks to protect the interests of these and other LBA members.
16. Petitioner Captains Endowment Association (“CEA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Captain. Upon information and belief, CEA members will be named in the data that Respondents plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, CEA seeks to protect the interests of these and other CEA members.
17. Petitioner Detectives’ Endowment Association (“DEA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Detective. Upon information and belief, DEA members will be named in the data that Respondents plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, DEA seeks to protect the interests of these and other DEA members.
18. Respondent Bill de Blasio is the Mayor of the City of New York (the “Mayor”) and is named in his official capacity. The Mayor’s principal place of business is located at City Hall, New York, New York 10007.
19. Respondent the City of New York (the “City”) is a municipal corporation organized
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and existing under New York state law. The City’s principal place of business is located at City Hall, New York, New York 10007.
20. Respondent Daniel A. Nigro (“Commissioner Nigro”) is the Commissioner of the Fire Department of the City of New York and is named in his official capacity. Commissioner Nigro’s principal place of business is located at 9 MetroTech Center, Brooklyn, New York 11201.
21. Respondent the Fire Department of the City of New York (“FDNY”) is a municipal fire department administered under the New York Administrative Code, Title 29 of the City of New York. FDNY’s principal place of business is located at 9 MetroTech Center, Brooklyn, New York 11201.
22. Respondent the New York City Department of Correction (“NYCDOC”) is a municipal fire department administered under the New York Administrative Code, Title 9 of the City of New York. NYCDOC’s principal place of business is located at 75-20 Astoria Boulevard, East Elmhurst, New York 11370.
23. Respondent Cynthia Brann (“Commissioner Brann”) is the Commissioner of the New York City Department of Correction and is named in her official capacity. Commissioner Brann’s principal place of business is located at 75-20 Astoria Boulevard, East Elmhurst, New York 11370.
24. Respondent Dermot F. Shea (“Commissioner Shea”) is the Commissioner of the New York City Police Department and is named in his official capacity. Commissioner Shea’s principal place of business is located at One Police Plaza, New York, New York 10038.
25. Respondent the New York City Police Department (“NYPD”) is a law enforcement agency administered under the New York Administrative Code, Title 14 of the City of New York. NYPD’s principal place of business is located at One Police Plaza, New York, New York 10038.
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26. Respondent Frederick Davie (“Chair Davie”) is the Chair of the Civilian Complaint Review Board and is named in his official capacity. Chair Davie’s principal place of business is located at 100 Church Street, 10th Floor, New York, New York 10007.
27. Respondent the Civilian Complaint Review Board (“CCRB” or “the Board”) is an independent municipal agency constituted under § 440 of the Charter of the City of New York. CCRB’s principal place of business is located at 100 Church Street, 10th Floor, New York, New York 10007.
JURISDICTION AND VENUE 28. This action is brought against the City and the Mayor in his official capacity under Articles 75 and 78 of the CPLR to challenge their role in directing Respondents to publicly release Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner, and in violation of the terms of Petitioners’ CBAs and applicable settlement agreements. 29. This action is brought against the NYPD and Commissioner Shea in his official capacity under Articles 75 and 78 of the CPLR to challenge the NYPD’s planned release of Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner, and in violation of the police Petitioners’ CBAs and applicable settlement agreements. 30. This action is brought against the FDNY and Commissioner Nigro in his official capacity under Articles 75 and 78 of the CPLR to challenge the FDNY’s planned release of Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner, and in violation of the firefighter Petitioners’ CBAs and applicable settlement agreements. 31. This action is brought against the NYCDOC and Commissioner Brann in her
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official capacity under Articles 75 and 78 of the CPLR to challenge any planned DOCs release of Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner, and in violation of correction Petitioners’ CBA and applicable settlement agreements.
32. This action is brought against the CCRB and Chair Davie under Article 78 of the CPLR to challenge the CCRB’s release of Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner.
33. This action is also brought against all Respondents under the general original jurisdiction of this Court under Article VI, Section 7 of the New York Constitution.
34. This Court has personal jurisdiction over all Respondents under CPLR § 301 because Respondents work in or conduct substantial business within New York.
35. The Court also has jurisdiction under CPLR § 3001. 36. This action is timely under CPLR § 217 (1) because it was brought within four months of June 16, 2020, the first time Mayor de Blasio announced the City’s intention to release unsubstantiated resolved complaints against NYPD officers, including law enforcement officers represented by Petitioners. 37. Venue is proper in this Court under CPLR §§ 503(a), 506(b), and 7804(b). 38. The Unions have associational standing to sue here because (1) one or more of every unions’ members has standing to sue; (2) the interests advanced by vindicating the rights of the members are sufficiently germane to the Petitioners’ purposes to demonstrate that Petitioners will appropriately represent the members’ interests; and (3) the participation of the individual members is not required to assert the claim or to afford the Petitioners complete relief. See Westchester Cnty. Dep't of Pub. Safety Police Benev. Ass’n, Inc. v. Westchester Cnty., 35 A.D.3d
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592, 594, 828 N.Y.S.2d 412, 414 (2d Dep’t 2006).
BACKGROUND A. The Disciplinary Process and Handling of Complaints Against Officers 39. Complaints against NYPD, FDNY and DOC officers may be brought by civilians, inmates, other officers, or by the Departments themselves. There are numerous avenues for complaints to be made against officers, and it can be done as easily as anonymously calling 311 or sending an anonymous email:
 NYPD: In addition to being reported internally through the chain of command, complaints against any NYPD office may be reported in person, by telephone via NYC’s 311 hotline, or via the CCRB’s dedicated hotline, by email or mail to the CCRB, the Internal Affairs Bureau of NYPD, or directly to the New York City Inspector General for the NYPD.
 FDNY: A complaint against an FDNY officer may be reported internally through chain of command, to the FDNY confidential complaint telephone line, or directly to the Inspector General for the FDNY.
 NYCDOC: A complaint against a DOC officer may be reported by an inmate grievance through the Office of Constituent and Grievances Services, internally through chain of command, through the NYC Board of Corrections, or directly to the Inspector General for NYCDOC.
40. The disciplinary processes of the NYFD, NYDOC, and NYPD are similar. For police, the NYPD procedures involve complaints and investigations, followed potentially by a proceeding where necessary and a final discretionary decision by the Commissioner.
41. For example, a complaint against an NYPD officer may be reported to the CCRB, the Internal Affairs Bureau of NYPD (“NYPD-IAB”), or the Office of Inspector General for NYPD (“NYPD-OIG”). Complaints may be brought by fellow officers, civilians, or the NYPD itself. Civilian and officer complaints may be made anonymously.
42. Once a complaint is lodged, it is investigated by the CCRB, NYPD-IAB, or the NYPD’s Force Investigation Division (“NYPD-FID”). NYPD-IAB investigates most complaints alleging serious misconduct brought against officers. CCRB investigates complaints made by
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members of the public against officers involving allegations of use of force (with the exception of those in the category of “readily capable of causing death or serious physical injury,” which will be investigated by NYPD-IAB or NYPD-FID), abuse of authority, discourtesy, and offensive language. NYPD-FID investigates all firearms discharges, fatalities related to police action, and cases when a subject of police action is seriously injured and death is likely.
43. After being investigated, an allegation is designated as “unfounded” when the investigation determines that it did not occur. An allegation is designated as “unsubstantiated” if the investigators do not believe a preponderance of the evidence supports that the conduct described in the complaint occurred. An officer may be “exonerated” if the investigation finds that the conduct occurred but was not improper.
44. If the investigation concludes that the conduct occurred in whole or in part and was at least somewhat improper, the investigating entity will make a recommendation for the officer to be subject to certain discipline and/or training or, in serious cases, for the officer be served with Charges and Specifications, which detail the specific provisions of the Department’s rules and regulations alleged to have been violated, but there is no final determination that the allegation is true.
45. If Charges and Specifications are filed, the officer may elect to proceed to trial before an appointed Trial Commissioner, whose responsibility it is to determine whether the charges were proven by a preponderance of the credible evidence and, if so, what penalty should be imposed. The Trial Commissioner provides a written recommendation which summarizes the evidence and recommends a finding and, if appropriate, a disciplinary penalty. The Commissioner makes the final determination on whether to accept the Trial Commissioner’s recommendation, and whether and to what degree discipline should be imposed
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46. Although some Charges and Specifications filed against officers relate to purely technical infractions, such as lateness, record keeping, and lost/damaged property, many of the Charges filed relate to significantly more serious allegations.
47. The vast majority of NYPD complaints are never proven, even by the relatively low preponderance-of-the-evidence standard.
48. A January 2019 Independent Panel Report regarding the NYPD Disciplinary System reported that approximately 55,000 annual complaints are made against NYPD officers through the CCRB and NYPD’s Advocate Office. See The Report of the Independent Panel on the Disciplinary System of the New York City Police Department, Mary Jo White et. al., Jan. 25, 2019, at p. 7 (the “2019 Panel Report”). However, less than 1% of those complaints resulted in a disciplinary trial or settlement, presumably reflecting both the vast number of frivolous complaints made, and the fact that most disciplinary measures are instituted for violation of department rules, many of which are appropriately dealt with through command discipline.1 “[O]ver 60% of the Department’s disciplinary cases are settled,” see 2019 Panel Report at 7; as discussed below (see infra at F), officers who entered into Settlement agreements did so on the assumption that that these settlement agreements would remain private pursuant to CRL § 50-a.
49. Although they vary in some respects, NYFD and NYDOC have similar tiered procedures to investigate complaints against firefighters and correctional officers, but also provide for further review by the Office of Administrative Trials and Hearings.
B. Respondents Announce Data Dump of Previously Confidential Records 50. Despite that many of these allegations are never proven and some are found to be
1 See Rebuttal from the Sergeant’s Benevolent Association, Ed Mullins, February 11, 2019, at p. 7 (reflecting approximately 150 NYPD disciplinary cases tried per year, and approximately 300 cases “settled” per year). See also NYPD REPORT: Discipline in the NYPD, 2019 (last accessed 07.12.2020 at https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/discipline-in-the-nypd2019.pdf.
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completely unfounded, the Mayor, NYPD, and CCRB have indicated that they intend to release all disciplinary records of firefighters, corrections officers, and police officers, including Unsubstantiated and Non-Final Allegations, in a series of data dumps into internet databases starting as early as July 15, 2020.
51. During a July 1 meeting, the NYPD provided Petitioners with a sample of the DADS data it anticipated producing. The sample reflected information relating to 137 “open pending disciplinary cases” against NYPD captains, lieutenants, sergeants, and officers ranging from minor technical infractions—for example, leaving the home without authorization while on sick leave—to serious crimes. At other times, the NYPD said it would promote on the internet all pending matters, which are by definition unproven. In any case, there is an immediate threat of the release of Unsubstantiated and Non-Final Allegations that must be enjoined.
C. Release of Unsubstantiated and Non-Final Allegations Violates Collective Bargaining Agreements between the City and Certain Petitioners
52. The release of Unsubstantiated and Non-Final Allegations would nullify important contractual rights in the collective bargaining agreements (“CBAs”) between most Petitioners and the City.2 The CBAs entered into by Petitioners SBA, PBA, LBA, CEA, COBA, UFA and UFOA, expired but currently controlling pursuant to the Triborough Amendment, provide their members with a contractual right to have investigative reports that are classified as “exonerated,” “unfounded,” or—in the case of the FDNY, otherwise “not guilty”—removed from their personnel folders.
53. For example, Article XV, section 7(c) of the CBA entered into between the SBA and the City states that the NYPD “will upon written request to the Chief of Personnel by the
2 Petitioners’ CBAs are attached to this Petition as Exhibit 2 (SBA), Exhibit 3 (PBA), Exhibit 4 (LBA), Exhibit 5 (CEA), Exhibit 6 (DEA), Exhibit 7 (COBA), Exhibit 8 (UFA), and Exhibit 9 (UFOA).
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individual employee, remove from the Personnel Folder investigative reports which, upon completion of the investigation are classified ‘exonerated’ and/or ‘unfounded’.” With the exception of the DEA, the other police and also the correction Petitioners’ CBAs have substantively identical provisions.3
54. The police Petitioners’ CBAs also permit them to petition the Police Commissioner to expunge the records of certain cases heard in the Trial Room where the disposition of the charge at trial or on review or appeal is other than “guilty,” after 2 years have passed. See, e.g., LBA CBA Article XVI, § 8 (“Disciplinary Records”).
55. Similarly, Article XVII Section 9 of the CBA entered into between the UFA and the City states:
If an employee is found not guilty in a disciplinary hearing, the record of the proceedings shall not become part of that employee’s personal record. An employee who is found not guilty shall have the right to examine that employee’s personal record in the presence of an official of the Department after written request to the Department to ascertain compliance. UFA CBA, Article XVII, § 9. The UFOA CBA contains an identical provision. See UFOA CBA, Article XVII, § 9. Likewise, under COBA’s CBA Article XVI, any member may have removed from her or her personnel folder investigative reports that are classified exonerated or unfounded. Under DOC Directive 4257R-A, VI(6), a violation of which is grievable under the CBA, when at a command disciplinary hearing a Hearing Officer determines that the allegations are not substantiated, no record of the command disciplinary charges is to be maintained except in the command discipline log. Under that same directive, article X, a substantiated command discipline
3 See LBA CBA, Art. XVI, § 7(c); CEA CBA, Art. XIV, § 6(c); PBA CBA, Art. XVI, § 7(c), COBA CBA, Art. XVI, § 11. The COBA CBA also notes that: “The past disciplinary or work record of an employee may not be revealed during a Section 75, Civil Service Law, disciplinary proceeding until a determination as to guilt or innocence of the member has been determined.” COBA CBA, Art. XVI, § 12.
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shall be expunged from the member’s personnel folder after one year if they have not been penalized thereafter in a separate disciplinary matter during that time.
56. Respondents’ planned action of dumping all pending and historical disciplinary complaints against New York City police, fire and corrections officers on a public-facing online database, without any review or analysis, would functionally negate the rights of officers to clear their disciplinary records of unfounded and unsubstantiated allegations, where that information would forever be publicly available in the future.
57. The rights contained in Petitioners CBAs were negotiated by Petitioners’ respective Unions specifically because of the significant harm and embarrassment having inaccurate complaints and allegations on Petitioners’ records could cause Petitioners, where personnel records are used for future promotions and job transfers.
58. On Monday, July 13, 2020, four of the police union Petitioners filed grievances with John P. Beirne, the Deputy Commission for the NYPD’s Office of Labor Relations, in response to the anticipated one-sided nullification of their bargained for contractual rights, demanding that Respondents “cease and desist.” And, the corrections union Petitioners filed a grievance with New York City’s Office of Labor Relations Commissioner Renee Campion. See Ex. 1. In grieving Respondents’ planned data dump, Petitioners argued that the release of the Unsubstantiated and Non-Final Allegations against active and retired members would deprive members of the benefit of contractual provisions allowing them to expunge from their personnel files records relating to any investigations resulting in a not-guilty finding. Given the scope of Petitioners’ rights potentially impacted by Respondents’ action, the Petitioners’ grievances were filed directly at Step III, in accordance with the provisions of Respondents’ CBAs. See, e.g., PBA CBA, Article XXI, § 4. Copies of the grievances are attached to this Petition as Exhibit 1.
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D. Release of Unsubstantiated and Non-Final Allegations Violates the U.S. and N.Y. Constitutions
59. The United States and New York State Constitutions each provide that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV; N.Y. Const. s. 1, art. 6. Respondents’ disclosure of Unsubstantiated and Non-Final Allegations will violate those Due Process Clauses because it will deprive the subject officers of future liberty and property interests without adequate process.
60. The publication of Unsubstantiated and Non-Final Allegations against police officers will “call[] into question their good name, reputation, honor, or integrity” and thus stigmatize the firefighters and officers. Lee TT. v. Dowling, 87 N.Y.2d 699, 708 (1996) (internal quotation marks omitted). Such stigmatization will include Unsubstantiated and Non-Final Allegations related to serious crimes and serious misconduct. These allegations may be completely false, and yet Respondents intend to include them without regard for their veracity.
61. Beyond the reputational harm and stigma from simply having Unsubstantiated and Non-Final Allegations indiscriminately promoted on the internet, these Allegations will be made available to employers, credit agencies, landlords, banks officers, potentially eviscerating the futures of many of the Petitioners, without sufficient and adequate due process.
62. In addition, the release of records of past Unsubstantiated and Non-Final Allegations would doubly violate the Due Process Clauses because officers relied on the City’s guarantee of the confidentiality of such allegations in deciding how to respond to them. If the officers had known that the City would make such allegations public, they might have defended themselves against the allegations in a more vigorous, more vocal, and more resource-intensive fashion to protect their reputations, and hence their future liberty and property interests. Releasing records of Unsubstantiated and Non-Final Allegations that pre-date the City’s announced intent to
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publicize such records therefore would upset the officers’ reliance on the City’s guarantee to protect their reputations and privacy from the harms associated with public disclosure of such allegations. Application of the repeal of § 50-a to existing records thus would have an impermissible retroactive effect on the officers’ liberty and property interests in violation of the Due Process Clauses.
63. If permitted, Respondents’ hastily planned database of Unsubstantiated and NonFinal Allegations also will provide less protection to New York City firefighters, corrections officers, and police officers—who unquestionably face unique safety concerns—than other licensed professionals in the State enjoy. See Office of the Professions, available at http://www.op.nysed.gov/home.html (noting that the list of state-licensed professionals who have unsubstantiated complaints kept confidential includes acupuncturists, architects, athletic trainers, behavior analysts, certified public accountants, chiropractors, dentists, dental hygienists, dietitiannutritionists, engineers, geologists, interior designers, laboratory technicians, land surveyors, landscape architects, massage therapists, medical physicists, mental health practitioners, midwives, nurses, occupational therapists, opticians, optometrists, perfusionists, pharmacists, physical therapists, podiatrists, polysomnographic technologists, psychologists, respiratory therapists, social workers, shorthand reporters, speech pathologists, and veterinarians).
64. Indeed, the City’s treatment of all other licensed professionals excludes Unsubstantiated and Non-Final Allegations. In New York’s online database of professional misconduct, the City only includes those allegations that result in an adverse disciplinary action against the professional. See Enforcement Actions, Office of the Professions, available at http://www.op.nysed.gov/opd/rasearch.htm# (listing only actions against professionals that result in an adverse action). Respondents have no practical reason to treat petitioners any differently.
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This attempt to give firefighters and officers fewer protections in an arbitrary manner is not rationally related to a legitimate government interest.
E. Release of Unsubstantiated and Non-Final Allegations Violates Settlement Contracts
65. The release of these documents, some of which contain settled cases, also violates the settlement contracts negotiated by Petitioners and Respondents here. For decades, these settlements were made against the backdrop of Civil Rights Law § 50-a, which required that the disciplinary files be kept confidential. That law, “in force at the time” of the settlement agreements, is “a part of the contract.” Skandia America Reinsurance Corp. v. Schenck, 441 F. Supp. 715, 724 (S.D.N.Y. 1977). Releasing these documents would breach settlement contracts entered into before the repeal of § 50-a. On information and belief, the pending disclosure will include even those cases where officers have entered into settlement agreements, which would constitute a breach of the settlement agreement.
F. New York Has Long Recognized a Privacy Interest in Disciplinary Records, and Their Planned Mass Disclosure Is an Error of Law or an Abuse of Discretion
66. For decades, New York police, fire, and corrections departments were required under Civil Rights Law § 50-a to keep personnel records, including the disciplinary files discussed above, largely confidential. Civil Rights Law § 50-a was enacted in 1976 and provided that “[a]ll personnel records used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review.” The statute contained only two exceptions to confidentiality: officer consent (Civil Rights Law § 50-a[1]) and court authorization (Civil Rights Law § 50-a[3]). Section 50-a “was sponsored and passed as a safeguard against potential harassment of officers through unlimited access to information contained in personnel files.” Luongo v. Records Access Officer, 150 A.D.3d 13, 20 (1st Dep’t 2017).
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67. On June 12, 2020, New York State repealed CRL § 50-a. While § 50-a provided an express means for protecting all police, firefighter, and corrections officer personnel records, regardless of their contents, that law was never the sole basis for keeping confidential significant portions of those files. Respondents’ conclusion that these records may now be released legally, and en masse, because of that repeal is erroneous as a matter of law under CPLR § 7803(3). In addition to the legally protected interests described above, as is widely recognized, including by the proponents of § 50-a’s repeal and the Court of Appeals, § 50-a was never the only source of Respondents’ obligation to protect the privacy and safety of Petitioners’ members.
68. Respondents’ decision ignores legislative intent regarding the repeal of § 50-a. The history of the legislation demonstrates a clear understanding that other sources of law would provide continuing protections for certain types of personnel records. As even the most vocal advocates for repeal of § 50-a recognized, other laws are intended to prevent the release of records when disclosure will result in unwarranted invasions of personal privacy. Indeed, these protections were expressly cited by the sponsor of the enacted Senate bill to repeal § 50-a as a reason that law was “unnecessary.” Sponsor Mem., N.Y. Senate Bill S8496, available at https://www.nysenate.gov/ legislation/bills/2019/s8496.
69. Civil Rights Law § 50-a was never the only source of the privacy protections for Unsubstantiated and Non-Final Claims. For example, in 1979, shortly after § 50-a was codified, the Court of Appeals observed that § 50-a “fairly reflects the pre-existing judicial consensus” regarding the confidentiality of police personnel records. People v. Gissendanner, 48 N.Y.2d 543, 551 (1979). In other words, the privacy protections pre-existed § 50-a in the common law and likewise survive § 50-a’s repeal. And the Court of Appeals has held that individuals may have a “legally protected privacy interest” in ensuring public records disclosures do not violate their
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privacy interests. In New York Times Co. v. City of New York Fire Department, the Court held that “surviving relatives [of 911 callers on September 11, 2001] have a legally protected privacy interest” in nondisclosure of tapes and transcripts of those calls. 4 N.Y.3d 477, 485 (2005). Likewise, here, Petitioners’ members have a privacy interest in nondisclosure of allegations that may tarnish their reputations despite being, in many cases, without merit; this outweighs any public interest in reviewing and relying on allegations that could be misleading or simply false. At bottom, those with a “legally protected privacy interest” in nondisclosure of government records must have a means of enforcing that interest. Respondents’ data dump deprives the identified individuals of that opportunity.
70. Moreover, the Committee on Open Government has long taken the position that the release of unsubstantiated allegations constitutes an unwarranted invasion of privacy. As one advisory opinion explained: “when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may … be withheld, for disclosure would result in an unwarranted invasion of personal privacy …. Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld based on considerations of privacy.” Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-17195 (May 29, 2008), available at https://docs.dos.ny.gov/coog/ftext/f17195.html (internal citations omitted). Another opinion states: “In numerous contexts, it has been advised that records relating to unsubstantiated charges, complaints or allegations may be withheld to protect the privacy of the accused.” Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-12005 (Mar. 21, 2000), available at https://docs.dos.ny.gov/coog/ftext/f12005.htm.
71. Because Respondents’ failed to consider these other sources of protection for
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information in government records, which exist independently of § 50-a, as well as because of the legally protected interests identified above, their decision is an error of law.
72. In the alternative, by proceeding without due consideration of the many authorities counseling against disclosure of Unsubstantiated and Non-Final Allegations and even their own past treatment of such records— separate and apart from § 50-a—Respondents’ decision was arbitrary and capricious under CPLR § 7803(3).
73. Respondents failed to do any reasoned analysis before disregarding legislative intent, their previous judgments on the same issue, statements by the Committee on Open Government, and the expectation set by the courts of this State in considering the privacy and safety implications of releasing personnel records. Although Respondents are free to change policies, they may not do so at the expense of the long-settled reliance interests of firefighters, police officers and correction officers in the confidentiality of Unsubstantiated and Non-Final Allegations.
74. The City has repeatedly recognized that disclosure of unsubstantiated disciplinary records would itself constitute an “unreasonable invasion of privacy.” Hughes Hubbard & Reed LLP v. Civilian Complaint Review Bd., 53 Misc.3d 947 (Sup. Ct., Kings Cnty. 2016) (citation omitted); see also Luongo v. Records Access Officer, 150 A.D.3d 13, 25-26 (1st Dep’t 2017) (“In addition to statutory exemptions, CCRB noted that the request for records relating to unsubstantiated matters would constitute ‘an unreasonable invasion of privacy.’”) Their reversal now lacks even a minimal level of analysis beyond the erroneous conclusion that the repeal of § 50-a permits unlimited disclosure.
75. This invasion of privacy also has implications for the safety of officers. Officers accused of misconduct have been subject to threats and harassment and reprisals in recent years.
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Naming firefighters and officers in an easily accessible database and listing every charge ever levied against them, regardless of outcome or substantiation, will provide motivated and unstable individuals with all the information they need to track down specific police officers. The news is replete with examples of police officers who have been targeted and killed because of their uniform. In recent years, three New York City police officers have been targeted and assassinated. In 2014, Officers Wenjian Liu and Rafael Ramos were ambushed and killed while sitting in a patrol car in Brooklyn. In 2017, Officer Miosotis Familia was shot at point-blank range while sitting in her patrol car. And in 2018, federal authorities arrested a Brooklyn resident for targeting NYPD officers with an improvised explosive device, killing an innocent civilian in the process. As these incidents continue and even accelerate, officers have a reasonable interest in ensuring their safety and the safety of their families.
76. The thoughtlessness and capriciousness is evident by the sample list that the NYPD provided to show the nature of its data dump. Because Respondents’ sudden turnabout in policy was effected without regard for its established practices and settled expectations, and made without even a minimal level of analysis, it was arbitrary and capricious.
CLAIMS FOR RELIEF FIRST CAUSE OF ACTION: Art. 75 Breach of Collective Bargaining Agreement/TRO in Aid of Arbitration 77. Petitioners repeat and reallege paragraphs 1 through 76 as if fully stated herein. 78. In executing CBAs with Petitioners, the City agreed that all members of the SBA, PBA, LBA, CEA, COBA, UFA and UFOA have a contractual right to have investigative reports that are classified as “exonerated,” “unfounded” or, in the case of the FDNY, otherwise “not
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guilty,” removed from their personnel folders.4 The City further agreed that officers in the employ of the police Petitioners would be permitted to petition the Police Commissioner to expunge the records of certain cases heard in the Trial Room where the disposition of the charge at trial or on review or appeal is other than “guilty,” after 2 years have passed. See, e.g., LBA CBA Article XVI, § 8 (“Disciplinary Records”).
79. Respondents’ planned action of dumping all pending and historical disciplinary complaints against New York City police, fire and corrections officers on a public-facing online database, without any review or analysis, would functionally negate the rights of officers to clear their disciplinary records of unfounded and unsubstantiated allegations, leaving their bargainedfor rights null and void.
80. The rights contained in Petitioners’ CBAs were negotiated by Petitioners specifically because of the significant harm and embarrassment having inaccurate complaints and allegations on Petitioners’ records could cause Petitioners, where personnel records are used for future promotions and job transfers, and where such protections have been long recognized as important to officer safety.
81. Because use of officers’ personal records is a term and condition of their employment, the officers have a right to collectively bargain over the confidential treatment of their personnel files under the Taylor Law. See CSL §§ 203; 201(4).
82. Petitioners PBA, SBA, LBA, CEA and COBA have filed grievances in accordance with the provisions of their respective CBAs demanding arbitration in response to this anticipated one-sided nullification of their bargained-for contractual rights.
4 See LBA CBA, Art. XVI, § 7(c); CEA CBA, Art. XIV, § 6(c); PBA CBA, Art. XVI, § 7(c), COBA CBA, Art. XVI, §§ 11, 12 & DOC Directive 4257R-A, Arts. VI(6) & X; UFA CBA, Article XVII, § 9; UFOA CBA, Article XVII, § 9. While each of the referenced CBAs are expired, their terms continue uninterrupted pursuant to The Triborough Amendment.
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83. Temporary and preliminary injunctive relief is required to preserve the status quo and enjoin Respondents from engaging in a data dump while the parties arbitrate this issue pursuant to the terms of their CBAs, because Respondents have both publicly and privately indicated that they intend to begin releasing this personal data, including the Unsubstantiated and Non-Final Allegations, as soon as this coming Wednesday July 15, 2020. If this information is made available to the public online, it will be reviewed and analyzed, reported on, and widely disseminated by the media, ensuring that it will remain publicly available forever whether or not the City later decides to remove it.
SECOND CAUSE OF ACTION: 42 U.S.C. § 1983 - Violation of the Due Process Clause of the Fourteenth Amendment
to the U.S. Constitution 84. Petitioners repeat and reallege paragraphs 1 through 83 as if fully stated herein. 85. Respondents plan to release, en masse, the entire collection of disciplinary complaints lodged against firefighters and officers, regardless of outcome or substantiation. 86. The publication of Unsubstantiated and Non-Final Allegations will defame the subject officers with accusations that are unsupported by evidence and that will unfairly tarnish the officers’ reputations. The Unsubstantiated and Non-Final Allegations are necessarily defamatory because they are, by definition, mere accusations that were not supported by evidence, have not been through the investigatory process, or are not final. In the alternative, the publication of Unsubstantiated and Non-Final Allegations that accuse officers of criminal conduct (including but not limited to domestic violence) or other conduct that would seriously affect future employment opportunities in the law enforcement arena (including but not limited to excessive force and filing a false report) is defamatory and likely to result in serious reputational harm. The release of records of past Unsubstantiated and Non-Final Allegations also would upset the officers’
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reliance interests formed by the City’s guarantee of confidentiality in deciding how much of their time and resources to devote to rebutting such allegations and documenting exculpatory evidence.
87. Petitioners’ members have a protected liberty interest in seeking future employment opportunities free from the specter of Unsubstantiated and Non-Final Allegations, which Respondents intend to publish and publicize.
88. Petitioners’ members have a protected property interest in future employment opportunities that will be unavailable to them because of the specter of Unsubstantiated and NonFinal Allegations, which Respondents intend to publish and publicize.
89. Respondents do not intend to provide notice to the subject officers or an opportunity to be heard before publication in the databases. There is not a mechanism for officers to have their names or any allegations removed from the database.
90. On information and belief, Respondents have not evaluated, and do not intend to evaluate, the individual disciplinary records before they are released.
91. Respondents made these decisions under color of state law and will deprive the rights’ of Petitioners’ members while acting under color of state law.
92. Therefore, the Court should enjoin the determinations of Respondents and prohibit the release of Unsubstantiated and Non-Final Allegations as well as any other disciplinary records that implicate the privacy and safety concerns of officers. Temporary, preliminary, and permanent injunctive relief is required to protect Petitioners’ rights.
THIRD CAUSE OF ACTION: N.Y. Const. s. 1 art. 6 - Violation of the Due Process Clause of the N.Y. State Constitution
93. Petitioners repeat and reallege paragraphs 1 through 92 as if fully stated herein. 94. Respondents plan to release, en masse, the entire collection of disciplinary complaints lodged against firefighters and officers, regardless of outcome or substantiation.
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95. The publication of Unsubstantiated and Non-Final Allegations will defame the subject firefighters and officers with accusations that are unsupported by evidence and that will unfairly tarnish the officers’ reputations. The Unsubstantiated and Non-Final Allegations are necessarily defamatory because they are, by definition, mere accusations that were not supported by evidence, have not been through the investigatory process, or are not final. In the alternative, the publication of Unsubstantiated and Non-Final Allegations that accuse officers of criminal conduct (including but not limited to domestic violence) or other conduct that would seriously affect future employment opportunities in the law enforcement arena (including but not limited to excessive force and filing a false report) is defamatory and likely to result in serious reputational harm. The release of records of past Unsubstantiated and Non-Final Allegations also would upset the officers’ reliance interests formed by the City’s guarantee of confidentiality in deciding how much of their time and resources to devote to rebutting such allegations and documenting exculpatory evidence.
96. Petitioners’ members have a protected liberty interest in seeking future employment opportunities free from the specter of Unsubstantiated and Non-Final Allegations, which Respondents intend to publish and publicize.
97. Petitioners’ members have a protected property interest in future employment opportunities that will be unavailable to them because of the specter of Unsubstantiated and NonFinal Allegations, which Respondents intend to publish and publicize.
98. Even if any one member of the Petitioner unions may not experience any future harm from the release of the documents, the release would decrease the average availability of jobs and the average salary of union members.
99. Respondents do not intend to provide notice to the subject firefighters or officers
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or an opportunity to be heard before publication in the databases. There is not a mechanism for firefighters or officers to have their names or any allegations removed from the database.
100. On information and belief, Respondents have not evaluated, and do not intend to evaluate, the individual disciplinary records before they are released.
101. Respondents made these decisions under color of state law and will deprive the rights’ of Petitioners’ members while acting under color of state law.
102. Therefore, the Court should enjoin the Respondents from releasing Unsubstantiated and Non-Final Allegations as well as any other disciplinary records that implicate the privacy and safety concerns of officers. Temporary, preliminary, and permanent injunctive relief is required to protect Petitioners’ rights.
FOURTH CAUSE OF ACTION: 42 U.S.C. § 1983 - Violation of the Equal Protection Clause of the Fourteenth Amendment
to the U.S. Constitution 103. Petitioners repeat and reallege paragraphs 1 through 102 as if fully stated herein. 104. Respondents plan to release, en masse, the entire collection of disciplinary complaints lodged against firefighters and officers, regardless of outcome or substantiation. 105. This release, which gives firefighters and officers different privacy protections than other state-regulated professions, is not rationally related to a legitimate government purpose. 106. On information and belief, Respondents have not evaluated, and do not intend to evaluate, the individual disciplinary records before they are released. 107. Respondents made these decisions under color of state law and will deprive the rights’ of Petitioners’ members while acting under color of state law. 108. Therefore, the Court should enjoin the determinations of Respondents and prohibit the release of Unsubstantiated and Non-Final Allegations as well as any other disciplinary records
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that implicate the privacy and safety concerns of officers. Temporary, preliminary, and permanent injunctive relief is required to protect Petitioners’ rights.
FIFTH CAUSE OF ACTION: N.Y. Const. s. 1 art. 11 - Violation of the Equal Protection Clause of the N.Y. State
Constitution 109. Petitioners repeat and reallege paragraphs 1 through 108 as if fully stated herein. 110. Respondents plan to release, en masse, the entire collection of disciplinary complaints lodged against firefighters and officers, regardless of outcome or substantiation. 111. This release, which gives firefighters and officers different privacy protections than other state-regulated professions and other public sector employees, is not rationally related to a legitimate government purpose. 112. Therefore, the Court should enjoin the determinations of Respondents and prohibit the release of Unsubstantiated and Non-Final Allegations as well as any other disciplinary records that implicate the privacy and safety concerns of officers. Temporary, preliminary, and permanent injunctive relief is required to protect Petitioners’ rights.
SIXTH CAUSE OF ACTION: Breach of Contract
113. Petitioners repeat and reallege paragraphs 1 through 112 as if fully stated herein. 114. Petitioners and Respondents negotiated and executed settlement agreements that incorporated a then-present confidentiality law. 115. Release of these records would violate those agreements. 116. On information and belief, Respondents have not evaluated, and do not intend to evaluate, the individual police disciplinary records before they are released, and thus will release cases that have settled under these settlement agreements. 117. Therefore, the Court should enjoin the determinations of Respondents and prohibit
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the release of Unsubstantiated and Non-Final Allegations as well as any other police disciplinary records that contain settlement agreements. Temporary, preliminary, and permanent injunctive relief is required to protect Petitioners’ rights.
SEVENTH CAUSE OF ACTION: VIOLATION OF N.Y. C.P.L.R. § 7803 – Action Affected by an Error of Law 118. Petitioners repeat and reallege paragraphs 1 through 117 as if fully stated herein. 119. Respondents plan to release, en masse, the entire collection of disciplinary complaints lodged against NYPD officers, regardless of outcome or substantiation. 120. As a matter of law, Unsubstantiated and Non-Final Allegations are confidential, separate and apart from the existence of CRL § 50-a. 121. Release of records relating to Unsubstantiated and Non-Final Allegations would constitute an unwarranted invasion of privacy and endanger the safety of the subjects of those records. 122. On information and belief, Respondents have not evaluated, and do not intend to evaluate, the individual police disciplinary records before they are released. 123. Because the pre-existing privacy exceptions plainly apply to Unsubstantiated and Non-Final Allegations, any decision to release this data in full would necessarily an error of law. 124. In the alternative, failure to make individualized determinations regarding these Unsubstantiated and Non-Final Allegations to determine whether any or all of it must be withheld is an error of law. 125. Therefore, because Respondents’ decisions were affected by an error of law under CPLR § 7803(3), the Court should annul the determinations of Respondents and prohibit the release of Unsubstantiated and Non-Final Allegations. Temporary, preliminary, and permanent injunctive relief is required to protect Petitioners’ rights.
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EIGHTH CAUSE OF ACTION: VIOLATION OF N.Y. C.P.L.R. § 7803 – Arbitrary and Capricious Action 126. Petitioners repeat and reallege paragraphs 1 through 125 as if fully stated herein. 127. In deciding to release Unsubstantiated and Non-Final Allegations, Respondents’ have acted in an arbitrary and capricious manner. 128. Respondents failed to consider legislative intent, their previous judgments on the same issue, statements by the Committee on Open Government, and the expectation set by the courts of this State in considering the privacy and safety implications of releasing personnel records. . 129. On information and belief, Respondents have not evaluated, and do not intend to evaluate, individual police disciplinary records before they are released. Respondents’ complete failure to conduct an individualized review is arbitrary and capricious and an abuse of discretion. 130. Although Respondents are free to change policies, they may not do so at the expense of the long-settled reliance interests of firefighters and officers in the confidentiality of Unsubstantiated and Non-Final Allegations. 131. To the extent Respondents have discretion to determine whether to release any personnel data at all, it is an abuse of discretion to release the complete collection of police disciplinary complaints (with a substantial portion thereof consisting of Unsubstantiated and NonFinal Allegations) without performing a case-by-case analysis to determine whether disclosure is warranted based on the unique circumstances of the case. 132. Therefore, the Court should annul the determination of Respondents and prohibit the release of Unsubstantiated and Non-Final Allegations. Temporary, preliminary, and permanent injunctive relief is required to protect Petitioners’ rights.
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NINTH CAUSE OF ACTION: Declaratory Judgment
133. Petitioners repeat and reallege paragraphs 1 through 132 as if fully stated herein. 134. An actual case or controversy exists between Petitioners and Respondents regarding the claims raised above. 135. Absent clarification from the Court, the dispute between Petitioners and Respondents is capable of, and likely to be, recurring. 136. Accordingly, Petitioners are entitled to a declaration that publication of Unsubstantiated and Non-Final Allegations (1) would violate the collective bargaining agreements between the City and Petitioners; (2) would violate the Due Process Clauses of the U.S. and N.Y. State Constitutions; (3) would violate the Equal Protection Clauses of the U.S. and N.Y. State Constitutions; (4) would constitute a breach of contract in violation of settlement agreements; and (5) would be a violation of law and arbitrary and capricious.
PRAYER FOR RELIEF WHEREFORE, Petitioners respectfully request that this Court enter an Order:
1. Temporarily and immediately restraining the publication of any records concerning Unsubstantiated and Non-Final Allegations or that regard settlement agreements entered into prior to June 12, 2020;
2. To show cause as to why the court should not issue an injunction barring the publication of any records concerning Unsubstantiated and Non-Final Allegations or that regard settlement agreements entered into prior to June 12, 2020;
3. Preliminarily and permanently enjoining the publication of any records concerning Unsubstantiated and Non-Final Allegations or that regard settlement agreements entered into prior to June 12, 2020;
32

Case 1:20-cv-05441 Document 5-1 Filed 07/16/20 Page 33 of 34

4. Declaring that publication of Unsubstantiated and Non-Final Allegations (1)

would violate the collective bargaining agreements between the City and

Petitioners; (2) would violate the Due Process Clauses of the U.S. and N.Y. State

Constitutions; (3) would violate the Equal Protection Clauses of the U.S. and N.Y.

State Constitutions; (4) would constitute a breach of contract in violation of

settlement agreements; and (5) would be a violation of law and arbitrary and

capricious and

5. Granting whatever other relief the Court deems necessary and just.

Dated: July 14, 2020 New York, New York

DLA PIPER LLP (US)
By: /s/ Anthony P. Coles Anthony P. Coles Michael R. Hepworth 1251 6th Avenue New York, NY 10020 Telephone: (212) 335-4844 Facsimile: (212) 884-8644 Email: anthony.coles@dlapiper.com Email: michael.hepworth@dlapiper.com
Courtney G. Saleski (pro hac vice to be filed)
1650 Market Street, Suite 5000 Philadelphia, PA 19103-7300 Telephone: (215) 656-2431 Facsimile: (215) 606-2046 Email: courtney.saleski@dlapiper.com
Attorneys for Petitioners/Plaintiffs

33

Case 1:20-cv-05441 Document 5-1 Filed 07/16/20 Page 34 of 34

 
 8/8/2020

20-2400 Docket

General Docket Court of Appeals, 2nd Circuit

Court of Appeals Docket #: 20-2400 Nature of Suit: 3440 CIVIL RIGHTS-Other Uniformed Fire Officers Associ v. DeBlasio Appeal From: SDNY (NEW YORK CITY) Fee Status: Paid

Case Type Information: 1) Civil 2) Private 3) -

Originating Court Information:

District: 0208-1 : 20-cv-5441

Trial Judge: Katherine Polk Failla, U.S. District Judge

Date Filed: 07/15/2020

Date Order/Judgment:

Date Order/Judgment EOD:

07/29/2020

07/29/2020

Date NOA Filed: 07/29/2020

Prior Cases: None

Current Cases: None
Panel Assignment:

Not available

Docketed: 07/29/2020
Date Rec'd COA: 07/29/2020

Uniformed Fire Officers Association Plaintiff - Appellant

Anthony P. Coles, Esq., Direct: 212-335-4500 [COR LD NTC Retained] DLA Piper LLP (US) 1251 Avenue of the Americas New York, NY 10020

Courtney Gilligan Saleski, Esq., Direct: 215-656-2431 [COR NTC Retained] DLA Piper LLP (US) Suite 4900 1 Liberty Place, 1650 Market Street Philadelphia, PA 19103

Uniformed Firefighters Association of Greater New York Plaintiff - Appellant

Anthony P. Coles, Esq., Direct: 212-335-4500 [COR LD NTC Retained]

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(see above)

Courtney Gilligan Saleski, Esq., Direct: 215-656-2431 [COR NTC Retained] (see above)

Police Benevolent Association of the City of New York, Inc. Plaintiff - Appellant

Anthony P. Coles, Esq., Direct: 212-335-4500 [COR LD NTC Retained] (see above)

Courtney Gilligan Saleski, Esq., Direct: 215-656-2431 [COR NTC Retained] (see above)

Correction Officers' Benevolent Association of the City of New York, Inc.
Plaintiff - Appellant

Anthony P. Coles, Esq., Direct: 212-335-4500 [COR LD NTC Retained] (see above)

Courtney Gilligan Saleski, Esq., Direct: 215-656-2431 [COR NTC Retained] (see above)

Sergeants Benevolent Association Plaintiff - Appellant

Anthony P. Coles, Esq., Direct: 212-335-4500 [COR LD NTC Retained] (see above)

Courtney Gilligan Saleski, Esq., Direct: 215-656-2431 [COR NTC Retained] (see above)

Lieutenants Benevolent Association Plaintiff - Appellant

Anthony P. Coles, Esq., Direct: 212-335-4500 [COR LD NTC Retained] (see above)

Courtney Gilligan Saleski, Esq., Direct: 215-656-2431 [COR NTC Retained] (see above)

Captains Endowment Association Plaintiff - Appellant

Anthony P. Coles, Esq., Direct: 212-335-4500

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Detectives' Endowment Association Plaintiff - Appellant
------------------------------

20-2400 Docket
[COR LD NTC Retained] (see above)
Courtney Gilligan Saleski, Esq., Direct: 215-656-2431 [COR NTC Retained] (see above)
Anthony P. Coles, Esq., Direct: 212-335-4500 [COR LD NTC Retained] (see above)
Courtney Gilligan Saleski, Esq., Direct: 215-656-2431 [COR NTC Retained] (see above)

Bill de Blasio, in his official capacity as Mayor of the City of New York
Defendant - Appellee

Richard Paul Dearing, Esq., Assistant Corporation Counsel [COR NTC Government] New York City Law Department 100 Church Street New York, NY 10007

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government] New York City Law Department 6th Floor 100 Church Street New York, NY 10007

Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] New York City Law Department 6-199 100 Church Street New York, NY 10007

City of New York Defendant - Appellee

Richard Paul Dearing, Esq., Assistant Corporation Counsel [COR NTC Government] (see above)

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government]

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(see above)

Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)

New York City Fire Department Defendant - Appellee

Richard Paul Dearing, Esq., Assistant Corporation Counsel [COR NTC Government] (see above)

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government] (see above)

Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)

Daniel A. Nigro, in his official capacity as the Commissioner of the Richard Paul Dearing, Esq., Assistant Corporation Counsel

Fire Department of the City of New York

[COR NTC Government]

Defendant - Appellee

(see above)

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government] (see above)

Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)

New York City Department of Corrections Defendant - Appellee

Richard Paul Dearing, Esq., Assistant Corporation Counsel [COR NTC Government] (see above)

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government] (see above)

Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)

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Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Corrections
Defendant - Appellee

20-2400 Docket
Richard Paul Dearing, Esq., Assistant Corporation Counsel [COR NTC Government] (see above)

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government] (see above)

Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)

Dermot F. Shea, in his official capacity as the Commissioner of the Richard Paul Dearing, Esq., Assistant Corporation Counsel

New York City Police Department

[COR NTC Government]

Defendant - Appellee

(see above)

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government] (see above)

Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)

New York City Police Department Defendant - Appellee

Richard Paul Dearing, Esq., Assistant Corporation Counsel [COR NTC Government] (see above)

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government] (see above)

Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)

Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board
Defendant - Appellee

Richard Paul Dearing, Esq., Assistant Corporation Counsel [COR NTC Government] (see above)

Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government]

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Civilian Complaint Review Board Defendant - Appellee
-------------------------Communities United for Police Reform
Intervenor The New York Times Company
Intervenor New York Civil Liberties Union
Amicus Curiae
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20-2400 Docket
(see above)
Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)
Richard Paul Dearing, Esq., Assistant Corporation Counsel [COR NTC Government] (see above)
Elina Druker, Counsel Direct: 212-356-2609 [COR NTC Government] (see above)
Scott Nathan Shorr, Assistant Corporation Counsel Direct: 212-356-0852 [COR NTC Government] (see above)
Alex V. Chachkes, Esq., Direct: 212-506-5000 [COR NTC Retained] Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, NY 10019
David Edward McCraw, Esq., Direct: 212-556-4031 [COR NTC Retained] The New York Times Company 620 8th Avenue New York, NY 10018
Christopher Thomas Dunn, [COR LD NTC Retained] New York Civil Liberties Union 125 Broad Street New York, NY 10004
Molly Biklen, Esq., Direct: 212-607-3380 [COR NTC Retained] American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004
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Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Lieutenants Benevolent Association, Captains Endowment Association, Detectives' Endowment Association,
Plaintiffs-Appellants,
v.
Bill de Blasio, in his official capacity as Mayor of the City of New York, City of New York, New York City Fire Department, Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York, New York City Department of Corrections, Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Corrections, Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department, New York City Police Department, Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board, Civilian Complaint Review Board,
Defendants-Appellees,
Communities United for Police Reform, The New York Times Company,
Intervenors.

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07/29/2020

1
16 pg, 131.31 KB

NOTICE OF INTERLOCUTORY CIVIL APPEAL, with district court docket, on behalf of Appellant Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association and Uniformed Firefighters Association of Greater New York, FILED. [2895638] [20-2400] [Entered: 07/29/2020 04:03 PM]

07/29/2020

2

DISTRICT COURT ORDER, dated 07/29/2020, RECEIVED.[2895644] [20-2400] [Entered: 07/29/2020

1 pg, 213.35 KB 04:07 PM]

07/29/2020

3

PAYMENT OF DOCKETING FEE, on behalf of Appellant Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association and Uniformed Firefighters Association of Greater New York, district court receipt # ANYSDC-20895063, FILED.[2895648] [20-2400] [Entered: 07/29/2020 04:08 PM]

07/29/2020

4

ELECTRONIC INDEX, in lieu of record, FILED.[2895650] [20-2400] [Entered: 07/29/2020 04:09 PM]

15 pg, 193.51 KB

07/29/2020

8

1 pg, 136.41 KB

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association and Uniformed Firefighters Association of Greater New York, FILED. Service date 07/29/2020 by CM/ECF, email. [2895695] [20-2400] [Entered: 07/29/2020 04:26 PM]

07/29/2020

9

309 pg, 9.06 MB

MOTION, to stay, on behalf of Appellant Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association and Uniformed Firefighters Association of Greater New York, FILED. Service date 07/29/2020 by CM/ECF, email. [2895705] [20-2400] [Entered: 07/29/2020 04:35 PM]

07/29/2020

11

1 pg, 193.32 KB

NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellee Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Bill de Blasio, New York City Department of Corrections, New York City Fire Department, New York City Police Department, Daniel A. Nigro and Dermot F. Shea, FILED. Service date 07/29/2020 by CM/ECF. [2895733] [20-2400] [Entered: 07/29/2020 04:54 PM]

07/29/2020

13

ATTORNEY, Elina Druker, [11], in place of attorney Appellee Cynthia Brann, City of New York, Civilian Complaint Review Board, Frederick Davie, Bill de Blasio, New York City Department of Corrections, New York City Fire Department, New York City Police Department, Daniel A. Nigro and Dermot F. Shea, SUBSTITUTED.[2895751] [20-2400] [Entered: 07/29/2020 05:13 PM]

07/29/2020

14

1 pg, 147.22 KB

LETTER, on behalf of Amicus Curiae New York Civil Liberties Union, informing the Court that due to the time sensitivity, they will be filing a response to the emergency motion by 8 pm today, RECEIVED. Service date 07/29/2020 by CM/ECF.[2895767] [20-2400]--[Edited 07/29/2020 by RW] [Entered: 07/29/2020 05:53 PM]

07/29/2020

15

CERTIFICATE OF SERVICE, for Motion to Stay, on behalf of Appellant Captains Endowment Association,

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20-2400 Docket
Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association and Uniformed Firefighters Association of Greater New York, FILED. Service date 07/29/2020 by CM/ECF.[2895784] [20-2400] [Entered: 07/29/2020 08:04 PM]

07/29/2020

16

OPPOSITION TO MOTION, [9], on behalf of Amicus Curiae New York Civil Liberties Union, FILED. Service

44 pg, 702.38 KB date 07/29/2020 by CM/ECF. [2895787] [20-2400] [Entered: 07/29/2020 08:25 PM]

07/29/2020

17

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Amicus Curiae New York Civil

1 pg, 138.71 KB Liberties Union, FILED. Service date 07/29/2020 by CM/ECF.[2895792] [20-2400] [Entered: 07/29/2020

08:45 PM]

07/29/2020

18

NOTICE OF APPEARANCE AS AMICUS COUNSEL, on behalf of New York Civil Liberties Union, FILED.

1 pg, 122.38 KB Service date 07/29/2020 by CM/ECF. [2895793] [20-2400]--[Edited 07/29/2020 by RW] [Entered:

07/29/2020 08:49 PM]

07/29/2020

19

MOTION FOR LEAVE TO INTERVENE, on behalf of Non-Party Filer(s), FILED. Service date07/29/2020 by

8 pg, 526.86 KB CM/ECF.[2895803] [20-2400] [Entered: 07/29/2020 09:22 PM]

07/29/2020

21

1 pg, 31.85 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee Cynthia Brann, City of New York, Bill de Blasio, Frederick Davie, New York City Department of Corrections, New York City Fire Department, New York City Police Department, Daniel A. Nigro, Dermot F. Shea and Civilian Complaint Review Board, FILED. Service date 07/29/2020 by CM/ECF. [2895807] [20-2400] [Entered: 07/29/2020 09:48 PM]

07/29/2020

23

ATTORNEY, Molly Biklen for New York Civil Liberties Union, in case 20-2400, [18], ADDED.[2895813] [202400] [Entered: 07/29/2020 10:22 PM]

07/29/2020

24

NEW PARTY, Movant The New York Times Company, ADDED.[2895814] [20-2400] [Entered: 07/29/2020 10:31 PM]

07/29/2020

26

ATTORNEY, Scott Nathan Shorr for Cynthia Brann, City of New York, New York City Fire Department, Frederick Davie, Daniel A. Nigro, Bill de Blasio, New York City Police Department, Civilian Complaint Review Board, Dermot F. Shea, New York City Department of Corrections, in case 20-2400, [21], ADDED. [2895816] [20-2400] [Entered: 07/29/2020 10:35 PM]

07/29/2020

27

1 pg, 124.46 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association and Uniformed Firefighters Association of Greater New York, FILED. Service date 07/29/2020 by CM/ECF. [2895817] [202400] [Entered: 07/29/2020 11:32 PM]

07/30/2020

28

ATTORNEY, Courtney Gilligan Saleski for Uniformed Firefighters Association of Greater New York, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Captains Endowment Association, Detectives' Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc,. Lieutenants Benevolent Association, Uniformed Fire Officers Association, in case 20-2400, [27], ADDED.[2895839] [20-2400] [Entered: 07/30/2020 07:50 AM]

07/30/2020

29

RESPONSE to order to show cause, on behalf of Appellee Cynthia Brann, City of New York, Civilian

15 pg, 167.82 KB Complaint Review Board, Frederick Davie, Bill de Blasio, New York City Department of Corrections, New

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York City Fire Department, New York City Police Department, Daniel A. Nigro and Dermot F. Shea, FILED. Service date 07/30/2020 by CM/ECF.[2895850] [20-2400] [Entered: 07/30/2020 08:25 AM]

07/30/2020

33

2 pg, 63.97 KB

MOTION ORDER, granting administrative stay pending determination of motion by a three-judge panel. An expedited schedule for the submission of the parties’ papers in support of, and opposition to, the motion will issue later today; [9] filed by Appellant Uniformed Fire Officers Association, Sergeants Benevolent Association, Uniformed Firefighters Association of Greater New York, Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Lieutenants Benevolent Association, Captains Endowment Association and Detectives' Endowment Association, by SLC, FILED. [2895922][33] [20-2400] [Entered: 07/30/2020 09:21 AM]

07/30/2020

35

CERTIFIED ORDER, dated 07/30/2020, to Southern District of New York, ISSUED.[2895927] [20-2400]

2 pg, 673.76 KB [Entered: 07/30/2020 09:25 AM]

07/30/2020

38

LR 31.2 SCHEDULING NOTIFICATION, on behalf of Amicus Curiae New York Civil Liberties Union,

1 pg, 152.97 KB informing Court of proposed due date 07/30/2020, RECEIVED. Service date 07/30/2020 by CM/ECF.

[2896091] [20-2400] [Entered: 07/30/2020 10:56 AM]

07/30/2020

41

2 pg, 63.67 KB

ORDER, dated 07/30/2020, It is hereby ordered that Appellants’ motion for a stay pending appeal will be calendared for August 18, 2020. Papers in support of the motion are due August 6, 2020. Papers in opposition to the motion, including those of Amicus Curiae New York Civil Liberties Union, are due August 13, 2020. Reply papers, if any, are due August 17, 2020 by 9:00 am., by SCL, FILED.[2896159] [20-2400] [Entered: 07/30/2020 11:35 AM]

07/30/2020

44

2 pg, 63.51 KB

MOTION ORDER, referring motion to intervene to the three-judge panel that will decide PlaintiffsAppellants’ motion for a stay pending appeal. [19], FILED. [2896327][44] [20-2400] [Entered: 07/30/2020 01:18 PM]

07/31/2020

48

1 pg, 9.4 KB

ARGUMENT NOTICE, to attorneys/parties, TRANSMITTED.[2896973] [20-2400] [Entered: 07/31/2020 09:03 AM]

07/31/2020

55

ORDER, dated 07/31/2020, It is hereby ordered that any opposition to the motion to intervene must be filed

2 pg, 61.93 KB by 5:00 pm on Monday, August 3, 2020., FILED.[2897145] [20-2400] [Entered: 07/31/2020 11:06 AM]

08/03/2020

57

72 pg, 3.28 MB

OPPOSITION TO MOTION, [19], on behalf of Appellant Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association and Uniformed Firefighters Association of Greater New York, FILED. Service date 08/03/2020 by CM/ECF. [2899024] [20-2400] [Entered: 08/03/2020 04:08 PM]

08/04/2020

61

1 pg, 83.88 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee Bill de Blasio, City of New York, New York City Fire Department, New York City Department of Corrections, Daniel A. Nigro, Cynthia Brann, New York City Police Department, Frederick Davie, Dermot F. Shea and Civilian Complaint Review Board, FILED. Service date 08/04/2020 by CM/ECF. [2899488] [20-2400] [Entered: 08/04/2020 09:56 AM]

08/04/2020

62

ATTORNEY, Richard Paul Dearing for Cynthia Brann, City of New York, New York City Fire Department, Frederick Davie, Daniel A. Nigro, Bill de Blasio, New York City Police Department, Civilian Complaint Review Board, Dermot F. Shea, New York City Department of Corrections, in case 20-2400, [61], ADDED. [2899569] [20-2400] [Entered: 08/04/2020 10:33 AM]

08/04/2020

63

MOTION ORDER, granting motion to intervene [19], FILED. [2900437][63] [20-2400] [Entered: 08/04/2020

2 pg, 40.32 KB 03:57 PM]

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08/04/2020

64

1 pg, 9.3 KB

CAPTION, The New York Times Company added as Intervenor, AMENDED.[2900592] [20-2400] [Entered: 08/04/2020 09:11 PM]

08/06/2020

66

314 pg, 5.71 MB

SUPPLEMENTARY PAPERS TO MOTION [9], on behalf of Appellant Captains Endowment Association, Correction Officers' Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Lieutenants Benevolent Association, Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Uniformed Fire Officers Association and Uniformed Firefighters Association of Greater New York, FILED. Service date 08/06/2020 by CM/ECF.[2902675][66] [20-2400] [Entered: 08/06/2020 08:03 PM]

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 Case 1:20-cv-05441-KPF Document 8 Filed 07/17/20 Page 1 of 1

New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 www.nyclu.org

VIA ECF

July 17, 2020

Christopher Dunn Legal Director

Honorable Katherine Polk Failla United States District Judge United States District Court Southern District of New York 40 Foley Square New York, N.Y. 10007

Re: Uniformed Fire Officers Assoc. v. de Blasio, 20 Civ. 5441 (KPF)

Dear Judge Failla:

On behalf of the New York Civil Liberties Union, I write to request that the Court allow the NYCLU to participate as amicus curiae in this matter. The plaintiffs here seek emergency relief that would bar New York City and various constituent agencies from releasing certain disciplinary records notwithstanding New York State’s recent repeal of the state law – section 50-a of the Civil Rights Law -- that had rendered those records confidential. As part of its extensive work supporting government accountability and addressing law-enforcement misconduct, the NYCLU long has been involved in disputes about section 50-a, including several lawsuits. See, e.g., New York Civil Liberties Union v. City of New York, 32 N.Y. 556 (2018) (addressing application of section 50-a to NYCLU request for NYPD disciplinary decisions); Victor v. Office of Administrative Trials and Hearings, Index No. 100890/15 (N.Y. County Sup. Ct., June 4, 2018) (amicus curiae in dispute addressing application of section 50-a to disciplinary decisions involving Department of Correction officers). The NYCLU also was deeply involved in the legislative process earlier this year that led to the repeal of section 50-a.

In light of this experience, the NYCLU respectfully believes it could be of assistance to the Court as it addresses the issues and arguments the parties likely will present. For this reason, we request that the Court allow the NYCLU to participate as amicus in this matter and participate in any conference that takes places later today or next week in response to the letter the City filed earlier today (ECF 7).

Respectfully submitted,

s/Christopher Dunn

c: All counsel (via ECF)

Christopher Dunn

 
 Case 1:20-cv-05441-KPF Document 9 Filed 07/17/20 Page 1 of 3
DLA Piper LLP (US) 1251 Avenue of the Americas 27th Floor New York, New York 10020-1104 www.dlapiper.com
Anthony Paul Coles T (212) 335-4844 E anthony.coles@us.dlapiper.com
July 17, 2020 VIA ECF
Hon. Katherine Polk Failla United States District Court, Southern District of New York 40 Foley Square New York, NY 10007
Re: Uniformed Fire Officers Association, et al. v. Bill de Blasio, et al. 20-cv-05441 (KPF)(RWL)
Dear Judge Failla:
We represent the Plaintiffs/Petitioners (“Plaintiffs” or the “Officer Unions”) and write in response to the letter dated July 17, 2020 (the “Letter”) from the City of New York and the other Defendants/Respondents (the “Defendants” or the “City”) concerning a TRO issued by State Supreme Court Justice Carol R. Edmead on July 15, 2020 (the “TRO”, attached below as Exhibit 1 and filed as ECF No. 3). Plaintiffs will submit a more detailed response to the City’s Letter no later than Monday July 20, unless the Court directs otherwise. As a preliminary response:
This case challenges the Defendants’ unilateral pronouncements that they will immediately release information regarding unsubstantiated, unfounded, exonerated, or pending disciplinary matters (“Unsubstantiated and Non-Final Allegations”) against thousands of firefighters, police officers, correction officers and other law enforcement personnel in the wake of the repeal of Civil Rights Law § 50-a. The Defendants have indicated their intent to publish and promote all active and retired police officer disciplinary records on the internet without regard for the fact that those records indisputably include Unsubstantiated and Non-Final Allegations that are meritless, constitute unwarranted invasions of privacy, and may destroy the reputations and imperil the safety of those affected officers and their families. Judge Edmead’s TRO stayed the release of any Unsubstantiated and Non-Final Allegations.
The City removed this action to this Court after Justice Edmead made her initial rulings on July 15. Plaintiffs have outstanding requests for further TRO and preliminary injunctive relief that have not yet been ruled upon, which are explained in the State court Order to Show Cause and its supporting papers that are being filed in this Court in connection with the removal.
1. The TRO issued July 15. The TRO is valid and in effect, as Defendants’ Letter acknowledges when it states that the TRO “was consented to on the record with the understanding that it would remain in effect only until the federal court could hear Plaintiffs’ application.” (Letter at 2.) Plaintiffs commenced this action in New York Supreme Court, New

Case 1:20-cv-05441-KPF Document 9 Filed 07/17/20 Page 2 of 3
Hon. Katherine Polk Failla July 17, 2020 Page Two
York County, on July 14, 2020, by Order to Show Cause seeking a Temporary Restraining Order and preliminary and permanent injunctive relief to prevent the City from publicly releasing a “data-dump” of certain confidential individual records of New York City firefighters, police officers, and corrections officers. State Supreme Justice Carol R. Edmead heard argument from counsel for all parties the morning of July 15 and issued rulings. In the middle of the argument, the City announced that it was removing this case to federal court. The City then asserted to Justice Edmead that her rulings on a temporary restraint were not valid. After considering the matter, Justice Edmead determined that her rulings preceded the removal and issued the attached TRO against all Defendants and “those acting in concert with them”:
ORDERED that pending the issue of an Interim Stay before the United States District Court for the Southern District of New York, the Defendants/Respondents, and those acting in concert with them, are Stayed from publicly disclosing any records concerning Unsubstantiated and Non-Final Allegations or settlement agreements as defined in the instant Petition, entered into prior to June 12, 2020, relating to the repeal of N.Y.C. Civ. Rights Law §50-a(1).
The TRO remains in effect restraining Defendants and those acting in concert with them, until further order by this Court. The Court should rule after a full hearing and full briefing.
2. The City is mistaken on the law. The City asserts that Plaintiffs’ Petition for temporary, preliminary and permanent relief should be denied, but the City is wrong on the law. Much of this is explained in the Memorandum of Law and other papers submitted in the State court on Plaintiffs’ Order to Show Cause, which are being concurrently filed in this Court with this Letter. Additional arguments will be explained in Plaintiffs’ fuller response to be sent on Monday, July 20. Full argument to this Court can be made in briefs under a schedule set by the Court. The need for temporary and preliminary relief is also supported by court orders in New Jersey on similar issues. See Order on Motion, State Troopers Fraternal Assoc. v. State of New Jersey, et al., Superior Court of New Jersey, Appellate Div., No. A-003950-19T-4, July 8, 2020, attached hereto as Exhibit 2.
3. Expedited discovery and prevention of any further release of information covered by the TRO. The City’s Letter asserts that some information at issue may have been released by the Civilian Complaint Review Board (CCRB) on July 13, 2020, but it is not clear what that was. Plaintiffs now, in this letter, request the CCRB and other Defendants to disclose immediately and clearly to Plaintiffs exactly and in full what has been released, when, and to whom. Plaintiffs also seek immediate expedited discovery, which will be explained more fully in the letter to be sent to the Court on July 20.

Case 1:20-cv-05441-KPF Document 9 Filed 07/17/20 Page 3 of 3
Hon. Katherine Polk Failla July 17, 2020 Page Three
4. A hearing on a preliminary injunction. At a conference next week, the Court should set a date for a preliminary injunction hearing and a briefing and expedited discovery schedule.
We are available, of course, if the Court desires further information. Respectfully submitted, DLA Piper LLP (US)
Anthony P. Coles
rm cc: All counsel of record (via ECF)

CasCea1s:e201-:c2v0--0c5v4-04514-K4P1F DDocoucmumenetn3t 9-F1ileFdil0e7d/1057//2107/2P0agPea1geof16of 6

Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Correction Officers’ Benevolent Association of the City of New York; Police Benevolent Association of the City of New York, Inc.; Sergeants’ Benevolent Association; Lieutenants’ Benevolent Association; Captains’ Endowment Association; and Detectives’ Endowment Association,

Case No. 1:20-CV-05441

Petitioners/Plaintiffs,

-against-
Bill de Blasio, in his official capacity as Mayor of the City of New York; the City of New York; Fire Department of the City of New York; Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York; New York City Department of Correction; Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department; the New York City Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board; and the Civilian Complaint Review Board,

NOTICE OF ENTRY OF STATE COURT ORDER

Respondents/Defendants.

TO: CLERK OF COURT AND ALL PARTIES OF RECORD PLEASE TAKE NOTICE in connection with the Notice of Removal filed by
Respondents/Defendants in this action (ECF No. 1), that attached hereto is a true and correct copy of an Order issued prior to removal that was entered and filed in the office of the Clerk of the Supreme Court of the State of New York, New York County on July 15, 2020.

CasCea1s:e201-:c2v0--0c5v4-04514-K4P1F DDocoucmumenetn3t 9-F1ileFdil0e7d/1057//2107/2P0agPea2geof26of 6

Dated: July 15, 2020 New York, New York

DLA PIPER LLP (US)
By: /s/ Anthony P. Coles Anthony P. Coles Michael R. Hepworth 1251 6th Avenue New York, NY 10020 Telephone: (212) 335-4844 Facsimile: (212) 884-8644 Email: anthony.coles@dlapiper.com Email: michael.hepworth@dlapiper.com
Courtney G. Saleski (pro hac vice to be filed)
1650 Market Street, Suite 5000 Philadelphia, PA 19103-7300 Telephone: (215) 656-2431 Facsimile: (215) 606-2046 Email: courtney.saleski@dlapiper.com
Attorneys for Petitioners

FILED: NEW YORK COUNTY CLERK 07/15/2020 05:02 PM

INDEX NO. 154982/2020

NYSCEF DOC. NO. 20CasCea1s:e201-:c2v0--0c5v4-04514-K4P1F DDocoucmumenetn3t 9-F1ileFdil0e7d/1057//2107/2P0agPeRaE3gCeoEIf3V6EoDf 6NYSCEF: 07/15/2020

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. C. Edmead
Justice
----------------------------------------------------------------- ----------------X
UNIFORMED FIRE OFFICERS ASSOCIATION, UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK, CORRECTION OFFICERS' BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC.,POLICE BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC.,SERGEANTS BENEVOLENT ASSOCIATION, LIEUTENANTS BENEVOLENT ASSOCIATION, CAPTAINS' ENDOWMENT ASSOCIATION, DETECTIVES' ENDOWMENT ASSOCIATION,

PART 35
INDEX NO. MOTION DATE MOTION SEQ. NO.

154982/2020 07/15/2020
001

Plaintiff,

- v -
BILL DE BLASIO, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW YORK, THE CITY OF NEW YORK, DANIEL A. NIGRO, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, CYNTHIA BRANN, IN HER OFFICIAL CAPACITY AS THE COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF CORRECTION, DERMOT F. SHEA, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF CORRECTION, THE NEW YORK CITY POLICE DEPARTMENT, FREDERICK DAVIE, IN HIS OFFICIAL CAPACITY AS THE CHAIR OF THE CIVILIAN COMPLAINT REVIEW BOARD, THE CIVILIAN COMPLAINT REVIEW BOARD

ORDER

Defendant. ------------------------------------------------------------------- --------------X
The application of Petitioners/Plaintiffs Uniformed Fire Officers Association; Uniformed

Firefighters Association of Greater New York; Correction Officers' Benevolent Association of

the City of New York, Inc.; Police Benevolent Association of the City of New York, Inc.;

Sergeants Benevolent Association; Lieutenants Benevolent 75, Association; Captains

Endowment Association; and Detectives' Endowment Association for an Order

pursuanttoCPLR§6301, on behalf of Petitioners/Plaintiffs("Petitioners") Uniformed Fire Officers

154982/2020 vs.

Page 1 of 4

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FILED: NEW YORK COUNTY CLERK 07/15/2020 05:02 PM

INDEX NO. 154982/2020

NYSCEF DOC. NO. 20CasCea1s:e201-:c2v0--0c5v4-04514-K4P1F DDocoucmumenetn3t 9-F1ileFdil0e7d/1057//2107/2P0agPeRaE4gCeoEIf4V6EoDf 6NYSCEF: 07/15/2020

Association, Uniformed Firefighters Association of Greater New York, Correction Officers Benevolent Association of the City of New York, Police Benevolent Association of the City of New York ,Inc., Sergeants Benevolent Association, Lieutenant Benevolent Association, Captains Endowment Association, and Detectives’ Endowment Association, preliminarily restraining Respondents, and those acting in concert with them, from publicly disclosing any records concerning disciplinary matters against individual New York City police officers, firefighters, and correction officers that are non-final, unsubstantiated, unfounded, exonerated or resulted in a finding of not guilty (“Unsubstantiated and Non-Final Allegations”), or that regard settlement agreements entered into prior to June 12, 2020, is decided in accordance with the “So Ordered” transcript (Laura Ludovico, Sr.Ct.Rptr.) During the court’s first oral argument on this application, Counsel for Defendants/Respondents advised the court that this matter was being Removed from the Supreme Court of the State of New York, County of New York, to the United States District Court for the Southern District of New York. Initially counsel for Defendants/Respondents consented to this court issuing the following which was “So Ordered” by the Court:
It is hereby ORDERED that pending the issue of an Interim Stay before the United States District Court for the Southern District of New York, the Defendants/Respondents, and those acting in concert with them, are Stayed from publicly disclosing any records concerning Unsubstantiated and Non-Final Allegations or settlement agreements as defined in the instant Petition, entered into prior to June 12, 2020, relating to the repeal of N.Y.C. Civ. Rights Law §50-a(1). Thereafter, the court received an e-mail from counsel for Defendants/Respondents

154982/2020 vs.

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FILED: NEW YORK COUNTY CLERK 07/15/2020 05:02 PM

INDEX NO. 154982/2020

NYSCEF DOC. NO. 20CasCea1s:e201-:c2v0--0c5v4-04514-K4P1F DDocoucmumenetn3t 9-F1ileFdil0e7d/1057//2107/2P0agPeRaE5gCeoEIf5V6EoDf 6NYSCEF: 07/15/2020

advising as follows: Since the case has been removed it is our position, respectfully, that it is not appropriate for the Court to issue an order, including a stay pending the Federal Court hearing the TRO. Per 28 USC 1446(d): (d)Notice to Adverse Parties and State Court. — Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
A second Skype conference was held (Laura Ludovico, Sr. Ct.Rptr.) to address the issue of this court’s authority to issue a Stay. Firstly, the above e-mail from counsel for Defendants/Respondents was not copied to counsel for Plaintiffs/Petitioners. Secondly uploading the Removal notice to NYCEF apparently does not constitute filing of a copy of the notice with the clerk of the court.1 Thirdly, counsel for Plaintiffs/Petitioners were not provided a written notice of removal. And finally, and most importantly, the court’s stay Order was in effect. For the foregoing reasons, the following Order of this Court is in full force and effect. It is hereby

1 . From the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases -Subsection J Paragraph 1-“ If an order in a NYSCEF case directs that the County Clerk take action, a copy of the order must be served on the County Clerk (CPLR § 8019 (c)), as the order will usually expressly provide. This shall be done by filing with NYSCEF a completed Notice to the County Clerk - CPLR § 8019 (c) (NYSCEF Form EF-22, available on the NYSCEF site).”

154982/2020 vs.

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FILED: NEW YORK COUNTY CLERK 07/15/2020 05:02 PM

INDEX NO. 154982/2020

NYSCEF DOC. NO. 20CasCea1s:e201-:c2v0--0c5v4-04514-K4P1F DDocoucmumenetn3t 9-F1ileFdil0e7d/1057//2107/2P0agPeRaE6gCeoEIf6V6EoDf 6NYSCEF: 07/15/2020

ORDERED that pending the issue of an Interim Stay before the United States District Court for the Southern District of New York, the Defendants/Respondents, and those acting in concert with them, are Stayed from publicly disclosing any records concerning Unsubstantiated and Non-Final Allegations or settlement agreements as defined in the instant Petition, entered into prior to June 12, 2020, relating to the repeal of N.Y.C. Civ .Rights Law §50-a(1).

7/15/2020 DATE
CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

X CASE DISPOSED

NON-FINAL DISPOSITION

GRANTED

DENIED X GRANTED IN PART

SETTLE ORDER

SUBMIT ORDER

INCLUDES TRANSFER/REASSIGN

FIDUCIARY APPOINTMENT

OTHER REFERENCE

154982/2020 vs.

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 Case 1:20-cv-05441-KPF Document 13 Filed 07/21/20 Page 1 of 3

JAMES E. JOHNSON Corporation Counsel

The City of New York
LAW DEPARTMENT
LABOR & EMPLOYMENT LAW DIVISION
100 Church Street, 2nd Floor NEW YORK, NEW YORK 10007

Rebecca G. Quinn
Phone: (212) 356-4382 Fax: (212) 356-2439
Email: rquinn@law.nyc.gov

July 21, 2020
BY ECF Hon. Katherine Polk Failla United States District Court Southern District of New York 40 Foley Square New York, NY 10007
Re: Uniformed Fire Officers Association, et al. v. Bill DeBlasio, et al. 20-cv-05441 (KPF) (RWL)
Dear Judge Failla:
Defendants write in response to Plaintiffs’ letter dated July 20, 2020, Docket #12.
As stated in Defendants’ July 20, 2020 letter, Docket # 11, Defendants request an expedited briefing schedule to address Plaintiffs’ application for a preliminary injunction1. Defendants maintain, however, that they need to be heard on Plaintiffs’ request for a temporary restraining order (“TRO”) as soon as practicable, before briefing on a preliminary injunction.
In light of the transcript provided to the Court, the Plaintiffs’ continued assertion that the stay issued by the state court intended to be a TRO borders on frivolous and should be immediately rejected by this Court. See Judge Edmead’s Order, Docket #3. The City continues to dispute that the state court even had jurisdiction to issue that stay when it did, but, regardless, what can no longer be seriously disputed is that the state court was memorializing the understanding that the stay would only be in effect to prevent disclosure before this Court could

1 Defendants reached out to Plaintiffs’ counsel to discuss a briefing schedule via two emails on July 20, 2020 at 11:14 a.m. and 1:58 p.m. However, both of those emails were not answered. Rather, Plaintiffs filed their letter dated July 20, 2020 at 5:07 p.m.

Case 1:20-cv-05441-KPF Document 13 Filed 07/21/20 Page 2 of 3
hear the Plaintiffs further on their application for a TRO2. At no time did Judge Edmead state on the record or in the written stay that she was granting Plaintiffs application for a TRO and at no time did Defendants consent to, or argue about the merits of a TRO. See Docket # 11-1, at 5-10, 16-18. As such, Defendants are not seeking to re-litigate the stay as Plaintiffs suggest, but are seeking a conference to address Plaintiff’s TRO or an order by this Court that will in effect lift the stay and provide Defendants with an opportunity to be heard on Plaintiffs’ request for a TRO. That Plaintiffs seek a briefing schedule on their entitlement to a preliminary injunction indicates that they too believe that there is only a stay in place pending action by this Court.
Next, Plaintiffs’ request for “discovery” is meritless. The Plaintiffs have consistently claimed that this action seeks to vindicate their legal rights, in essence, to require the Court to issue injunctive relief concerning their supposed legal rights to prevent disclosure of disciplinary information. This is purely a legal issue for which no discovery would be required. Rather, Plaintiffs’ request for discovery appears to be nothing more than a transparent delay tactic to delay this Court issuing a decision on their preliminary injunction application and thus keep provisional relief that was put in place without both sides being heard and without any meaningful review as long as possible.
Plaintiffs have not provided good cause for expedited discovery on this issue, or any other issue, which would be required for them to brief their entitlement to a TRO or a preliminary injunction3. See e.g. Digital Sin, Inc. v. Does 1-76, 2012 U.S. Dist. LEXIS 10803, at *7 (S.D.N.Y Jan. 30, 2012). The question of whether the repeal of Civil Rights Law 50-a permits Defendants to disclose the disciplinary records of Plaintiffs members is a purely legal question. See United States v. Santos, 541 F.3d 63, 67 (2d Cir. 2008) (“Matters of statutory interpretation are questions of law.”) Discovery is of no benefit here as it will not impact the legal question before the Court, and therefore Plaintiffs’ request for discovery must be denied.4
2 Plaintiffs also make much of the fact that the Defendants removed this action during the hearing before the State Court. Plaintiffs only have themselves to blame for that timeline. Despite requesting the papers at least a day prior, Defendants received the Plaintiffs papers only as Plaintiff was asking the Court to hear the TRO request. Once Defendants received Plaintiffs’ papers and learned Plaintiffs’ claims posed a federal question, the Defendants immediately exercised their statutory right to have this matter heard by this Court. Had Plaintiffs been more cooperative with the Defendants prior to the TRO application, the parties could have proceeded in a much more orderly fashion. 3 Courts in this Circuit have also employed the Notaro standard in which courts examine a four-factor test when deciding whether to permit discovery in a preliminary injunction proceeding, which requires considering: “(1) irreparable injury, (2) some probability of success on the merits, (3) some connection between the expedited discovery and the avoidance of the irreparable injury, and (4) some evidence that the injury that will result without expedited discovery looms greater than the injury that the defendant will suffer if the expedited relief is granted." North Atl. Operating Co. v Evergreen Distribs., LLC, 2013 U.S. Dist. LEXIS 143948 (E.D.N.Y. Oct. 3, 2013). Other courts in this Circuit have combined the two standards. Id. Because Plaintiff’s have failed to show good cause for the requested discovery, they would also fail the more restrictive test in Notaro and are clearly not entitled to discovery to establish their entitlement to a preliminary injunction. 4 In their letters dated July 17 and July 20, 2020, Plaintiffs indicated that they needed information about what records CCRB disclosed, however, they provide no explanation as to why this information is relevant to their claim. These disclosures were made before Plaintiffs even sought injunctive relief and Plaintiffs are clearly aware of what categories of information the CCRB has based on their submissions.
2

Case 1:20-cv-05441-KPF Document 13 Filed 07/21/20 Page 3 of 3
Finally, as briefly addressed in Defendants’ letter dated July 17, 2020, Docket #7, Defendants also urge this court to hold that Plaintiffs are not entitled to a TRO and a preliminary injunction. Defendants are prepared to address the merits of Plaintiffs’ TRO application immediately and to expeditiously submit papers in opposition to Plaintiffs’ request to a preliminary injunction, and request that the Court approve Defendants’ expedited briefing schedule to permit the Court to fully hear Defendants’ arguments.
Respectfully submitted, /s/
Rebecca G. Quinn Assistant Corporation Counsel
/s/ Dominique Saint-Fort Assistant Corporation Counsel cc: Anthony Coles (by ECF) DLA Piper Attorney for Plaintiffs
3

 
 Case 1:20-cv-05441-KPF Document 16 Filed 07/24/20 Page 1 of 5

New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 www.nyclu.org

VIA ECF

July 23, 2020

Christopher Dunn Legal Director

Honorable Katherine Polk Failla United States District Judge United States District Court Southern District of New York 40 Foley Square New York, N.Y. 10007

Re: Uniformed Fire Officers Assoc. v. de Blasio, 20 Civ. 5441 (KPF)

Dear Judge Failla:

On behalf of the New York Civil Liberties Union, we write to request that the Court modify the temporary restraining order it issued last night to remove the provision that bars the NYCLU from publishing information about police misconduct it received from the New York City Civilian Complaint Review Board pursuant to a Freedom of Information Law request. The NYCLU submits that the July 22 Order is invalid for two independent reasons.

Most importantly, the Court’s Order constitutes a prior restraint that violates the First Amendment. Consistent with its long history of releasing information obtained through open-records requests, the NYCLU had planned to make public the CCRB database today, along with a tool the public could use to search the database and the NYCLU’s initial analysis of the contents of the database. This planned publication is of particular significance given the ongoing national controversy over police misconduct and the recent repeal of the state law that previously barred the release of this type of information. Under long-standing Supreme Court law, the First Amendment bars the prior restraint of the NYCLU’s publication of this critically important information, no matter what concerns the Court may have about the speed with which the CCRB processed the NYCLU’s FOIL request.

Beyond this grave First Amendment violation, the Court lacks authority under Rule 65 to extend its temporary restraining order to the non-party NYCLU. While Rule 65 does authorize issuance of temporary restraining orders against non-parties who are acting in concert with parties, that addresses enforcement only of extant orders and does not reach actions that occur before any judicial relief has been entered.

1. The Order Is an Unconstitutional Prior Restraint on Speech.
The July 22 Order is a prior restraint on the NYCLU’s core First Amendment-protected speech. Prior restraints constitute “the most serious and the least tolerable infringement on First Amendment rights,” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976), and are subject to a

1

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“‘heavy presumption’” against constitutional validity, United States v. Quattrone, 402 F.3d 304, 310 (2d Cir. 2005) (quoting Bantam Books, Inc v. Sullivan, 372 U.S. 58, 70 (1963)).1 Such restraints are permitted only in “exceptional cases” and are subject to “exacting review.” Quattrone, 402 F.3d at 310–11. “Even where questions of allegedly urgent national security, or competing constitutional interests are concerned, [the Supreme Court has] imposed this ‘most extraordinary remed[y]’ only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citing New York Times Co. v. United States, 403 U.S. 713 (1971) (“Pentagon Papers”) and Nebraska Press Ass’n, 427 U.S. at 559). And the Second Circuit has noted that “[w]hen a prior restraint takes the form of a court-issued injunction, the risk of infringing on speech . . . increases.” Met. Opera Ass’n v. Local 100, 239 F.3d 172, 176-77 (2d Cir. 2001).
The NYCLU has a long history of obtaining important information from the government and making it public for purposes of public education and advocacy. Declaration of Christopher Dunn ¶¶ 3-4 (July 23, 2020) (“Dunn Decl.”). The July 22 Order restrains the NYCLU, a non-party, from publishing information of deep public concern regarding the conduct of government officials at a moment when there is significant momentum for legislative reform and accountability and national attention to police misconduct. After obtaining the CCRB spreadsheet on July 14 through a FOIL request, NYCLU staff immediately started to work with the database to prepare the information for public release. Id. ¶ 8. This included creating a tool that would make it easy for members of the public to search the database. Id. ¶ 9. The NYCLU was ready to make the search tool available to the public at noon today, Thursday, July 23, 2020. In conjunction with that publication, the NYCLU intended to release information about initial analysis it had done of the database during the brief period it had needed to do the technical work to make the information available. Id. ¶ 10. The NYCLU also planned to provide to the public the ability to download the database itself so they could do whatever analysis they wished to. Id. The July 22 Order “deprives the public of specific news” that is “already known” to the NYCLU. See In re Application of Dow Jones & Co., Inc., 842 F.2d 603, 608 (2d Cir. 1988) (describing this deprivation of news as “[t]he most offensive aspect of a prior restraint”).
Pentagon Papers squarely establishes that the restraining order imposed on the NYCLU violates the First Amendment. In Pentagon Papers, the Supreme Court upheld the right of the press to publish information of national concern obtained from documents stolen by a nonparty. See 403 U.S. at 714. As the Court recognized in Bartnicki v. Vopper, 532 U.S. 514 (2001), in denying an injunction against publication, Pentagon Papers “resolved a conflict between the basic rule against prior restraints on publication and the interest in preserving the secrecy of information that, if disclosed, might seriously impair the security of the Nation.” Id. at 528. The concurring justices of the Pentagon Papers Court concluded that exceptions to the rule of prior restraints were exceedingly narrow and could rarely be justified. See, e.g., 403 U.S. at 730 (Stewart J., concurring) (no prior restraint where disclosure not shown to “surely result in direct, immediate, and irreparable damage to our Nation or its people”).
1 Indeed, the Supreme Court has explained that this presumption has special force because the press “guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Nebraska Press Ass’n, 427 U.S. at 560 (citing Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (emphasis added).
2

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By stark contrast in this case, the plaintiffs’ claimed risk, at most, involves generalized concerns of the safety of police officers and this Court did not make any specific findings of concrete and immediate harm that will result. See TRO Hr’g Tr. at 82:9-1 (July 22, 2020) (finding “serious issues that transcend reputation, that affect employment, that affect safety,” which the court accept[ed] . . . as not speculative and imminent for purposes of today’s proceeding”). Such harms do not establish the “exceptional” circumstances justifying the extraordinary measure of a prior restraint. See Quattrone, 402 F.3d at 310. Accordingly, this prior restraint cannot overcome the “heavy presumption” of invalidity.
Furthermore, Supreme Court precedent makes clear that even if the CCRB acted unlawfully in disclosing information and even if the NYCLU knew or had reason to believe the action was unlawful (which it did not), the First Amendment prohibits the punishment—much less enjoining— of the NYCLU’s publication of that information. See Bartnicki, 532 U.S. 514 (holding that knowing recipient of illegally intercepted recording on matter of public concern could not be held liable for its publication); Pentagon Papers, 403 U.S. 713 (upholding right of newspapers to publish leaked classified study related to Vietnam War); see also Democratic Nat’l Comm. v. Russian Fed’n, 392 F. Supp. 3d 410, 430–38 (S.D.N.Y. 2019) (recognizing that under Bartnicki the defendants were entitled to publish stolen documents requested from hackers provided they did not participate in hacking); Republic of Kazakhstan v. Does 1-100, No. 15-cv-1900 (ER), 2015 WL 6473016, at *2-*3 (S.D.N.Y. Oct. 27, 2015) (clarifying that injunction against hackers did not prohibit news organization from republishing hacked documents because there was no evidence organization was involved in hacking); Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007) (First Amendment prohibited state from interfering with activist’s publication of illegally recorded video of state police where the activist had reason to know of illegality but did not make the recording).
Accordingly, the First Amendment requires that the Court modify its July 22 Order to not restrain the NYCLU from publishing to the public the CCRB information it obtained on July 14.
2. The Restraining Order Exceeds the Court’s Authority Under Rule 65.
Rule 65 of the Federal Rules of Civil Procedure defines this Court’s authority to issue temporary restraining orders, and it does allow for extending such order to nonparties “who are in active concert or participation with” a defendant. See Fed. R. Civ. Proc. 65(d)(2). In extending its restraining order to the NYCLU, the Court stated it had found that the NYCLU had acted in concert in with the defendants in light of the speed with which the CCRB processed the NYCLU’s FOIL request.2 While the NYCLU submits that no basis exists for concluding it acted in concert with the CCRB, Rule 65 does not reach actions that precede the entry of judicial relief, as is the undisputed situation here. 3
2 The NYCLU is non-government, not-for-profit advocacy organization, see Dunn Decl. ¶ 2, not affiliated with the defendants and is therefore not subject to any of the collective bargaining agreements, settlements, or constitutional provisions cited as the bases for plaintiffs’ claims. 3 A non-party acts in concert if the “third party ‘aided and abetted’ the party subject to the injunction,” which requires showing “that the non-party had actual knowledge of the judicial decree and violated it, and that the challenged action was taken for the benefit of, or to assist, a party subject to the decree.” Spin Master Ltd. v. 158, No. 18-CV-1774 (LJL), 2020 WL 2766104, at *20 (S.D.N.Y. May 28, 2020) (quoting Arista Records, LLC v. Tkach, 122 F. Supp. 3d 32, 36 (S.D.N.Y. 2015) (citation omitted)). The only evidence before this Court of any relationship between the
3

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As the Supreme Court explained in Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9 (1945), Rule 65(d)(2) is meant to codify the common law doctrine that “defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.” Id. at 14. But this has no application to acts that occurred before any decree has been issued (much less before any proceeding was instituted). See Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir. 1930) (Hand, L.) (“[T]he only occasion when a person not a party may be punished is when he has helped to bring about, not merely what the decree has forbidden, . . . but what it has the power to forbid, an act of a party.”); United Pharmacal Corp. v. United States, 306 F.2d 515, 517 (1st Cir. 1962)(explaining that a past collaboration or contractual relationship prior to the preliminary injunction is not controlling).
The NYCLU submitted its FOIL request on July 9, 2020. Dunn Decl. ¶ 7. The City has informed the Court that the CCRB responded to the request on July 13, and the NYCLU received that response by email through the standard New York City portal for such requests at 12:33 p.m. on July 14. Id. ¶ 8. The initial state court order in this case, however, was not issued until July 15 (and as the NYCLU understands it, the case was not even filed until after the NYCLU had received the database). See ECF No. 12-1. Consequently, when the NYCLU received the documents, no judicial order was in place such that any interactions between the NYCLU and the CCRB could, under Rule 65, constitute active concert. See ONE11 Imports Inc. v. NuOp LLC, No. 16-CV-7197 (JPO), 2016 WL 7338422, at *2 (S.D.N.Y. Dec. 19, 2016); Paramount Pictures Corp. v. Carol Pub. Grp., Inc., 25 F. Supp. 2d 372, 375 (S.D.N.Y. 1998) (collecting cases).
In One11 Imports Inc., Judge Oetken considered whether the preliminary injunction he had issued forbidding defendants from “advertising, promoting, marketing, selling, and/or distributing products that bear the name ‘My Marquee Lightbox’” also enjoined nonparty resellers who had obtained the products prior to the injunction. ONE11 Imports Inc, 2016 WL 7338422, at *1-*2. He held that because the defendant’s sale of the infringing to the nonparties took place before the entry of the injunction, the “Court’s preliminary injunction Order does not, therefore, ‘reach backwards in time to action taken prior to the time it was issued.’” Id. (quoting Paramount Pictures Corp. v. Carol Pub. Grp., Inc., 25 F. Supp. 2d 372, 375 (S.D.N.Y. 1998)); see also Herrlein v. Kanakis, 526 F.2d 252, 255 (7th Cir. 1975) (nonparties not bound by injunction because the transfer of assets “occurred before the lawsuit against [the defendants] was initiated and thus could not have been undertaken to defy the court’s order.”); O & L Assocs. v. Del Conte, 601 F. Supp. 1463, 1464 (S.D.N.Y. 1985) (Weinfeld, J.) (non-party Columbia Pictures not bound by injunction even where it had entered into licensing agreement after lawsuit had commenced and plaintiffs had filed their motion for preliminary injunctive relief but before the injunction was issued).
So too here, the NYCLU received the spreadsheet prior to the suit in this matter and the entry of the state supreme court’s restraining order on July 15 and this Court’s July 22 Order, and thus there was no party with which the NYCLU could be in active concert. This Court’s restraining order
NYCLU and the defendants is that the NYCLU received a response to its July 9 records request from the CCRB on July 14. Dunn Decl. ¶ 8. Even assuming the timing of the response reflected undue speed by the CCRB, this does not suggest that the challenged action was taken for the benefit of or to assist a party to violate a court order.
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therefore exceeds the authority that Rule 65 confers. * * *
For the foregoing reasons, the NYCLU respectfully requests that this Court modify its July 22 Order to the extent that the Order restrains the NYCLU from disclosing the information it received from the CCRB on July 14, 2020.
Respectfully submitted, /s/Christopher Dunn Christopher Dunn Molly K. Biklen Jordan Laris Cohen NEW YORK CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street, 19th Floor New York, New York 10004 (212) 607-3300 cdunn@nyclu.org
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 Case 1:20-cv-05441-KPF Document 21 Filed 07/24/20 Page 1 of 4
DLA Piper LLP (US) 1251 Avenue of the Americas 27th Floor New York, New York 10020-1104 www.dlapiper.com
Anthony Paul Coles T (212) 335-4844 E anthony.coles@us.dlapiper.com
July 24, 2020
VIA ECF
Hon. Katherine Polk Failla United States District Court, Southern District of New York 40 Foley Square New York, NY 10007
Re: Uniformed Fire Officers Association, et al. v. Bill DeBlasio, et al. 20-cv-05441 (KPF)(RWL)
Dear Judge Failla:
Plaintiffs (or the “Officer Unions”) write to request Your Honor’s assistance with the contemplated expedited discovery ordered by the Court on July 22, 2020. In light of what appears to be the Defendants’ intent to proceed at a pace inconsistent with expedition, we ask that the Court order Defendants to comply with the document requests and deposition notice attached as Exhibits 1 and 2 within one week. Plaintiffs request immediate direction from the Court because Defendants have indicated that they will not respond to identify their objections until sometime early next week, and they have not agreed to any time when they will produce any documents. (See Exhibit 3.)
Plaintiffs have been trying to meet and confer on discovery issues with the City since the day of the hearing and, to date, the City has refused to provide any meaningful responses and has indicated that it will not respond until early next week. (See Exhibit 3.) After this Court’s Order, Plaintiffs narrowed the scope of the document requests Plaintiffs had previously shared with the City in an attempt to make them more focused and manageable and, on July 23, shared a draft of those requests with the City. At the same time, Plaintiffs requested a meet and confer on those drafts in order to address any issues that the City foresaw. Consistent with Local Rule 26.4, Plaintiffs sought to cooperate with Defendants to facilitate expedited discovery effectively and efficiently, understanding that Defendants have superior knowledge of the types of documents and information Defendants maintain. Plaintiffs anticipated either revising the requests to accommodate the City (if possible) or seeking Court intervention – all with the goal of completing discovery within the allotted expedited window. Before the meet and confer, Plaintiffs also provided a draft notice of a Rule 30(b)(6) deposition.
On today’s meet and confer call, the City indicated that it had begun work to respond to discovery within the scope of the Court’s Order, but counsel refused to share any information about the scope of that work. The City also refused to articulate any reactions to the draft

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Hon. Katherine Polk Failla July 24, 2020 Page Two
document and deposition requests because they were not final. Plaintiffs asked them to treat them as final so that we could continue to move things forward and the City refused. During the call, Plaintiffs converted the drafts to final and propounded them, in an effort to move the parties forward. (See Exhibits 1 and 2.) Once received, the City indicated that it would not confer on specifics relating to the requests, but rather needed to formally respond in writing. The City indicated categorically that it would not consent to any deposition. The City further refused to commit to a schedule for formal objections and a subsequent meet and confer, insisting on responding by email. When Plaintiffs followed up by email, the City responded that it would provide formal objections early next week and then would be prepared to meet and confer. (See Exhibit 3.)
Plaintiffs have repeatedly sought to work with the City to move things forward quickly so that the parties can complete discovery within the allotted expedited timeframe, but it already seems clear that the City intends to use formality to proceed at a pace that will not comport with the Court’s schedule. As a result, we seek the Court’s assistance and ask that the Court order the City to comply with the discovery requests as drafted and the notice of deposition within one week.
Each document request is well founded. Requests 1–4 fall directly within the categories articulated by the Court:
▪ Request 1: All Disciplinary Records publicly released by the CCRB, whether by FOIL or otherwise, for the period June 12, 2020 to the present.
▪ Request 2: All documents, including but not limited to communications with NYCLU, concerning the release of Disciplinary Records by the CCRB, or any of the Defendants, for the period June 12, 2020 to the present.
▪ Request 3: For the period July 7, 2020 to the present, all documents and communications between CCRB and NYCLU, and any internal City communications, concerning the release to NYCLU of Disciplinary Records.
▪ Request 4: All documents concerning the release to the public of Disciplinary Records by the City, including but not limited to documents concerning the format, manner of release, scope, or type of the Disciplinary Records to be released, for the period June 12, 2020 to the present.
Despite that requests 1–4 fall squarely within the discovery contemplated by the Court’s Order, Defendants would not provide an answer as to whether they would comply with these requests.

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Hon. Katherine Polk Failla July 24, 2020 Page Three
The remaining requests are necessary for Plaintiffs to develop the record for the hearing, demonstrate serious questions on the merits, and understand the contours of Defendants’ positions. Requests 5–7 go directly to Defendants’ violations of the Due Process Clauses, Equal Protection Clauses, and Article 78:
▪ Request 5: All documents and communications relating to the denial, in whole or in part, of a public records request for Disciplinary Records on grounds other than the application of New York Civil Rights Law § 50-a, such as where disclosure of the requested records would constitute an unwarranted invasion of privacy or pose a risk to the safety of any person, such as, for example, those referenced in Hughes Hubbard & Reed LLP v. Civilian Complaint Review Board, 53 Misc. 3d 947, 950 (Sup. Ct., Kings Cnty. 2016), and Luongo v. Records Access Officer, 150 A.D.3d 13, 16 (1st Dep’t 2017), for the period January 1, 2016 to the present.
▪ Request 6: All documents and communications concerning or reflecting (a) the release to the public of Unsubstantiated or Non-Final Allegations against employees of the City other than law enforcement officers, or (b) the denial, in whole or in part, of a public records request encompassing Unsubstantiated or Non-Final Allegations against City employees other than law enforcement officers on the ground that disclosure of the requested records would constitute an unwarranted invasion of privacy, or pose a risk to the safety to any person, for the period January 1, 2016 to the present.
▪ Request 7: All documents concerning protocols, policies, or other guidance developed by the Defendants relating to the privacy of personnel records of City employees.
Plaintiffs believe documents responsive to these requests will show that the City has a history, separate and apart from Civil Rights Law § 50-a, of treating certain disciplinary records as private and exempt from disclosure such that the refusal to provide due process now is contrary to law and arbitrary and capricious. Similarly, Plaintiffs believe that the City’s treatment of nonlaw enforcement employees’ records (which never were subject to § 50-a) will show violations of due process, equal protection, and Article 78.
Request 8 is necessary in light of the confusion at the hearing and otherwise as to how Defendants apply key terminology:
▪ Request 8: All documents explaining or defining the terminology used by the City to describe the status of Allegations made against any firefighter, corrections officer, or police officers or explaining or defining the standards of proof applied to Allegations. This includes, for example, the terms used in the Law Department’s July 17, 2020 Letter to the Court at page 3.

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Hon. Katherine Polk Failla July 24, 2020 Page Four
Finally, requests 9 and 10 are necessary to understand what allegations the NYPD and CCRB intends to in fact release: ▪ Request 9: All Unsubstantiated or Non-Final Allegations made against police officers that
are currently tracked or maintained by the NYPD, for the period January 1, 2016 to the present. ▪ Request 10: All Unsubstantiated or Non-Final Allegations made against police officers that are currently tracked or maintained by the CCRB, for the period January 1, 2016 to the present.
With respect to the request for a 30(b)(6) deposition, the main impetus for that request was to obtain “[a] final answer from each of the organizational defendants concerning precisely what materials are contemplated to be disclosed, in what format, where they will be disclosed, and when that disclosure is likely to take place.” (7/22/2020 Hr’g Tr. 83:19-23.) It seemed to Plaintiffs that, in light of the evolving and conflicting answers, the best approach would be to have one or more representatives explain each organizational defendant’s final answers to these questions under oath. On today’s meet and confer, the City indicated that there were no final answers to provide, which reinforces the need for a 30(b)(6) deposition to conclusively determine what Defendants intend to do.
Plaintiffs respectfully request that the Court order Plaintiffs to comply with the propounded document requests and notice of deposition within one week. Thank you for your attention to this matter. We are available, of course, if the Court desires further information.
Respectfully submitted, DLA Piper LLP (US)
/s/ Anthony P. Coles
Anthony P. Coles
cc: Dominique Saint-Fort (via ECF) Rebecca Quinn (via ECF)

 
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DLA Piper LLP (US) 1251 Avenue of the Americas 27th Floor New York, New York 10020-1104 www.dlapiper.com
Anthony Paul Coles T (212) 335-4844 E anthony.coles@us.dlapiper.com
July 24, 2020
VIA ECF
Hon. Katherine Polk Failla United States District Court, Southern District of New York 40 Foley Square New York, NY 10007
Re: Uniformed Fire Officers Association, et al. v. Bill DeBlasio, et al. 20-cv-05441 (KPF)(RWL)
Dear Judge Failla:
We write in response to Christopher Dunn’s letter to the Court of July 23, 2020, and to oppose the application of the New York Civil Liberties Union (“NYCLU”) to modify the temporary restraining order Your Honor issued on July 22, 2020. (See ECF No. 16.)
The Court properly entered a TRO against the NYCLU because it was acting in concert with the Defendants to release Unfounded and Non-Final Allegations affecting 81,000 police officers, and to undermine the rights of those officers. It is immediately apparent that Mr. Dunn’s letter omits any recitation of how the NYCLU obtained these Unfounded and NonFinal Allegations from the Civilian Complaint Review Board (“CCRB”) at warp speed. In light of the Court’s finding that the circumstances include “rather curious timing,” and given that the production of the CCRB records occurred while the parties “were in discussion, hoping to forestall litigation,” that omission by the NYCLU is glaring. (See Transcript of July 22, 2020 court conference (“Tr.”) at 80:8-12.)
Further, Plaintiffs have outstanding discovery to the Defendants to obtain documents and other information relating to the release of the CCRB records to the NYCLU at a pace which “broke land speed records.” (Tr. at 84:2-3.) As the Court already has determined, if the NYCLU carried out its threat to release the Unfounded and Non-Final Allegations, there would “be serious issues that transcend reputation, that affect employment, that affect safety” which are “not speculative and [are] imminent….” (Tr. at 82:9-11). Even worse, as the Court is aware from Plaintiffs’ letter filed earlier today, the Defendants are slow-rolling the production of the discovery in this matter, and have refused to even engage in a substantive “meet and confer” concerning when (or if) the demanded documents will be produced. (See ECF No. 21.) There is no reason to grant the NYCLU’s application to set aside the TRO – which application the NYCLU ironically alleges is in the name of transparency – where the NYCLU and the Defendants seek to shroud their own conduct in secrecy, and have, by all appearances, schemed

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Hon. Katherine Polk Failla July 24, 2020 Page Two
together to try to undermine the collective bargaining rights, constitutional rights and contractual rights of the Plaintiffs. Contrary to Mr. Dunn’s letter, this Court plainly had the authority to bind the NYCLU with its TRO ruling.
The relevant chronology also is devastating to any assertion that the NYCLU and Defendants were acting in good-faith. As confirmed by the Court at the July 22 Conference, the NYCLU propounded its FOIL request on Thursday, July 9, 2020. Defendants then admit that “as of” Monday July 13 the CCRB produced the records of 81,000 police officers to NYCLA. (See ECF No. 7 at 3.) By contrast, a preliminary review of the CCRB’s own website shows that it has open FOIL requests dating from May 2019, and that since July 10, 2020, 50 of the 55 FOIL requests it received remain open, none of which are of the magnitude of the wholesale, indiscriminate document release given to NYCLA. (City of New York, Open Records Requests, https://a860-openrecords.nyc.gov/request/view_all (last visited July 24, 2020)).
After speaking to Mr. Dunn on the record, this Court made a specific finding that a TRO against the NYCLU was necessary to prevent irreparable harm to plaintiffs. This finding was based on Mr. Dunn’s own testimony regarding: (i) information within the NYCLU’s control, received from the CCRB just last week; (ii) the NYCLU’s intention to immediately that information; and (iii) an analysis of the potential impact of the release of that data on plaintiffs and on this litigation. This Court had the authority, as well as the responsibility, to temporarily restrain the NYCLU based upon its finding of potential harm to plaintiffs’ members: the court’s “power to enjoin extends to persons and organizations whose activities present a risk of irreparable harm to petitioner that cannot be alleviated by means other than injunction.” In re Zyprexa Injunction, 474 F. Supp. 2d 385, 427 (E.D.N.Y. 2007), aff’d Eli Lilly & Co. v. Gottstein, 617 F.3d 186 (2d Cir. 2010) (finding persons named in injunction, including those not joined as parties in underlying action, bound by its terms); see also Hunt v. Enzo Biochem, Inc., 904 F. Supp. 2d 337, 347 (S.D.N.Y. 2012) (enjoining non-party to underlying action from using confidential documents obtained in violation of a protective order). The case law upon which the NYCLU relies (much of which considered whether an injunction or restraint encompassed a person or entity not named in the order, including in the context of contempt proceedings) is irrelevant here.1
1 As the court in Zyprexa assessed, Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir.1930), which considered when a nonparty to injunction could be held in contempt, “does not bear on the question [of] who the court may enjoin in the first instance.” In re Zyprexa, 474 F. Supp. 2d at 427. Importantly, the Zyprexa court highlighted that “[t]hose persons named in an injunction are considered ‘parties’ for the purpose of Rule 65(d).” Id. at 419 (citing Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 775 (1994)); see also Havens v. James, 435 F. Supp. 3d 494, 503 (W.D.N.Y. 2020) (Rule 65 binds “the parties to the injunction”). The remaining case law the NYCLU cites is also inapposite. See, e.g., U.S. Pharmacal Corp. v. U.S., 306 F.2d 515, 517 (1st Cir. 1962) (nonparty could not be

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Hon. Katherine Polk Failla July 24, 2020 Page Three
Moreover, Rule 65 applies the scope of a restraining order to those with notice of the order and “other persons who are in active concert or participation with” the bound party, or any of its officers, agents, servants, employees, and attorneys. Fed. R. Civ. P. 65(d)(2). This rule codifies the common-law doctrine that parties “‘may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.’” Eli Lilly & Co. v. Gottstein, 617 F.3d 186, 195 (2d Cir. 2010) (quoting Regal Knitwear Co. v. Nat’l Labor Relations Bd., 324 U.S. 9, 14, 65 S. Ct. 478, 89 L. Ed. 661 (1945)). The NYCLU already has appeared and had its rights adjudged by this Court. And, as this Court found, the NYCLU and the CCRB were acting in concert to render this entire proceeding a nullity and an empty ritual. See Minute Entry, July 22, 2020; see also Tr. at 88:9-19.
With respect to the NYCLU’s First Amendment argument, this Court’s temporary restraining order prevents private parties from acting in concert with Defendants to enable the CCRB and other New York City Defendants to evade the law. Upon the evidence presented during Wednesday evening’s conference, this Court affirmatively found that the NYCLU was acting in concert with the CCRB. “Did I make a finding that you are acting in concert with the defendants on disclosure of this information? I did.” (Tr. at 88:17-19; see also Tr. at 79:13-15 (“. . . I am granting the [TRO], and I am enjoying the defendants and anyone acting in concert with them from publicly disclosing these materials”). The NYCLU fails to cite any case involving a restraint imposed by a court to prevent a party from acting in concert with a government entity to enable the government entity to violate the law, including violating Constitutional rights.
Even if the NYCLU may assert the right to free speech under these circumstances (which it cannot), the Court must balance this interest against Plaintiffs’ rights under the Due Process Clause to notice of their inclusion in the database and an opportunity to contest it. (See ECF No. 10-12 at 13-18 (explaining how dissemination will sufficiently impair the liberty interests of the identified officers so as to warrant due process protections).) The Supreme Court has
held in contempt as aider or abettor of named party absent showing that it was identified with the named party); Herrlein v. Kanakis, 526 F.2d 252, 254 (7th Cir. 1975) (nonparty not named in injunction could not be held in contempt as aider or abettor of named parties absent evidence of named parties’ violation);O & L Assocs. v. Del Conte, 601 F. Supp. 1463, 1464 (S.D.N.Y. 1985) (injunction did not bind unnamed nonparty absent showing of active concert or participation); ONE11 Imports Inc. v. NuOp LLC, No. 16-CV-7197 (JPO), 2016 WL 7338422, at *2 (S.D.N.Y. Dec. 19, 2016) (injunction did not encompass nonparty retailers or distributors not named in the original injunction); Spin Master Ltd. v. 158, No. 18-CV-1774 (LJL), 2020 WL 2766104, at *20 (S.D.N.Y. May 28, 2020) (declining to extend injunction to third parties not before the court and not in privity with the named party); Paramount Pictures Corp. v. Carol Pub. Grp., Inc., 25 F. Supp. 2d 372, 375 (S.D.N.Y. 1998) (injunction did not encompass nonparty retailers and distributers not shown to be in active concert or participation with restrained party).

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Hon. Katherine Polk Failla July 24, 2020 Page Four
expressly approved of balancing free speech rights against other individual rights in other contexts, such as the Sixth Amendment right to a fair trial, a similarly important constitutional interest. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976); In re Application of Dow Jones & Co., Inc., 842 F.2d 603, 608 (2d Cir. 1988) (affirming order restraining trial participants from speaking with press in corruption case where defendants’ right to a fair trial was threatened). Plaintiffs are aware of no case allowing a party to act in concert with a government entity to enable the government entity to violate the law and the Constitutional rights of others. Cf. Nebraska Press Ass’n, 427 U.S. at 561 (“The authors of the Bill of Rights did not undertake to assign priorities as between the First Amendment and Sixth Amendment rights, ranking one as superior to the other.”). Here, there is no alternative to the TRO imposed by this Court, which is the only means for protecting and preserving Plaintiffs’ Constitutional rights, which stand to be violated by the very act contemplated by the NYCLU in the wholesale dumping of the CCRB database in the public realm. Any free speech right of the NYCLU must yield to Plaintiffs’ fragile due process rights, which would be immediately and permanently extinguished by the planned publication. See Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004) (“We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again.”).
Moreover, as this Court acknowledged, the release of the CCRB database by the NYCLU implicates serious safety concerns for Plaintiffs’ members. Tr. at 82:8-12 (“I believe there to be serious issues that transcend reputation, that affect employment, that effect safety, and I am accepting those harms as not speculative and imminent for purposes of today’s proceeding.”) Tellingly, the NYCLU does not suggest any alternatives to the injunction.
Accordingly, this Court’s Order does not constitute an improper prior restraint on the NYCLU’s First Amendment rights.
Respectfully submitted,
DLA Piper LLP (US)
/s/ Anthony P. Coles Anthony P. Coles
cc: All counsel of record (via ECF) Failla_NYSDChambers@nysd.uscourts.gov

 
 Case 1:20-cv-05441-KPF Document 23 Filed 07/25/20 Page 1 of 4

JAMES E. JOHNSON Corporation Counsel

The City of New York
LAW DEPARTMENT
LABOR & EMPLOYMENT LAW DIVISION
100 Church Street, 2nd Floor NEW YORK, NEW YORK 10007

Rebecca G. Quinn
Phone: (212) 356-4382 Fax: (212) 356-2439
Email: rquinn@law.nyc.gov

July 25, 2020
BY ECF Hon. Katherine Polk Failla United States District Court Southern District of New York 40 Foley Square New York, NY 10007
Re: Uniformed Fire Officers Association, et al. v. Bill DeBlasio, et al. 20-cv-05441 (KPF) (RWL)
Dear Judge Failla:
We write today in response to the letter filed last night by plaintiffs concerning the Court’s authority to enjoin the New York Civil Liberties Union (“NYCLU”). While the letter purports to address the NYCLU’s letter, there are so many legal and factual misstatements regarding the City’s conduct and the law governing this case that we feel compelled to submit a response, lest the Court be mislead by plaintiffs’ empty and unsupported rhetoric.
First, we wish to dispel the false notion – once and for all – that the timing of the disclosure of Civilian Complaint Review Board (“CCRB”) data to the NYCLU was the result of some untoward conspiracy between the City of New York, CCRB and the NYCLU. The only thing untoward here is the sleight of hand in plaintiffs’ recapitulation of the timeline to the Court. Following the death of George Floyd, a nationwide protest and advocacy effort arose to demand greater accountability in matters of police misconduct. In New York state, one of the key barriers identified by government officials was the protections New York State Civil Rights Law Section 50-a provided against public disclosure of police disciplinary records under the New York State Freedom of Information Law (“FOIL”). In order to ensure greater transparency and accountability, the New York State legislature passed a law repealing the protections of Civil

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Rights Law Section 50-a, which Governor Cuomo signed into law, requiring these records to be disclosable under FOIL absent a FOIL exception.
It was unambiguously the intent of the Legislature and the Governor to allow for immediate public access into past records of police misconduct, as well as allow for greater public access to unsubstantiated allegations and to pending proceedings.1 Indeed, the repeal represented a mandate by the state to the City and other municipalities to allow public access to this information without any further obstacle and delay, given the identified importance of such access to police reform efforts.
The repeal was signed on June 12, 2020 and the City agencies that had applicable records, including the CCRB, all separately began to determine ways that they could provide the public the information and data within their possession, which included unsubstantiated, exonerated, and unfounded cases, that would be subject to FOIL. The CCRB immediately began efforts to provide the information that would now be disclosable under FOIL to the public, to fulfill the legislature’s mandate. These agencies immediately began receiving FOIL requests. Indeed, CCRB received more FOIL requests in the weeks following the repeal then they had almost the entire previous year. They understood there would continue to be heavy immediate demand for this information on a large scale by individuals and organizations and that prompt compliance with such requests was critical.
The CCRB worked, over the course of several weeks, with its own staff reviewing applicable legal and technical issues to create its database. Upon completion of this work the CCRB publicly announced at this Board meeting that the data would be available shortly. Following this announcement, various individuals and organizations inquired about how to gain access to the data. The NYCLU is the only organization that submitted a FOIL request for the entire database. Prior to that, the CCRB had provided subsets of the database to various organizations, including ProPublica, which received information about 4,059 NYPD officers.2 The CCRB was able to respond quickly because it had been working for weeks following the repeal of 50-a to figure out how best to efficiently provide access to this information.
None of this is even remotely unlawful or conspiratorial. Plaintiffs’ reliance on some prior FOIL requests not answered for an extended period is completely misplaced. As can be seen above, the CCRB had been preparing for weeks for a request such as the NYCLU’s because the June 12, 2020 repeal of 50-a created a legislative mandate for these sorts of requests to be
1 In his press release upon signing the repeal of 50-a, Governor Cuomo noted “The current law prevents access to both records of the disciplinary proceedings themselves and the recommendations or outcomes of those proceedings, leading to records of complaints or findings of law enforcement misconduct that did not result in criminal charges against an officer almost entirely inaccessible to the public. Repealing 50-a will allow for the disclosure of law enforcement disciplinary records, increasing transparency and helping the public regain trust that law enforcement officers and agencies may be held accountable for misconduct.” See https://www.governor.ny.gov/news/governorcuomo-signs-say-their-name-reform-agenda-package (last visited July 25, 2020). Both unsubstantiated and pending cases were included amongst the information to be made available. 2 The ProPublica request was for the entire CCRB officer history for every officer with at least one substantiated case. The officer histories included unsubstantiated, exonerated, and unfounded allegations. This data was sent by the CCRB on June 30, 2020.
2

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honored. References to unexpected requests when Civil Rights Law Section 50-a was in existence are utterly irrelevant and, indeed, misleading.
Plaintiffs’ ridiculous conspiracy theory is also undermined by the fact that the City is not at all breaking the law or in any way violating its employees’ rights. Indeed, the City has been acting to comply with the law, namely FOIL, in light of the repeal of Civil Rights Law Section 50-a. Much like their factual assertions, each and every one of the supposed “rights” invoked by plaintiffs to claim that they “outweigh” the First Amendment rights invoked by NYCLU are, in fact, weak and often contradicted by binding prior cases directly on point:
• Sixth Amendment Rights – it is well-settled law that the Sixth Amendment, which provides a right attendant to criminal proceedings, does not apply to administrative proceedings such as disciplinary investigations by the City, as employer, against its employees. See e.g. Madera v. Board of Education, 386 F.2d 778, 780 (2d Cir. 1967); Nonnenmann v. City of New York, Docket No. 02 Civ. 10131 (JSR) (AJP), 2004 U.S. Dist. LEXIS 8966, *80 (S.D.N.Y. 2004) (“NYPD disciplinary proceedings [are] not criminal prosecutions.”)
• Fourteenth Amendment Due Process – In this case, plaintiffs claim disclosure of unfounded or pending disciplinary claims would violate their constitutionally protected liberty interest by damaging their reputation. However, the disciplinary process in place satisfies those due process concerns. See generally. Segal v. City of New York, 459 F.3d 207 (2d. Cir. 2006). Moreover, plaintiffs’ analysis completely ignores the important “government interest . . . to execute and explain its personnel decisions”, both positive and negative. Id. Moreover, with respect to unsubstantiated, unfounded or pending allegations, there is no “stigma plus” present that would allow for a due process claim. Martz v. Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994). The absurdity of plaintiffs’ positon here is evident. Saying the City is acting unlawfully by publishing disciplinary trial calendars is akin to saying that the Court publishing is criminal dockets is unconstitutional. It is absurd to suggest that there should be greater protection against dissemination of disciplinary trials than if the employee were indicted in a federal case, in which the details of the allegations would be publicly available via the Court. Thus, it is clear plaintiffs’ members’ due process rights are not implicated in the release of data pursuant to FOIL.
• Contractual and Collective Bargaining Rights – Plaintiffs’ arguments that dissemination of information may impair their collective bargaining rights ignore the fact that police discipline and the dissemination of information related to that discipline is not a subject of collective bargaining. See Patrolmen's Benevolent Assn. of City of N.Y., Inc. v. New York State Pub. Empl. Relations Bd., 6 N . Y . 3d 563 (2006). Even if the repeal of FOIL and the statutory mandate to disclose that came with it changed a matter that was covered under collective bargaining, the City is obligation would be to bargain with the union over the impact of that change, not to refuse to comply with the law until the Union gives its say-so. Thus, dissemination pursuant to FOIL does not impair collective bargaining rights, as the Union maintains its ability to demand impact bargaining.
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Plaintiffs, as the parties seeking injunctive relief here, have the burden of showing a strong likelihood of success on their legal claims and providing their factual claims with clear and convincing evidence. At the very least, however, one would expect plaintiffs to be honest with the Court about the underlying facts and do diligent enough legal research to adequately address the binding law on point with this Court. In their letter, plaintiffs did neither, leaving defendants with no choice but to respond in order to bring these facts and legal points to the Court’s attention.
We thank the Court for its consideration of these issues.

cc: BY ECF Anthony Coles Courtney Saleski Michael Hepworth DLA Piper Attorney for Plaintiffs
Christopher Dunn New York Civil Liberties Union

Respectfully submitted,
/s/ Rebecca G. Quinn Assistant Corporation Counsel
/s/ Dominique Saint-Fort Assistant Corporation Counsel

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 Case 1:20-cv-05441-KPF Document 24 Filed 07/25/20 Page 1 of 6

JAMES E. JOHNSON Corporation Counsel

The City of New York
LAW DEPARTMENT
LABOR & EMPLOYMENT LAW DIVISION
100 Church Street, 2nd Floor NEW YORK, NEW YORK 10007

Rebecca G. Quinn
Phone: (212) 356-4382 Fax: (212) 356-2439
Email: rquinn@law.nyc.gov

July 25, 2020
BY ECF Hon. Katherine Polk Failla United States District Court Southern District of New York 40 Foley Square New York, NY 10007
Re: Uniformed Fire Officers Association, et al. v. Bill de Blasio, et al. 20-cv-05441 (KPF) (RWL)
Dear Judge Failla:
Defendants submit this letter in opposition to Plaintiffs’ premature and baseless letter motion for discovery, filed on July 24, 2020, Dkt. #21.
Plaintiffs’ claim, both in emails to Defendants and now in two letters to the Court (Dkt. #21, Dkt. #22), that we will not promptly address their discovery requests and seek to delay the proceedings is utterly false, as Plaintiffs well know. That Defendants properly chose not to capitulate to Plaintiffs’ largely improper discovery requests is not a legitimate basis for Plaintiffs to seek blanket relief from the Court. To be clear, the Court set a discovery deadline – August 7, 2020 – and Defendants endeavor to comply with that deadline. But flouting the Court’s Order, Plaintiffs now effectively demand a shorter discovery deadline of July 31, 2020. The Court must reject that bald request. Further, Plaintiffs repeatedly misrepresent to the Court that Defendants have refused to cooperate with them and refuse to provide responses to their requests. In fact, Defendants did not wait for a formal, final request from Plaintiffs to begin the process of obtaining relevant, responsive, non-privileged materials. As Plaintiffs note in their letter motion, Defendants stated this in our meet and confer telephone call, held at 11:45 a.m. on July 24, 2020, and assured Plaintiffs that the morning immediately after the July 22, 2020 conference, we began seeking relevant, responsive and non-privileged materials in accordance with the Court’s Order. Defendants have made abundantly clear our interest in expeditiously completing relevant

Case 1:20-cv-05441-KPF Document 24 Filed 07/25/20 Page 2 of 6
discovery, in an email exchange on July 23, 2020, after Plaintiffs accused Defendants of “slowroll[ing].”1 That email, conspicuously missing from Plaintiff’s Exhibit 3, is annexed hereto, as Exhibit A. Plainly, given the Court’s issuance of a Temporary Restraining Order, Defendants do not seek to “slow-roll” discovery. Plaintiffs’ impertinent illogic aside, it simply is imperative that the present disruption to the proper release of records to the public be ended, particularly with the repeal of New York Civil Rights Law §50-a. Critically, the public interest – and impetus – that led to that repeal demands no less.
Defendants were ordered to, and did, meet and confer with Plaintiffs. To protect Defendants’ rights to assert all appropriate privileges, to comport with the Federal Rules of Civil Procedure’s favoring of proportionality, and to proceed in an orderly fashion, Defendants properly insisted upon final and formal discovery requests from Plaintiffs. As shown in the email exchanges in Exhibit 3 to Plaintiffs’ letter motion, Plaintiffs repeatedly described their requests as “draft,” “proposed,” and “subject to change.” Indeed, Plaintiffs sent Defendants three such drafts. The last draft was sent an hour before our scheduled call on July 24, 2020, which contained for the first time, 30(b)(6) deposition demands for witnesses from all Defendants, including the City at large. See Exhibit B. Defendants would expect, based on the Court’s stated request, that Plaintiffs would consider discovery at this stage highly limited in scope, and would accordingly modify their discovery demands. See July 22, 2020 Conference Tr., at 91. They clearly did not. While Defendants did not anticipate demands limited to only the two items of discovery mentioned by the Court, we did expect demands would remain within the scope of those subject areas. And we expected that Plaintiffs’ discovery requests would not be a moving target, subject to change at their whim.
As noted by Plaintiffs, accurately for once, during the parties’ July 24th meet and confer, Defendants declined to detail our view on each request as Plaintiffs improperly desired, assuring them instead that we would provide our formal responses to their newly converted formal requests in writing. That is eminently proper. Plaintiffs’ aggrieved howl to the contrary is at odds with Rule 34 of the Federal Rule of Civil Procedure. Defendants stated during the call that, without waiving our right to interpose formal written objections, their first three requests fell within the scope of the Court’s order. We stated that the fourth request was proportionally overbroad in its request for “all documents concerning the release to the public of Disciplinary Records by the City…” We expressed that the remaining requests were proportionally overbroad, particularly those that requested records dating back to January 2016 (Requests 5, 6, 9 and 10). Indeed, Plaintiffs seek four years of records. Civil Rights Law §50-a was repealed approximately six weeks ago, but it appears clear that Plaintiffs did not internalize the Court’s directive concerning the scope of discovery. After the call, in writing, we assured Plaintiffs that Defendants would respond, in writing, to their discovery requests by early next week. Somehow, despite the deadlines fixed by the Court and Defendants’ repeated assurances against any desired delay, this is not soon enough for Plaintiffs, who have prematurely pressed a decided non-issue to gain the Court’s immediate intervention.
Given this, and without waiving Defendants’ right, under Rule 34,e to serve formal discovery responses and objections, Defendants’ position on Plaintiffs’ requests is outlined below. As stated above, Defendants object to Plaintiff’ request for an order that
1 Plaintiffs again accuse Defendants of “slow rolling” in their letter regarding the TRO against NYCLU. (Dkt. #22).
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Defendants respond to their requests by July 31, 2020, as the Court already has set a discovery deadline of August 7, 2020.
REQUEST NO. 1. All Disciplinary Records publicly released by the CCRB, whether by FOIL or otherwise, for the period June 12, 2020 to the present.
Response to Request No. 1: Defendants agree to produce relevant, responsive and nonprivileged documents.
REQUEST NO. 2: All documents, including but not limited to communications with NYCLU, concerning the release of Disciplinary Records by the CCRB, or any of the Defendants, for the period June 12, 2020 to the present.
Response to Request No. 2: Defendants agree to produce relevant, responsive and nonprivileged documents.
REQUEST NO. 3. For the period July 7, 2020 to the present, all documents and communications between CCRB and NYCLU, and any internal City communications, concerning the release to NYCLU of Disciplinary Records.
Response to Request No. 3: Defendants agree to provide relevant, responsive and nonprivileged documents.
REQUEST NO. 4. All documents concerning the release to the public of Disciplinary Records by the City, including but not limited to documents concerning the format, manner of release, scope, or type of the Disciplinary Records to be released, for the period June 12, 2020 to the present.
Response to Request No. 4: Defendants object to this request on the basis that “all documents concerning the release to the public of Disciplinary Records by the City” is not proportional to the needs of the case under Rule 26(b)(1). Defendants propose disclosing the format, manner of release, and type of Disciplinary Records to be released as of July 15, 2020, the date the stay in state court was entered, in a form that discloses the planned disclosure as it existed at that time. Any documents regarding proposed plans before that date are not relevant to Plaintiff’s need for a preliminary injunction and may be subject to the attorney-client privilege.
REQUEST NO. 5. All documents and communications relating to the denial, in whole or in part, of a public records request for Disciplinary Records on grounds other than the application of New York Civil Rights Law § 50-a, such as where disclosure of the requested records would constitute an unwarranted invasion of privacy or pose a risk to the safety of any person, such as, for example, those referenced in Hughes Hubbard & Reed LLP v. Civilian Complaint Review Board, 53 Misc. 3d 947, 950 (Sup. Ct., Kings Cnty. 2016), and Luongo v. Records Access Officer, 150 A.D.3d 13, 16 (1st Dep’t 2017), for the period January 1, 2016 to the present.
Response to Request No. 5: Defendants object to this request on the basis that it is not proportional to the needs of the case under Rule 26(b)(1), as it seeks all documents and
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communications from January 1, 2016 to the present. Plaintiffs intend this discovery to aid in establishing their Article 78 claim that it was longstanding practice of the Defendants to protect the information it now intends to release, despite the repeal of § 50a. Plaintiff has cited to two cases in an attempt to establish their claim and do not need documents to argue their legal point.
REQUEST NO. 6. All documents and communications concerning or reflecting (a) the release to the public of Unsubstantiated or Non-Final Allegations against employees of the City other than law enforcement officers, or (b) the denial, in whole or in part, of a public records request encompassing Unsubstantiated or Non-Final Allegations against City employees other than law enforcement officers on the ground that disclosure of the requested records would constitute an unwarranted invasion of privacy, or pose a risk to the safety to any person, for the period January 1, 2016 to the present.
Response to Request No. 6: Defendants object to this request on the basis that it is not proportional to the needs of the case under Rule 26(b)(1), as it seeks all documents and communications from January 1, 2016 to the present. Plaintiffs likely intend to use this discovery to establish their Equal Protection claim and as stated above regarding Request No. 5, this is a legal argument that does not require documents at the preliminary injunction stage. Plaintiffs have requested a vast amount of records (“All documents and communications”) dating back to the arbitrary and distant date of January 1, 2016.
REQUEST NO. 7. All documents concerning protocols, policies, or other guidance developed by the Defendants relating to the privacy of personnel records of City employees.
Response to Request No. 7: Defendants object to this request on the basis that it is not proportional to the needs of the case under Rule 26(b)(1). This request is overly-broad and outside the scope of discovery. Plaintiffs have argued that the records they seek to enjoin the release of are subject to other legal protections aside from § 50-a. To meet their burden on that claim, Plaintiffs must cite to these sources of law. Plaintiffs have not demonstrated a need for documents from the City to establish this legal argument. Additionally, documents regarding protocols, polices or guidance related to the privacy of City employee’s personnel records may be subject to the attorney-client privilege
REQUEST NO. 8. All documents explaining or defining the terminology used by the City to describe the status of Allegations made against any firefighter, corrections officer, or police officers or explaining or defining the standards of proof applied to Allegations. This includes, for example, the terms used in the Law Department’s July 17, 2020 Letter to the Court at page 3.
Response to Request No. 8: Defendants object to this request on the grounds that it is vague and ambiguous, particularly in the use of the term “status of Allegations.” Defendants also object to this request on the basis that it is not proportional to the needs of the case under Rule 26(b)(1), particularly on the grounds that it requests “All documents explaining or defining…” This would cover a vast amount of documents which, if produced, would be far less helpful than Defendants simply providing definitions of the categories of documents Plaintiffs seek to enjoin from being released.
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Nonetheless, Plaintiffs should be in a better position than Defendants to define what specific materials for which they seek an order enjoining their release.in.
REQUEST NO. 9. All Unsubstantiated or Non-Final Allegations made against police officers that are currently tracked or maintained by the NYPD, for the period January 1, 2016 to the present.
Response to Request No. 9: Defendants object to this request on the basis that it is not proportional to the needs of the case under Rule 26(b)(1). This request is overly-broad, requests documents dating back to the distant and arbitrary date of January 1, 2016, is outside the scope of discovery and not relevant to Plaintiffs’ case.
REQUEST NO. 10. All Unsubstantiated or Non-Final Allegations made against police officers that are currently tracked or maintained by the CCRB, for the period January 1, 2016 to the present.
Response to Request No. 10: Defendants object to this request on the basis that it is not proportional to the needs of the case under Rule 26(b)(1). This request is overly-broad, requests documents dating back to the distant and arbitrary date of January 1, 2016 and is outside the scope of discovery and not relevant to Plaintiffs’ case.
Demand for 30(b)(6) Deposition: “Please take notice that, in accordance with the July 22, 2020, order of Court authorizing Plaintiffs to take expedited discovery in advance of the hearing on their motion for a preliminary injunction, and pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, Plaintiffs, by and through their undersigned attorneys, shall take the deposition upon oral examination, to be recorded stenographically, of Defendants the City of New York (the “City”), the Fire Department of the City of New York (“FDNY”), the New York City Department of Correction (“DOC”), the New York City Police Department (“NYPD”), and the Civilian Complaint Review Board (“CCRB”) (collectively, the “Organizational Defendants”)…”
Response to Demand for 30(b)(6): Defendants object to this request on the basis that it is not proportional to the needs of the case under Rule 26(b)(1), particularly given the discovery deadline of August 7, 2020. Such a vast request for depositions is in no way feasible given the expedited nature of discovery in this case. Moreover, the topics for which Plaintiffs seek disclosure are duplicative of Request Nos. 1-4, 7-10, and thus the objections to those requests are incorporated by reference. The expedited discovery in this case is conducive to either paper discovery or discovery through depositions, but not both.
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In short, the altogether manufactured discovery crisis instigated by Plaintiffs has no basis other than to obligate Defendants to redirect our limited time and resources to respond. We thank the Court for its consideration of the foregoing.

Respectfully submitted,

cc: Anthony Coles (by ECF) DLA Piper Attorney for Plaintiffs

/s/ Rebecca G. Quinn Assistant Corporation Counsel
/s/ Dominique Saint-Fort Assistant Corporation Counsel

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 Case 1:20-cv-05441-KPF Document 25 Filed 07/26/20 Page 1 of 4

July 26, 2020

DLA Piper LLP (US) 1251 Avenue of the Americas 27th Floor New York, New York 10020-1104 www.dlapiper.com
Anthony Paul Coles T (212) 335-4844 E anthony.coles@us.dlapiper.com

Hon. Katherine Polk Failla United States District Court
for the Southern District of New York 40 Foley Square New York, NY 10007

Re: Uniformed Fire Officers Association, et al. v. Bill de Blasio, et al. No. 20-cv-05441 (KPF) (RWL)

Dear Judge Failla:

We submit this Reply Letter in response to Defendants’ Letter of July 25 concerning discovery. (ECF No. 24.)
We also request a conference to determine what efforts the City has made to respond to the Court’s inquiry made at the July 22 Hearing to identify all FOIL requests for Disciplinary Records that the City has answered in addition to the NYCLU request. (July 22, 2020 Hearing Transcript (“Tr.”) at 11, 16.) Prior to the Hearing, Defendants circulated a proposed discovery request demanding that the City identify all FOIL requests it has answered since June 12, 2020. As the Court knows, the City said it would not respond until “early next week.” (ECF No. 21, Ex. 3.) The reason for the City’s delay now seems clear. Yesterday, the City buried a reference in its letter to the Court on the NYCLU issue stating that it had responded to one FOIL request from ProPublica, a media organization, on June 30. (ECF No. 23 at 2 & n.2.) Today, ProPublica announced that it had already uploaded allegations relating to 4000 officers to the internet. The vast majority of the allegations are admittedly unsubstantiated, and none of them have been finally adjudicated by the NYPD. It is simply outrageous that this information has not been provided to Plaintiffs but is now surfacing on internet databases.
Defendants’ Request No. 1
Request No. 1 seeks immediate identification and disclosure of all CCRB disclosures of Disciplinary Records over the past six weeks. Defendants still have not identified or provided Plaintiffs, or this Court, complete information as to what Disciplinary Records the City itself has produced in response to FOIL requests. Plaintiffs request that the Court order the City to identify and provide the demanded documents in response to Request 1 by 12:00 p.m. on Monday, July 27.
Plaintiffs also ask the Court to order the City to produce all communications, including phone records, that directly or indirectly concern ProPublica’s FOIL request, or ProPublica’s release of documents over this weekend, by 6:00 p.m. on Monday, July 27. Yesterday’s belated disclosure by Defendants appears deeply suspicious in light of Defendants’ failure to identify the ProPublica FOIL response to the Court at the July 22 Hearing. Plaintiffs are entitled to conduct

Case 1:20-cv-05441-KPF Document 25 Filed 07/26/20 Page 2 of 4
Hon. Katherine Polk Failla July 26, 2020 Page 2
an expedited inquiry into the circumstances in view of the TRO against Defendants (and those acting in concert with them) that is in effect, as well as appropriate remedies to prevent irreparable harm to Plaintiffs and preserve the status quo. (ECF No. 23 at 2 & n.2.) Defendants’ Requests Nos. 2-3
These two Requests concern the CCRB’s release of Disciplinary Records and were authorized by the Court. (Tr. at 83-84.) But the Defendants commit to producing only “relevant, responsive, non-privileged” documents—whatever that means. (ECF No. 24.) We request that the Defendants be directed to produce the demanded documents without amorphous conditions. To the extent a privilege exists, a contemporaneous privilege log should be produced. A “hedged” response to these requests is not appropriate. Defendants’ Request No. 4
This Request demands documents relating to Defendants’ identification of which Disciplinary Records they plan to release after the repeal of § 50-a. The request is limited to the period June 12 to the present. Defendants propose to release only documents reflecting the Disciplinary Records to be released “as of July 15.” But Defendants show no justification for denying discovery of documents concerning options or decisions made prior to or post-July 15.
At the July 22 Hearing, Defendants admitted that “[t]here is still some discussion that is being—there’s still some discussion about it, as to how specifically—or, excuse me, what specifically will be disclosed.” (Tr. at 16-17.) Defendants are entitled to explore the reasons why the City is choosing to release certain categories of documents, and not others, and why the City apparently is reversing a longstanding practice of making individualized and particularized determinations before producing any personnel records, and instead engaging in a massive data release with no individualized or particularized review. (See Tr. at 12-15.)
Defendants’ primary objection is that the request is not “proportional to the needs of the case.” That argument fails because the Request seeks only information from June 12, 2020 to the present, and, as described, bears directly on Plaintiffs’ claims, and is consistent with the already approved scope of discovery identified at the Hearing. Defendants’ Requests Nos. 5-7
These requests are relevant to show that the City has a longstanding practice of maintaining the privacy of Unsubstantiated and Non-Final Allegations separate and apart from § 50-a, as well as of maintaining the privacy of such records for other employees who were not covered by § 50-a. At least two court opinions explicitly reference the existence of that policy as to police records. See Hughes Hubbard & Reed LLP v. Civilian Complaint Review Board, 53 Misc. 3d 947, 950 (Sup. Ct., Kings Cnty. 2016); Luongo v. Records Access Officer, 150 A.D.3d 13, 16 (1st Dep’t 2017). The requested documents are direct evidence of this policy, and the reasons for it, and for any recent arbitrary reversal of that policy.
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Hon. Katherine Polk Failla July 26, 2020 Page 3
The time frame was reasonably based on the date of the two cited opinions, and the information is plainly material to Plaintiffs’ claims. Nor has the City offered to stipulate as to the existence of the policy—a possible alternative to explore—it simply seeks to deny us relevant evidence. Defendants’ Request No. 8
This request seeks Defendants’ definitions of the terminology it uses for characterizing Disciplinary Records and is directed in part to the terminology used by Defendants in their July 17 letter to the Court. (ECF No. 7 at 3.) For instance, that letter states that certain non-final determinations are in fact “substantiated,” even if they are subsequently proven to be untrue— Plaintiffs must be able to analyze that tautology. Defendant’s letter also states that the CCRB intends to release “ultimately unfounded, unsubstantiated or exonerated” Disciplinary Records. Plaintiffs are entitled to understand how the City is using these terms, and if they are using them consistently. Defendant’s primary objection is that the request is “vague and ambiguous.” It is not; what is vague and ambiguous is Defendants’ definition and usage of these terms, and discovery of that is proper. Defendants’ Requests Nos. 9-10
These requests seek the Disciplinary Records, including pre-June 12 settlements, that the Defendants plan to release to the public. But the Defendants want to conceal these very documents from Plaintiffs, even though they have had no difficulty promptly and voluntarily providing similar information to NYCLU, ProPublica, and potentially others. Understanding and reviewing the documents to be produced is at the core of each of Plaintiffs’ claims and will directly inform the proof of each cause of action. Concealing these documents would impair Defendants’ ability to show harm flowing from their planned indiscriminate release. Defendants argue that the documents are “not relevant,” an objection that should not withstand any serious scrutiny, particularly in light of the disclosures already made by the City. Defendants’ Rule 30(b)(6) Deposition
Plaintiffs have identified the specific deposition topics to be covered, which are all within the scope of matters raised at the Hearing. Plaintiffs are entitled to sworn, final answers as to the Defendants’ contemplated release of data, as well as matters relating to the CCRB, to which we now add ProPublica. The deposition is necessary for sharpening the issues for trial, especially in light of the conflicting and evolving answers provided to date by Defendants. See Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 268 (2d Cir. 1999) (“Under Rule 30(b)(6), when a party seeking to depose a corporation announces the subject matter of the proposed deposition, the corporation must produce someone familiar with that subject.” (emphasis added)).
We appreciate the Court’s attention to the evolving circumstances over the weekend and its time.
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Hon. Katherine Polk Failla July 26, 2020 Page 4

Respectfully submitted,

Anthony P. Coles

cc: All counsel of record (via ECF) failla_NYSDChambers@nysd.uscourts.gov

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 Case 1:20-cv-05441-KPF Document 26 Filed 07/27/20 Page 1 of 2

JAMES E. JOHNSON Corporation Counsel

The City of New York
LAW DEPARTMENT
LABOR & EMPLOYMENT LAW DIVISION
100 Church Street, 2nd Floor NEW YORK, NEW YORK 10007

Rebecca G. Quinn
Phone: (212) 356-4382 Fax: (212) 356-2439
Email: rquinn@law.nyc.gov

July 27, 2020
BY ECF Hon. Katherine Polk Failla United States District Court Southern District of New York 40 Foley Square New York, NY 10007
Re: Uniformed Fire Officers Association, et al. v. Bill DeBlasio, et al. 20-cv-05441 (KPF) (RWL)
Dear Judge Failla:
We write in response to Plaintiffs’ letter dated July 26, 2020, Dkt. # 25.
In that letter, Plaintiffs accuse Defendants of delaying their responses to Plaintiffs’ discovery requests essentially to permit ProPublica to post information it received from the CCRB in response to a June 30, 2020 FOIL request. This is false. Defendants informed the Court at the July 22, 2020 hearing that CCRB had responded to FOIL requests, aside from the response to NYCLU, since the repeal of New York Civil Rights Law § 50-a on June 12, 2020. See July 22, 2020 Tr., 12:2-7 (“Since the repeal of 50-a, there have been a number of records that have been disclosed by the CCRB.”). Defendants also informed the Court that they were not aware, at that time, who aside from NYCLU had received records from CCRB, but indicated that the CCRB had responded to FOIL requests other than that of NYCLU. Id. at 12:16-21 (“I believe there have been other FOIL requests in the interim that have been responded to. I cannot say specifically, but I am aware that there have been—to whom they have been made by and to whom the information was disclosed, but there have been other FOIL requests and responses.”) Indeed, given this, the Court ordered discovery into this area, and Plaintiffs served a discovery request concerning what other disclosures had been made following the repeal of §50a. See Plaintiff’s Discovery Requests, Demand No. 1, Dkt. # 21-1. As stated in Defendants July

Case 1:20-cv-05441-KPF Document 26 Filed 07/27/20 Page 2 of 2
25, 2020 letter response, Defendants agree to produce relevant, responsive and non-privileged documents in response to that request. Remarkably, Plaintiffs assert that this is insufficient.
In the interim, when Defendants learned that the CCRB had provided ProPublica with materials in response to its FOIL request, they informed the Court in their July 25, 2020 letter. See Dkt. # 23. Defendants provided this information to dispel the notion that there was any secret, orchestrated plan with NYCLU to release records. Indeed, the CCRB responded to other FOIL requests, and did so prior to their response to NYCLU. As noted in Defendants’ July 25, 2020 letter, § 50-a was repealed on June 12, 2020 and Defendants had been in the process of preparing certain disciplinary records for release. Presumably, news organizations and others interested in the repeal of § 50-a were eager to obtain such records. The CCRB did not need to orchestrate a plan to release the records with NYCLU, ProPublica, or any other individual or entity, as they could have legally released the records themselves. Plaintiffs filed their Temporary Restraining Order application on July 15, 2020, over a month since the repeal of § 50-a. By this time, many records had already been properly disclosed via FOIL. If Plaintiffs wanted to prevent the release disciplinary records following the repeal of § 50-a, they should have made a prompt application for a Temporary Restraining Order. It is unreasonable to expect the City to unwind every act it did in the more than 30 days that the status quo permitted FOIL disclosure following the repeal of § 50-a.
Finally, Defendants reserve their right to object to Plaintiffs’ new discovery demands including Plaintiffs’ request that Defendants respond to their discovery requests by noon and/or 6:00 p.m. today.
Respectfully submitted,
/s/ Rebecca G. Quinn Assistant Corporation Counsel
/s/ Dominique Saint-Fort Assistant Corporation Counsel
cc: Anthony Coles (by ECF) DLA Piper Attorney for Plaintiffs
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 Case 1:20-cv-05441-KPF Document 39 Filed 07/29/20 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Correction Officers’ Benevolent Association of the City of New York; Police Benevolent Association of the City of New York, Inc.; Sergeants’ Benevolent Association; Lieutenants’ Benevolent Association; Captains’ Endowment Association; and Detectives’ Endowment Association,

Petitioners/Plaintiffs,

-against-
Bill de Blasio, in his official capacity as Mayor of the City of New York; the City of New York; Fire Department of the City of New York; Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York; New York City Department of Correction; Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department; the New York City Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board; and the Civilian Complaint Review Board,

Case No. 1:20-cv-05441

Respondents/Defendants.

NOTICE OF INTERLOCUTORY APPEAL Plaintiffs Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Correction Officers’ Benevolent Association of the City of New York, Police Benevolent Association of the City of New York, Inc., Sergeants’ Benevolent Association, Lieutenants’ Benevolent Association, Captains’ Endowment Association, and Detectives’
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Case 1:20-cv-05441-KPF Document 39 Filed 07/29/20 Page 2 of 2
Endowment Association hereby appeal to the United States Court of Appeals for the Second Circuit from the district court’s July 29, 2020 order (ECF No. 38) modifying its July 22, 2020 injunction to allow the New York Civil Liberties Union to publicly release police disciplinary records.

Dated: July 29, 2020 New York, NY

Respectfully submitted,
/s/ Anthony P. Coles Anthony Coles DLA PIPER LLP (US) 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 335-4844 Facsimile: (212) 884-8644 Anthony.Coles@dlapiper.com
Attorney for Plaintiffs

2

 
 Case 1:20-cv-05441-KPF Document 42 Filed 07/29/20 Page 1 of 31

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Correction Officers’ Benevolent Association of the City of New York, Inc.; Police Benevolent Association of the City of New York, Inc.; Sergeants Benevolent Association; Lieutenants Benevolent Association; Captains Endowment Association; and Detectives’ Endowment Association,
Petitioners/Plaintiffs,
-against-
Bill de Blasio, in his official capacity as Mayor of the City of New York; the City of New York; Fire Department of the City of New York; Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York; New York City Department of Correction; Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department; the New York City Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board; and the Civilian Complaint Review Board,
Respondents/Defendants.

Case No. 1:20-cv-05441-KPF

MEMORANDUM OF LAW OF PROPOSED INTERVENOR COMMUNITIES UNITED FOR POLICE REFORM IN SUPPORT OF MOTION TO INTERVENE

Baher Azmy

Alex V. Chachkes

Darius Charney

Rene Kathawala

Guadalupe V. Aguirre

Margaret Wheeler-Frothingham

CENTER FOR CONSTITUTIONAL RIGHTS

ORRICK, HERRINGTON & SUTCLIFFE LLP

666 Broadway

51 West 52nd Street

New York, New York 10012

New York, New York 10019

Tel: (212) 614-6464

Tel: (212) 506-5100

Fax: (212) 506-5151

Attorneys for Proposed Intervenor

Case 1:20-cv-05441-KPF Document 42 Filed 07/29/20 Page 2 of 31 TABLE OF CONTENTS Page
I. PRELIMINARY STATEMENT ....................................................................................... 1 II. FACTUAL BACKGROUND ............................................................................................ 3
A. CPR’s organizational mission................................................................................ 3 B. Repeal of § 50-a ..................................................................................................... 4 C. Plaintiffs’ lawsuit ................................................................................................... 6 III. ARGUMENT ..................................................................................................................... 8 A. CPR is entitled to intervene of right. ..................................................................... 8
1. The motion is timely. ................................................................................. 9 2. CPR has several legally protectable interests at stake in this
litigation. .................................................................................................. 10 3. CPR’s interest will be impaired if any of Plaintiffs’ claims
succeed. .................................................................................................... 16 4. CPR’s interests are not adequately protected........................................... 20 B. Alternatively, CPR should be allowed permissive intervention. ......................... 22 IV. CONCLUSION................................................................................................................ 25
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TABLE OF AUTHORITIES Page(s)
Cases “R” Best Produce, Inc. v. Shulman-Rabin Mktg. Corp.,
467 F.3d 238 (2d Cir. 2006).................................................................................................9, 22 Brennan v. N.Y.C. Bd. of Educ.,
260 F.3d 123 (2d Cir. 2001).....................................................................................................10 Butler, Fitzgerald & Potter v. Sequa Corp.,
250 F.3d 171 (2d Cir. 2001).....................................................................................9, 10, 20, 21 Capital Newspapers Div. of Hearst Corp. v. Burns,
67 N.Y.2d 562 (1986) ..............................................................................................................14 Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay,
868 F.3d 104 (2d Cir. 2017).........................................................................................11, 12, 16 Chiles v. Thornburgh,
865 F.2d 1197 (11th Cir. 1989) ...............................................................................................12 Christa McAuliffe Intermediate School PTO, Inc. v. De Blasio,
18-cv-11657, 2020 WL 1432213 (S.D.N.Y. Mar. 24, 2020)...................................................24 City of Newark v. Law Dept. of City of N.Y.,
305 A.D.2d 28 (1st Dep’t 2003) ..............................................................................................15 Commack Self-Serv. Kosher Meats, Inc. v. Rubin,
170 F.R.D. 93 (E.D.N.Y. 1996) ...............................................................................................14 Crossroads Grassroots Policy Strategies v. Fed. Election Comm’n,
788 F.3d 312 (D.C. Cir. 2015) .................................................................................................12 Dorsett v. Cty. of Nassau,
289 F.R.D. 54 (E.D.N.Y. 2012) ...............................................................................................15 Floyd v. City of New York,
1:08-cv-01034AT (S.D.N.Y. Aug. 22, 2018) ............................................................................3 Floyd v. City of New York,
302 F.R.D. 69 (S.D.N.Y.2014) aff’d, 770 F.3d 1051 (2d Cir.2014)........................................10 Floyd v. City of New York,
959 F. Supp. 2d 540 (S.D.N.Y. Aug. 12, 2013).................................................................21, 24
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Friends of the E. Hampton Airport, Inc. v. Fed. Aviation Admin., No. 15-CV-0441(JS)(ARL), 2016 WL 792411 (E.D.N.Y. Feb. 29, 2016) .......................19, 22
H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85 (2d Cir. 1986).......................................................................................................22
Hartford Fire Ins. Co. v. Mitlof, 193 F.R.D. 154 (S.D.N.Y. 2000) .............................................................................................10
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).................................................................................................................12
Herdman v. Town of Angelica, 163 F.R.D. 180 (W.D.N.Y. 1995)............................................................................................13
John Wiley & Sons, Inc. v. Book Dog Books, LLC, 315 F.R.D. 169 (S.D.N.Y. 2016) .............................................................................................10
Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y. 1974).........................................................................................14
McNeill v. N.Y. Hous. Auth., 719 F. Supp. 233 (S.D.N.Y. 1989) ..........................................................................................23
Med. Diagnostic Imaging, PLLC v. CareCore Nat’l, LLC, 542 F.Supp.2d 296 (S.D.N.Y. 2008)........................................................................................10
Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997) .................................................................................................13
Miller v. Silbermann, 832 F. Supp. 663 (S.D.N.Y. 1993) ......................................................................................9, 22
Matter of N.Y. Civil Liberties Union v. N.Y. City Police Dep’t, No. 133, 2018 WL 6492733 (N.Y. Dec. 11, 2018)....................................................................4
N.Y. Pub. Int. Research Grp., Inc. v. Regents of Univ. of State of N.Y., 516 F.2d. 350 (2d Cir. 1975)....................................................................................................21
Nat. Resource Def. Council, Inc. v. N.Y.S. Dep’t of Envtl. Conserv., 834 F.2d 60 (2d Cir. 1987).................................................................................................20, 21
Olin Corp. v. Lamorak Ins. Co., 325 F.R.D. 85 (S.D.N.Y. 2006) ...............................................................................................22
Oneida Indian Nation of Wisconsin v. State of N.Y., 732 F.2d 261 (2d Cir. 1984).....................................................................................................19
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Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) ...................................................................................................13
Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309 (6th Cir. 2005) ...................................................................................................12
Trustees of Nat’l Ret. Fund v. Fireservice Mgmt. LLC, 384 F. Supp. 3d 412 (S.D.N.Y. 2019)......................................................................................10
Underwood v. State of N.Y. Office of Court Admin., 1983 WL 504 (S.D.N.Y. Apr. 29, 1983)..............................................................................9, 10
United States v. N.Y.C. Housing Authority, 326 F.R.D. 411 (S.D.N.Y. 2018) .............................................................................................24
United States v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994).....................................................................................................8, 22
Washington Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec., 922 F.2d 92 (2d Cir. 1990).......................................................................................................10
Statutes and Rules
Fed. R. Civ. P. 24 ................................................................................................................... passim
N.Y. Civil Rights Law § 50-a ................................................................................................ passim
Other Authorities
Annual Report to the Governor and State Legislature, DEPARTMENT OF STATE 1 (Dec. 2014), https://on.ny.gov/3fbCxGO ..................................................................................4
Editorial, Chokeholds and Police Abuse, Kept from the Public, N.Y. TIMES (June 12, 2019), https://nyti.ms/30WQzaa .............................................................................................................................. 6
The Honorable Mary Jo White, The Honorable Robert L. Capers, The Honorable Barbara S. Jones, Report of the Independent Panel on the Disciplinary System of the New York City Police Department (Jan. 25, 2019), https://www.independentpanelreportnypd.net/assets/report.pd .............................................5, 6
New York City Bar, Report on Legislation by the Civil Rights Committee et al., NEW YORK CITY BAR ASSOCIATION 1 (2020), https://bit.ly/3jK6O2O. ...............................................................4
Nick Pinto, After Opposing NYPD Transparency for Years, De Blasio’s Promise of Reform Rings Hollow, GOTHAMIST (June 2, 2020, 10:47 AM), https://bit.ly/2Dl8TRZ.......................6
Nick Pinto, DeBlasio and NYPD Oversight Board Members At Odds Over Police Secrecy Law, GOTHAMIST (Mar. 12, 2020, 11:01 AM), https://bit.ly/3371Yqn........................5
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Case 1:20-cv-05441-KPF Document 42 Filed 07/29/20 Page 6 of 31 Senate Standing Committee on Codes, Public Hearing: Policing (S3695), repeals
provisions relating to personnel records of police officers, firefighters, and correction officers, THE NEW YORK STATE SENATE (Oct. 24, 2019), https://bit.ly/39A0G8O ..............................................................................................................6
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I. PRELIMINARY STATEMENT Communities United for Police Reform (“CPR”) respectfully moves to intervene in this
action under Federal Rule of Civil Procedure 24. CPR is an organization and campaign whose mission is to advance police transparency and accountability, while reducing reliance on policing, for community safety, through civic engagement, policy reform, public advocacy, and community organizing. Just last month, after years of working on the front lines of the reform effort, a CPR-led coalition won a landmark victory, securing repeal of N.Y. C.R.L. § 50-a. CPR now seeks to intervene to defend its interest in the full and prompt effectuation of that legislative action; in its mission of ensuring ready public access to records of police misconduct complaints, misconduct investigations, and discipline, including those at issue in this case; and in its current and future use of the judicially enforceable right of access to government records.
The aim of the unions who bring this lawsuit is to impair each of the above interests by shielding from public view categories of records that are now presumptively accessible. In the process, Plaintiffs seek to establish broad, novel rights purportedly flowing from collective bargaining agreements, settlement agreements, and the New York and United States constitutions—rights that, in Plaintiffs’ telling, trump the rights of organizations like CPR and members of the public. Plaintiffs also seek a finding that Defendants’ efforts to promptly and fully effectuate the repeal of § 50-a are arbitrary and capricious, a direct attack on the effectiveness of that landmark legislative action. If Plaintiffs prevail, it would directly impair CPR’s concrete and legally protected interests by requiring diversion of the organization’s monetary resources, hampering ongoing reform efforts, foreclosing full public access to misconduct and disciplinary records, rolling back § 50-a’s repeal, and potentially interfering with pending and future FOIL requests. Case law in this Circuit and elsewhere has consistently recognized that these precise types of interests suffice to support intervention of right.
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Defendants cannot adequately protect CPR’s interests. They comprise the Mayor, the Fire Department, the Department of Corrections, the New York City Police Department (“NYPD”), and the Civilian Complaint Review Board (“CCRB”). Defendants are all represented by a single entity, the City Law Department, which will have to reconcile positions and interests that have long been at loggerheads. Indeed, the Mayor’s Office, CCRB, and NYPD all took different positions and at times changed their positions on § 50-a’s repeal—with none meaningfully and consistently supporting full repeal. So although Defendants now oppose the ultimate relief Plaintiffs seek, their own interests are too numerous and disparate to ensure a vigorous, coherent defense of CPR’s interests. And at times, some Defendants’ interests are likely to align with Plaintiffs’—the NYPD and the police unions, for example, have long taken similar positions on issues of transparency and accountability.
Intervention would prejudice no party. CPR seeks intervention by Order to Show Cause in order to expedite resolution and permit CPR’s participation in the upcoming briefing and oral argument on Plaintiffs’ request for a preliminary injunction. If granted, intervention would not delay resolution of the merits. In addition, CPR would provide unique expertise concerning the police disciplinary system, the law and policies governing disclosure of records, the interests of the public in disclosure of such records, and the legislative history and intent underlying § 50-a’s repeal—all of which are central to resolution of this case.
For these reasons and those set forth below, the technical requirements for intervention are satisfied. Principles of justice, fairness, and plain common sense weigh strongly in favor of it, as well. This lawsuit is the next front in a battle for transparency and public accountability that has been raging for decades. And while they may be on opposite sides of the v here, Plaintiffs and Defendants have consistently fought hand-in-glove against reform. CPR has led
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the other side. It represents the communities whose interests are most at stake here, and whose
calls for reform the parties here have stubbornly opposed. Those communities deserve protection in this action. The motion should be granted.1 II. FACTUAL BACKGROUND
A. CPR’s organizational mission CPR is a non-partisan, multi-strategy campaign to end discriminatory and abusive policing practices, reduce reliance on policing, and build meaningful community safety in New York. See Declaration of Joo-Hyun Kang In Support of CPR’s Motion to Intervene (“Kang Decl.”) ¶ 4. CPR runs coalitions of over 200 local and national organizational members and partners and it focuses on bringing together community members, advocates, lawyers, researchers, and activists to work for change. Id.2 CPR represents many of the communities that are most unfairly targeted by the NYPD and unrepresented by Defendants’ interests. Id. ¶ 7. Through community organizing, public education, policy advocacy, and involvement in legislative and lobbying efforts, CPR has built a broad-based movement to promote police accountability, police transparency, and community safety. Id. ¶¶ 4, 6-8. Since 2012, CPR has been centrally involved with police reform efforts in New York City, including involvement in curbing NYPD’s unconstitutional and discriminatory “Stop-andFrisk” practices. Id. ¶ 7. Its principal goals include transparency and accountability and it has consistently sought to ensure that its stakeholders and community members have meaningful access to information and records relating to NYPD’s policing practices.3 Id. ¶ 6. CPR has long
1 Counsel for Defendants has indicated that Defendants do not consent to CPR’s intervention, but do not oppose CPR’s proposed briefing schedule. Counsel for Plaintiffs has indicated that Plaintiffs do not consent to CPR’s motion or proposed briefing schedule. 2 The New York Civil Liberties Union (“NYCLU”), which has been appointed amicus curiae in this case, is a member of CPR’s steering committee. Neither NYCLU nor any other party has assisted with or authored this motion in any way, and CPR brings this motion solely on its own behalf. 3 For example, during the Floyd litigation, CPR advocated for disclosure of records and increased transparency regarding “Stop-and-Frisk” records through the filings of their amicus briefs, including arguing the proposed Confidentiality Order would not adequately ensure community access to crucial records. See, e.g., Amicus Curiae Communities United for Police
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fought to reverse policies that shield police misconduct and disciplinary records from public view, including through legislation and by aiding individuals in seeking access to such records. Id. ¶¶ 8-9. Its opponents in that fight have been both Plaintiffs and Defendants.
B. Repeal of § 50-a Until recently, the biggest obstacle to police transparency was § 50-a. Enacted in 1976, § 50-a generally excluded from disclosure “police personnel records used to evaluate performance towards continued employment of promotion” that were otherwise presumptively public. C.R.L. § 50-a(1) (repealed June 12, 2020). Corrections officers and fire fighters were later included. Although the intended scope of § 50-a was narrow—its aim was “to, among other things, prevent ‘harassment’ by criminal defense attorneys who sought to impeach officers with unsubstantiated prior bad act”4—its reach ballooned. Both Plaintiff unions and several of the organizational Defendants played direct roles in its expansion. According to a 2014 annual report by the State Committee on Open Government, § 50-a was “expanded in the courts to allow police departments to withhold from the public virtually any record that contains any information that could conceivably be used to evaluate the performance of a police officer.”5 The expansion continued. In 2018, the New York Court of Appeals held that § 50-a prohibits the release through FOIL even of redacted records. See Matter of N.Y. Civil Liberties Union v. N.Y. City Police Dep’t, No. 133, 2018 WL 6492733, at *5 (N.Y. Dec. 11, 2018). It was the NYPD, represented by the City’s corporation counsel, that pushed for an expansive interpretation of § 50-a in that case. On June 12, 2020, Governor Cuomo signed the #Repeal50a Bill (S8496/A10611). This was the result of years of lobbying and advocacy by a host of organizations. CPR led that charge
Reform’s Further Opposition to the Independent Monitor’s Application for Confidentiality Order, Floyd v. City of New York, 1:08-cv-01034AT, (S.D.N.Y. Aug. 22, 2018), ECF No. 643. 4 New York City Bar, Report on Legislation by the Civil Rights Committee et al., NEW YORK CITY BAR ASSOCIATION 1, 2 (2020), https://bit.ly/3jK6O2O. 5 State of New York, Department of State Committee on Open Government, Annual Report to the Governor and State Legislature, DEPARTMENT OF STATE 1, 3 (Dec. 2014), https://on.ny.gov/3fbCxGO.
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for years, through public advocacy, lobbying, testimony, public education, strategic communications, grassroots organizing, and coalition building. Kang Decl. ¶ 9; See Declaration of Jumaane D. Williams In Support Of CPR’s Motion to Intervene (“Williams Decl.”) ¶ 5. It formed a coalition to support a series of bills, including the #Repeal50a bill that the New York State Legislature passed and was signed into law by Governor Cuomo. Kang Decl. ¶ 10. It also presented the #SaferNYAct package to the legislature, which included the bill to repeal § 50-a and pushed additional reforms for police transparency and accountability. Id. ¶ 12. Two of the package’s bills—one requiring a statewide reporting process and one creating and strengthening the office of a special prosecutor to investigate officer-involved killings—also recently were signed into law. Id. ¶¶ 11-12 As New York City Public Advocate Jumaane Williams attests, “CPR was a leading organization” in the reform effort, and one with which he has “worked closely” since 2013 on police reform issues. Williams Decl. ¶ 5.
And for as long as CPR sought § 50-a repeal, both Plaintiffs and Defendants stood in the way. Plaintiffs, of course, have steadfastly opposed even the slightest modification to § 50-a and routinely pushed for the law’s expanded reach. Although Defendants’ positions have been more of a mixed bag—with different organizational Defendants taking differing positions at different times—only one (the CCRB) ever supported full § 50-a repeal.6 The NYPD always took an “aggressive” approach to interpretation of § 50-a, as an independent panel concluded in January 2019.7 For example, in 2016, NYPD ceased posting “Personnel Orders,” which included the offense description, the penalty imposed, and the involved-officer’s name even for substantiated disciplinary charges.8 Moreover, although NYPD’s misconduct and disciplinary trials are open to the public, NYPD treated the trial calendar and ensuing trial transcripts as confidential
6 Nick Pinto, DeBlasio and NYPD Oversight Board Members At Odds Over Police Secrecy Law, GOTHAMIST (Mar. 12, 2020, 11:01 AM), https://bit.ly/3371Yqn. 7 See The Honorable Mary Jo White, The Honorable Robert L. Capers, The Honorable Barbara S. Jones, The Report of the Independent Panel on the Disciplinary System of the New York City Police Department, at 19 (Jan. 25, 2019) https://www.independentpanelreportnypd.net/ assets/report.pdf. 8 Id.
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documents barred from disclosure under § 50-a.9 Political calculations and differing interests among Defendants have always been daunting obstacles to reform.
At most, Defendants have at times been open to limited amendments or modifications, rather than full repeal. For example, while the Mayor’s office ultimately expressed support for repeal after that result became certain, it had previously advocated a modification that would permit disclosure only of final findings—and thus would have kept records like those at issue in this case private.10 As one commentator put it, “The mayor himself, far from pushing back on police secrecy, is himself responsible for much of 50-a’s most dramatic expansion.”11
Presently, although Defendants say they intend to release misconduct and disciplinary records, the scope of each agency’s policy relating to release is unclear. Defendants have not yet committed to a consistent approach to the release, and testimony from Defendants during the present matter suggests that the agencies may only release a subset of the misconduct and disciplinary records, a course of action that aligns more with those who supported only modification of § 50-a, instead of full repeal.12
C. Plaintiffs’ lawsuit Plaintiffs filed this lawsuit on July 14, 2020. Their goal is to prevent Defendants from disclosing, “in the wake of the repeal of Civil Rights Law § 50-a,” certain “records concerning disciplinary matters against retired and active individual New York City police officers, firefighters, and corrections officers.” Dkt. 10-2 ¶ 1. In particular, Plaintiffs allege that Defendants are prohibited from releasing records for claims that are “non-final, unsubstantiated,
9 Id. at 13. 10 Editorial, Chokeholds and Police Abuse, Kept from the Public, N.Y. TIMES (June 12, 2019), https://nyti.ms/30WQzaa. 11 Nick Pinto, After Opposing NYPD Transparency for Years, De Blasio’s Promise of Reform Rings Hollow, GOTHAMIST (June 2, 2020), https://bit.ly/2Dl8TRZ. 12 See Senate Standing Committee on Codes, Public Hearing: Policing (S3695), repeals provisions relating to personnel records of police officers, firefighters, and correction officers, THE NEW YORK STATE SENATE (Oct. 24, 2019), https://bit.ly/39A0G8O.
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unfounded, exonerated, or resulted in a finding of not guilty,” as well as those subject to “confidential settlement agreements.” Id. They intend to establish rights categorically barring release of such records flowing from Collective Bargaining Agreements with Defendants; the Due Process and Equal Protection Clauses of the United States and New York State Constitutions; and past settlement agreements. Id.; see Dkt. 10-2 ¶ 5 (collective bargaining); ¶ 6 (due process and equal protection); ¶ 7 (settlement agreements). They also directly allege that actions taken by Defendants to effectuate § 50-a repeal are “arbitrary and capricious.” Id. ¶ 8.
The relief Plaintiffs seek is likewise broad. Although Plaintiffs initially claim to be seeking relief limited to the categories of records identified above (non-final, unsubstantiated, unfounded, and so forth), id. ¶ 2, their complaint goes on to seek a bar on the release of “any other disciplinary records that implicate the privacy and safety concerns of officers.” Id. ¶¶ 92, 102, 108, 112, 117 (emphasis added). They also request that the Court “annul” any attempt to release any record before conducting a “case-by-case analysis to determine whether disclosure is warranted.” Id. ¶ 131. And they seek a declaration of their rights that will bind Defendants going forward. Id. ¶ 136.
On July 15, 2020, Defendants removed this case to this Court. On July 22, 2020, the Court granted Plaintiffs’ request for a temporary restraining order. Declaration of Alex V. Chachkes In Support Of CPR’s Motion to Intervene (“Chachkes Decl.”) ¶ 8, Ex. A [Tr. 78-86]; see Minute Order, 7/22/2020. It temporarily enjoined Defendants from releasing records pertaining to claims deemed unsubstantiated, unfounded, exonerated, currently pending, or subject to a settlement agreement. The Court ordered Defendant CCRB to immediately modify publicly available information on its website that the Court deemed covered by its order. Id. at Tr. 82-83. The Court also ordered non-party NYCLU—the recipient of records pursuant to a
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FOIL request—not to disclose any such records. Id. at Tr. 85-88. The Court permitted limited discovery; set a due date of August 14, 2020 for briefing on
Plaintiffs’ request for a preliminary injunction; and set a preliminary injunction hearing for August 18, 2020. Id. at Tr. 84-85. The Court held an additional conference on July 28, 2020, in which it modified the temporary restraining order so as not to apply to NYCLU and resolved the parties’ discovery disputes. Chachkes Decl. ¶ 9, Ex. B [Tr. 30-31; 40-41; 50-53; 58-64; 68-70; 85-86]. III. ARGUMENT
CPR has substantial and concrete interests in this litigation that will be impaired if Plaintiffs succeed. The current parties to this action cannot adequately protect those interests. CPR is therefore entitled to intervene of right. Infra § A; see Fed. R. Civ. P. 24(a). In all events, because of CPR’s vital role in the repeal of § 50-a; ongoing mission to promote police transparency and reform; and deep knowledge of the misconduct and disciplinary procedures and records at issue in this case, its participation would “significantly contribute to [the] full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir. 1994). So, at a minimum, this Court should grant permissive intervention. Infra § B; see Fed. R. Civ. P. 24(b).
A. CPR is entitled to intervene of right. A party may intervene of right if it “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). The movant must (1) file a timely motion; (2) demonstrate a direct and substantial interest; (3) establish that their interest
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may be impaired by the disposition of the action; and (4) show that their interest would not be adequately protected by the current parties to the action. “R” Best Produce, Inc. v. ShulmanRabin Mktg. Corp., 467 F.3d 238, 240 (2d Cir. 2006). CPR satisfies all four requirements.
1. The motion is timely. The motion is timely because CPR filed it shortly after the filing of the action and in time to participate in all substantive aspects of the case. There are no bright-line rules governing the timeliness of an intervention motion. Underwood v. State of N.Y. Office of Court Admin., 1983 WL 504, at *3 (S.D.N.Y. Apr. 29, 1983). “Factors that inform the timeliness determination include: how long the motion to intervene was delayed, whether the existing parties were prejudiced by that delay, whether the movant will be prejudiced if the motion is denied, and unusual circumstances ….” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 182 (2d Cir. 2001). Typically intervention is timely so long the intervenor has not slept on its rights. Miller v. Silbermann, 832 F. Supp. 663, 669 (S.D.N.Y. 1993) This motion is timely. There has been no delay. Plaintiffs filed their complaint in this action in state court on July 14, 2020. Dkt. 10-2. Defendants removed the case to this Court the following day. Dkt. 2. CPR thereafter sought and retained pro bono counsel, who prepared and filed this motion as quickly as practicable. Intervention at this stage will prejudice no party. The only substantive decision this Court has made to date was its grant of temporary emergency relief on July 22, 2020. The Court ordered any briefing on a preliminary injunction to be filed on or before August 14, 2020, and set a preliminary injunction hearing for August 18, 2020. CPR has filed this motion by order to show cause that, if granted, would permit briefing and decision on this motion in time for CPR to participate in the current case schedule.
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Courts routinely find that motions to intervene filed within several months of the commencement of a lawsuit are timely.13 And when they deny motions as untimely, it is ordinarily because a party has delayed intervention until after the commencement of discovery or some permanent substantive decision.14 This motion comes within two weeks of the filing of this case, and granting it will have no effect on the timing of resolution on the merits.
2. CPR has several legally protectable interests at stake in this litigation. CPR has direct and substantial interests in the issues and outcome of this litigation, as set forth in the declarations supporting this motion. Although Rule 24(a)(2) addresses claims of interest “relating to the property or transaction that is the subject of the action,” it is well-established that the rule “does not require the intervenor prove a property right, whether in the constitutional or any other sense.” Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 130 (2d Cir. 2001). Rather, the would-be intervenor must have some interest in the litigation’s subject matter or outcome that is “direct, substantial, and legally protectable.” Washington Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec., 922 F.2d 92, 97 (2d Cir. 1990). CPR has several such interests. Organizational mission. First, both the rights and remedy sought in this action implicate CPR’s ability to advance its mission of promoting police transparency and achieving police
13 Underwood, 1983 WL 504, at *3 (motion to intervene filed within a month of having notice of action was considered timely); Med. Diagnostic Imaging, PLLC v. CareCore Nat’l, LLC, 542 F.Supp.2d 296, 304 (S.D.N.Y. 2008) (delay of a “few” months timely); Hartford Fire Ins. Co. v. Mitlof, 193 F.R.D. 154, 160 (S.D.N.Y. 2000) (delay of three months timely); cf. Butler, 250 F.3d at 182 (discussing denials where motion was brought 8-18 months after notice of action). 14 Trustees of Nat’l Ret. Fund v. Fireservice Mgmt. LLC, 384 F. Supp. 3d 412, 419-20 (S.D.N.Y. 2019) (motion was untimely when filed two weeks before the close of discovery and one year after case commenced); John Wiley & Sons, Inc. v. Book Dog Books, LLC, 315 F.R.D. 169, 173 (S.D.N.Y. 2016) (motion untimely when granting motion would require new discovery schedule); Floyd v. City of New York, 302 F.R.D. 69, 84 (S.D.N.Y.2014) aff’d, 770 F.3d 1051 (2d Cir.2014) (denying motion that was brought after liability was adjudged).
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reform. CPR, which works with over 200 other organizations, has worked for years to seek meaningful change in policing practices. Kang Decl. ¶ 4. Transparency in the police misconduct and disciplinary process is an end in itself because it promotes accountability amongst government officials who hold considerable power over the public. Id. ¶ 16. CPR and the public have a right to know which officers—holding badges and guns—may present risk to the community. Transparency is also a critical means through which CPR seeks reform. Id. ¶¶ 15, 17. Ready access to police misconduct and disciplinary records allows CPR to better understand and quantify the impact of particular policing practices on communities, to intelligently allocate resources when seeking reform, to calibrate the policy responses it proposes, and to make its case for reform to the public and elected officials. Id. ¶ 17; see Williams Decl. ¶ 7 (“Full transparency is absolutely critical to further organizing, policymaking, and reform efforts. . . . Shrouding large swathes of misconduct and disciplinary records from scrutiny would render it impossible to hold the NYPD accountable.”).
Because this lawsuit seeks to curtail ready public access to an enormously significant category of records—and to set precedent permitting such categorical restrictions on disclosure—CPR’s mission is directly implicated. And as explained further below (at 17-18), recognizing the rights or granting the relief Plaintiffs request would have a direct financial impact on CPR, which would be forced to divert resources to obtain access to materials through other means. Kang Decl. ¶¶ 20-21.
The Second Circuit has recognized that organizational interests of precisely this sort are sufficient in themselves to establish an interest in litigation. In Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104 (2d Cir. 2017), the Court evaluated whether a non-profit organization called The Workplace Project had the concrete interest
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necessary to confer Article III standing—an interest that a fortiori satisfies Rule 24(a)(2).15 The Workplace Project sought to challenge an ordinance regulating “road-side solicitation.” Id. at 107. It based its claim of concrete injury on its mission to “end the exploitation of Latino immigrant workers on Long Island and to achieve socioeconomic justice by promoting the full political, economic, and cultural participation of those workers in the communities in which they live.” Id. at 109. In particular, it argued that enforcement of the ordinance would “impact its ability to organize day laborers” and “require … diver[sion] of resources from other of its activities.” Id. at 110. The Second Circuit found this sufficient to confer standing. Id.; see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (finding Article III standing where defendant landlord’s practices required plaintiff organization to “devote significant resources to identify and counteract” those practices).
CPR has the same “real, immediate, and direct” interests at stake, Centro, 868 F.3d at 110, and this case presents the same threat of “concrete and demonstrable injury to [CPR’s] activities—with the consequent drain on the organization’s resources,” Havens, 455 U.S. at 379.
Interest in effective § 50-a repeal. CPR has led legislative efforts to repeal § 50-a for years, and it therefore has a direct interest in the full and expeditious dismantling of state and local policies that enforced § 50-a’s now-overturned mandate. CPR spearheaded the coalition of organizations, legislators, advocates, survivors of police violence, and families of individuals killed by police seeking § 50-a’s repeal. Kang Decl. ¶¶ 9-12. It lobbied elected officials, testified at hearings, advocated to the public for repeal legislation, and negotiated the final
15 Courts have consistently held that any interest that satisfies Article III, which is necessarily concrete, immediate, and direct, is sufficient to satisfy Rule 24 as well. Crossroads Grassroots Policy Strategies v. Fed. Election Comm’n, 788 F.3d 312, 320 (D.C. Cir. 2015); Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 318 (6th Cir. 2005); Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989).
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language adopted by the legislature. Id. CPR has actively opposed both Plaintiffs’ and Defendants’ positions in Albany. Plaintiffs have steadfastly opposed any change to § 50-a, while several of Defendants opposed any reform until 2018 before ultimately supporting only modification—which CPR consistently opposed as inadequate. (This is but one of the reasons why the parties cannot adequately represent CPR’s interests. Infra Section III.A.4.) CPR was vital to overcoming this opposition and accomplishing § 50-a’s repeal. Kang Decl. ¶¶ 24-25; Williams Decl. ¶¶ 4-5.
CPR, along with its members and partners, continues to be vital to effectuating that repeal. As a result of § 50-a, municipalities and their departments across the State developed policies and procedures implementing § 50-a. There is a significant risk that those entrenched mechanisms will persist—whether by inertia or intent—without CPR’s continued advocacy and lobbying. CPR has every interest in ensuring that the § 50-a regime is promptly dismantled. This lawsuit is a transparent attempt to lock holdover § 50-a procedures and policies in place for the time being, while establishing rights that would roll back the historic repeal.
Several circuit courts have recognized that the “vital participant[s] in the political process that resulted in legislative [action]” have a direct interest in litigation implicating that action. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997); accord Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (“[F]or purposes of intervention as of right, a public interest group that has supported a measure … has a ‘significant protectable interest’ in defending the legality of the measure.”). Several district courts in this circuit have recognized the same principle. Herdman v. Town of Angelica, 163 F.R.D. 180, 187 (W.D.N.Y. 1995) (public interest group that “took an active role” in drafting a law “has a clear interest in the continuing constitutional viability of that law”); Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y.
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1974) (allowing intervention for organization that testified before committees regarding laws that were the subject of the lawsuit); see also Commack Self-Serv. Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93, 100-02 (E.D.N.Y. 1996) (allowing permissive intervention of rabbinical and lay organizations directly involved in passing of legislation protecting consumers of kosher products).
Interest in judicially enforceable public right of access. Also at stake in this action is CPR’s direct, judicially enforceable interest in rights of public access to documents, and similar interests of individuals on whose behalf CPR advocates. “FOIL … ma[kes] full disclosure by public agencies a public right.” Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566-67 (1986); cf. S. Rep. No. 813, at 3 (1965) (the federal Freedom of Information Act was enacted “to establish a general philosophy of full agency disclosure” of government documents and “to provide a court procedure by which citizens . . . may obtain information wrongfully withheld”). CPR has exercised that right in order to obtain access to documents in the past. Kang Decl. ¶¶ 18-19. It also fully intends to use that right in the near future to gain access to police misconduct and disciplinary records—that intention includes an impending FOIL request to Defendants in this case that has a high likelihood of encompassing the precise categories of records this lawsuit seeks to shield from public view. Id.
In addition to its own direct interest in exercise of FOIL rights, CPR also works with individuals and other organizations who file similar FOIL requests. As discussed further below, several declarants supporting this motion are police violence survivors or family members of individuals killed by the NYPD. See Declaration of Constance Malcolm In Support Of CPR’s Motion to Intervene (“Malcolm Decl.”) ¶¶ 2-4; Declaration of Natasha Duncan In Support Of CPR’s Motion to Intervene (“Duncan Decl.”) ¶¶ 2-3, 5; Declaration of James Blake In Support
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Of CPR’s Motion to Intervene (“Blake Decl.”) ¶¶ 5-8. They attest to the enormous difficulties they experienced when seeking records from organizational Defendants, and the central role CPR played in helping them understand the process and at times obtain some of the records sought. Helping individuals like this is part of CPR’s mission. That aspect of CPR’s work will become more difficult and more costly if Plaintiffs succeed in effectively neutering § 50-a’s repeal.
This lawsuit seeks a permanent injunction preventing disclosure of records to which CPR intends to seek access. It does so without regard to whether these records are subject to exemption from disclosure under FOIL—indeed, Plaintiffs appear to assert that they have contractual rights that somehow trump FOIL. Contra City of Newark v. Law Dept. of City of N.Y., 305 A.D.2d 28, 32 (1st Dep’t 2003) (rejecting argument that arbitral tribunal had power to “cut off the public’s right to FOIL disclosure … without regard to the applicability of any particular statutory exemption”). And this Court’s temporary restraining order appears to restrict Defendants from fulfilling CPR’s past and intended FOIL requests for the documents at issue in this case.
In analogous contexts, courts have permitted intervention by parties affected by orders rendering presumptively public materials confidential. Indeed, as one district court in this circuit observed, “every circuit court that has considered the question has come to the conclusion that nonparties may permissively intervene for the purpose of challenging confidentiality orders.” Dorsett v. Cty. of Nassau, 289 F.R.D. 54, 71 (E.D.N.Y. 2012). Although these cases typically arise in the context of permissive intervention—which we discuss below (infra Section III.B)— that is only because would-be intervenors in that context usually arrive only after litigation on the merits of other issues has yielded some confidentiality order. Here a confidentiality order is
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the very aim of the lawsuit, and so CPR’s interests flow directly from the rights and relief asserted. That justifies intervention of right in this case.
3. CPR’s interest will be impaired if any of Plaintiffs’ claims succeed. Each of the interests above would be impaired if any of Plaintiffs’ claims prevail. Indeed, impeding transparency and reform, rolling back § 50-a repeal, and elevating novel rights of privacy over public disclosure rights is precisely the aim of this lawsuit. As explained above, the Second Circuit has recognized that an organization’s interests are impaired when an action threatens to divert funds from other operations, impose obstacles, or undermine an organization’s mission. Centro de la Comunidad Hispana de Locust Valley, 868 F.3d at 108-10. Plaintiffs’ attempt to sink plans for a publicly accessible database and categorically enjoin release of documents would do just that. CPR’s mission both is and is furthered by access to misconduct and disciplinary records. Kang Decl. ¶¶ 13-15. These are not abstract goals—such data is critical to effectuating § 50-a repeal because publicly accessible databases promote transparency and accountability in their own right, while also reducing the cost and increasing the effectiveness of reform advocacy. Id. ¶¶ 16-18. Among the relief Plaintiffs seek in this case is a finding that any disclosure that takes place before case-by-case internal review would be arbitrary and capricious, and therefore improper. Dkt. 10-2 ¶ 8. This would dramatically raise the costs of disclosure. CPR also fights for ready and full public access to this data because it is important to ordinary citizens who lack the resources or information to fight endless battles with Defendants over FOIL requests or in discovery during civil suits. As explained in the declaration of Constance Malcolm—the mother of Ramarley Graham—what little information she was able to obtain about the disciplinary history of the officers who killed her son was only with the help of CPR and other groups. Malcolm Decl. ¶¶ 8, 14, 17. CPR provided similar assistance to other
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victims or families of victims as well. Each of these declarants attests to how difficult it was to navigate the thicket of the NYPD’s misconduct and disciplinary process and the ins-and-outs of FOIL, and how critical CPR’s assistance was. Blake Decl. ¶¶ 20-22. As retired tennis player James Blake explained, “even a highly qualified attorney would have trouble navigating the public agency processes that I needed to navigate to pursue my complaint … and get information regarding my case and his prior conduct. That is where CPR came in.” Id. ¶ 19.
CPR has expended enormous resources seeking disclosure on its own and on others’ behalf, resources it could have used for other purposes if the information was available in a publicly accessible database. If Plaintiffs succeed in thwarting such a database, CPR will be forced to expend resources helping other individuals who seek the basic transparency they need to obtain justice.
To be fully effective, moreover, any public database must necessarily include the particular records at issue in this case—records concerning claims that are, in the Court’s words, “unsubstantiated,” “unfounded,” “exonerated,” “pending,” “nonfinal,” or subject to “settlement agreements.” Chachkes Decl. ¶ 8, Ex. A [Tr. 79]. Without them, it is impossible to assess whether the police misconduct and disciplinary system is properly accountable to the public. For example, an “exonerated” claim is one where the disciplinary review process concludes that the officer factually did act as described, but that the action is allowable under existing regulations. For purposes of reforming the way that police officers interact with the community, exonerated claims may provide the most information as to what future reform efforts should focus on.
“Pending” claims are also highly relevant to reform efforts because they provide realtime insight into the system’s functioning. Ms. Malcolm’s example once again illustrates. The disciplinary process for the officers who killed her son played out for almost six years after the
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killing, with Ms. Malcolm’s quest for information playing out all the while. Malcolm Decl. ¶¶ 13-14. If Plaintiffs’ view of the law were deemed correct, a “pending investigation” would always serve to shield such records from view for years—indeed, this might even provide Defendants an incentive to prolong a pending action. And at a broader level, no organization could ever get data that is at once comprehensive and current, information vital to for effectuating reform. Williams Decl. ¶ 7 (“Proposing and garnering support by the public and elected officials for particular policy changes demands providing full, real time facts concerning past and present NYPD conduct.”).
This lawsuit also more broadly strikes at CPR’s interest in full and prompt effectuation of § 50-a repeal. Though nominally an effort to claim rights that somehow paralleled § 50-a all along, practically the case is an attempt to re-entrench § 50-a. Common sense and the course of events makes that clear: Plainly the disclosures contemplated by Defendants in this case were occasioned directly by § 50-a repeal, and plainly this lawsuit is a direct reaction to those very steps. Dkt. 10-2 ¶ 1 (challenging releases of documents “in the wake of repeal of Civil Rights Law § 50-a”). In addition, Plaintiffs claim that Defendants’ actions to implement § 50-a repeal are arbitrary and capricious, Dkt. 10-2 ¶ 8, a claim that could have ripple effects by deterring or hampering future such attempts to repeal now-unjustified policies. And CPR’s interest in seeing Defendants’ promised reforms proceed will be directly impaired if Plaintiffs establish novel rights against disclosure that track all or any of what § 50-a once did.
In addition, a permanent injunction against disclosure of the documents at issue in this case will threaten CPR’s interest in asserting the public right of disclosure established by FOIL. Again, this is not an abstract concern. CPR has previously depended and will continue to depend on FOIL to seek access to records, and FOIL would be the only means of accessing records if
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Defendants scuttled plans for a full public database. Kang Decl. ¶ 21. As detailed in the declaration of CPR’s Director, CPR currently has at least one pending FOIL request that has a high likelihood of embracing documents that are currently subject to this Court’s temporary restraining order and disclosure of which Plaintiffs’ seek to permanently enjoin. Id. ¶ 18. Any relief that either prevents Defendants from turning over materials that are presumptively available through FOI or that restricts the use of materials properly disclosed would impair CPR’s interests in exercising its judicially enforceable right of access and potentially its First Amendment rights as well.
Finally, and looming over this entire case, “there is a significant likelihood that the ultimate resolution of this litigation will lead to conclusion of law on issues of first impression … which will implicate principles of stare decisis.” Oneida Indian Nation of Wisconsin v. State of N.Y., 732 F.2d 261, 266 (2d Cir. 1984). If this litigation results in Plaintiffs establishing constitutional rights to privacy against Defendants that categorically prevent disclosure of certain documents, those rights could be applied in future cases against CPR and others. For example, broad privacy rights, or a ruling that an agency’s use of a database is “arbitrary and capricious,” could be used against CPR in later FOIL litigation, other litigation concerning disclosure, or in future efforts to effectuate § 50-a repeal through policy channels. Courts have recognized these impairments in analogous cases. See Friends of the E. Hampton Airport, Inc. v. Fed. Aviation Admin., No. 15-CV-0441(JS)(ARL), 2016 WL 792411, *1 (E.D.N.Y. Feb. 29, 2016) (“However, this action will determine whether the FAA is statutorily obligated to enforce the grant assurances. Should the Court rule in favor of Plaintiffs, the stare decisis effect of the Court's declaration will impede the Committee's ability to argue, in a separate breach of contract action, that the FAA must forbear in enforcing certain grant assurances after December 31, 2014,
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pursuant to the Settlement Agreement.”). 4. CPR’s interests are not adequately protected.
The above interests will not be adequately protected by the current parties to this lawsuit. Plaintiffs obviously will not protect CPR’s interests because they are directly adverse to them. And although Defendants currently oppose much of the relief Plaintiffs seek, Defendants’ interests are far too diffuse to guarantee meaningful and vigorous opposition to the positions Plaintiffs take in this litigation. Indeed, in some instances, the organizational Defendants’ interests and positions are very likely aligned with Plaintiffs’.
Rule 24(a)’s requirement of inadequate representation is “minimal.” Butler, 250 F.3d at 179. Although the Second Circuit has recognized a “presumption of adequate representation” where “there is an identity of interest” between the would-be intervenor and a party, that presumption can be overcome where there is also some “adversity of interest” or risk of “nonfeasance.” Id. And representation will not be adequate if a party lacks “sufficient motivation to litigate vigorously and to present all colorable contentions.” Nat. Resource Def. Council, Inc. v. N.Y.S. Dep’t of Envtl. Conserv., 834 F.2d 60, 62 (2d Cir. 1987).
Here it is impossible to talk about any identity of interest between CPR and Defendants because there are simply too many Defendants with too many different interests at stake— indeed, it is hard to imagine that Defendants have anything approaching a coherence of interest even amongst themselves. As noted previously, Defendants have historically taken disparate positions on § 50-a reform, ranging from full repeal to no modification at all. Supra Section II.B; Kang Decl. ¶ 23. The organizational Defendants also have different past and intended practices concerning disclosure of disciplinary materials. Their own perspectives on their operations and duties, as well as their individual relationships with Plaintiff unions, are likely to shade their willingness to advance certain positions in this case. And this diffusion and likely
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conflict of interests will almost certainly lead to a form of “nonfeasance,” Butler, 250 F.3d at 179, and a failure to “raise all colorable contentions,” NRDC, 834 F.2d at 62—not because of some failure of zealousness or competence on the part of Defendants’ counsel, but because counsel will inevitably be reconciling a host of interests and concerns on behalf of its many, differently-situated clients. CPR would ensure that all arguments are before the court.
There are also ways in which certain organizational Defendants’ interests are aligned with Plaintiffs and “adverse” to CPR’s. For example, Plaintiffs maintain that release of records will “destroy the reputations” of officers. Dkt. 10-2 ¶ 6. Naturally, the NYPD too has a direct interest in its officers’ reputations, an interest it invoked frequently during the § 50-a regime to expand that law and avoid any disclosure. Kang Decl. ¶¶ 22, 24-25; Malcolm Decl. ¶¶ 15-16; Duncan Decl. ¶16-17, 20; Blake Decl. ¶¶ 22-23, 28. Defendants may be wary of challenging even baseless claims of reputational harm for fear of minimizing those concerns, or subjugating them to the public interest in disclosure. This is hardly speculative—NYPD has previously pursued such interests by shielding records of officer misconduct and discipline because disclosure would reveal failures, inadequacies, and biases in the NYPD’s disciplinary system.16
At a minimum, there is little question CPR will “make a more vigorous presentation of [that] side of the argument” than Defendants would. N.Y. Pub. Int. Research Grp., Inc. v. Regents of Univ. of State of N.Y., 516 F.2d. 350, 352 (2d Cir. 1975). Again, this is not a question of competence or good faith. It is simply an inherent adversity of interest between CPR and Defendants, many of which have joined Plaintiffs as CPR’s staunchest opponents. There is no reason to believe Defendants—after years of opposing CPR—will suddenly protect CPR’s
16 See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 617 (S.D.N.Y. Aug. 12, 2013) (“[W]hen confronted with evidence of unconstitutional stops, the NYPD routinely denies the accuracy of the evidence, refuses to impose meaningful discipline, and fails to effectively monitor the responsible officers for future misconduct.”)
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interests in this lawsuit. Finally, an additional complicating factor is Plaintiffs’ invocation of the parties’
collective bargaining agreements, which further skews the parties’ interests away from those CPR would advance in this litigation. Given all of the cross-cutting interests identified above, there is an intolerable risk that Defendants lack sufficient incentive to protect the rights and interests CPR wishes to assert here.
B. Alternatively, CPR should be allowed permissive intervention. Even if this Court concludes that CPR is not entitled to intervene of right, it should grant permissive intervention because CPR’s interests and expertise will aid in full development of the factual and legal issues in the case. Permissive intervention is appropriate where (1) the applicant timely moves for intervention and (2) the application has a claim or defense that shares with the main action a common question of law of fact. Fed. R. Civ. P. 24(b). The rule “is to be liberally construed. Olin Corp. v. Lamorak Ins. Co., 325 F.R.D. 85, 87 (S.D.N.Y. 2006), and motions under it “liberally granted,” Miller, 832 F. Supp. at 669. “The phrase ‘claim or defense’ is not to be read technically and only requires ‘some interest on the part of the applicant.’” Friends of the E. Hampton Airport, Inc. v. Fed. Aviation Admin., No. 15-CV-0441(JS)(ARL), 2016 WL 792411, at *8 (E.D.N.Y. Feb. 29, 2016) (collecting cases). Although courts consider “substantially the same factors” for both permissive and as of right intervention, “R” Best Produce, Inc. v. Shulman-Rabin Marketing Corp., 467 F.3d 238, 240 (2d Cir. 2006), the key inquiry when (as here) a motion is timely is whether the party seeking intervention will “significantly contribute to [the] full development of the underlying factual issued in the suit and to the just and equitable adjudication of the legal questions presented.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir. 1994); H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d
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Cir. 1986). In addition to having several interests at stake in this litigation, CPR’s role in § 50-a’s
repeal and its “deep knowledge of the disciplinary systems and disclosure mechanisms at issue make it uniquely situated to contribute to legal and factual development.” Kang Decl. ¶ 26. As discussed above, CPR has led the fight for police transparency and accountability for years. It is intimately familiar with the legal arguments and policies at stake.
CPR is also well-versed in Defendants’ misconduct and disciplinary systems, having become one of the few organizations with such expertise. Kang Decl. ¶¶ 20, 27. It has helped countless individuals, several of whose declarations support this motion, in navigating those systems to seek and sometimes obtain disclosure. Blake Decl. ¶¶ 18, 26-27; Malcolm Decl. ¶¶ 17, 20-21; Duncan Decl. ¶¶ 9-10, 11-13, 20. And CPR is also “well-positioned to develop the facts concerning the public interest in readily accessible disciplinary records and to develop legal arguments pertaining to public rights of access.” Kang Decl. ¶ 28. Moreover, given that the records at issue in this litigation involve nuanced definitions, CPR’s expertise will be useful in educating the Court. Indeed, the parties have so far struggled to reach consensus on definitions of basic terms, like “substantiated” and “unsubstantiated.” See Chachkes Decl. ¶ 9, Ex. B [Tr. 60-64].
CPR’s expertise would undoubtedly benefit the litigation by providing its insight and ensuring the accuracy of the record. Courts routinely grant permissive intervention where a party can bring such expertise to bear. McNeill v. N.Y. Hous. Auth., 719 F. Supp. 233, 250 (S.D.N.Y. 1989) (granting permissive intervention to low-income tenants in a suit challenging the city housing authority’s policies, where proposed intervenors could elucidate the difficulties facing tenants as a result of the housing authority’s policies); Christa McAuliffe Intermediate
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Case 1:20-cv-05441-KPF Document 42 Filed 07/29/20 Page 30 of 31 School PTO, Inc. v. De Blasio, 18-cv-11657, 2020 WL 1432213, *2-3 & n.9 (S.D.N.Y. Mar. 24, 2020) (intervenor would provide “unique perspective”); United States v. N.Y.C. Housing Authority, 326 F.R.D. 411, 415, 418-19 (S.D.N.Y. 2018) (intervenor would “provide this Court with a fuller picture to evaluate the fairness, reasonableness, and equities”).
*** The district court in Floyd v. City of New York recognized that “the communities most affected by the NYPD’s use of stop and frisk have a distinct perspective that is highly relevant to crafting effective reforms. No amount of legal or policing expertise can replace a community’s understanding of the likely practical consequences of reforms in terms of both liberty and safety.” 959 F. Supp. 2d 668, 686 (S.D.N.Y. 2013). Such perspective is no less vital in this case. CPR is dedicated to representing the interests of the communities who will be most affected by the Court’s decision. This Court should permit CPR to forcefully defend those interests.
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IV. CONCLUSION For the reasons above, CPR respectfully requests that the Court grant its motion to
intervene.

Dated: New York, New York July 29, 2020

Respectfully submitted, Orrick, Herrington & Sutcliffe LLP

Baher Azmy Darius Charney Guadalupe V. Aguirre CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway New York, New York 10012 Tel: (212) 614-6464

By: /s/ Alex V. Chachkes
Alex V. Chachkes Rene Kathawala Margaret Wheeler-Frothingham ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, New York 10019 Tel: (212) 506-5100 Fax: (212) 506-5151

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 Case 1:20-cv-05441-KPF Document 66 Filed 08/04/20 Page 1 of 2
DLA Piper LLP (US) 1251 Avenue of the Americas 27th Floor New York, New York 10020-1104 www.dlapiper.com
Anthony Paul Coles T (212) 335-4844 E anthony.coles@us.dlapiper.com
August 4, 2020
Hon. Katherine Polk Failla United States District Court, Southern District of New York 40 Foley Square New York, NY 10007
Re: Uniformed Fire Officers Association, et al. v. Bill de Blasio, et al. No. 20-cv-05441 (KPF) (RWL)
Dear Judge Failla:
On behalf of Plaintiffs (the “Unions”), we write asking for the Court’s attention and further order on two discovery issues. We have met and conferred with counsel for Defendants by letter and email on these issues, but have not been able to reach agreement. The Court previously ordered discovery to be completed by August 7, so these issues are of some urgency.
1. Document Requests Nos. 5 and 6. On July 28, the Court ordered Defendants to produce the documents sought by the Unions’ document requests Nos. 5 and 6. On July 30, Defendants asked the Court to reconsider and withdraw the order requiring them to produce documents covered by requests Nos. 5 and 6 (ECF No. 60, Ex. 1 below). On July 31 the Unions opposed Defendants’ request, and also proposed as a compromise a stipulation designed to provide some of the information requested (ECF No. 63, Ex. 2 below). Today, August 4, Defendants confirmed that they “do not agree to enter into the stipulation Plaintiffs proposed in their July 31, 2020 letter to the Court, annexed as Exhibit A. See ECF No. 63.” (Ex. 3 below.) The Unions therefore request that the Court deny Defendants’ request for reconsideration and direct Defendants to produce immediately on a rolling basis the documents sought by document requests Nos. 5 and 6. The reasons have already been fully presented to the Court in the Unions’ July 31 letter responding to Defendants’ July 30 letter. (See Exs. 2 and 1.)
2. Defendants’ failure to produce any documents, including those Defendants produced to NYCLU almost three weeks ago. The Court ordered expedited discovery in this case two weeks ago on Wednesday, July 22, 2020 (Tr. 83:16-25), and ordered further discovery on July 28, 2020. But Defendants have not yet produced any documents to the Unions. Defendants have also not said when they will produce any documents, or when they will provide the declarations the Court ordered them to provide on discovery issues. Defendants’ failure to provide any discovery is not consistent with the Court’s orders.

Case 1:20-cv-05441-KPF Document 66 Filed 08/04/20 Page 2 of 2
Hon. Katherine Polk Failla August 4, 2020 Page Two
It is also not consistent with the demonstrated ability of the City and the CCRB to provide information at extraordinary speed to NYCLU. NYCLU received records on 81,000 officers some two business days after NYCLU requested them. But although the Defendants have had for weeks the same ready-at-hand means of producing those same documents to the Unions in compliance with this Court’s order, the Defendants have failed to do so.
The Defendants’ refusal to provide ordered discovery has already prejudiced the Unions in preparing for the Rule 30(b)(6) depositions ordered by the Court, and continues to prejudice the Unions in preparing for both those depositions and for the preliminary injunction hearing.
The Unions therefore ask the Court to order immediate production of the records provided weeks ago to NYCLU, as well as the other expedited discovery ordered by the Court, including production of the documents sought by Defendants’ requests Nos. 5 and 6.
Very truly yours,
Anthony Paul Coles
rm cc: All Counsel of Record (via ECF)
failla_NYSDChambers@nysd.uscourts.gov

 
 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT Docke t Numbe r(s): _2_0_-_2_4_0__0________________________________ _______________Caption [use short title]_____________________ Motion for: _M__o_ti_o_n__to__I_n_t_e_r_v_e_n_e____________________________

________________________________________________________

________________________________________________________ Set forth below precise, complete statement of relief sought: _T_h_e__N_e__w__Y_o__rk__T_i_m__e_s__m_o__v_e_s__to__i_n_te__rv_e__n_e__in__t_h_is__a_p_p__e_a_l___ _fo__r _th__e_p__u_r_p_o_s_e__o_f_o__p_p_o_s_i_n_g__th__e__e_m_e__rg__e_n_c_y__s_t_a_y__m_o__ti_o_n___ _fi_le__d_b_y__P__la_i_n_t_if_fs_-_A__p_p_e_l_la_n__ts_._____________________________

Uniformed Fire Officers Association, et al. v. De Blasio, et al.

________________________________________________________

________________________________________________________

________________________________________________________

MOVING PARTY:_T_h_e__N__e_w__Y_o__rk__T_i_m__e_s__C_o_m__p_a__n_y_________ OPPOSING PARTY:____________________________________________

___Plaintiff

___Defendant

___Appellant/Petitioner ___Appellee/Respondent

MOVING ATTORNEY:_D_a__v_id__M__c_C_r_a_w______________________ OPPOSING ATTORNEY:________________________________________ [name of attorney, with firm, address, phone number and e-mail]
_T_h_e__N__e_w__Y_o__rk__T_i_m__e_s__C_o_m__p__a_n_y__________________________ _______________________________________________________________
_6_2_0__8_t_h_A__v_e_n__u_e_________________________________________ _______________________________________________________________
_N_e__w__Y_o_r_k_,_N__Y__1_0_0__1_8____________________________________ _______________________________________________________________ Court- Judge/ Agency appealed from: _U_._S_._D__is__tr_ic_t__C_o_u__rt__fo__r _th__e_S__o_u_t_h_e_r_n__D__is_t_ri_c_t_o_f__N_e__w__Y_o_r_k_;_H__o_n_.__K_a_t_h_e_r_i_n_e__P_o_l_k__F_a_i_ll_a_________

Ple ase check appropriate boxe s:
Has movant notified opposing counsel (required by Local Rule 27.1):
_✔__Yes ___No (explain):__________________________
_______________________________________________
Opposing counsel’s position on motion:
___Unopposed _✔__Opposed ___Don’t Know
Does opposing counsel intend to file a response:
_✔__Yes ___No ___Don’t Know

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUCTIONS PENDING APPEAL:

Has this request for relief been made below?

___Yes ___No

Has this relief been previously sought in this court? ___Yes ___No

Requested return date and explanation of emergency: ________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

Is oral argument on motion requested? Has argument date of appeal been set?

___Yes _✔__No (requests for oral argument will not necessarily be granted) ___ Yes _✔__No If yes, enter date:_______________________________________________________

Signature of Moving Attorney:
_/_s_/_D__a__v_i_d__M__c_C__r_a__w_____________ Date :_0_7_/_2_9_/_2_0_1__9_______ Service by: _✔__CM/ECF ___Other [Attach proof of service]

Form T-1080 (rev.12-13)

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
__________________________________________________________________
No. 20-2400 __________________________________________________________________
UNIFORMED FIRE OFFICERS ASSOCIATION, et al.,
Plaintiffs-Appellants,
v.
BILL DE BLASIO, in his official capacity as Mayor of the City of New York, et al.,
Defendants-Appellees. __________________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, No. 20-CV-05441-KPF __________________________________________________________________
MOTION TO INTERVENE __________________________________________________________________
David E. McCraw, Esq. Al-Amyn Sumar, Esq. Alexandra Perloff-Giles, Esq. The New York Times Company Legal Department 620 Eighth Avenue New York, NY 10018 Phone: (212) 556-4031 Fax: (212) 556-4634 mccraw@nytimes.com
Attorneys for Proposed Intervenor

CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, The New York Times Company, a publicly traded company, certifies that it has no parent company and that no publicly held corporation owns 10% or more of its stock.
i

Pursuant to Federal Rule of Appellate Procedure 27 and Local Rule 27.1,
The New York Times Company (“The Times”) moves to intervene in this appeal
for the purpose of opposing the emergency motion of Plaintiffs-Appellants (the
“Unions”) for an administrative stay and a stay of the district court’s July 29, 2020
order modifying a July 22 temporary restraining order (“TRO”) as to non-party
New York Civil Liberties Union (“NYCLU”).
ARGUMENT
The information held by the NYCLU that is subject to the district court’s
TRO—a database containing complaints of police misconduct, which the NYCLU
received from the New York City Civil Complaint Review Board—is of
compelling interest to the public and The Times. The Times seeks to intervene in
this appeal both to assert its distinct First Amendment right to receive information
and to underscore the patent unconstitutionality of the TRO.1
1 A motion to intervene is the proper vehicle for doing so. This Court has in other circumstances recognized the right of the media to intervene on appeal in order to vindicate First Amendment interests. See, e.g., Trump v. Deutsche Bank AG, 940 F.3d 146, 150 (2d Cir. 2019) (“[W]e have recognized a … right of news media to intervene in this Court to seek unsealing of documents filed in a court proceeding.”). Moreover, for the reasons stated herein, The Times also meets all the requirements for intervention under Federal Rule of Civil Procedure 24. See, e.g., “R” Best Produce, Inc. v. Shulman-Rabin Mktg., Corp., 467 F.3d 238, 240 (2d Cir. 2006) (listing relevant factors); Int’l Union v. Scofield, 382 U.S. 205, 216 n.10 (1965) (noting that while “[t]he Federal Rules of Civil Procedure . . . apply only in the federal district courts . . . the policies underlying intervention may be applicable in appellate courts”).
1

The TRO’s effect is to prevent The Times from gaining access to the database held by the NYCLU. The Times—whose journalists have reported extensively on police misconduct here in New York and elsewhere2—seeks that access in order to review the data and inform the public of its significance. Any extension of the TRO prolongs a constitutional injury to both The Times and the public, who enjoy a well-established “First Amendment right to ‘receive information and ideas.’” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 757 (1976) (quoting Kleindienst v. Mandel, 408 U.S. 753, 762-763 (1972)); see also In re Application of Dow Jones & Co., 842 F.2d 603, 607 (2d Cir. 1988) (“[T]he First Amendment unwaveringly protects the right to receive information and ideas.”).
To be clear, the TRO was a wholly unconstitutional prior restraint on expression. See Alexander v. United States, 509 U.S. 544, 550 (1993) (“Temporary restraining orders . . . —i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”). First Amendment jurisprudence has long singled out the prior restraint as the most constitutionally offensive type of speech restriction: it is “the most serious and the least tolerable infringement on First Amendment rights” and bears a “heavy presumption” of unconstitutionality.
2 See, e.g., Police Brutality, Misconduct and Shootings, N.Y. Times, https://nyti.ms/39EwSrA (listing New York Times stories on police misconduct).
2

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976); N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam). The aversion to prior restraints rests on “a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).
The TRO should never have been entered, and this Court should not now extend it. Whatever the merits of the Unions’ claims in the action below, they did not warrant enjoining a non-party in lawful possession of the information from publishing it. See N.Y. Times Co., 403 U.S. at 730 (Stewart J., concurring) (prior restraint unjustified absent showing that disclosure would “surely result in direct, immediate, and irreparable damage to our Nation or its people”). Any extension of the TRO—a prior restraint already in effect for seven days—“amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” Id. at 715 (Black, J., concurring); Nebraska Press Ass’n, 423 U.S. at 1329 (“Where, however, a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.”).
3

CONCLUSION For the foregoing reasons, The Times asks that the Court grant its motion to intervene and deny the Unions’ motion for an administrative stay and a stay of the district court’s July 29 order.

Dated: New York, NY July 29, 2020

Respectfully submitted,
By: /s/ David E. McCraw
David E. McCraw, Esq. Al-Amyn Sumar, Esq. Alexandra Perloff-Giles, Esq. The New York Times Company Legal Department 620 Eighth Avenue, 18th Floor New York, NY 10018 Phone: (212) 556-4031 Fax: (212) 556-4634 mccraw@nytimes.com
Attorneys for Proposed Intervenor

4

CERTIFICATION PURSUANT TO FRAP 27 AND LOCAL RULE 27.1 The undersigned counsel certifies that this motion complies with the length
limits in Federal Rule of Appellate Procedure 27(d)(2) because it contains 782 words.
Pursuant to Local Rule 27.1(b), the undersigned counsel certifies that counsel for Plaintiffs-Appellants was notified of this motion to intervene. Plaintiffs-Appellants oppose this motion and intend to file a response.
/s/ David E. McCraw David E. McCraw
5

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
UNIFORMED FIRE OFFICERS ASSOCIATION, et al.,
Plaintiff,
-v.-
DEBLASIO, et al.,
Defendants.

20 Civ. 5441 (KPF) ORDER

KATHERINE POLK FAILLA, District Judge:

For the reasons stated in open court during the conference on August

21, 2020, Plaintiffs’ motion for a preliminary injunction is DENIED IN PART

and GRANTED IN PART. Plaintiffs’ request for an injunction is granted to the

extent that Defendants NYPD and CCRB may not disclose records of “Schedule

A” command discipline violations, for cases heard in the Trial Room, and for

which the disposition of the charge at trial or on review or appeal therefrom is

other than “guilty,” which records have been, are currently, or could in the

future be the subject of a request to expunge the record of the case pursuant to

§ 8, for those officers covered by the Police Benevolent Association, Sergeants

Benevolent Association, and Lieutenants Benevolent Association collective

bargaining agreements. Plaintiffs’ request for an injunction is denied in all

other respects.

SO ORDERED.

Dated:

August 21, 2020 New York, New York

__________________________________ KATHERINE POLK FAILLA
United States District Judge

 
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WebCivil Supreme - eFiled Documents Detail

WebCivil Supreme - eFiled Documents Detail

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Index Number: 0154982/2020

Case Name: UNIFORMED FIRE OFFICERS vs. BILL DE BLASIO, IN HIS

Case Type:

E-ARTICLE 78

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AFFIRMATION

Order on Motion at 2, No. A-003950-19T4 (N.J. Super., App. Div. July 8, 2020) Affirmation in Support of Emergency Relief

15

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AFFIRMATION

16

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SUMMONS

Rule 202.7(f) Affirmation of Notice of Application for a Temporary Restraining Order Summons

17

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RJI -RE: ORDER TO SHOW CAUSE

RJI with Addendum

18

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AFFIRMATION

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DECISION + ORDER ON MOTION

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21 PENDING
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NOTICE TO COUNTY CLERK CPLR 8019(C) --none--

TRANSCRIPT - SO ORDERED

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 Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 1 of 26

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Correction Officers’ Benevolent Association of the City of New York, Inc.; Police Benevolent Association of the City of New York, Inc.; Sergeants Benevolent Association; Lieutenants Benevolent Association; Captains Endowment Association; and Detectives’ Endowment Association,

Petitioners/Plaintiffs,

- against -

Bill de Blasio, in his official capacity as Mayor of the City of New York; the City of New York; Fire Department of the City of New York; Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York; New York City Department of Correction; Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department; the New York City Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board; and the Civilian Complaint Review Board,

20 Civ. 5441 (KPF)

Respondents/Defendants.

BRIEF OF AMICUS CURIAE THE NEW YORK CIVIL LIBERTIES UNION IN SUPPORT OF RESPONDENTS/DEFENDANTS

LATHAM & WATKINS LLP Jamie L. Wine Lawrence E. Buterman Samir Deger-Sen (pro hac vice application forthcoming) 885 Third Avenue New York, New York 10022 Telephone: (212) 906-1200 Facsimile: (212) 751-4864

New York Civil Liberties Union Foundation Michael Sisitzky (pro hac vice application forthcoming) Jordan Laris Cohen Christopher Dunn Molly K. Biklen 125 Broad Street,19th Floor New York, N.Y. 10004 (212) 607-3300

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 2 of 26
TABLE OF CONTENTS Page
INTRODUCTION ....................................................................................................1 INTEREST OF AMICUS CURIAE...........................................................................2 ARGUMENT ............................................................................................................4 I. THE LEGISLATURE EFFECTED A COMPLETE REPEAL
OF SECTION 50-A ........................................................................................4 A. The Text of the Repeal Legislation Allows for Disclosure
of Law Enforcement Disciplinary Records Regardless of Disposition. ........................................................................................... 4 B. The Legislative Debates Demonstrate an Unambiguous Intent to Effectuate a Comprehensive Repeal......................................5 C. The Legislature Considered—and Rejected—Competing, Narrower Proposals ..............................................................................8 II. NEW YORK PUBLIC POLICY BARS PLAINTIFFS FROM ASSERTING A CONTRACTUAL RIGHT TO SHIELD FROM SCRUTINY INFORMATION PROPERLY WITHIN THE SCOPE OF FOIL .................................................................................10 III. PLAINTIFFS FAIL TO ESTABLISH A LIBERTY INTEREST IN AVOIDING RELEASE OF PUBLIC RECORDS ON POTENTIAL MISCONDUCT OF POLICE OFFICERS IN THE LINE OF DUTY ..................................................................................15
i

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 3 of 26
TABLE OF AUTHORITIES
Page(s)
CASES
159 MP Corp. v. Redbridge Bedford, LLC, 33 N.Y.3d 353 (2019) ...................................................................................10, 11
390 W. End Assocs. v. Harel, 298 A.D.2d 11 (1st Dep’t 2002) .........................................................................12
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)............................................................................................12
Boss v. Kelly, 306 F. App’x 649 (2d Cir. 2009) ........................................................................17
Brandt v. Bd. Of Co-op. Educ. Servs., 820 F.2d 41 (2d Cir. 1987) .................................................................................17
Bursac v. Suozzi, 22 Misc. 3d 328 (Sup. Ct. Nassau Cty. 2008) ..............................................17, 18
Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246 (1987) ...........................................................................................4
City of New York v. 17 Vista Assocs., 84 N.Y.2d 299 (1994) .........................................................................................10
DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) ...............................................................................16
Filteau v. Prudenti, 161 F. Supp. 3d 284 (S.D.N.Y. 2016) ................................................................16
People ex rel. Fleming v. Dalton, 158 N.Y. 175 (1899) .............................................................................................5
Ford v. D.C. 37 Union Local 1549, 579 F.3d 187 (2d Cir. 2009) ...............................................................................10
Gerry v. Volger, 252 A.D. 217(4th Dep’t 1937)..............................................................................5
ii

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 4 of 26
Jewish Press, Inc. v. N.Y.C. Dep’t of Educ., 183 A.D.3d 731 (2d Dep’t 2020)..................................................................11, 12
Kass v. Kass, 91 N.Y.2d 554 (1998) .........................................................................................10
Kennedy v. City of New York, No. 12 Civ. 4166 (KPF), 2015 WL 6442237 (S.D.N.Y. Oct. 23, 2015) ...................................................................................................................16
Kraut v. Morgan & Brother Manhattan Storage Co., Inc., 38 N.Y.2d 445 (1976) .........................................................................................11
Lee T.T. v. Dowling, 87 N.Y.2d 699 (1996) .........................................................................................17
Livson v. Town of Greenburgh, 141 A.D.3d 658 (2d Dep’t 2016)........................................................................13
M. Farbman & Sons, Inc. v. N.Y.C. Health & Hosps. Corp., 62 N.Y.2d 75 (1984) ...........................................................................................12
Morales v. Gross, 230 A.D.2d 7 (2d Dep’t 1997)..............................................................................5
Mulligan v. City of New York, 194 Misc. 579 (Sup. Ct. N.Y. Cty. 1949), aff’d, 275 A.D. 795 (1st Dep’t 1949) ...........................................................................................................9
NYCLU v. Buffalo Police Dep’t Index No. I 40-2016 (Sup. Ct. Erie Cty.)..............................................................3
NYCLU v. N.Y.C. Police Dep’t, 32 N.Y.3d 556 (2018) ...........................................................................................3
In re Patrolmen’s Benevolent Ass’n of N.Y., Inc. v. N.Y. State Pub. Emp’t Relations Bd., 6 N.Y.3d 563 (2006) ...........................................................................................10
Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004) ...............................................................................17
iii

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 5 of 26
Paul v. Davis, 424 U.S. 693 (1976)............................................................................................16
People v. David W., 95 N.Y.2d 130 (2000) .........................................................................................17
Skandia America Reinsurance Corp. v. Schenck, 441 F. Supp. 715 (S.D.N.Y. 1977) .....................................................................15
Swinton v. Safir, 93 N.Y.2d 758 (1999) .........................................................................................17
Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994) ...........................................................................16, 17
Victor v. Office of Admin. Trials & Hearings, Index No. 100890/15 (Sup. Ct. N.Y. Cty., June 4, 2018) ....................................3
Weston v. Sloan, 84 N.Y.2d 462 (1994) ...................................................................................12, 13 STATUTES
29 U.S.C. § 152(2) ...................................................................................................10 N.Y. Pub. Off. Law § 84 ..........................................................................................11 N.Y. Pub. Off. Law § 86(6)(d)...................................................................................4 N.Y. Pub. Off. Law § 89(2-b)....................................................................................4 N.Y. Pub. Off. Law § 89(2-c) ....................................................................................5
OTHER AUTHORITIES Christopher Robbins et al., Newly Released Data Shows 1 Out of
Every 9 NYPD Officers Has A Confirmed Record of Misconduct, Gothamist (July 28, 2020), https://gothamist.com/news/nypdpolice-ccrb-database-shows-confirmed-record-misconduct ............................... 15
iv

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 6 of 26
Hearing on S.3695 Before the N.Y. Senate Comm. on Codes, 242nd N.Y. Leg. Sess., (Oct. 24, 2019) (statement of Oleg Chernyavsky, Assist. Deputy Comm’r, Legal Matters, NYPD), https://www.nysenate.gov/sites/default/files/oct_24th_public_heari ng_on_discovery_reform.pdf ................................................................................ 9
James O’Neill, Let NYC See Police Records, now: We Must Reform State Law Keeping Disciplinary Actions Secret, N.Y. Daily News, Feb. 7, 2019, https://www.nydailynews.com/opinion/ny-oped-letnyc-see-police-records-now-20190207-story.html ............................................... 9
Luis Ferré-Sadurní et al, Defying Police Unions, New York Lawmakers Ban Chokeholds, N.Y. Times, June 8, 2020 .....................................7
N.Y. Assembly, Floor Debate, 69, 243rd N.Y. Leg., Reg. Sess., (June 9, 2020), https://nystateassembly.granicus.com/DocumentViewer.php?file=n ystateassembly_e9af7a3d256bee2d470e331a2a0dd9ae.pdf&view= 1.........................................................................................................................5, 6
N.Y. Senate Bill S4213, 243rd N.Y. Leg. Sess. ........................................................8
N.Y. Senate Bill S4215, 243rd N.Y. Leg. Sess. ........................................................8
N.Y. Senate Bill S8674, 243rd N.Y. Leg. Sess. ........................................................7
N.Y. Senate, Floor Debate, 1823, 243rd N.Y. Leg., Reg. Sess., (June 9, 2020), https://legislation.nysenate.gov/pdf/transcripts/2020-0609T11%3A53 ........................................................................................................6
N.Y. Senate-Assembly Bill S3398, A1685, 243rd N.Y. Leg. Sess. ..........................8
N.Y. Senate-Assembly Bill S4214, A2671, 243rd N.Y. Leg. Sess. ..........................8
NYCLU, Mission Failure: Civilian Review of Policing in New York City 1994-2006 (2007)..........................................................................................3
NYCLU, Report: Five Years of Civilian Review: A Mandate Unfulfilled (1998) .................................................................................................4
v

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 7 of 26
NYCLU, Testimony Before the New York State Senate Committee on Codes in Support of S.3695, Repealing Civil Rights Law Section 50-a, Oct. 17, 2019, https://www.nyclu.org/sites/default/files/field_documents/final_tes timony_for_senate_codes_50a_hearing_-_2019.10.17.pdf .................................. 3
Press Release, N.Y.C. Mayor, Mayor de Blasio Outlines Core Principles of Legislation to Make the Disciplinary Records of Law Enforcement and Other Uniformed Personnel Subject to Disclosure (Oct. 14, 2016), https://www1.nyc.gov/office-of-themayor/news/820-16/mayor-de-blasio-outlines-core-principleslegislation-make-disciplinary-records-law ...........................................................9
vi

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 8 of 26
INTRODUCTION At a time when communities across the country are demanding stronger systems of accountability in response to the ongoing crisis of police killings of people of color, Plaintiffs by this lawsuit seek to subvert the will of New York's democratically-elected representatives, and impede their response to the unprecedented levels of public demonstrations and calls for reform. Central to these calls for reform was the repeal of section 50-a of the New York Civil Rights Law, which had erected a nearly impenetrable wall of secrecy around records of police misconduct and discipline in New York state. Plaintiffs advance a number of theories for why this court should negate these critical reforms and deny the public access to information on the systems entrusted with holding public officials accountable. While each of these theories lack merit, the New York Civil Liberties Union (“NYCLU”) writes to address three specific areas about which we have particular expertise: namely, the legislature’s unequivocal intent to effect a comprehensive repeal of section 50-a with respect to all law enforcement disciplinary records; New York’s overriding public policy interest in such disclosure, which renders Plaintiffs’ contractual arguments meritless; and the insufficiency of plaintiffs’ due process claims. Plaintiffs’ central argument—that records of police misconduct and discipline should continue to be cloaked in secrecy—is one that has been heard and resoundingly rejected by the public and the legislature. After at least five years considering a wide range of 50-a related proposals, the legislature made a clear and unequivocal choice to fully repeal section 50-a and make all disciplinary records public, including in cases where the ultimate disposition was unsubstantiated, unfounded, exonerated, or not guilty, and in cases pending resolution. It is imperative that this Court uphold that legislative intent. In an effort to continue to shield those disciplinary records from the public, Plaintiffs further misstate the provisions of their collective bargaining agreements and argue for their

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 9 of 26
enforcement in a manner that would plainly violate New York law as against public policy. New York has a strong public policy favoring open government and public scrutiny of official misconduct. This policy was reaffirmed through the repeal of section 50-a, and New York's Freedom of Information Law (FOIL) now clearly establishes that all allegations of government misconduct, including misconduct carried out by police officers, is subject to public disclosure.
And while the NYCLU champions the due process rights of all people, including government employees, plaintiffs fail to establish a due process right in avoiding disclosure of public records regarding potential misconduct of police officers in the line of duty. That disclosure is not harmful to officers, and even if it were, plaintiffs do not identify a tangible interest other than reputational harm as is necessary to establish a “stigma-plus” claim.
Defendants are entitled to implement the letter and spirit of this new law by making such information available to the public. Plaintiffs’ resistance is nothing more than an attempt to undo a legislative process that produced a policy outcome with which they disagree. They now seek to obtain in court the policy that they failed to convince the public and the legislature to embrace: namely, the continued, blanket secrecy for allegations of officer misconduct. This court should permit defendants to give full effect to the legislature’s clear and unambiguous intent and reject plaintiffs’ arguments as violative of public policy.
INTEREST OF AMICUS CURIAE Amicus Curiae the NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with more than 180,000 members and supporters. The NYCLU's mission is to defend and promote civil rights and liberties as embodied in the United States Constitution, the New York state Constitution, and state and federal law. Defending New Yorkers' rights to be free from discriminatory and abusive policing is a core component of that mission. Protecting this right requires robust systems for investigating abusive
2

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 10 of 26
officers and holding them accountable. To that end, the NYCLU long has been involved in efforts to challenge and ultimately repeal section 50-a of the New York Civil Rights Law, which had erected a nearly impenetrable wall of secrecy around records of police misconduct and discipline in New York state.
The NYCLU frequently has litigated issues concerning the application of section 50-a. See, e.g., NYCLU v. N.Y.C. Police Dep’t, 32 N.Y.3d 556 (2018) (addressing application of section 50-a to NYCLU request for NYPD disciplinary decisions); Victor v. Office of Admin. Trials & Hearings, Index No. 100890/15 (Sup. Ct. N.Y. Cty., June 4, 2018) (amicus curiae in dispute addressing application of section 50-a to disciplinary decisions involving Department of Correction officers); NYCLU v. Buffalo Police Dep’t Index No. I 40-2016 (Sup. Ct. Erie Cty.) (challenging the Buffalo Police Department’s application of section 50-a to withhold use of force and firearm use reports). The NYCLU also was deeply involved in the years-long legislative process concerning the repeal of section 50-a, testifying regularly at public hearings concerning relevant proposals and advocating with lawmakers in support of the June 2020 repeal legislation. See, e.g., NYCLU, Testimony Before the New York State Senate Committee on Codes in Support of S.3695, Repealing Civil Rights Law Section 50-a, Oct. 17, 2019, https://www.nyclu.org/sites/default/files/field_documents/final_testimony_for_senate_codes_50a _hearing_-_2019.10.17.pdf. The NYCLU has also long raised concerns about the need to more closely scrutinize the high rates at which oversight agencies do not substantiate allegations of police misconduct in order to assess the integrity and effectiveness of police accountability systems. NYCLU, Mission Failure: Civilian Review of Policing in New York City 1994-2006 (2007), (analyzing CCRB's failures and making recommendations for improvements in order to
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strengthen police accountability); NYCLU, Report: Five Years of Civilian Review: A Mandate Unfulfilled (1998) (same).
ARGUMENT I. THE LEGISLATURE EFFECTED A COMPLETE REPEAL OF SECTION 50-A
A. The Text of the Repeal Legislation Allows for Disclosure of Law Enforcement Disciplinary Records Regardless of Disposition.
The legislature’s repeal of section 50-a is sweeping. The final legislation repealed 50-a in its entirety, with no disposition-based distinctions, and the plain text of the law clearly contemplates the disclosure of all records, not just those where the claims were “substantiated.” The legislature included within the definition of law enforcement disciplinary records, “any record created in furtherance of a law enforcement disciplinary proceeding, including, but not limited to: . . . the disposition of any disciplinary proceeding . . . .” N.Y. Pub. Off. Law § 86(6)(d) (McKinney). Plaintiffs’ contention that only substantiated complaints may be disclosed would render this provision meaningless and must be rejected. See, e.g., Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 254 (1987) (noting the accepted principle of New York statutory construction that a statute should be interpreted so as to give effect to all of its provisions). There would be little point in specifying “the disposition” so broadly if the legislature did not intend for disclosure to encompass a broader category of records than only substantiated complaints.
The legislature also plainly considered Plaintiffs’ privacy arguments; it merely reached a different policy determination as to how to balance those concerns alongside the public’s interest in transparency. The repeal bill mandated the redaction of home addresses and personal contact information of officers, their families, complainants, and anyone named in a complaint; social security numbers; and medical information. N.Y. Pub. Off. Law § 89(2-b) (McKinney). It also
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permitted withholding or redacting records of “technical infractions,” defined as minor rule

violations of little public interest. Id. § 89(2-c). That the legislature utilized such narrow and

precise language in recognition of officer privacy concerns clearly suggests an intent to apply those

exemptions narrowly and with precision.

Plaintiffs’ chief objection appears to be less the extent of now-permitted disclosures, and

more that the legislature passed anything at all. During the floor debate, the bill’s sponsor,

Assemblymember O’Donnell, stated, “I’ve had this legislation for five years, and I have had

hundreds and hundreds of hours of conversations about 50-a and about my belief that it needs to

be repealed, and different proposals with different language to do so. At no time did any police

PBA offer any suggestions other than, No, we can’t repeal it.” N.Y. Assembly, Floor Debate, 69,

243rd

N.Y.

Leg.,

Reg.

Sess.,

(June

9,

2020),

https://nystateassembly.granicus.com/DocumentViewer.php?file=nystateassembly_e9af7a3d256

bee2d470e331a2a0dd9ae.pdf&view=1. If Plaintiffs wanted to try to limit which records can be

disclosed, the venue for making that case would have been the legislature. Instead, they seek to

litigate in court a policy disagreement.

B. The Legislative Debates Demonstrate an Unambiguous Intent to Effectuate a Comprehensive Repeal
To the extent there is any ambiguity in the text of the legislation (there is not), New York

courts may examine records of legislative debate in order to discern and give effect to the

legislature’s intent. See, e.g., Morales v. Gross, 230 A.D.2d 7, 10 (2d Dep’t 1997); Gerry v.

Volger, 252 A.D. 217, 221(4th Dep’t 1937) (citing People ex rel. Fleming v. Dalton, 158 N.Y.

175, 184 (1899)). It is impossible to read the transcripts of the New York State Assembly and

Senate floor debates and discern anything other than the legislature’s clear intent to fully repeal

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section 50-a in such a way as to allow public release of unsubstantiated, unfounded, and exonerated records.
In response to a question as to whether the bill distinguished between substantiated and unsubstantiated complaints, Assemblymember O’Donnell, stated clearly, “And so, no, we don’t distinguish between those two things in this law.” Assembly Floor Debate, supra at 61. In expressing his support for the legislation, Assemblymember Ramos noted the value of unsubstantiated complaints in establishing patterns of misconduct and in identifying officers “[w]ho might be a problem and who might be a risk to the public[.]” Id. at 100. Assemblymember Abinanti similarly noted the value in examining such patterns. Id. at 205–06. Assemblymember Bichotte, in voicing her support for the legislation, said, “I’m happy to know that unsubstantiated will be also open to the public.” Id. at 198. Assemblymember Mosely remarked how the bill will allow the public to uncover “whether police departments have ignored repeated patterns of complaints about officers.” Id. at 152. Whether such complaints were ignored could only be uncovered by reviewing and analyzing records beyond just substantiated complaints.
In the Senate, Senator Salazar expressed her support for the legislation, noting that the release of these records would mean that “[p]olice departments will no longer be able to conceal whether or not they knew about previous excessive-force complaints in their too-frequent attempts to avoid responsibility.” N.Y. Senate, Floor Debate, 1823, 243rd N.Y. Leg., Reg. Sess., (June 9, 2020), https://legislation.nysenate.gov/pdf/transcripts/2020-06-09T11%3A53. Senator Sepúlveda pointed out one of the core reasons for making unfounded records public in declaring his support for the bill: “[Unfounded or not founded] is really an accurate measure of how the department and the hearing examiner wants to find at the end of the day for the police officer. And I can tell that it’s equally unfair to the police officer.” Id. at 1857. Senate Majority Leader Andrea Stewart-
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Cousins also clarified that these disclosures were intended, saying, “If I’ve got 20 accusation of excessive force that are unsubstantiated, that’s got to be a red flag, one way or the other . . . . We can no longer afford complaint after complaint built up on your record and then nobody does anything about it. That’s over.”1
Even those opposed to the bill made unequivocally clear their understanding that it would allow for disclosure of all disciplinary records, regardless of disposition. These legislators noted that they were voting to oppose the legislation because it would allow for disclosure of all complaints. See N.Y. Assembly, supra at 132, 167, 243, 221, 241 (statements of Assemblymembers Fitzpatrick, Garbarino, Goodell, and Reilly); N.Y. Senate, supra at 1797, 1836, 1850 (statements of Senators Akshar, Borrello, and Gallivan). One senator opposed to the repeal subsequently introduced a bill to provide for the mandatory redaction of unsubstantiated and unfounded allegations,2 legislation that would be entirely unnecessary if the repeal legislation did not make such records available.
The release of these records, whether through a database as envisioned by defendants or in response to public records requests,3 would be consistent with the text of the statute and the
1 Luis Ferré-Sadurní et al, Defying Police Unions, New York Lawmakers Ban Chokeholds, N.Y. Times, June 8, 2020, https://www.nytimes.com/2020/06/08/nyregion/floyd-protests-policereform.html. 2 See N.Y. Senate Bill S8674, 243rd N.Y. Leg. Sess. 3 Plaintiffs note a recent advisory opinion from the Committee on Open Government concerning one such public records request (see Dkt. No. 30), which is inapposite and ignores the clear and unequivocal intent of the legislation. In any event, the main import of that decision was its statement that “an agency may, but not must, withhold as exempt a record meeting the criteria for such exemption . . . when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may in our view be withheld . . . .” Id at 3. (emphasis added). This opinion, therefore, supports Defendants’ position that agencies are permitted to release disciplinary records in cases that are pending or otherwise not substantiated.
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legislature’s clearly established intent, and it also would constitute a clear fulfilment of that intent by maximizing the public’s ability to assess the integrity of police disciplinary investigations.
C. The Legislature Considered—and Rejected—Competing, Narrower Proposals
Beyond the text of the legislation and the views expressed by lawmakers, the legislature’s intent to fully repeal section 50-a with respect to all disciplinary records is further evidenced by the fact that lawmakers easily could have pursued a narrower approach. Instead, the legislature made a deliberate decision to advance the farthest-reaching proposal before them.
The final repeal measure was not the only relevant bill pending before the legislature. In the 2019–2020 session, it was one of at least five 50-a related bills.4 These bills would have left in place section 50-a’s broad secrecy mandate, while creating exceptions for limited disclosure. The most detailed of these bills, S4213, would have allowed for the release of narrow categories of records depending on the type or severity of misconduct alleged, but only where allegations were substantiated. See N.Y. Senate Bill S4213, 243rd N.Y. Leg. Sess. The de Blasio Administration had also put forth broad policy outlines—falling far short of full repeal—as early
4 These included proposals to allow civilian review boards to seek a court order authorizing release of certain records (N.Y. Senate-Assembly Bill S4214, A2671, 243rd N.Y. Leg. Sess.), narrow the scope of 50-a’s definition of personnel records (N.Y. Senate Bill S4215, 243rd N.Y. Leg. Sess.), and exclude video recordings from the definition of personnel records (N.Y. Senate-Assembly Bill S3398, A1685, 243rd N.Y. Leg. Sess.).
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as 2016 that closely tracked with this last proposal.5 These principles were supported by the NYPD in subsequent media and legislative testimony.6
The legislature’s consideration of—and decision not to advance—S4213 or the near identical policies outlined by the de Blasio Administration and the NYPD reflects a rejection of the arguments made in support: that limiting release to only these narrower, substantiated allegations struck the appropriate balance between transparency and officer privacy.7 The legislature had ample opportunity to consider these arguments,8 and made a reasoned policy choice favoring the stronger public interest in transparency and rejecting the policies reflected in competing, but failed, legislative proposals. See, e.g., Mulligan v. City of New York, 194 Misc. 579, 581 (Sup. Ct. N.Y. Cty. 1949) (discerning the legislature’s intent by distinguishing the language enacted by the legislature from that of similar legislative proposals that failed passage), aff'd, 275 A.D. 795 (1st Dep’t 1949).
5 See Press Release, N.Y.C. Mayor, Mayor de Blasio Outlines Core Principles of Legislation to Make the Disciplinary Records of Law Enforcement and Other Uniformed Personnel Subject to Disclosure (Oct. 14, 2016), https://www1.nyc.gov/office-of-the-mayor/news/820-16/mayor-deblasio-outlines-core-principles-legislation-make-disciplinary-records-law. 6 See Hearing on S.3695 Before the N.Y. Senate Comm. on Codes, 242nd N.Y. Leg. Sess., (Oct. 24, 2019) (statement of Oleg Chernyavsky, Assist. Deputy Comm’r, Legal Matters, NYPD), https://www.nysenate.gov/sites/default/files/oct_24th_public_hearing_on_discovery_reform.pdf; James O’Neill, Let NYC See Police Records, now: We Must Reform State Law Keeping Disciplinary Actions Secret, N.Y. Daily News, Feb. 7, 2019, https://www.nydailynews.com/opinion/ny-oped-let-nyc-see-police-records-now-20190207story.html. 7 See id. 8 Indeed, an earlier version of S4213 was first introduced in 2017 (S6826).
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II. NEW YORK PUBLIC POLICY BARS PLAINTIFFS FROM ASSERTING A CONTRACTUAL RIGHT TO SHIELD FROM SCRUTINY INFORMATION PROPERLY WITHIN THE SCOPE OF FOIL New York public policy bars Plaintiffs’ attempts to assert provisions of their collective
bargaining agreements (“CBAs”) as a shield against the disclosure of disciplinary records. At bottom, Plaintiffs’ argument is that provisions of their CBAs bar Defendants from disclosing to the public any and all complaints of official misconduct against officers, unless the relevant allegations have been proven by a “preponderance of evidence” in an internal investigation. See Compl. ¶¶ 43, 45, 47. That theory grossly distorts the text of the CBAs at issue, which provide for no such limitation. See infra at 13–14. But, even if the CBAs did contain such an extraordinary provision, they would be plainly unenforceable as against public policy.
Under New York law, a “contractual provision [is] unenforceable where the public policy in favor of freedom of contract is overridden by another weighty and countervailing public policy.” 159 MP Corp. v. Redbridge Bedford, LLC, 33 N.Y.3d 353, 360 (2019) (citation omitted); see also Kass v. Kass, 91 N.Y.2d 554, 565 n.4 (1998) (“Parties’ agreements may, of course, be unenforceable as violative of public policy”).9 Accordingly, a “City is restricted from bargaining and agreeing to schemes or arrangements beyond public policy and procedures prescribed by the law.” City of New York v. 17 Vista Assocs., 84 N.Y.2d 299, 306 (1994). Any such agreement is void ab initio. See In re Patrolmen’s Benevolent Ass’n of N.Y., Inc. v. N.Y. State Pub. Emp’t Relations Bd., 6 N.Y.3d 563, 573 (2006) (holding that CBA provision was invalid because “public policy bars enforcement of a provision in a collective bargaining agreement that would limit the
9 Plaintiffs’ arguments regarding the CBA are subject to state, not federal, law because the defendants are political subdivisions exempt from Section 301 of the Labor Management Relations Act. See 29 U.S.C. § 152(2) (exempting from the definition of employer “any State or political subdivision thereof”); Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (“As the language of the LMRA makes plain, public employees are not covered by that statute.”).
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power of the New York City Department of Investigation to interrogate city employees in a criminal investigation”) (citation omitted).
“Although ‘public policy’ is a vague term, it ‘is to be ascertained by reference to the laws and legal precedents.” Kraut v. Morgan & Brother Manhattan Storage Co., Inc., 38 N.Y.2d 445, 451–52 (1976). New York’s FOIL reflects the State’s strong public policy in favor of open government and public scrutiny of official misconduct. FOIL was enacted to promote a “free society,” which “is maintained when a government is responsive and responsible to the public, and when the public is aware of governmental actions,” promoting a “more open [] government,” which, in turn, allows the public to have a “greater [] understanding and participation . . . in government.” N.Y. Pub. Off. Law § 84 (McKinney). And, as discussed above, in voting to repeal the New York State Civil Rights Law § 50-a, the legislature made clear that the State’s public policy favors disclosure of all allegations of official misconduct, including those by police officers.
Under Plaintiffs’ theory, however, the terms of their CBAs prohibit dissemination of information that is otherwise subject to public disclosure under FOIL. See Compl. ¶¶ 5, 52–55. Reading the contracts in such a manner would significantly impair New York’s strong public policy in favor of open government, and thus render the relevant provisions unenforceable.
Importantly, this is not a case where the Court needs to “balanc[e]” “the public interests favoring invalidation” against the “strong public policy interest in” “freedom of contract.” 159 MP Corp. v. Redbridge Bedford, LLC, 33 N.Y.3d 353, 360–61 (2019). That is because the rights that purportedly have been bargained away here are not those of Defendants but those of the public—which Defendants have no “freedom” to contract away in the first place. FOIL “is based on the policy that ‘the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.’” Jewish Press, Inc. v. N.Y.C. Dep't of Educ., 183 A.D.3d
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731, 731-32 (2d Dep’t 2020) (citation omitted); Weston v. Sloan, 84 N.Y.2d 462, 465 (1994) (“[T]he general principle underlying FOIL [is] the presumption that the records of government should be accessible to the public under the public's inherent right to know the processes of government decision-making.”); M. Farbman & Sons, Inc. v. N.Y.C. Health & Hosps. Corp., 62 N.Y.2d 75, 80 (1984) (“Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.”). FOIL thus creates a public right to access information about allegations of official misconduct, which Plaintiffs seek to impair via contract. But it is well-settled that entities cannot enter into contracts that would bargain away the statutory rights of third parties. See 390 W. End Assocs. v. Harel, 298 A.D.2d 11, 16 (1st Dep’t 2002) (landlord and tenant could not contract to exempt apartment from rent stabilization laws because “[t]he goal of ensuring an adequate supply of affordable housing ‘is frustrated when landlords and tenants attempt to contract around the regulated rent[s]”) (citation omitted); cf. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211–12 (1985) (noting the established principle that “parties to a collective-bargaining agreement [cannot] contract for what is illegal under state law”).10
Moreover, any effort by Defendants to bargain away the rights created by FOIL would be particularly impermissible, because FOIL is directed at Defendants themselves. The law is designed to ensure both that public officials and government agencies are properly subject to
10 And if the applicable CBA provisions do not—because they cannot—bar Defendants from providing the relevant information in response to a FOIL request, they likewise cannot bar Defendants from releasing that same information voluntarily. The public’s right to disclosure extends to information subject to disclosure under FOIL—not merely information that happens to have been requested through the FOIL process. Jewish Press, Inc. v. N.Y.C. Dep’t of Educ., 183 A.D.3d 731, 731–32 (4th Dep’t 2020) (describing the relevant right as the “right to know” relevant information about the government, not merely the right to petition the government for information).
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public scrutiny. Livson v. Town of Greenburgh, 141 A.D.3d 658, 659–60 (2d Dep’t 2016) (FOIL “was enacted ‘to promote open government and public accountability,’ and ‘imposes a broad duty on government to make its records available to the public’”) (citations omitted); Weston, 84 N.Y.2d 462 at 465 (“In the legislative declaration the act noted that ‘a free society is maintained when government is responsive and responsible to the public’ and that ‘it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.’ We have consistently interpreted the statute liberally to implement these broad purposes.”) (citations omitted). Defendants cannot lawfully “contract out” of an imposition the legislature placed on them by agreeing with their employees to refuse to abide by applicable provisions of FOIL. Indeed, taken to its logical conclusion, Plaintiffs’ theory must be that government employers can agree in their CBAs to simply refuse to honor FOIL requests across the board—and presumably opt out of all kinds of other state laws too. That cannot be correct.11
In short, Plaintiffs’ argument that the CBAs prohibit disclosure of information properly subject to FOIL is patently meritless. Such a limitation would squarely violate New York public policy and settled law prohibiting the impairment of statutory rights. Plaintiffs’ argument should be dismissed on that ground alone.
11 For this reason, Plaintiffs’ focus on whether the relevant allegations have been “substantiated” is likewise misplaced. See Compl. ¶ 1 (defining “Unsubstantiated and Non-Final Allegations” to include “non-final, unsubstantiated, unfounded, exonerated, or [those that] resulted in a finding of not guilty.”) It is no answer that the disclosures here concern instances where, following an internal departmental review, an employing agency has declined to discipline an officer. The very reason why public scrutiny is so vital in this context is to ensure the adequacy of those very internal processes, and ensure that allegations of misconduct are being treated in a serious and even-handed way.
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Furthermore, and in any event, Plaintiffs’ reading of the CBAs as creating a sweeping restriction on public dissemination of allegations of misconduct is simply wrong. The CBA provisions do no such thing.
Plaintiffs point to provisions of the CBAs which provide for (1) “remov[al] from the Personnel Folder [of] investigative reports which, upon completion of the investigation are classified ‘exonerated’ and/or ‘unfounded,’”12 and (2) “expunge[ment] from the member’s personnel folder after one year if they have not been penalized thereafter in a separate disciplinary matter during that time.”13 But those provisions say nothing at all about disclosure of official complaints to the public.
Plaintiffs argue that disclosing allegations of misconduct “would functionally negate the rights of officers to clear their disciplinary records of unfounded and unsubstantiated allegations, where that information would forever be publicly available in the future.” Compl. ¶ 56. But the Unions did not bargain for the extraordinary “right” to ensure that all allegations of misconduct never see the light of day; they simply bargained for the removal of certain allegations from “personnel folder[s].” And Plaintiffs’ complaint itself makes clear that such “personnel records are used for future promotions and job transfers”—that is, for the internal evaluation of officer performance. Compl ¶¶ 55, 57. The CBA provisions that the Unions point to are plainly directed
12 Compl. at ¶ 53 (emphasis added); see also SBA CBA, Art. XV, § 7(c); PBA CBA XVI, § 7(c); LBA CBA Art. XVI, §7(c); CEA CBA Art. XIV, § 6(c); COBA CBA Art. XVI, § 11, DOC Directive 4257R-A, VI(6) and X; Union Mem. of Law in Supp. of Pet., (“Union Mem.”) at 12 (Dkt. 10-12). 13Compl. at ¶ 55 (emphasis added); see also SBA CBA, Art. XV, § 8; PBA CBA, Art. XVI, § 8; LBA CBA, Article XVI, § 8; COBA CBA Art. XVI, § 11, DOC Directive 4257R-A, VI(6) and X, a violation of which may be grieved; Union Mem. at 12.
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toward such evaluations, and accordingly do not bar Defendants from releasing allegations of
misconduct to the public.
In short, even on their own terms, the Unions’ CBA-based arguments are meritless and should be rejected.14
III. PLAINTIFFS FAIL TO ESTABLISH A LIBERTY INTEREST IN AVOIDING RELEASE OF PUBLIC RECORDS ON POTENTIAL MISCONDUCT OF POLICE OFFICERS IN THE LINE OF DUTY The NYCLU, as an organization dedicated to vindicating the civil rights and civil liberties
of all persons, fully supports the notion that the Due Process Clause protects all people—including,
critically, government employees—from certain government action that can damage them. But
those protections are not implicated in this case, which involves government agencies providing
information in response to open records requests regarding the conduct of government officials,
and specifically officials authorized to use deadly force. The information at issue here is not damaging to police officers,15 and, even if it were,
plaintiffs’ due process claims would still fail because they do not establish a liberty interest
14 Plaintiffs also purport to rely to certain settlement agreements signed by certain officers with Defendants. Plaintiffs do not appear to assert that these settlement agreements themselves contain any applicable confidentiality provisions; instead, they argue that because the agreements were signed “against the backdrop of Civil Rights Law § 50-a, which required that the disciplinary files be kept confidential,” Section 50-a should be deemed “a part of the contract.” Compl. ¶ 65. The notion that all laws “in force at the time” a contract is signed (even if not referenced in the contract itself) should be deemed “part of the contract”—and binding on a counterparty—is utterly nonsensical. Union Mem. at 21. The only authority Plaintiffs cite for that radical proposition is Skandia America Reinsurance Corp. v. Schenck, 441 F. Supp. 715, 724 (S.D.N.Y. 1977); but there the court merely interpreted an ambiguous provision in a contract in light of then-applicable state law. Here, Plaintiffs do not rely on any provision of the settlement agreements themselves; rather, they argue all repealed laws that constitute the “backdrop” for an agreement are forever binding on the parties. This Court should reject that absurd argument out of hand. 15 Many officers with numerous complaints have in fact been promoted despite those records. See, e.g., Christopher Robbins et al., Newly Released Data Shows 1 Out of Every 9 NYPD
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implicated by defendants’ release to the public of disciplinary records regarding potential misconduct in the line of duty. Loss of reputation alone is insufficient to invoke the procedural protections of the Due Process Clause. Paul v. Davis, 424 U.S. 693, 702–12 (1976). In so-called “stigma-plus” claims, courts have recognized a protected liberty interest in “injury to one’s reputation (the stigma) coupled with the deprivation of some ‘tangible interest’ or property right (the plus).” DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003). Plaintiffs contend that the “plus” is satisfied here by the potential loss of employment or future employment opportunities caused by the release of disciplinary records. But that argument is plainly foreclosed by Second Circuit precedent. See Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994); Filteau v. Prudenti, 161 F. Supp. 3d 284, 295 (S.D.N.Y. 2016) (Engelmayer, J.) (noting that “[u]nder settled doctrine,” plaintiff’s “claim of diminished job prospects is insufficient to support a claim of injury to a protected liberty interest”); Kennedy v. City of New York, No. 12 Civ. 4166 (KPF), 2015 WL 6442237, at *14 (S.D.N.Y. Oct. 23, 2015).
In Valmonte, the Second Circuit concluded that “the deleterious effects which flow directly from a sullied reputation,” including “the impact that defamation might have on job prospects,” are insufficient to establish a protected liberty interest. 18 F.3d at 1001 (emphasis added). The court nevertheless held that the plaintiff there established a tangible interest in prospective employment in her chosen field because of a state statute specifically requiring childcare employers to check applicants against the registry, and requiring employers who hired people on the registry “to explain the reasons why in writing” to the state. Id. Only because of this “statutory
Officers Has A Confirmed Record of Misconduct, Gothamist (July 28, 2020), https://gothamist.com/news/nypd-police-ccrb-database-shows-confirmed-record-misconduct.
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impediment,” which “by operation of law” prevented the plaintiff from employment in her chosen field, did the court hold loss of job prospects sufficient to establish a liberty interest. Id. (emphasis in original); cf. Lee T.T. v. Dowling, 87 N.Y.2d 699, 703 (1996) (concluding under New York Due Process Clause that plaintiff established liberty interest as to same statutory scheme, and noting consistency with Valmonte).
Plaintiffs do not cite any cases in which courts have found potential loss of employment or job opportunities constitute a tangible interest giving rise to due process protection. In the majority of the cases they rely on, the “plus” was termination from government employment—not speculation that the plaintiffs might be fired or lose future job opportunities. See Patterson v. City of Utica, 370 F.3d 322, 329–30 (2d Cir. 2004); Swinton v. Safir, 93 N.Y.2d 758, 763 (1999); Brandt v. Bd. Of Co-op. Educ. Servs., 820 F.2d 41, 44 (2d Cir. 1987); see also Boss v. Kelly, 306 F. App’x 649, 651 (2d Cir. 2009) (noting that under Valmonte loss of “job prospects” is insufficient, and concluding that plaintiff police officer failed to satisfy “plus” element where he did “not allege that he was terminated”). In People v. David W., 95 N.Y.2d 130 (2000), which involved a due process challenge to a state statute classifying and publicizing a private person on a sex-offender registry, the “plus” included the fact that classification entailed “affirmative obligations” to register every 90 days with local law enforcement and “promptly advise of changes in address,” as well as publication of a person’s photograph, home address, and phone number. Id. at 137. That case provides no support for plaintiffs’ contention that potential loss of employment or job opportunities is sufficient.
Plaintiffs’ extensive reliance on Bursac v. Suozzi, 22 Misc. 3d 328, 340 (Sup. Ct. Nassau Cty. 2008), is similarly misplaced. In that case a woman who was arrested on DUI charges that were dismissed following urine test results brought a due process challenge to her inclusion on a
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county “Wall of Shame” website, which published her name, mugshot, the allegations, and other “identifying information” that led to her receipt of several phone calls and e-mails. Id. at 330–31. The state trial court concluded that the county’s permanent online publication of that information implicated a liberty interest. Id. at 336–42. The facts here are starkly different: the records at issue involve the actions of public officials in the line of duty, rather than criminal allegations against private persons; disclose the outcome of the agency review process, rather than simply disclose the fact of allegations with an automatic suggestion of guilt (“shame”); and do not include photos or private contact information. Valmonte and its progeny make clear that, under the facts of this case, plaintiffs have no due process claim.

Dated: August 14, 2020 New York, New York
s/ Jamie L. Wine _____ Jamie L. Wine
LATHAM & WATKINS LLP Jamie L. Wine Lawrence E. Buterman Samir Deger-Sen (pro hac vice application forthcoming) 885 Third Avenue New York, New York 10022 Telephone: (212) 906-1200 Facsimile: (212) 751-4864

Respectfully submitted,
New York Civil Liberties Union Foundation
/s/ Christopher Dunn _____ Christopher Dunn
New York Civil Liberties Union Foundation Michael Sisitzky (pro hac vice application forthcoming) Jordan Laris Cohen Christopher Dunn Molly K. Biklen 125 Broad Street,19th Floor New York, N.Y. 10004 (212) 607-3300

Attorneys for Amicus Curiae New York Civil Liberties Union

18

Case 1:20-cv-05441-KPF Document 161 Filed 08/14/20 Page 26 of 26

 
 20-2400-cv CasCea1s:e202-0c-v2-400504,4D1-oKcPumF enDto1c4u9m, e0n8t/2270/8202F0il,e2d90187/62773/2, 0PaPgea1geof11o7f 17
Uniformed Fire Officers Association v. DeBlasio
1:20-cv-05441-KPF

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2020

Aug 27 2020

Motion Argued: August 18, 2020

Motion Decided: August 27, 2020

Docket No. 20-2400

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNIFORMED FIRE OFFICERS ASSOCIATION, UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK, POLICE BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., CORRECTION OFFICERS’ BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., SERGEANTS BENEVOLENT ASSOCIATION, LIEUTENANTS BENEVOLENT ASSOCIATION, CAPTAINS ENDOWMENT ASSOCIATION, DETECTIVES’ ENDOWMENT ASSOCIATION,

Plaintiffs - Appellants,

v.

BILL DE BLASIO, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW YORK, CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT, DANIEL A. NIGRO, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, CYNTHIA BRANN, IN HER OFFICIAL CAPACITY AS THE COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF CORRECTIONS, DERMOT F. SHEA, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE DEPARTMENT, FREDERICK DAVIE, IN HIS OFFICIAL CAPACITY AS THE CHAIR OF THE CIVILIAN COMPLAINT REVIEW BOARD, CIVILIAN COMPLAINT REVIEW BOARD,

Defendants - Appellees,

1
CERTIFIED COPY ISSUED ON 08/27/2020

CasCea1s:e202-0c-v2-400504,4D1-oKcPumF enDto1c4u9m, e0n8t/2270/8202F0il,e2d90187/62773/2, 0PaPgea2geof21o7f 17
NEW YORK CIVIL LIBERTIES UNION,
Nonparty - Appellee,1
THE NEW YORK TIMES COMPANY,
Intervenor.2 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, POOLER, HALL, Circuit Judges.
Motion by unions representing uniformed New York City officers to stay,
pending appeal, the District Court’s July 29, 2020, order modifying the Court’s July
22 order “such that [the order] no longer applies to non-party New York Civil
Liberties Union” (“NYCLU”). The effect of the July 29 modification is to permit the
NYCLU publicly to disclose information concerning disciplinary records of
1 New York Civil Liberties Union (“NYCLU”) filed an amicus curiae brief in the District Court and submitted papers in this Court in opposition to the Plaintiffs-Appellants’ motion for a stay pending appeal. The NYCLU was not a party in the District Court and has not intervened in this Court. Nevertheless, as the entity that became subject to the District Court’s restraint and the entity opposing the Plaintiffs-Appellants’ stay motion, which seeks to render it subject to that restraint after being excluded from its coverage, the NYCLU is properly identified in this Court as “Nonparty-Appellee.” See, e.g., NML Capital, Ltd. v. Republic of Argentina, 497 F. App’x 96 (2d Cir. 2012) (caption).
2 The Clerk is requested to change the official caption as indicated above. Communities United for Police Reform (“CUPR”) was inadvertently listed as an intervenor in the District Court’s caption. CUPR filed a motion to intervene in the District Court; on August 11, District Judge Failla entered an order stating that CUPR would be permitted “provisionally to file papers,” but that she would “hold” the intervention motion until the Plaintiffs’ preliminary injunction motion was resolved. Dist. Ct. Dkt. No. 97. The motion to intervene was never granted.
2

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approximately 81,000 New York City police officers, records alleged to contain

unsubstantiated and nonfinal allegations.

Motion DENIED.

Courtney G. Saleski, Philadelphia, PA (Anthony P.

Coles, New York, NY), DLA Piper LLP, for

Plaintiffs-Appellants Uniformed Fire Officers

Association, Uniformed Firefighters

Association of Greater New York, Police

Benevolent Association of the City of New

York, Inc., Correction Officers’ Benevolent

Association of the City of New York, Inc.,

Sergeants

Benevolent

Association,

Lieutenants Benevolent Association, Captains

Endowment Association, Detectives’

Endowment Association.

Molly K. Biklen, New York, NY (Christopher Dunn, Jordan Laris Cohen, New York, NY), New York Civil Liberties Union Foundation, for Nonparty-Appellee New York Civil Liberties Union.

Elina Druker, Asst. Corp. Counsel, New York, NY (James E. Johnson, Corp. Counsel of the City of New York, Richard Dearing, Scott Shorr, Assts. Corp. Counsel, New York, NY), for Defendants-Appellees Bill de Blasio, City of New York, New York City Fire Department, Daniel A. Nigro, New York City Department of Corrections, Cynthia Brann, Dermot F. Shea, New York City Police Department, Frederick Davie, and Civilian Complaint Review Board.

3

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Alexandra Perloff-Giles, New York, NY (David E. McCraw, Al-Amyn Sumar, New York, NY), The New York Times Company, for Intervenor The New York Times Company.
(Corey Stoughton, The Legal Aid Society, New York, NY, Roger A. Cooper, Joseph M. Kay, Ye Eun Charlotte Chun, Cleary Gottlieb Steen & Hamilton LLP, New York, NY, for amicus curiae The Legal Aid Society, in support of Nonparty-Appellee New York Civil Liberties Union.)
(Katie Townsend, Bruce D. Brown, The Reporters Committee for Freedom of the Press, Washington, DC, for amici curiae The Reporters Committee for Freedom of the Press and 32 News Media Organizations, in support of Defendants-Appellees and Nonparty-Appellee New York Civil Liberties Union.)
JON O. NEWMAN, Circuit Judge:
This opinion concerns a motion to stay, pending appeal, the July 29, 2020,
order of the District Court for the Southern District of New York (Katherine Polk
Failla, District Judge), exempting the New York Civil Liberties Union (“NYCLU”)
from the District Court’s July 22, 2020, order prohibiting the Defendants-Appellees
from publicly disclosing records of civilian complaints against approximately 81,000
4

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New York City police officers. The NYCLU obtained access to the records in a response to a request it made to New York City’s Civilian Complaint Review Board (“CCRB”) under New York’s Freedom of Information Law (“FOIL”).3 On August 18, 2020, after oral argument on the stay motion, this Court entered an order denying the motion, noting that a written opinion would follow. This is that opinion.
The only issue necessary to be considered for disposition of the pending stay motion is whether the District Court had authority under Rule 65(d)(2)(C) of the Federal Rules of Civil Procedure to enter the disclosure prohibition against the NYCLU as an entity “in active concert or participation with” persons bound by a temporary restraining order (“TRO”) or a preliminary injunction. The DefendantsAppellees in this Court are parties who are subject to a TRO, which arguably became a preliminary injunction, in litigation pending in the District Court.
We conclude that the District Court properly excluded the NYCLU from the disclosure prohibition because it was not “in active concert” with a party bound by a TRO or a preliminary injunction. The NYCLU could not be “in active concert” with such a party because it lawfully gained access to the information at issue before
3 N.Y. Pub. Off. Law § 84 (McKinney 2019). 5

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the July 22 disclosure prohibition was issued against it and obviously could not have known of a prohibition that did not then exist. Because the Appellants had no probability of success on the appeal from the July 29 order we denied the motion for a stay pending appeal, thereby terminating the emergency stay that a judge of this Court had entered pending consideration of the stay motion by a three-judge panel.
Background The pending dispute arises out of the action of the New York legislature repealing section 50-a of the State’s Civil Rights Law,4 which had shielded from public disclosure personnel records of various uniformed officers including police officers.5 On June 12, 2020 (all subsequent dates are in 2020), section 50-a was repealed. On July 8, the CCRB announced at its monthly open board meeting, conducted remotely, with counsel for the NYCLU present, that in the four weeks since the repeal of section 50-a, the CCRB had been preparing a public portal containing information from police misconduct complaints that it had received. On July 9, the NYCLU submitted a FOIL request to the CCRB for the CCRB’s database containing information about civilian complaints concerning police
4 2020 N.Y. Laws 96 § 1. 5 N.Y. Civ. Rights Law § 50-a (McKinney) (repealed 2020).
6

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misconduct. On July 14, in response to that request, the CCRB provided the NYCLU a link enabling it to download an Excel spreadsheet (the “database”) containing information about complaints against approximately 81,000 New York City police officers. Upon receipt of this link, the NYCLU downloaded the database and began to prepare the information for availability to the public.
On the same day, July 14, several unions representing police, firefighting, and correctional officers (“Unions”) (Plaintiffs-Appellants in this Court) filed a “petition/complaint” in the New York Supreme Court, seeking an injunction to prohibit various New York City agencies (“City”) (Defendants-Appellees in this Court) from publicly disclosing what were described as “Unsubstantiated and NonFinal Allegations” against New York City police officers, firefighters, and corrections officers. The petition alleged, among other things, that public disclosure would violate collective bargaining agreements between the Unions and the City. The next day, July 15, Justice Carol R. Edmead issued a TRO prohibiting the City from publicly disclosing records concerning “Unsubstantiated and Non-Final
7

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Allegations.”6 Also on July 15, the City filed in the state court a Notice of Removal of the state court suit to the District Court.
On July 22, the District Court held a hearing on the Unions’ request to extend the state court’s TRO. Judge Failla first stated that, with respect to the state court’s TRO, “[T]he clock starts again.” Transcript of Dist. Ct. July 22 oral argument at 4 (“July 22 Tr.”). During the hearing, she made a finding that the NYCLU was “acting in concert” with the defendants.7 Id. at 88. Her finding was based primarily, if not entirely, on the fact that the CCRB had disclosed the information so soon after the NYCLU’s FOIL request had been made. At the conclusion of the hearing, she orally ordered the NYCLU not to disclose the information received from the CCRB. A July 22 minute entry on the District Court’s docket reflected Judge Failla’s oral order.
The next day, July 23, the NYCLU requested the District Court to modify the July 22 order by removing the provision that barred the NYCLU from publicly
6 The order stated, “[P]ending the issue of an Interim Stay before the United States District Court for the Southern District of New York, the Defendants/Respondents, and those acting in concert with them, are Stayed from publicly disclosing any records concerning Unsubstantiated and Non-Final Allegations or settlement agreements as defined in the instant Petition [the Unions’ state court “Petition/Complaint”], entered into prior to June 12, 2020, relating to the appeal of N.Y. Civ. Rights Law § 50-a(1).” City’s Notice of Removal (bold face italics in original).
7 In response to the NYCLU’s contention that it was not subject to the District Court’s injunctive power under Rule 65, Judge Failla acknowledged at the July 22 hearing that her finding had been based only on the oral arguments, and she requested a written submission on the Rule 65 issue the next day.
8

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disclosing information about police misconduct. On July 28, the District Court held a hearing on the NYCLU’s July 23 request. At that hearing, Judge Failla ascertained that the state court order had not issued until July 15, and that the NYCLU had requested and gained access to the misconduct complaints against the police officers before the state court issued its order. She also noted that, on June 30, the CCRB had disclosed to ProPublica information concerning complaints against more than 4,000 police officers.
Candidly acknowledging that her July 22 “finding” that the NYCLU had acted in concert with the City had been “speculation,” Transcript of Dist. Ct. July 28 oral argument at 29, Judge Failla concluded that the NYCLU was not acting in concert with the City either when it requested or received the information at issue. Relying on Rule 65, she stated that she was modifying the July 22 order to exclude the NYCLU from its coverage. She also stated that she was staying her ruling for twenty-four hours to permit the Unions to seek a stay of her order from this Court. On July 29, the District Court entered an order implementing the oral rulings.
The Unions promptly filed a notice of appeal of the District Court’s July 29 modification ruling and a motion for a stay pending appeal. On July 30, an applications judge granted the stay motion pending determination by a three-judge
9

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panel. After receiving papers with respect to the motion, this panel heard oral argument on August 18. On August 20, this Court issued an order denying the stay motion, noting that an opinion would follow. That order terminated this Court’s emergency stay entered July 30.
Discussion Appellate Jurisdiction. Although none of the parties has questioned our jurisdiction, we are obliged to assure ourselves that appellate jurisdiction exists. See Swede v. Rochester Carpenters Pension Fund, 467 F.3d 216, 219 (2d Cir. 2006). The possible doubt arises because the pending motion8 seeks to stay, pending appeal, a ruling, as applied to the NYCLU, that appears to be the denial of a TRO, and such a denial is ordinarily not appealable, see Commodity Futures Trading Commission v. Walsh, 618 F.3d 218, 225 n.3 (2d Cir. 2010); Romer v. Green Point Savings Bank, 27 F.3d 12, 15 (2d Cir. 1994); Grant v. United States, 282 F.2d 165, 167 (2d Cir. 1960). The appeal is from the July 29 order ending the July 22 application of the disclosure prohibition to the NYCLU. The first question concerning appellate
8 In this case, the Plaintiffs-Appellants’ failure to move in the District Court for a stay pending appeal, as is normally required, see Fed. R. App. P. 8(a)(2)(A), does not preclude their seeking such relief in this Court. The District Court took the initiative in granting a brief stay of the July 29 order, inviting the Plaintiffs-Appellants to seek extension of that stay in this Court. There would have been no point in asking the District Court to extend the stay.
10

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jurisdiction is the proper classification of the restraint that was applied to the NYCLU. Embedded in that question are several issues. Is the restraint an extension of the state court’s July 15 order? Is it a new order of the District Court? Whichever it is, what is its duration? Is its duration measured by its starting and expected ending dates or only the starting and ending dates of its application to the NYCLU? Are there circumstances that warrant considering the restraint to be an appealable preliminary injunction?
At the July 22 hearing, the District Court said, “[T]he clock starts again,” stating a new starting date and implying a new order. July 22 Tr. at 4. We disagree with both the statement and its implication. “An ex parte temporary restraining order issued by a state court prior to removal remains in force after removal no longer than it would have remained in effect under state law, but in no event does the order remain in force longer than the time limitations imposed by Rule 65(b),
11

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measured from the date of removal.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, 415 U.S. 423, 439-40 (1974).9
In this case, the state court order remained in force after removal of the case to the District Court. Its starting date was July 15, the date of its issuance, and, unless extended by the District Court, would have ended on July 29, fourteen days after the July 15 notice of removal, as explained in Granny Goose Foods. We note that Rule 65(b)(2) was amended in 2009 to change the expiration of a TRO (unless extended) from ten to fourteen days. Fed. R. Civ. P. 65, 2009 advisory committee’s note. The District Court extended the TRO to August 18, the date of a scheduled hearing on the Unions’ motion for a preliminary injunction. On July 22, the District Court applied the TRO to the NYCLU as a nonparty in active concert with a party and excluded the NYCLU from the coverage of the TRO on July 29, an interval of only seven days.
9 To explain its ruling, the Supreme Court added this footnote: “The following two illustrations should suffice to clarify this holding. Where the state court issues a temporary restraining order of 15 days' duration on Day 1 and the case is removed to federal court on Day 13, the order will expire on Day 15 in federal court just as it would have expired on Day 15 in state court. Where, however, a state court issues a temporary restraining order of 15 days' duration on Day 1 and the case is removed to the federal court on Day 2, the restraining order will expire on Day 12, applying the 10-day time limitation of Rule 65(b) measured from the date of removal. Of course, in either case, the district court could extend the restraining order for up to an additional 10 days, for good cause shown, under Rule 65(b).” 415 U.S. at 440 n.15.
12

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We have recognized that the label applied to a restraint is not determinative, see Grant, 282 F.2d at 167, and that a restraint called a TRO may sometimes be regarded for purposes of appellate jurisdiction as a preliminary injunction, see Huminski v. Rutland City Police Dep’t, 221 F.3d 357, 361 (2d Cir. 2000); Romer, 27 F.3d at 15. Among the factors relevant to the proper classification are ”the duration of the order, whether it was issued after notice and hearing, and the type of showing made in obtaining the order,” Grant, 282 F.2d at 167 (internal quotation marks omitted). Another relevant factor is where “a grant or denial of a TRO might have a serious, perhaps irreparable, consequence” Romer, 27 F.3d at 15 (internal quotation marks omitted).
In this case, we need consider only that last circumstance. The July 29 exclusion of the NYCLU from the July 22 application of the restraint to it enabled the NYCLU to make publicly available disciplinary report information adverse to thousands of police officers. If made, the disclosure could not be undone, thus rendering the consequences irreparable. Whether or not those consequences would inflict injury sufficient, when considered with other factors, to warrant a stay pending appeal, the disclosure would be a “serious, perhaps irreparable,
13

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consequence,” id., that suffices to permit us to consider the July 29 order to be the denial of a preliminary injunction, which is appealable, see 28 U.S.C. § 1292(a)(1).
Merits of the stay motion. The factors relevant to granting a stay pending appeal are the applicant’s “strong showing that he is likely to succeed on the merits,” irreparable injury to the applicant in the absence of a stay, substantial injury to the nonmoving party if a stay is issued, and the public interest. See Nken v. Holder, 556 U.S. 418, 434 (2009). The first two factors are the most critical, but a stay “is not a matter of right, even if irreparable injury might otherwise result,” it is “an exercise of judicial discretion,” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34 (internal quotation marks omitted).
The Unions’ attempt to subject the NYCLU to the restraint issued by the New York court and extended by the District Court depends on whether the NYCLU, which has never been a party to the Unions’ lawsuit, acted “in active concert or participation” with a party to that suit. Fed. R. Civ. P. 65(d)(2). A nonparty that acts “in active concert or participation” with a party subject to an injunction is prohibited from “assisting in a violation of the injunction.” NML Capital, Ltd. v. Republic of Argentina, 727 F.3d 230, 243 (2d Cir. 2013).
14

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However, Rule 65 explicitly provides that the nonparties that can be bound by a TRO or an injunction are only those “who receive actual notice of it.” Fed. R. Civ. P. 65(d)(2). In this case, it is undisputed that when the NYCLU gained access to information from the CCRB, the NYCLU did not know about the injunction for the obvious reason that the injunction did not then exist. “Nor does an injunction reach backwards in time to action taken prior to the time it was issued.” Paramount Pictures Corp. v. Carol Publishing Group, Inc., 25 F. Supp. 2d 372, 375 (S.D.N.Y. 1998).
Like many others, the NYCLU responded to the repeal of New York’s previous protection of the confidentiality of disciplinary records of public officers, including police officers, by making FOIL requests to the CCRB as soon as the CCRB announced that these records would become publicly available. When the NYCLU’s FOIL request was made and when the CCRB promptly responded to it,10 there was no TRO or injunction prohibiting the NYCLU, or anyone else, from seeking, receiving, or disseminating these records. On these undisputed facts, the NYCLU could not have been in “active concert” with a party to a TRO or an injunction.
10 The Unions apprehend something nefarious from the fact that the CCRB responded just five days after receiving the NYCLU’s FOIL request. There is no basis for any adverse inference. Repeal of section 50-a made it inevitable that FOIL requests would be made for the CCRB’s records, the CCRB understandably prepared to respond to those requests, many requests were made, the availability of the information in readily transmittable form facilitated prompt responses, and prompt responses were made.
15

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The Plaintiffs-Appellants have therefore shown no likelihood of success on the merits of their claims against the NYCLU, much less the “strong showing” required by Nken, 556 U.S. at 434. With likelihood of success totally lacking, the aggregate assessment of the factors bearing on issuance of a stay pending appeal cannot possibly support a stay. United States v. Simcho, 326 F. App’x 791, 794 (5th Cir. 2009) (stay pending appeal denied where appellant had shown no likelihood of success on the merits); see Naser Jewelers, Inc. v. City of Concord, 513 F.3d 27, 37 (1st Cir. 2008) (preliminary injunction denied without considering other relevant factors where plaintiff had shown no probability of success); Person v. National Board of Elections, 467 F.3d 141 (2d Cir. 2006) (same); Gonzales v. National Board of Medical Examiners, 225 F.3d 620 (6th Cir. 2000) (same); Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153, 1162 (7th Cir. 1996) (same).
Resolving this motion on the basis of Rule 65 makes it unnecessary to consider the substantial arguments of the NYCLU, the intervenor New York Times, and the several amici curiae that maintaining a prohibition against disclosure of lawfully acquired information of public significance would be an unconstitutional prior restraint.
16

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The motion for a stay of the District Court’s July 29 order pending appeal is denied, thereby terminating the emergency stay entered July 30.
17

 
 CasCea1s:e202-0c-v2-400504,4D1-oKcPumF enDto1c2u0m, e0n8t/2109/2202F0il,e2d90182/82108/2, 0PaPgea1geof11of 1

United States Court of Appeals
FOR THE
SECOND CIRCUIT _________________

S.D.N.Y. – N.Y.C. 20-cv-5441 Failla, J.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of August, two thousand twenty.

Present:

Jon O. Newman, Rosemary S. Pooler, Peter W. Hall,
Circuit Judges.

Aug 20 2020

Uniformed Fire Officers Association, et al.,
Plaintiffs-Appellants,
v.
Bill de Blasio, in his official capacity as Mayor of the City of New York, et al.,
Defendants-Appellees.
Communities United for Police Reform, The New York Times Company,
Intervenors.

20-2400

Upon due consideration, and after oral argument, the Plaintiff-Appellant’s motion for a stay, pending appeal, of the district court’s order entered July 29, 2020, is DENIED. This denial terminates this Court’s order, entered July 30, 2020, which stayed the District Court’s July 29, 2020, order pending disposition by this panel of the motion for a stay pending appeal. This panel’s opinion will follow.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

CERTIFIED COPY ISSUED ON 08/20/2020.

 
 CasCe a1s:2e02-c0v-2-0758494, 1D-oKcPuFmeDnot c2u6m, 0e8n/t2260/2702F0i,le2d910688/2866/,2P0agPea1goef12of 2

UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

1:20-cv-05441-KPF

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of August, two thousand twenty.

Before:

Denny Chin,

Circuit Judge.

________________________________

Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Police Benevolent Association of the City of New York, Inc., Correction Officers' Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Lieutenants Benevolent Association, Captains Endowment Association, Detectives' Endowment Association,

ORDER Docket No. 20-2789

Plaintiffs-Appellants,

v.
Bill de Blasio, in his official capacity as Mayor of the City of New York, City of New York, New York City Fire Department, Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York, New York City Department of Corrections, Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Corrections, Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department, New York City Police Department, Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board, Civilian Complaint Review Board,

Aug 26 2020

Defendants-Appellees,

Communities United for Police Reform, The New York Times Company,

Intervenors. ________________________________

CasCe a1s:2e02-c0v-2-0758494, 1D-oKcPuFmeDnot c2u6m, 0e8n/t2260/2702F0i,le2d910688/2866/,2P0agPea2goef22of 2 Plaintiffs-Appellants seek (1) an administrative stay to allow the parties to brief the stay issue, and (2) a stay of the district court’s August 21, 2020 order pending appeal. IT IS HEREBY ORDERED that, to the extent Appellants request an administrative stay of the district court’s order until this motion is determined by a panel, that request is granted. The motion for a stay pending appeal is REFERRED to a three-judge motions panel. Any response to the stay motion must be filed by 5 p.m. on September 4, 2020, and any reply must be filed by 9 a.m. on September 11, 2020. The motion shall be heard by the next available motions panel after briefing is completed.
For the Court: Catherine O’Hagan Wolfe, Clerk of Court
CERTIFIED COPY ISSUED ON 08/26/2020

 
 Case 1:20-cv-05441-KPF Document 206 Filed 08/25/20 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
UNIFORMED FIRE OFFICERS ASSOCIATION, et al.,
Plaintiffs,
-v.-
DEBLASIO, et al.,
Defendants.

20 Civ. 5441 (KPF) ORDER

KATHERINE POLK FAILLA, District Judge: On July 29, 2020, Communities United for Police Reform (“CPR”) filed a
motion to intervene in this action (Dkt. #41-48), which motion the Court held pending resolution of the preliminary injunction motion. The Court granted in part and denied in part the preliminary injunction on August 21, 2020. (Dkt. #197). The Court is now in receipt of CPR’s letter requesting a formal ruling on its motion. (Dkt. #201). Defendants and Plaintiffs oppose intervention. (Dkt. #77-78).
Pursuant to Federal Rule of Civil Procedure 24, a movant may intervene as a matter of right under Rule 24(a) or with the Court’s permission under Rule 24(b). Rule 24(a)(2) entitles a party to intervention of right when it timely moves for intervention and “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Section 24(b)(1)(B) permits, at the Court’s discretion, intervention by a party who timely moves and “has a claim or defense that shares with the main action

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a common question of law or fact.” CPR sought intervention under both provisions.
With respect to the standard for intervention of right, the Court concludes that CPR has not overcome the “presumption of adequate representation” that exists “when there is an identity of interest between the putative intervenor and an existing party to the action.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 180 (2d Cir. 2001). The existing Defendants share CPR’s interest in ensuring the affected public agencies’ compliance with New York’s Freedom of Information Law following repeal of N.Y. Civil Rights Law § 50-a, and CPR has not shown evidence of “collusion, adversity of interest, nonfeasance, or incompetence” sufficient to overcome the presumption of adequacy of representation. Id. CPR’s request to intervene as a matter of right is therefore DENIED.
Nonetheless, the Court found CPR’s briefing opposing the Defendants’ motion for a preliminary injunction to be substantially helpful in resolving the preliminary injunction motion because it presented unique information and insights. Thus, the Court concludes that CPR’s participation moving forward would “significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented.” H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986). Accordingly, CPR’s motion for permissive intervention is GRANTED.

Case 1:20-cv-05441-KPF Document 206 Filed 08/25/20 Page 3 of 3

SO ORDERED.

Dated:

August 25, 2020 New York, New York

__________________________________ KATHERINE POLK FAILLA
United States District Judge

 
 Case 1:20-cv-05441-KPF Document 226 Filed 09/25/20 Page 1 of 49

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Uniformed Fire Officers Association; Uniformed Firefighters Association of Greater New York; Correction Officers’ Benevolent Association of the City of New York; Police Benevolent Association of the City of New York, Inc.; Sergeants’ Benevolent Association; Lieutenants’ Benevolent Association; Captains’ Endowment Association; and Detectives’ Endowment Association,

No. 1:20-CV-05441 (KPF) (RWL) FIRST AMENDED COMPLAINT

Plaintiffs,

-against-

Bill de Blasio, in his official capacity as Mayor of the City of New York; the City of New York; Fire Department of the City of New York; Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York; New York City Department of Correction; Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Correction; Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department; the New York City Police Department; Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board; and the Civilian Complaint Review Board,

Defendants,

Communities United for Police Reform,

Intervenor-Defendant.

Case 1:20-cv-05441-KPF Document 226 Filed 09/25/20 Page 2 of 49
Plaintiffs Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Correction Officers’ Benevolent Association of the City of New York, Inc., Police Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Lieutenants Benevolent Association, Captains Endowment Association, and Detectives’ Endowment Association (“Plaintiffs” or the “Unions”), by and through their undersigned attorneys, as and for their First Amended Complaint (“FAC”), allege as follows:
PRELIMINARY STATEMENT 1. This case challenges Defendants’ (“Defendants” or “the City”) unilateral pronouncements that they will release records concerning disciplinary matters against retired and active individual New York City police officers, firefighters, and corrections officers, including those that are non-final, unsubstantiated, unfounded, exonerated, or resulted in a finding of not guilty (“Unsubstantiated and Non-Final Allegations”) and confidential settlement agreements, in the wake of the repeal of Civil Rights Law § 50-a. These Unsubstantiated and Non-Final Allegations—unproven allegations at best and false allegations at worst—will be “data dumped” on the internet, resulting in the publication and promotion of information that will absolutely destroy the reputation and privacy—and imperil the safety—of many of those firefighters and officers. These allegations will be publicized and promoted in massive online registries, as well as released in large numbers in response to FOIL requests. This indiscriminate release would, among other harms: • Violate Plaintiffs’ Collective Bargaining Agreements with Defendants; • Violate the Due Process Clauses of the United States and New York State Constitutions by irrevocably and unfairly stigmatizing Plaintiffs’ members and interfering with future employment opportunities and creating other material burdens;
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• Breach thousands of settlement agreements entered into in good faith with the Defendants with the promise and expectation of confidentiality; and
• Arbitrarily and capriciously reverse longstanding city and State practice of deeming unsubstantiated allegations to be protected from disclosure, separate and apart from the provisions of § 50-a. 2. It takes no evidence to make a complaint against a firefighter, corrections officer,
or police officer. Baseless claims can be levied for any number of nefarious motivations. Without the safeguards of proof and finality, the lives of firefighters, officers, and their families may be irreparably ruined. If Defendants are permitted to promote and publish these Unsubstantiated and Non-Final Allegations in online registries, Plaintiffs’ members will suffer irreparable harm. The Unsubstantiated and Non-Final Allegations will remain in the registries forever, creating limitless and eternal notoriety, even if they are false and unproven.
3. NYPD plans to release Charges and Specifications filed against officers, even though they are not the result of a process based on any articulated standard of proof and do not constitute a final determination that the allegation is true. These records will be promoted in an online registry that will be viewable by anyone, including potential future employers. Charges and Specifications are not the product of a due process hearing or anything remotely similar and would not protect due process rights if this information is made public. As a matter of due process, officers are entitled to a hearing before Charges and Specifications are released publicly.
4. CCRB will create its own public registry of officer histories, including allegations the agency deems to be unsubstantiated, unfounded, or exonerated. Officers will not receive notice and an opportunity to be heard before allegations against them are published in the registry. There is not a mechanism for officers to avoid having their names or any allegations
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included in the registry. 5. Although the repeal of Civil Rights Law § 50-a eliminates a categorical
prohibition to the public review of law enforcement records, it does not obliterate pre-existing contractual rights or constitutional and common law protections that all citizens, including the Plaintiffs, share, which forbid Defendants from promoting unproven, defamatory allegations to the world at large. These rights include:
• Rights under collective bargaining agreements, the right to arbitrate disputes, and the right to injunctive relief to prevent arbitration from being rendered ineffectual: Each of the Plaintiffs has entered into a Collective Bargaining Agreement (“CBA”) with their respective agencies and the City governing the terms and conditions of their employment. With one exception, these CBAs protect Plaintiffs against the release of Unsubstantiated and Non-Final Allegations. The Defendants have no lawful right to unilaterally violate those terms, and render them null and void, or to impose new terms, without following the provisions of the NYC Collective Bargaining Law, including those laws relating to the arbitration of grievances. Four police unions and the corrections union have initiated the grievance and arbitration process to challenge the City’s disclosure of certain disciplinary records as a violation of their CBAs. Under N.Y. CPLR § 7502(c), the unions have the right to injunctive relief to prevent the arbitration process from being rendered ineffectual by Defendants’ release of Unsubstantiated and Non-Final Allegations. Pending final determination of those grievances through the collective bargaining process, Defendants must be enjoined under Article 75 of the CPLR.
• Due Process and Equal Protection Rights: Defendants’ indiscriminate disclosure of unproven and false allegations in online registries will unfairly stigmatize officers,
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causing lasting reputational harm. In addition, the decision to disseminate these allegations in online registries will substantially impact officers’ future employment prospects and create other substantial burdens, depriving them of a liberty interest without due process of law. Defendants do not provide officers with notice of their inclusion in the database or an opportunity to contest publication and avoid this deprivation of a liberty interest. Also, the planned releases will violate officers’ rights to equal protection because they will treat some law enforcement officers different than other city employees (including other law enforcement officers) for whom unsubstantiated allegations are maintained as private. • Contract Rights for Past Settlements: The data dump will also include allegations that resulted in settlement agreements. Such disclosure will breach those settlement contracts. Any settlement agreement entered into before June 12, 2020—when § 50-a was repealed—necessarily and as a matter of law incorporated § 50-a’s protections against disclosure of this very type of information. All parties to those agreements understood at the time they were executed that they would remain confidential, and officers reasonably relied upon this mutual understanding of confidentiality in forming these agreements. New York’s recent repeal of § 50-a does not alter these existing contracts, nor was it ever intended to do so. • CPLR Article 78: Release of Unsubstantiated and Non-Final Allegations would also constitute errors of law and be arbitrary and capricious agency action under CPLR § 7803(3). First, it is an error of law and arbitrary and capricious to conclude that the repeal of § 50-a justifies the wholesale and indiscriminate release of Unsubstantiated and Non-Final Allegations without individualized and particularized review for safety and
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privacy concerns. Second, it is an error of law and arbitrary and capricious for Defendants to break with longstanding practice in determining not to assert the privacy and safety exemptions as a basis for withholding Unsubstantiated and Non-Final Allegations. Defendants themselves have asserted for decades that release of Unsubstantiated and Non-Final Allegations would be an unwarranted invasion of privacy. This change cannot be justified by the repeal of § 50-a. The legislature removed a categorical barrier to disclosure of these records, but it did not mandate the release of records. Thus, Defendants’ actions violate Article 78 of the CPLR. 6. Defendants have not made any determination of the consequences to the safety, reputation, or privacy of the implicated officers. Pending a determination of the claims asserted in this action, Defendants must be restrained from the release and promotion on the internet of Unsubstantiated and Non-Final Allegations and confidential settlement agreements—otherwise, the Defendants would make this lawsuit an empty ritual, incapable of protecting the reputation, privacy, and safety of hundreds of New York City’s firefighters, police, and corrections officers. There would be no material prejudice to the Defendants from the entry of provisional relief, but in the absence of provisional relief, the damage to the Plaintiffs would be irreversible. To protect Plaintiffs’ rights, Plaintiffs respectfully request injunctive relief on all claims, barring the release of records regarding Unsubstantiated and Non-Final Allegations or that regard settlement agreements entered into prior to June 12, 2020.
PARTIES 7. Plaintiff Uniformed Fire Officers Association (“UFOA”) is the duly certified collective bargaining representative of officers of the Fire Department of the City of New York in the rank of Lieutenant, Captain, Battalion Chief, Deputy Chief (except those Deputy Chiefs
6

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designated as Deputy Assistant Chief of Department, Assistant Chief of Department and Chief in Charge), Fire Medical Officer, and Supervising Fire Marshal. Upon information and belief, UFOA members will be named in the data that Defendants plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, UFOA seeks to protect the interest of these and other UFOA members.
8. Plaintiff Uniformed Firefighters Association of Greater New York (“UFA”) is the duly certified collective bargaining representative of officers Fire Department of the City of New York in the rank of Firefighter and Fire Marshal. Upon information and belief, UFA members will be named in the data that Defendants plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, UFA seeks to protect the interest of these and other UFA members.
9. Plaintiff Correction Officers’ Benevolent Association of the City of New York, Inc. (“COBA”) is the duly certified collective bargaining representative of officers of the New York City Department of Correction in the rank of Correction Officer. Upon information and belief, COBA members will be named in the data that Defendants plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, COBA seeks to protect the interest of these and other COBA members.
10. Plaintiff Police Benevolent Association of the City of New York, Inc. (“PBA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Police Officer. Upon information and belief, PBA members will be named in the data that Defendants plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, PBA seeks to protect the interests of these and other PBA members.
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11. Plaintiff Sergeants Benevolent Association (“SBA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Sergeant. Upon information and belief, SBA members will be named in the data that Defendants plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, SBA seeks to protect the interests of these and other SBA members.
12. Plaintiff Lieutenants Benevolent Association (“LBA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Lieutenant. Upon information and belief, LBA members will be named in the data that Defendants plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, LBA seeks to protect the interests of these and other LBA members.
13. Plaintiff Captains Endowment Association (“CEA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Captain. Upon information and belief, CEA members will be named in the data that Defendants plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, CEA seeks to protect the interests of these and other CEA members.
14. Plaintiff Detectives’ Endowment Association (“DEA”) is the duly certified collective bargaining representative of all officers of the New York City Police Department in the rank of Detective. Upon information and belief, DEA members will be named in the data that Defendants plan to make public and would suffer a concrete and particularized injury by the release, which is imminent. By this action, DEA seeks to protect the interests of these and other
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DEA members. 15. Defendant Bill de Blasio is the Mayor of the City of New York (the “Mayor”) and
is named in his official capacity. The Mayor’s principal place of business is located at City Hall, New York, New York 10007.
16. Defendant City of New York (the “City”) is a municipal corporation organized and existing under New York state law. The City’s principal place of business is located at City Hall, New York, New York 10007.
17. Defendant Daniel A. Nigro (“Commissioner Nigro”) is the Commissioner of the Fire Department of the City of New York and is named in his official capacity. Commissioner Nigro’s principal place of business is located at 9 MetroTech Center, Brooklyn, New York 11201.
18. Defendant Fire Department of the City of New York (“FDNY”) is a municipal fire department administered under the New York Administrative Code, Title 29 of the City of New York. FDNY’s principal place of business is located at 9 MetroTech Center, Brooklyn, New York 11201.
19. Defendant New York City Department of Correction (“DOC”) is a municipal fire department administered under the New York Administrative Code, Title 9 of the City of New York. DOC’s principal place of business is located at 75-20 Astoria Boulevard, East Elmhurst, New York 11370.
20. Defendant Cynthia Brann (“Commissioner Brann”) is the Commissioner of the New York City Department of Correction and is named in her official capacity. Commissioner Brann’s principal place of business is located at 75-20 Astoria Boulevard, East Elmhurst, New York 11370.
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21. Defendant Dermot F. Shea (“Commissioner Shea”) is the Commissioner of the New York City Police Department and is named in his official capacity. Commissioner Shea’s principal place of business is located at One Police Plaza, New York, New York 10038.
22. Defendant New York City Police Department (“NYPD”) is a law enforcement agency administered under the New York Administrative Code, Title 14 of the City of New York. NYPD’s principal place of business is located at One Police Plaza, New York, New York 10038.
23. Defendant Frederick Davie (“Chair Davie”) is the Chair of the Civilian Complaint Review Board and is named in his official capacity. Chair Davie’s principal place of business is located at 100 Church Street, 10th Floor, New York, New York 10007.
24. Defendant Civilian Complaint Review Board (“CCRB” or “the Board”) is an independent municipal agency constituted under § 440 of the Charter of the City of New York. CCRB’s principal place of business is located at 100 Church Street, 10th Floor, New York, New York 10007.
JURISDICTION AND VENUE 25. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1367. This Court has personal jurisdiction over all Defendants under the United States Constitution and CPLR § 301 because Defendants work in or conduct substantial business within New York. Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events giving rise to the claims occurred in this judicial district. 26. This action is brought against the City and the Mayor in his official capacity under Articles 75 and 78 of the CPLR to challenge their role in directing Defendants to publicly release Unsubstantiated and Non-Final Allegations in violation of applicable law and in an
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arbitrary and capricious manner, and in violation of the terms of Plaintiffs’ CBAs and applicable settlement agreements.
27. This action is brought against NYPD and Commissioner Shea in his official capacity under Articles 75 and 78 of the CPLR to challenge the NYPD’s planned release of Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner, and in violation of the police Plaintiffs’ CBAs and applicable settlement agreements.
28. This action is brought against FDNY and Commissioner Nigro in his official capacity under Articles 75 and 78 of the CPLR to challenge the FDNY’s planned release of Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner, and in violation of the firefighter Plaintiffs’ CBAs and applicable settlement agreements.
29. This action is brought against DOC and Commissioner Brann in her official capacity under Articles 75 and 78 of the CPLR to challenge any planned DOC’s release of Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner, and in violation of correction Plaintiffs’ CBA and applicable settlement agreements.
30. This action is brought against CCRB and Chair Davie under Article 78 of the CPLR to challenge the CCRB’s release of Unsubstantiated and Non-Final Allegations in violation of applicable law and in an arbitrary and capricious manner.
31. This action is timely under CPLR § 217(1) because it was brought within four months of June 16, 2020, the first time Mayor de Blasio announced the City’s intention to release unsubstantiated resolved complaints against NYPD officers, including law enforcement officers
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represented by Plaintiffs. 32. The Unions have associational standing to sue here because (1) one or more of
every unions’ members has standing to sue; (2) the interests advanced by vindicating the rights of the members are sufficiently germane to the Plaintiffs’ purposes to demonstrate that Plaintiffs will appropriately represent the members’ interests; and (3) the participation of the individual members is not required to assert the claim or to afford the Plaintiffs complete relief. See Westchester Cnty. Dep't of Pub. Safety Police Benev. Ass’n, Inc. v. Westchester Cnty., 35 A.D.3d 592, 594, 828 N.Y.S.2d 412, 414 (2d Dep’t 2006).
BACKGROUND A. The Disciplinary Process and Handling of Complaints Against Officers
33. Complaints against NYPD, FDNY, and DOC officers may be brought by civilians, inmates, other officers, or by the Departments themselves. There are numerous avenues for complaints to be made against officers, and it can be done as easily as anonymously calling 311 or sending an anonymous email:
• NYPD: In addition to being reported internally through the chain of command, complaints against any NYPD office may be reported in person, by telephone via NYC’s 311 hotline, or via the CCRB’s dedicated hotline, by email or mail to the CCRB, the Internal Affairs Bureau of NYPD, or directly to the New York City Inspector General for the NYPD.
• FDNY: A complaint against an FDNY officer may be reported internally through chain of command, to the FDNY confidential complaint telephone line, or directly to the Inspector General for the FDNY.
• DOC: A complaint against a DOC officer may be reported by an inmate grievance
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through the Office of Constituent and Grievances Services, internally through chain of command, through the NYC Board of Corrections, or directly to the Inspector General for DOC. 34. The disciplinary processes of the FDNY, DOC, and NYPD are similar. For police, the NYPD procedures involve complaints and investigations, followed potentially by a proceeding where necessary and a final discretionary decision by the Commissioner. 35. For example, a complaint against an NYPD officer may be reported to the CCRB, the Internal Affairs Bureau of NYPD (“NYPD-IAB”), or the Office of Inspector General for NYPD (“NYPD-OIG”). Complaints may be brought by fellow officers, civilians, or the NYPD itself. Civilian and officer complaints may be made anonymously. 36. Once a complaint is lodged, it is investigated by the CCRB, NYPD-IAB, or the NYPD’s Force Investigation Division (“NYPD-FID”). NYPD-IAB investigates most complaints alleging serious misconduct brought against officers. CCRB investigates complaints made by members of the public against officers involving allegations of use of force (with the exception of those in the category of “readily capable of causing death or serious physical injury,” which will be investigated by NYPD-IAB or NYPD-FID), abuse of authority, discourtesy, and offensive language. NYPD-FID investigates all firearms discharges, fatalities related to police action, and cases when a subject of police action is seriously injured and death is likely. 37. CCRB uses certain terms to describe the outcomes of their investigations into alleged misconduct. An allegation is designated as “unfounded” when the investigation determines that it did not occur. An allegation is designated as “unsubstantiated” if the investigators do not believe a preponderance of the evidence supports that the conduct described in the complaint occurred. An officer may be “exonerated” if the investigation finds that the
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conduct occurred but was not improper. 38. If the investigation concludes that the conduct occurred in whole or in part and
was at least somewhat improper, the investigating entity will make a recommendation for the officer to be subject to certain discipline and/or training or, in serious cases, for the officer be served with Charges and Specifications. Charges and Specifications detail the specific provisions of the Department’s rules and regulations alleged to have been violated.
39. If Charges and Specifications are filed, the officer may elect to proceed to trial before an appointed Trial Commissioner, whose responsibility it is to determine whether the charges were proven by a preponderance of the credible evidence and, if so, what penalty should be imposed. The Trial Commissioner provides a written recommendation which summarizes the evidence and recommends a finding and, if appropriate, a disciplinary penalty. The Commissioner makes the final determination on whether to accept the Trial Commissioner’s recommendation, and whether and to what degree discipline should be imposed. Although some Charges and Specifications filed against officers relate to purely technical infractions, such as lateness, record keeping, and lost/damaged property, many of the Charges filed relate to significantly more serious allegations.
40. A January 2019 Independent Panel Report regarding the NYPD Disciplinary System reported that approximately 55,000 annual complaints are made against NYPD officers through the CCRB and NYPD’s Advocate Office. See Mary Jo White, et al., Report of the Independent Panel on the Disciplinary System of the New York City Police Department (Jan. 25, 2019), at p. 7 (the “2019 Panel Report”). However, less than one percent of those complaints resulted in a disciplinary trial or settlement, presumably reflecting both the vast number of frivolous complaints made, and the fact that most disciplinary measures are instituted for
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violation of department rules, many of which are appropriately dealt with through command discipline. “[O]ver 60% of the Department’s disciplinary cases are settled.” 2019 Panel Report at 7. As discussed below, officers who entered into settlement agreements did so on the assumption that that these settlement agreements would remain private pursuant to § 50-a.
41. By one metric, over 92 percent of the 290,649 allegations recently released by the CCRB to the New York Civil Liberties Union fall into the category of Unsubstantiated and NonFinal Allegations.
42. Although they vary in some respects, FDNY and DOC have similar tiered procedures to investigate complaints against firefighters and correctional officers, but also provide for further review by the Office of Administrative Trials and Hearings. B. The Investigation Stage Does Not Provide Opportunities for Officers to Contest
Allegations 43. It takes zero evidence to file an allegation of misconduct against a firefighter, police officer, or corrections officer. The vast majority of NYPD complaints are never proven, even by the relatively low preponderance-of-the-evidence standard. 44. Even so, officers do not have meaningful opportunities to refute allegations or provide input during the investigative phase. In police investigations, officers are interrogated, but they are not permitted to cross-examine accusers or present exculpatory evidence. When an investigation concludes that the conduct occurred in whole or in part and was at least somewhat improper, Charges and Specifications may be served on the officer. Charges and Specifications detail the specific provisions of the Department’s rules and regulations alleged to have been violated. But they are not subject to any articulated standard of proof and do not constitute a final determination that the allegation is true. Charges and Specifications are not the product of a due process hearing or anything remotely similar and do not protect the officers’ due process
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rights, if this information is made public. 45. The CCRB investigative process similarly fails to provide officers with adequate
procedural protections. The process for issuing an investigative disposition by CCRB does not include a pre-deprivation hearing. Officers do not have an opportunity to present or contest evidence in the CCRB investigative process. C. Release of Unsubstantiated and Non-Final Allegations Violates Collective
Bargaining Agreements Between the Parties 46. The release of Unsubstantiated and Non-Final Allegations would nullify important contractual rights in the collective bargaining agreements (“CBAs”) between most Plaintiffs and the City. The CBAs entered into by Plaintiffs SBA, PBA, LBA, CEA, COBA, UFA, and UFOA—expired but currently controlling pursuant to the Triborough Amendment— provide their members with a contractual right to have investigative reports that are classified as “exonerated,” “unfounded,” or—in the case of the FDNY, otherwise “not guilty”—removed from their personnel folders. 47. For example, Article XV, section 7(c) of the CBA entered into between the SBA and the City states that the NYPD “will upon written request to the Chief of Personnel by the individual employee, remove from the Personnel Folder investigative reports which, upon completion of the investigation are classified ‘exonerated’ and/or ‘unfounded’.” With the exception of the DEA, the other police and also the correction Plaintiffs’ CBAs have substantively identical provisions.1
___________________
1 See LBA CBA, Art. XVI, § 7(c); CEA CBA, Art. XIV, § 6(c); PBA CBA, Art. XVI, § 7(c), COBA CBA, Art. XVI, § 11. The COBA CBA also notes that: “The past disciplinary or work record of an employee may not be revealed during a Section 75, Civil Service Law, disciplinary proceeding until a determination as to guilt or innocence of the member has been determined.” COBA CBA, Art. XVI, § 12.
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48. The purpose, intent, and meaning of section 7(c) of the SBA CBA, and of the substantively identical provisions in the CBAs of the other police Plaintiffs, is that removal of the investigative reports from the Personal Folder will eliminate those records and make them unavailable for any purpose. The purpose, intent, and meaning of “remove” cannot mean merely to move records from one place to another, or mean that when records are moved to another place those records can be made publicly available and used for any purpose. The purpose, intent, and meaning of section 7(c) would be violated and its terms rendered meaningless if the covered records could be made publicly available.
49. The police Plaintiffs’ CBAs also permit them to petition the Police Commissioner to expunge the records of certain cases heard in the Trial Room where the disposition of the charge at trial or on review or appeal is other than “guilty,” after 2 years have passed. See, e.g., LBA CBA Article XVI, § 8 (“Disciplinary Records”).
50. The purpose, intent, and meaning of section 8 of the LBA CBA, and of the substantively identical provisions in the CBAs of the other police Plaintiffs, is that expunging the records will eliminate those records and make them unavailable for any purpose. The purpose, intent, and meaning of section 8 would be violated and its terms rendered meaningless if the covered records could be made publicly available.
51. Similarly, Article XVII Section 9 of the CBA entered into between the UFA and the City states:
If an employee is found not guilty in a disciplinary hearing, the record of the proceedings shall not become part of that employee’s personal record. An employee who is found not guilty shall have the right to examine that employee’s personal record in the presence of an official of the Department after written request to the Department to ascertain compliance. UFA CBA, Article XVII, § 9. The UFOA CBA contains an identical provision. See UFOA
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CBA, Article XVII, § 9. Likewise, under COBA’s CBA Article XVI, any member may have removed from her or her personnel folder investigative reports that are classified exonerated or unfounded. Under DOC Directive 4257R-A, VI(6), a violation of which is grievable under the CBA, when at a command disciplinary hearing a Hearing Officer determines that the allegations are not substantiated, no record of the command disciplinary charges is to be maintained except in the command discipline log. Under that same directive, article X, a substantiated command discipline shall be expunged from the member’s personnel folder after one year if they have not been penalized thereafter in a separate disciplinary matter during that time.
52. The purpose, intent, and meaning of these sections of the UFA, UFOA, and COBA CBAs would be violated and their terms rendered meaningless if the covered records could be made publicly available.
53. Defendants’ planned action of dumping all pending and historical disciplinary complaints against New York City police, fire, and corrections officers in a public-facing online registry, without proper review or analysis, would functionally negate the rights of officers to clear their disciplinary records of unfounded and unsubstantiated allegations because that information would forever be publicly available in the future.
54. The rights contained in Plaintiffs’ CBAs were negotiated by Plaintiffs’ respective Unions specifically because of the significant harm and embarrassment having inaccurate complaints and allegations on Plaintiffs’ records could cause Plaintiffs, where personnel records are used for future promotions and job transfers.
55. On July 13, 2020, four of the police union plaintiffs (PBA, SBA, CEA, and LBA) filed grievances with John P. Beirne, the Deputy Commission for the NYPD’s Office of Labor Relations, in response to the anticipated one-sided nullification of their bargained for contractual
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rights, demanding that Respondents “cease and desist.” The corrections officers’ union, COBA, filed a grievance with New York City’s Office of Labor Relations Commissioner Renee Campion. In grieving Respondents’ planned data dump, these plaintiffs argued that the release of Unsubstantiated and Non-Final Allegations against active and retired members would deprive members of the benefit of contractual provisions allowing them to expunge from their personnel files records relating to any investigations resulting in a not-guilty finding. Given the scope of these plaintiffs’ rights potentially impacted by Respondents’ action, the grievances were filed directly at Step III, in accordance with the provisions of the unions’ respective CBAs. Upon denial of their Step III grievances, the four police unions filed Step IV grievances requesting arbitration of their complaints before the New York City Office of Collective Bargaining (“OCB”). The City subsequently filed separate Petitions Challenging Arbitrability, in connection with the Step IV grievances filed by the PBA, LBA, and CEA, requesting that the OCB dismiss the requests for arbitration in their entirety. No decision has been rendered on those Petitions, and these matters are going through the grievance and arbitration process under the CBAs. D. Release of Unsubstantiated and Non-Final Allegations Violates the U.S. and N.Y.
Constitutions 56. The United States and New York State Constitutions each provide that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV; N.Y. Const. s. 1, art. 6. Defendants’ disclosure of Unsubstantiated and Non-Final Allegations will violate those Due Process Clauses because it will stigmatize the identified officers and deprive them of a liberty interest in future employment opportunities and create other substantial burdens without adequate process. 57. First, the publication of Unsubstantiated and Non-Final Allegations against police
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officers will “call[] into question their good name, reputation, honor, or integrity” and thus stigmatize the firefighters and officers. Lee TT. v. Dowling, 87 N.Y.2d 699, 708 (1996) (internal quotation marks omitted). Such stigmatization will include Unsubstantiated and Non-Final Allegations related to serious crimes and serious misconduct.
58. Many Unsubstantiated and Non-Final Allegations are based in whole or in part on false statements. Defendants intend to publicize allegations they investigated and determined to be false (such as those designated as unfounded) as well as allegations that fell short of the preponderance-of-the-evidence standard (such as those designated as unsubstantiated). The falsity of these underlying allegations is at issue in this case, even if they are published alongside a term that accurately describes the outcome of the related investigation. The investigative terms, based on Defendants’ definitions of the terms, do not inherently confirm or refute the truth of underlying allegation. They simply state the outcome of the related investigation and do not cleanse falsity embedded in the allegations themselves. These allegations may be completely false, and yet Defendants intend to include them without regard for their veracity.
59. These false allegations will stigmatize officers, negatively affecting their professional reputations by imputing to them misconduct or unfitness for the profession. A reasonable person could conclude that the allegations convey facts that are susceptible of a defamatory connotation. The mere accusation of misconduct is enough to call an officer’s good name and reputation into question.
60. Officers will separately face deprivation of a liberty interest in the form of interference with future employment opportunities and other material burdens. Defendants have not simply chosen to make these records available in response to FOIL requests but will proactively publish and promote them on a worldwide scale in massive registries. The Mayor
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himself has drawn attention to these registries. Records already released by Defendants have been republished and amplified in other databases, including as part of a new effort to create a national database of police misconduct. Potential future employers, credit agencies, landlords, bank officers, and others will have ready access to these registries.
61. If released, allegations of officer misconduct will follow the identified officers, affecting their reputations for professionalism and integrity years later, even in cases where the agency did not substantiate the allegation or the officer was not disciplined. A single allegation of misconduct—substantiated, unsubstantiated, or otherwise—could cause an officer to lose out on a future job. The damage to these future job opportunities is concrete and real, and it impairs a liberty interest that requires due process prior to such deprivation.
62. Under well-settled law, Defendants must provide adequate procedural protections for officers before depriving them of this liberty interest. But on information and belief, officers will have no opportunity to clear their names and avoid inclusion in the registries. There is no opportunity for officers to challenge publication of allegations against them, which, as to some records, will occur regardless of the outcome of the investigation. Procedures within the investigatory or adjudicatory process are not relevant to avoiding this deprivation. And in any case, NYPD’s procedures for issuing Charges and Specifications and CCRB’s investigative procedures do not meet the strictures of due process.
63. This harm is far from speculative. The harm from these disclosures is illustrated by the recent harassment of Richard Taylor, who retired as a NYPD police officer in 2007 after ten years of service. Taylor is now an adjunct professor at St. John’s University. Despite the fact that he has been retired for approximately thirteen years, in September 2020, a student group at St. John’s posted a screenshot on its Instagram page of Taylor’s record of CCRB allegations.
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The group claims to have downloaded the allegations, none of which were substantiated, from the NYCLU database of CCRB allegations.2 The group publicly called for Taylor’s dismissal and seeks to hold him accountable for this “misconduct.” This harassment, and the framing of unsubstantiated allegations as “misconduct” by third parties, demonstrate the defamatory effect of publicizing these records. Taylor’s experience, coming more than a decade after he left the NYPD, demonstrates a likelihood of both immediate and long-term interference with future employment opportunities for many of the approximately 65,000 officers represented in this lawsuit. This incalculable harm will be long-lasting and widespread and cannot possibly be remedied by money damages.
64. Press coverage following CCRB’s recent public disclosures demonstrates the ramifications for officer reputations. Following CCRB’s releases of disciplinary records in June and July, the Guardian published a cartoon of “NYPD’s 10 Most unWanted” officers, depicting and identifying ten police officers and purporting to list the number of allegations lodged against each officer, with citation to CCRB data. But the underlying data reveals that very few of the allegations listed for each officer were substantiated. For example, one officer was accused in 73 allegations but just six were substantiated. The vast majority of the rest were unfounded (meaning by the CCRB’s own standard there was a preponderance of the evidence that the acts alleged did not occur) or unsubstantiated (meaning, according to the CCRB, there was insufficient evidence to establish whether or not there was an act of misconduct). The damage to reputation of guilt by accusation, including those the agency investigated and found to be without merit, is done. These allegations are susceptible of a defamatory connotation.
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2 Instagram, SJURadicals, https://www.instagram.com/p/CE-RzrvJNep/ (last visited Sept. 25, 2020).
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65. Moreover, the detrimental consequences of releasing Unsubstantiated and NonFinal Allegations were recognized by at least two of the Defendant agencies. The NYPD representative testified that the NYPD has “contemplated certain consequences that might flow to somebody by release of our records” and has “thought about whether or not there will be postemployment consequences based on records that we could release.” (NYPD Dep. Tr. 89:6-20.) The DOC representative stated that “the department is aware [it] is a concern” both that the release of unsubstantiated allegations could damage officer reputations and affect future employment opportunities. (DOC Dep. Tr. at 65:18-66:20.)
66. In addition, the release of records of past Unsubstantiated and Non-Final Allegations would doubly violate the Due Process Clauses because officers relied on the City’s guarantee of the confidentiality of such allegations in deciding how to respond to them. If the officers had known that the City would make such allegations public, they might have defended themselves against the allegations in a more vigorous, more vocal, and more resource-intensive fashion to protect their reputations, and hence their future liberty and property interests. Releasing records of Unsubstantiated and Non-Final Allegations that pre-date the City’s announced intent to publicize such records therefore would upset the officers’ reliance on the City’s guarantee to protect their reputations and privacy from the harms associated with public disclosure of such allegations. Application of the repeal of § 50-a to existing records thus would have an impermissible retroactive effect on the officers’ liberty and property interests in violation of the Due Process Clauses.
67. Separately, the release of Unsubstantiated and Non-Final Allegations will violate the Equal Protection Clauses of the U.S. and N.Y. State Constitutions. The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection
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of the laws.” U.S. Const. amend. XIV, § 1. 68. Defendants treat officers differently than similarly situated public employees
without a rational basis for doing so. In a recent advisory opinion, the Committee on Open Government stated that, “[i]n light of the repeal of § 50-a, a request for disciplinary records relating to a police officer must be reviewed in the same manner as a request for disciplinary records of any other public employee.”3 Defendants’ plans ignore this simple command and subject law enforcement records to a lesser degree of protection. By releasing Unsubstantiated and Non-Final Allegations without considering, on an individual basis, whether such release would constitute an unwarranted invasion of privacy, Defendants offer fewer protections to law enforcement officers than other public employees.
69. Moreover, Defendants’ disparate disclosure plans suggest starkly different treatment across New York City law enforcement agencies that cannot be rationally explained by a legitimate government interest. Police officers are inexplicably afforded fewer privacy protections than firefighters or corrections officers. Police officer records even appear to be treated differently depending on whether a complaint was investigated by the CCRB or one of the investigative arms of NYPD. The City offers no justification (rational or otherwise) for closely shielding the disciplinary records of corrections officers but not police officers.
70. This case does not involve state actions which by their nature involve discretionary decision-making based on subjective, individualized assessments. Rather, it concerns the treatment of distinct groups of individuals in categorically different ways based on class-based decisions.
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3 Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-19775 (July 27, 2020), https://docs.dos.ny.gov/coog/ ftext/f19775.html.
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71. The City’s decision to differentiate among law enforcement officers in this way lacks a rational relationship to an appropriate governmental interest. These class-based distinctions are not based on “subjective and individualized” analysis, but instead raise classic group-based equal protection issues. Ross v. Moffitt, 417 U.S. 600, 609 (1974) (“‘Equal protection’ ... emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.”). E. Release of Unsubstantiated and Non-Final Allegations Violates Settlement Contracts
72. The release of these documents, some of which contain settled cases, also violates the settlement contracts negotiated by Plaintiffs and Defendants.
73. For decades, these settlements were made against the backdrop of Civil Rights Law § 50-a, which required that the disciplinary files be kept confidential. That law, in force at the time of the settlement agreements, is a part of the contract. Releasing these documents would breach settlement contracts entered into before the repeal of § 50-a.
74. Section 50-a was a “valid applicable law existing at the time” the settlement agreements were executed. 11 Williston on Contracts § 30:19 (4th ed. 2020). There were no express confidentiality provisions in the settlement agreements because there was no need for them. The agreements were executed against the backdrop of existing law, which expressly protected police personnel records from disclosure. The parties to the contract reasonably expected that the confidentiality protections of § 50-a would be incorporated, and the officers relied on that understanding in executing the agreements.
75. On information and belief, the pending disclosure will include even those cases where officers have entered into settlement agreements, which would constitute a breach of the settlement agreement.
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F. Defendants’ Decision to Indiscriminately Release Unsubstantiated and Non-Final Allegations Without Performing Individualized Review Is an Error of Law and Arbitrary and Capricious Under CPLR § 7803(3) 76. Release of Unsubstantiated and Non-Final Allegations would also constitute an
error of law and be arbitrary and capricious agency action under CPLR § 7803(3). 77. First, it is an error of law and arbitrary and capricious to conclude that the repeal
of § 50-a justifies the wholesale and indiscriminate release of Unsubstantiated and Non-Final Allegations without individualized and particularized review.
78. In repealing § 50-a, the legislature merely removed one barrier to the release of disciplinary records. Far from mandating the release of records, the legislature highlighted continuing protections for certain records provided by other laws. Thus, the repeal does not justify Defendants’ plan to indiscriminately release Unsubstantiated and Non-Final Allegations without performing an individualized and particularized review for application of the privacy and safety exemptions in FOIL. While § 50-a provided an express means for protecting all police, firefighter, and corrections officer personnel records, regardless of their contents, that law was never the sole basis for keeping confidential significant portions of those files. Defendants’ conclusion that these records may now be released legally, and en masse, because of that repeal is erroneous as a matter of law and arbitrary and capricious under CPLR § 7803(3).
79. For decades, New York police, fire, and corrections departments were required under Civil Rights Law § 50-a to keep personnel records, including the disciplinary files discussed above, largely confidential. Civil Rights Law § 50-a was enacted in 1976 and provided that “[a]ll personnel records used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review.” The statute contained only two exceptions to confidentiality: officer consent (Civil Rights Law § 50-a[1]) and court authorization (Civil Rights Law § 50-a[3]). Section 50-a “was
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sponsored and passed as a safeguard against potential harassment of officers through unlimited access to information contained in personnel files.” Luongo v. Records Access Officer, 150 A.D.3d 13, 20 (1st Dep’t 2017).
80. On June 12, 2020, New York State repealed § 50-a. Senate Bill S8496 to repeal § 50-a went from introduction to passage by both houses of the New York State Legislature in just three days, including a weekend. The Governor signed the bill into law three days later.4
81. For at least two reasons, it is clear the legislature did not intend for disciplinary records to be released indiscriminately and on a wholesale basis in a public registry. First, Senate Bill S8496 does not evince any legislative intent to mandate or direct law enforcement agencies to release disciplinary records of any kind. Rather, the repeal removed the statutory basis for categorically withholding all police personnel records from public disclosure. Second, the legislative history of Senate Bill S8496, as well as a similar repeal effort in the New York State Assembly, make clear that the FOIL exemptions for privacy and safety should be applied to protect law enforcement officers in the absence of § 50-a. The Sponsor Memorandum for Senate Bill S8496 states that § 50-a was an “unnecessary” law that could be removed because there are “additional safeguards” and “protections” in New York law that are intended to protect the rights of officers, including the exemptions in FOIL.5 The Sponsor Memorandum for Assembly Bill A9332 states that “FOIL already provides all public employees, including those protected under § 50-a, the protections necessary to guard against unwarranted invasions of privacy and from
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4 Senate Bill S8496 to repeal § 50-a was introduced on Saturday, June 6, 2020. Three days later, on June 9, 2020, it was passed by both houses. Governor Cuomo signed the bill into law on June 12, 2020.
5 Sponsor Mem., N.Y. Senate Bill S8496, https://www.nysenate.gov/legislation/bills/2019/s8496.
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disclosures that could jeopardize their security or safety.”6 Thus, agencies have a continuing responsibility, even absent § 50-a, to conduct careful, record-by-record review to ensure proper application of these additional safeguards and protections in the law.
82. Put simply, recent legislative developments do not create any affirmative duty or obligation on the part of Defendants to release Unsubstantiated and Non-Final Allegations to the public, let alone in a central online registry, and in fact confirm the continuing vitality of the FOIL exemptions.
83. CCRB has admitted it does not review records individually before releasing them. For the 81,000 officer records released by the CCRB to NYCLU, CCRB’s Rule 30(b)(6) witness testified that those records were not reviewed individually for either safety or privacy issues. CCRB’s position was that there was that “there was no need to do a line by line of every—of all 81,000-plus officers” to determine individual privacy or safety protection. (CCRB Dep. Tr. 41:21-23; see also id. at 47:3-12; 48:14-49:19; 53:12-19.)
84. This practice contradicts CCRB’s own website, which states that “[a]ll government records are subject to the exemptions stipulated in FOIL” and links to the website of the Committee on Open Government. A recent advisory opinion from the Committee emphasizes that, both before and after the repeal of § 50-a, the law “requires an agency to determine if an unsubstantiated or unfounded complaint against an employee would, if disclosed, constitute an unwarranted invasion of personal privacy.”7
85. Defendants cannot possibly meet this requirement without reviewing records
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6 Sponsor Mem., N.Y. Assembly Bill A9332, https://nyassembly.gov/leg/?default_fld=&bn=9332 &term=2015&Summary=Y&Memo=Y.
7 Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-19775 (July 27, 2020), https://docs.dos.ny.gov/coog/ftext/f19775.html (emphasis added).
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individually before they are irretrievably released. Such actions are, and threaten to continue to be, arbitrary and capricious and based on an error of law. G. Defendants’ Break from Their Long-Established Practice of Applying the Privacy
or Safety Exemptions in FOIL to Unsubstantiated and Non-Final Allegations Is an Error of Law and Arbitrary and Capricious Under CPLR § 7803(3) 86. It also is an error of law and arbitrary and capricious for Defendants to break with longstanding practice in determining not to assert the privacy and safety exemptions in FOIL as a basis for withholding Unsubstantiated and Non-Final Allegations. 87. Defendants themselves have long asserted that release of Unsubstantiated and Non-Final Allegations would be an unwarranted invasion of privacy. Defendants cannot cast aside privacy and safety issues in favor of wholesale, indiscriminate releases outside of the FOIL request process. 88. Defendant CCRB has repeatedly recognized that disclosure of unsubstantiated disciplinary records would itself constitute an “unreasonable invasion of privacy.” Hughes Hubbard & Reed LLP v. Civilian Complaint Review Bd., 53 Misc.3d 947 (Sup. Ct., Kings Cnty. 2016) (citation omitted); see also Luongo v. Records Access Officer, 150 A.D.3d 13, 25-26 (1st Dep’t 2017) (“In addition to statutory exemptions, CCRB noted that the request for records relating to unsubstantiated matters would constitute ‘an unreasonable invasion of privacy.’”). 89. In addition, courts in New York have long recognized the importance of protecting against unwarranted invasions of privacy in the disclosure of government records. Shortly after § 50-a was codified, the Court of Appeals observed that § 50-a “fairly reflects the pre-existing judicial consensus” regarding the confidentiality of police personnel records. People v. Gissendanner, 48 N.Y.2d 543, 551 (1979). In other words, the privacy protections preexisted § 50-a in the common law and likewise survive § 50-a’s repeal. Also, the New York Court of Appeals has held that individuals may have a “legally protected privacy interest” in
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ensuring public records disclosures do not violate their privacy interests. In New York Times Co. v. City of New York Fire Department, the Court held that “surviving relatives [of 911 callers on September 11, 2001] have a legally protected privacy interest” in nondisclosure of tapes and transcripts of those calls. 4 N.Y.3d 477, 485 (2005). Under this reasoning, those with a “legally protected privacy interest” in nondisclosure of government records must have a means of enforcing that interest.
90. This position is supported by the Committee on Open Government, which is the executive branch authority on the correct interpretation of FOIL and similar state laws. The Committee has long taken the position that the release of unsubstantiated allegations of misconduct constitutes an unwarranted invasion of officer privacy. Most recently, in its July 27, 2020 advisory opinion, the Committee emphasized its “long-standing interpretation that requires an agency to determine if an unsubstantiated or unfounded complaint against an employee would, if disclosed, constitute an unwarranted invasion of personal privacy.”8 Another Committee on Open Government advisory opinion explained: “when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may . . . be withheld, for disclosure would result in an unwarranted invasion of personal privacy . . . Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld based on considerations of privacy.”9 An earlier opinion states: “In numerous contexts, it has been advised that records
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8 Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-19775 (July 27, 2020), https://docs.dos.ny.gov/coog/ ftext/f19775.html (emphasis added).
9 Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-17195 (May 29, 2008), https://docs.dos.ny.gov/coog/ ftext/f17195.html (internal citations omitted).
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relating to unsubstantiated charges, complaints or allegations may be withheld to protect the privacy of the accused.”10
91. Defendants’ planned releases would fail to protect (and in some cases even fail to consider) the privacy and safety rights that continue to be protected after the repeal of § 50-a. CCRB admitted that it does not analyze whether privacy or safety are implicated in the release of Unsubstantiated and Non-Final Allegations, despite its past practice of doing so. (CCRB Dep. Tr. 23:12-16 (“[T]he CCRB does not assert the unwarranted invasion of privacy exception based on [what] the outcome of the case was. That does not factor into whether or not that exception is asserted.”).) CCRB claims it can choose not to conduct any review for the privacy and safety exemptions because applying any FOIL exemption is always optional. (CCRB Dep. Tr. 33:1725.)
92. Defendants neglect their statutory duty to consider whether disclosure of Unsubstantiated and Non-Final Allegations would constitute an unwarranted invasion of privacy, such that the documents should be withheld under the privacy exemption to FOIL. This failure disregards legislative intent, Defendants’ previous judgments on the same issue, statements by the Committee on Open Government, and the expectation set by the courts of this State in considering the privacy implications of releasing personnel records.
93. Defendants also neglect their statutory duty to consider whether disclosure of Unsubstantiated and Non-Final Allegations would threaten the life or safety of any person, such that the documents should be withheld under the safety exemption to FOIL. Officers accused of misconduct have been subject to threats, harassment, and reprisals in recent years. Naming
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10 Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-12005 (Mar. 21, 2000), https://docs.dos.ny.gov/coog/ ftext/f12005.htm.
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firefighters and officers in an easily accessible database and listing every charge ever levied against them, regardless of outcome or substantiation, will provide motivated and unstable individuals with all the information they need to track down specific police officers.
94. There is concrete evidence of increasing threats of violence and harassment against officers. According to Joseph Alejandro, a veteran New York City police officer, officers face a rising number of threats, in some cases based on perceptions of officer misconduct. According to statistics available from NYPD’s Threat Assessment and Protection Unit (“TAPU”), which investigates threats against police officers, threats against police officers are more often than not motivated by the subject’s previous interactions with police officers. On information and belief, threats and harassment against NYPD officers have increased substantially in 2020.
95. A recent confrontation in Queens demonstrates the harassment and threats officers now face, as well as the confusion that the City’s recent data dumps to third parties, including ProPublica and NYCLU, is causing among members of the public. On August 19, 2020, approximately fifty to seventy protestors converged on the Queens home of Police Officer Patrick Lynch, who serves as President of Plaintiff PBA. The home was being guarded at the time by approximately six on-duty, uniformed police officers. Some hurled insults and threats, with one protestor even threatening to rape the wives of the officers. Another protestor approached an officer with a phone in her hand. The officer’s name was visible on the nameplate affixed to his uniform. The protestor then began to yell, directly into the officer’s face, the details of CCRB complaints that she was reading off her phone, and which she apparently believed to have been made against the officer. Other protestors soon joined in the harassment, calling him an abuser. According to available records, the officer who was berated
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has had no CCRB complaints made against him in the 18 months since he was appointed as a police officer. The database published by ProPublica includes CCRB complaints against an NYPD sergeant with the same last name as the police officer. The details of these complaints are consistent with the accusations of misconduct made by the protestor. The sergeant’s CCRB record in the ProPublica database goes back to 1996—some 23 years before the police officer assigned to the protest was appointed, and two years before he was born.
96. Defendants ignore the clear dangers to officers of releasing Unsubstantiated and Non-Final Allegations against officers in a way that identifies the officers by name. To be sure, New York Public Officers Law now requires that certain personal identifying information, including home addresses, be redacted from records before they are released. But this amendment was little comfort for officers. It is common knowledge that an officer’s name can be used to quickly turn up a home address on the internet. Driving home the point, one activist stated at a legislative hearing: “Finding the home address for police officers, that’s not a 50-a issue, that’s a Google issue. You name a police officer to me right now, and I will find their address, their phone number, and their relatives. I will find them all through Google.”11 Coupled with NYPD’s requirement that officers reside in New York City or an adjacent county in New York, those who wish to target officers will be able to quickly identify where specific officers live.
97. On information and belief, Defendants have not modified their plan to release Unsubstantiated and Non-Final Allegations to account for increasing incidents of targeted
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11 Statement of Loyda Colon, N.Y. Senate Public Hearings (Oct. 24. 2019), https://www.nysenate.gov/calendar/public-hearings/october-24-2019/public-hearing-policing-s3695-repealsprovisions-relating (beginning at the 2:53:39 mark).
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assaults and harassment of police officers and their families. For example, NYPD does not take into account assassinations of police officers in determining whether disclosure of disciplinary records will affect officer safety. (NYPD Dep. Tr. 83:12-85:19.)
98. Although Defendants are free to change policies, they may not do so at the expense of the long-settled reliance interests of firefighters, police officers, and correction officers in the nondisclosure of Unsubstantiated and Non-Final Allegations. Defendants’ reversal is not based on sound reason and lacks even a minimal level of analysis beyond the erroneous conclusion that the repeal of § 50-a permits unlimited disclosure (which it does not).
99. To be sure, New York City would not be alone in releasing law enforcement disciplinary records to the public. And it has done so in limited ways in the past, such as the physical posting of police charges on a bulletin board inside NYPD headquarters and in a database maintained by a law school, all with little publicity or attention. But the planned publications through a central public registry come at a fraught moment for New York City law enforcement officers and their families. The recent and ongoing experience of former NYPD officer Richard Taylor—an officer-turned-academic who is enduring harassment on the basis of a handful of unfounded and unsubstantiated complaints many years after the fact—serves as a warning sign of what is to come. The new and disturbing trend of protestors showing up at the homes of officers also demonstrates that some elements of society are beginning to use access to public records as a tool for harassment and threats.12 Past releases or leaks of misconduct records, in New York or otherwise, are of little predictive value in this environment.
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12 See, e.g., Dan Boyce, Anniversary Of De’Von Bailey Shooting Marked With Tense Protest In Officer’s Colorado Springs Neighborhood, CPR News (Aug. 4, 2020), https://www.cpr.org/2020/08/04/anniversary-of-baileyshooting-marked-with-tense-protest-in-colorado-springs-neighborhood/.
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CLAIMS FOR RELIEF FIRST CAUSE OF ACTION: Injunctive Relief Under CPLR § 7502(c) to Prevent CBA Arbitration Rights from being Rendered Ineffectual 100. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully stated herein. 101. Without injunctive relief preventing disclosure of allegations covered by the CBA provisions discussed above, Plaintiffs’ members will be irreparably injured because their right to arbitrate CBA claims will be “rendered ineffectual,” contrary to New York arbitration law in CPLR 7502(c), the policy of enforcing arbitration rights, and New York’s “strong and sweeping” public policy supporting collective bargaining rights. City of Watertown v. State of N.Y. Pub. Relations Bd., 95 N.Y.2d 73, 78 (2000). Plaintiffs will be irreparably harmed both by the irreparable loss of their right to meaningful arbitration, and by the irreparable violation of their CBAs, when Defendants publish disciplinary records protected by the CBA provisions at issue. Public release of records will render the bargained-for CBA rights meaningless. Any future removal of the reports covered by CBA provisions will have no practical effect because the information will already be public. 102. In executing CBAs with Plaintiffs, the City agreed that all members of the SBA, PBA, LBA, CEA, COBA, UFA and UFOA have a contractual right to have investigative reports that are classified as “exonerated,” “unfounded” or, in the case of the FDNY, otherwise “not guilty,” removed from their personnel folders.13 The City further agreed that officers in the
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13 See LBA CBA, Art. XVI, § 7(c); CEA CBA, Art. XIV, § 6(c); PBA CBA, Art. XVI, § 7(c), COBA CBA, Art. XVI, §§ 11, 12 & DOC Directive 4257R-A, Arts. VI(6) & X; UFA CBA, Article XVII, § 9; UFOA CBA, Article XVII, § 9. While each of the referenced CBAs are expired, their terms continue uninterrupted pursuant to The Triborough Amendment.
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employ of the police Plaintiffs would be permitted to petition the Police Commissioner to expunge the records of certain cases heard in the Trial Room where the disposition of the charge at trial or on review or appeal is other than “guilty,” after 2 years have passed. See, e.g., LBA CBA Article XVI, § 8 (“Disciplinary Records”).
103. Defendants’ planned action of dumping all pending and historical disciplinary complaints against New York City police, fire and corrections officers on a public-facing online database, without proper review or analysis, would functionally negate the rights of officers to clear their disciplinary records of unfounded and unsubstantiated allegations, leaving their bargained-for rights null and void.
104. The rights at issue in Plaintiffs’ CBAs were negotiated by Plaintiffs specifically because of the significant harm and embarrassment having inaccurate complaints and allegations on Plaintiffs’ records could cause Plaintiffs, where personnel records are used for future promotions and job transfers, and where such protections have been long recognized as important to officer safety.
105. Because use of officers’ personal records is a term and condition of their employment, the officers have a right to collectively bargain over the confidential treatment of their personnel files under the Taylor Law. See CSL §§ 203; 201(4).
106. The CBA rights at issue are based on privacy interests and are proper subjects of collective bargaining. They are not themselves “police discipline” that is outside collective bargaining rights. The CBA provisions at issue relate to the treatment of complaint allegations and officers’ ability to remove and expunge related complaint records. The CBA provisions concern the officers’ privacy interests. These CBA provisions are not provisions governing the ability to punish for wrongdoing.
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107. Plaintiffs PBA, SBA, LBA, CEA and COBA have filed grievances in accordance with the provisions of their respective CBAs demanding arbitration in response to this anticipated one-sided nullification of their bargained-for contractual rights.
108. Plaintiffs are pursuing their collective bargaining rights through the administrative process, and four Plaintiffs are waiting for arbitration dates to be scheduled. CPLR § 7502(c) specifically authorizes the issuance of “a preliminary injunction in connection with an arbitration that is pending or that is to be commenced . . . upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief.”
109. The broad arbitration clauses in the CBAs cover everything that can be the subject of a grievance concerning “a claimed violation, misinterpretation or inequitable application of the provisions of this Agreement.” (E.g., PBA CBA, Art. XXI, § 1 (grievance), § 8 (arbitration of grievance).) As explained above, Plaintiffs contend that CBA provisions must be read to preserve confidentiality of certain records. This requires the arbitrator to interpret key terms, the purpose and intent of the parties, and CBA practice and context.
110. Injunctive relief is required to enjoin Defendants from engaging in a data dump while the parties arbitrate this issue pursuant to the terms of their CBAs, because Defendants have both publicly and privately indicated that they intend to begin releasing this personal data, or have failed to promise and guarantee that they will not release that data, including Unsubstantiated and Non-Final Allegations. If this information is made available to the public online, it will be reviewed and analyzed, reported on, and widely disseminated by the media, ensuring that it will remain publicly available forever whether or not the City later decides to remove it or is required to remove it because of arbitration awards.
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SECOND CAUSE OF ACTION: 42 U.S.C. § 1983 - Violation of the Due Process Clause of the Fourteenth Amendment
to the U.S. Constitution 111. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully stated herein. 112. The publication of Unsubstantiated and Non-Final Allegations will call into question the good name, reputation, honor, and integrity of the identified law enforcement officers, causing them lasting stigma. A reasonable person could conclude that the allegations convey facts that are susceptible of a defamatory connotation. The mere accusation of misconduct is enough to call an officer’s good name and reputation into question. 113. These allegations are based in whole or in part on false accusations. The falsity of these underlying allegations is at issue in this case, even if they are published alongside a term that accurately describes the outcome of the related investigation. The investigative terms, based on Defendants’ definitions of the terms, do not inherently confirm or refute the truth of underlying allegation. They simply state the outcome of the related investigation and do not cleanse falsity embedded in the allegations themselves. These allegations may be completely false, and yet Defendants intend to include them without regard for their veracity. 114. Officers will separately face deprivations of a liberty interest in the form of interference with future employment opportunities and other substantial burdens. The publication of these allegations in massive online registries will result in future employers consulting and relying on those allegations when considering officers for potential employment. If published and promoted in this manner, allegations of officer misconduct will follow the identified officers, affecting their reputations for professionalism and integrity years later, even in cases where the agency did not substantiate the allegation or the officer was not disciplined.
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The damage to these future job opportunities is concrete and real, and it impairs a liberty interest that requires due process prior to such deprivation.
115. Defendants’ disciplinary processes do not provide sufficient procedures to address these deprivations. The issuance of Charges and Specifications, which NYPD plans to release and promote in a public registry, is not based on a process that provides due process rights to officers. Similarly, officers do not have an opportunity to present or contest evidence in the CCRB investigative process. The process for issuing an investigative disposition by CCRB does not include adequate procedural protections for officers to satisfy due process.
116. Defendants will not provide pre-deprivation procedures that would give notice and an opportunity to be heard before allegations against them are published in the databases. There is not a mechanism for officers to avoid having their names or any allegations included in the databases.
117. Any post-deprivation remedy would be insufficient to address the professional and reputational consequences of being included in the registries.
118. Defendants made these decisions under color of state law and will deprive the rights of Plaintiffs’ members while acting under color of state law.
119. Therefore, the Court should enjoin the determinations of Defendants and prohibit the release of Unsubstantiated and Non-Final Allegations as well as any other disciplinary records that implicate the privacy and safety concerns of officers. Injunctive relief is required to protect Plaintiffs’ rights.
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THIRD CAUSE OF ACTION: N.Y. Const. s. 1 art. 6 - Violation of the Due Process Clause of the N.Y. State Constitution
120. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully stated herein.
121. The publication of Unsubstantiated and Non-Final Allegations will call into question the good name, reputation, honor, and integrity of the identified law enforcement officers, causing them lasting stigma. A reasonable person could conclude that the allegations convey facts that are susceptible of a defamatory connotation. The mere accusation of misconduct is enough to call an officer’s good name and reputation into question.
122. These allegations are based in whole or in part on false accusations. The falsity of these underlying allegations is at issue in this case, even if they are published alongside a term that accurately describes the outcome of the related investigation. The investigative terms, based on Defendants’ definitions of the terms, do not inherently confirm or refute the truth of underlying allegation. They simply state the outcome of the related investigation and do not cleanse falsity embedded in the allegations themselves. These allegations may be completely false, and yet Defendants intend to include them without regard for their veracity.
123. Officers will separately face deprivations of a liberty interest in the form of interference with future employment opportunities and other substantial burdens. The publication of these allegations in massive online registries will result in future employers consulting and relying on those allegations when considering officers for potential employment. If published and promoted in this manner, allegations of officer misconduct will follow the identified officers, affecting their reputations for professionalism and integrity years later, even in cases where the agency did not substantiate the allegation or the officer was not disciplined.
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The damage to these future job opportunities is concrete and real, and it impairs a liberty interest that requires due process prior to such deprivation.
124. Defendants’ disciplinary processes do not provide sufficient procedures to address these deprivations. The issuance of Charges and Specifications, which NYPD plans to release and promote in a public registry, is not based on a process that provides due process rights to officers. Similarly, officers do not have an opportunity to present or contest evidence in the CCRB investigative process. The process for issuing an investigative disposition by CCRB does not include adequate procedural protections for officers to satisfy due process.
125. Defendants will not provide pre-deprivation procedures that would give notice and an opportunity to be heard before allegations against them are published in the databases. There is not a mechanism for officers to avoid having their names or any allegations included in the databases.
126. Any post-deprivation remedy would be insufficient to address the professional and reputational consequences of being included in the registries.
127. Defendants made these decisions under color of state law and will deprive the rights of Plaintiffs’ members while acting under color of state law.
128. Therefore, the Court should enjoin the determinations of Defendants and prohibit the release of Unsubstantiated and Non-Final Allegations as well as any other disciplinary records that implicate the privacy and safety concerns of officers. Injunctive relief is required to protect Plaintiffs’ rights.
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FOURTH CAUSE OF ACTION: 42 U.S.C. § 1983 - Violation of the Equal Protection Clause of the Fourteenth Amendment
to the U.S. Constitution 129. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully stated herein. 130. Defendants treat officers differently than similarly situated public employees without a rational basis for doing so. In a recent advisory opinion, the Committee on Open Government stated that, “[i]n light of the repeal of § 50-a, a request for disciplinary records relating to a police officer must be reviewed in the same manner as a request for disciplinary records of any other public employee.”14 Defendants’ plans ignore this simple command and subject law enforcement records to a lesser degree of protection. 131. By releasing Unsubstantiated and Non-Final Allegations without considering, on an individual basis, whether such release would constitute an unwarranted invasion of privacy, Defendants offer fewer protections to law enforcement officers than other public employees. These distinctions are not rationally related to a legitimate government interest. 132. Defendants also create distinctions among New York City law enforcement agencies that cannot be rationally explained by a legitimate government interest. Police officers are inexplicably afforded fewer privacy protections than firefighters or corrections officers. Police officer records even appear to be treated differently depending on whether a complaint was investigated by the CCRB or one of the investigative arms of NYPD. The City offers no justification (rational or otherwise) for closely shielding the disciplinary records of corrections officers but not police officers. ___________________
14 Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-19775 (July 27, 2020), https://docs.dos.ny.gov/coog/ ftext/f19775.html.
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133. Defendants made these decisions under color of state law and will deprive the rights of Plaintiffs’ members while acting under color of state law.
134. Therefore, the Court should enjoin the determinations of Defendants and prohibit the release of Unsubstantiated and Non-Final Allegations as well as any other disciplinary records that implicate the privacy and safety concerns of officers. Injunctive relief is required to protect Plaintiffs’ rights.
FIFTH CAUSE OF ACTION: N.Y. Const. s. 1 art. 11 - Violation of the Equal Protection Clause of the N.Y. State
Constitution 135. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully stated herein. 136. Defendants treat officers differently than similarly situated public employees without a rational basis for doing so. In a recent advisory opinion, the Committee on Open Government stated that, “[i]n light of the repeal of § 50-a, a request for disciplinary records relating to a police officer must be reviewed in the same manner as a request for disciplinary records of any other public employee.”15 Defendants’ plans ignore this simple command and subject law enforcement records to a lesser degree of protection. 137. By releasing Unsubstantiated and Non-Final Allegations without considering, on an individual basis, whether such release would constitute an unwarranted invasion of privacy, Defendants offer fewer protections to law enforcement officers than other public employees. These distinctions are not rationally related to a legitimate government interest. 138. Defendants also create distinctions among New York City law enforcement ___________________
15 Comm. on Open Gov’t, Adv. Op. No. FOIL-AO-19775 (July 27, 2020), https://docs.dos.ny.gov/coog/ ftext/f19775.html.
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agencies that cannot be rationally explained by a legitimate government interest. Police officers are inexplicably afforded fewer privacy protections than firefighters or corrections officers. Police officer records even appear to be treated differently depending on whether a complaint was investigated by the CCRB or one of the investigative arms of NYPD. The City offers no justification (rational or otherwise) for closely shielding the disciplinary records of corrections officers but not police officers.
139. Defendants made these decisions under color of state law and will deprive the rights of Plaintiffs’ members while acting under color of state law.
140. Therefore, the Court should enjoin the determinations of Defendants and prohibit the release of Unsubstantiated and Non-Final Allegations as well as any other disciplinary records that implicate the privacy and safety concerns of officers. Injunctive relief is required to protect Plaintiffs’ rights.
SIXTH CAUSE OF ACTION: Breach of Settlement Agreements 141. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully stated herein. 142. Plaintiffs and Defendants negotiated and executed settlement agreements that incorporated a then-present confidentiality law. There were no express confidentiality provisions in the settlement agreements because there was no need for them. The agreements were executed against the backdrop of existing law, which expressly protected police personnel records from disclosure. The parties to the contract reasonably expected that the confidentiality protections of § 50-a would be incorporated, and the officers relied on that mutual understanding in executing the agreements.
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143. Public release of these settlement agreements would violate those agreements. 144. On information and belief, Defendants have not evaluated, and do not intend to evaluate, the individual police disciplinary records before they are released, and thus will release cases that have settled under these settlement agreements. 145. Therefore, the Court should enjoin the determinations of Defendants and prohibit the release of Unsubstantiated and Non-Final Allegations as well as any other police disciplinary records that contain settlement agreements. Injunctive relief is required to protect Plaintiffs’ rights.
SEVENTH CAUSE OF ACTION: Violation of CPLR § 7803(3) – Error of Law and Arbitrary and Capricious Agency Action
146. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully stated herein.
147. Release of Unsubstantiated and Non-Final Allegations would constitute an error of law and would be arbitrary and capricious under CPLR § 7803(3).
148. First, it is an error of law and arbitrary and capricious to conclude that the repeal of § 50-a justifies the wholesale and indiscriminate release of Unsubstantiated and Non-Final Allegations without individualized and particularized review for safety and privacy concerns. Defendants’ planned releases would fail to protect (and in some cases even fail to consider) the privacy and safety rights that continue to be protected after the repeal of § 50-a.
149. Second, it is an error of law and arbitrary and capricious for Defendants to break with longstanding practice in determining not to assert the privacy and safety exemptions as a basis for withholding Unsubstantiated and Non-Final Allegations. Defendants themselves have asserted for decades that release of Unsubstantiated and Non-Final Allegations would be an
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unwarranted invasion of privacy. Defendants cannot cast aside privacy and safety issues in favor of wholesale, indiscriminate releases without a sound basis in reason. This failure disregards legislative intent, Defendants’ previous judgments on the same issue, statements by the Committee on Open Government, and the expectation set by the courts of this State in considering the privacy implications of releasing personnel records.
150. These decisions cannot be justified by the repeal of § 50-a. In repealing § 50-a, the legislature merely removed one barrier to the release of disciplinary records. Far from mandating the release of records, the legislature highlighted continuing protections for certain records provided by other laws. The legislature did not intend for disciplinary records to be released indiscriminately and on a wholesale basis in a public registry. Defendants’ conclusion that these records may now be released legally, and en masse, because of the repeal of § 50-a is erroneous as a matter of law and arbitrary and capricious.
151. Therefore, because Defendants’ decisions were affected by an error of law and were arbitrary and capricious under CPLR § 7803(3), the Court should annul the determinations of Defendants and prohibit the release of Unsubstantiated and Non-Final Allegations. Injunctive relief is required to protect Plaintiffs’ rights.
EIGHTH CAUSE OF ACTION: Declaratory Judgment
152. Plaintiffs repeat and reallege each of the foregoing paragraphs as if fully stated herein.
153. An actual case or controversy exists between Plaintiffs and Defendants regarding the claims raised above.
154. Absent clarification from the Court, the dispute between Plaintiffs and Defendants
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is capable of, and likely to be, recurring. 155. Accordingly, Plaintiffs are entitled to a declaration that publication of
Unsubstantiated and Non-Final Allegations (1) would violate the collective bargaining agreements between the City and Plaintiffs; (2) would violate the Due Process Clauses of the U.S. and N.Y. State Constitutions; (3) would violate the Equal Protection Clauses of the U.S. and N.Y. State Constitutions; (4) would constitute a breach of contract in violation of settlement agreements; and (5) would be an error of law and arbitrary and capricious.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter an Order: 1. Permanently enjoining the publication of any records concerning Unsubstantiated and Non-Final Allegations or that regard settlement agreements entered into prior to June 12, 2020; 2. Declaring that publication of Unsubstantiated and Non-Final Allegations (1) would violate the collective bargaining agreements between the City and Plaintiffs; (2) would violate the Due Process Clauses of the U.S. and N.Y. State Constitutions; (3) would violate the Equal Protection Clauses of the U.S. and N.Y. State Constitutions; (4) would constitute a breach of contract in violation of settlement agreements; and (5) would be an error of law and arbitrary and capricious; and 3. Granting whatever other relief the Court deems necessary and just.
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Dated: September 25, 2020 New York, New York

DLA PIPER LLP (US)
By: /s/ Anthony P. Coles Anthony P. Coles Michael R. Hepworth 1251 6th Avenue New York, NY 10020 Telephone: (212) 335-4844 Facsimile: (212) 884-8644 Email: anthony.coles@dlapiper.com Email: michael.hepworth@dlapiper.com
Courtney G. Saleski (admitted pro hac vice)
1650 Market Street, Suite 5000 Philadelphia, PA 19103-7300 Telephone: (215) 656-2431 Facsimile: (215) 606-2046 Email: courtney.saleski@dlapiper.com
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I, Anthony P. Coles, hereby certify that, on this 25th day of September, 2020, the foregoing document was served via ECF on all counsel of record.
/s/ Anthony P. Coles Anthony P. Coles Attorney for Plaintiffs

 
 Case 1:20-cv-05441-KPF Document 257 Filed 03/17/21 Page 1 of 3

March 17, 2021
Via ECF
Hon. Katherine Polk Failla Thurgood Marshall United States Courthouse 40 Foley Square New York, NY, 10007

Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, NY 10019-6142 +1 212 506 5000 orrick.com
Renee Phillips
E rphillips@orrick.com D +1 212 506 5153 F +1 212 506 5151
Christopher J. Cariello
ccariello@orrick.com.com E ccariello@orrick.com D +1 212 506 3778

Re: Uniformed Fire Officers Association v. de Blasio, 1:20-cv-05441-KPF
Dear Judge Failla:
Intervenor Communities United for Police Reform (CPR) requests a pre-motion conference regarding its anticipated Motion to Modify the Preliminary Injunction pursuant to Fed. R. Civ. P. 59(e), 60(b) and the Court’s inherent authority.
On August 21, 2020, this Court enjoined release of records described in § 8 of certain collective bargaining agreements between the Unions and City. Dkt. 197. Section 8 refers to a subset of records of misconduct violations of the types enumerated in “Schedule A.” Upon CPR’s appeal from the preliminary injunction, the Second Circuit affirmed on a sole ground. Uniformed Fire Officers Ass’n v de Blasio, __ F. App’x __, 2021 WL 561505, *4 (2d Cir. Feb. 16, 2021). It held that “on this record”—that is, the preliminary injunction record that was before this Court—this Court did not err in finding that the Schedule A violations described in § 8 fall within FOIL’s exemption for “technical infractions,” N.Y. Pub. Officers § 86(9). Id. at *4.
But the Second Circuit’s decision went on to provide that “[i]f CPR can show that ‘Schedule A’ violations include anything other than ‘[t]echnical infraction[s]’ as defined by New York law, … it may move the District Court for appropriate relief, see Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 423 F.3d 137, 141 (2d Cir. 2005).” Id. at *4. The Luigino case cited by the Second Circuit as an example of such “appropriate relief” involved a motion to modify a preliminary injunction. The Second Circuit’s decision thus explicitly contemplates that CPR may move to modify the injunction on the ground that Schedule A embraces more than technical infractions, such that § 8—under the Unions’ reading of the provision—impermissibly “bargain[s] away [the City’s] FOIL obligations.” UFOA,

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Hon. Katherine Polk Failla March 17, 2021 2021 WL 561505 at *4; see id. at *1 (“To the extent [the Unions’] claim implicates records that must be disclosed under FOIL, the NYPD cannot bargain away its disclosure obligations.”).
“The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.” N.Y.S. Ass’n for [] Children Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983). A court may modify an injunction “if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed.” Sys. Fed’n No. 91, Ry. Emp. Dep‘t, AFL-CIO v. Wright, 364 U.S. 642, 647 (1961). “[T]he power of equity has repeatedly been recognized as extending also to cases where a better appreciation of the facts in light of experience indicates that the decree is not properly adapted to accomplishing its purposes.” King-Seeley Thermos Co. v. Aladdin Indus., Inc., 418 F.2d 31, 35 (2d Cir. 1969) (Friendly, J.).
Modification is merited here on precisely the ground the Second Circuit described: A significant proportion of records pertaining to “Schedule A” violations involves misconduct that cannot, as a matter of law, be subject to FOIL’s technical infractions exemption. Such records should therefore be explicitly excluded from the existing injunction.
The relevant legal provisions make this plain. A technical infraction is:
a minor rule violation by a person employed by a law enforcement agency as defined in this section as a police officer, peace officer, or firefighter or firefighter/paramedic, solely related to the enforcement of administrative departmental rules that (a) do not involve interactions with members of the public, (b) are not of public concern, and (c) are not otherwise connected to such person's investigative, enforcement, training, supervision, or reporting responsibilities.
N.Y. Pub. Officers Law § 86(9).
Several types of misconduct that could be classified as a Schedule A infraction could not possibly satisfy all three conditions.1 For example, “[o]bvious neglect of care of firearms” or “[f]ailure to perform duties in connection with court appearances” plainly may be “of public concern.” An “[a]bsence from … post or assignment” or a “failure to properly perform … patrol” plainly may be “connected to [an officer’s] investigative [and]
1 Section 8’s reference to “Patrol Guide 118-2” as containing the list of Schedule A violations appears to be outdated. In the current Patrol Guide, such violations are listed in § 206-03. See https://on.nyc.gov/3eOBeRr.
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Hon. Katherine Polk Failla March 17, 2021
enforcement … responsibilities.” The NYPD’s recently released discipline matrix, moreover, includes certain “FADO” violations—i.e., violations within the jurisdiction of the Civilian Complaint Review Board—as Schedule A infractions, and FADO violations will virtually always involve “interactions with members of the public.”2

Although the relevant legal provisions demonstrate to a virtual certainty that Schedule A is not legally limited to technical infractions, publicly available evidence does not fully demonstrate actual departmental practices on use of Schedule A. Nor does it reveal the extent to which records currently or prospectively enjoined from release cannot satisfy the technical infractions exemption, and therefore should be excluded from the injunction under the reasoning of the Second Circuit’s decision. CPR therefore also respectfully requests that the Court permit limited discovery to assemble a factual record demonstrating that ‘Schedule A’ violations include [violations] other than ‘[t]echnical infraction[s]’ as defined by New York law,” UFOA, 2021 WL 561505 at *4. This discovery would be similar in scope and scale to that which the Court allowed the Unions to undertake prior to their preliminary injunction motion, and it could be conducted on an expedited basis.

CPR has contacted counsel for both the City and the Unions. Each party has indicated that it will provide its position in a separate letter. CPR respectfully requests that the Court set a premotion conference in due course.

Respectfully submitted,

/s/Renee Phillips Renee Phillips

/s/ Christopher J. Cariello Christopher J. Cariello

cc (via ECF): All counsel of record

2 New York City Police Department, Disciplinary System Penalty Guidelines 51, https://on.nyc.gov/38PVIp3 (Jan. 15, 2021). “FADO” stands for “Force, Abuse of Authority, Discourtesy, and Offensive Language.” Id. at 4.
3