Secret NYPD Document Teaches Cops to Illegally Raid Sealed Records

By Nick Pinto, The Intercept

25 July 21

Police are running roughshod over a half-century-old law preventing access to the sealed arrest records of 3.5 million people.

he New York Police Department has been training its officers to break a long-standing law that bars police from snooping in the sealed arrest records of millions of innocent people, according to court papers filed in a lawsuit last week.

The news comes in a class-action lawsuit concerning the police department’s practice of flouting a state law designed to protect people from discrimination, harassment, and further legal consequences over old arrests that didn’t result in a conviction. The Bronx Defenders, a public defense organization, brought the legal action against New York City and the NYPD.

Defense lawyers in New York say they regularly find NYPD printouts of their clients’ old sealed arrests in prosecutors’ paperwork, and police sources often leak the sealed arrest histories of people killed by police and political enemies to the media. The leak of Eric Garner’s sealed arrest history after he was killed by police in 2014, for example, is now the subject of a judicial inquiry.

The flouting of the records law results in the perpetuation of a racist regime of harassment in which bad arrests lead to more bad arrests, a “garbage-in, garbage-out” cycle, said Niji Jain, a lawyer with the Bronx Defenders’ impact litigation practice and one of the attorneys on the case.

“In poor communities of color, people are overpoliced, and bad arrests happen for low-level things that ultimately aren’t proven or that DAs don’t want to prosecute,” Jain said. “If someone has arrests like that, and the NYPD is continuing to target, surveil, and harass that person on the basis of all of those bad arrests from before, that’s not helping any sort of public interest. It’s just re-victimizing that person.”

Despite the law, the NYPD still uses sealed arrests to conduct investigations and make cases, the lawyers say, and even uses photographs from sealed arrests in virtual line-ups to identify suspects. In a motion filed last week, the public defense lawyers included redacted quotes from a training document they said shows that the police department goes so far as to teach its own officers to access sealed arrest records. The NYPD and the city have mounted a legal fight to keep most of the document secret, away from the public eye.

The stakes have only grown since the privacy law was passed nearly 50 years ago. As arrest records have become digitized and the NYPD’s use of dozens of interconnecting databases puts records at every officer’s fingertips through a few clicks on a smartphone app, the potential for abuse has grown exponentially. The NYPD has conceded that officers have access through at least 14 databases to some 6 million sealed arrests, affecting at least 3.5 million people.

In 1976, when the law passed, it was hailed by state lawmakers from across the political spectrum as a necessary and overdue measure to uphold the presumption of innocence. “No individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law,” then-Gov. Hugh Carey wrote when he signed the law.

The law still allows law enforcement agencies to access sealed arrest records if they can persuade a court that doing so is necessary. It also requires the police to destroy or give back identifying information like photographs and fingerprints associated with sealed arrests.

The NYPD clearly understood the implications of the law when it was being considered, and the department was one of the few voices arguing against it. “The provision that the records would be made available to a law enforcement agency upon motion, is impractical and unwise,” an NYPD official wrote in opposition to the law. “Speedy investigations produce the best results, and requiring police officers to get orders to look at records may hinder the investigations.”

When the law was enacted anyway, and subsequently expanded, the NYPD’s response was to consistently defy it, lawyers in the class action contend. An NYPD spokesperson declined to answer questions or provide any information to The Intercept about its training and practices with regard to sealed arrests.

In court, lawyers from the New York City Law Department, which represents the city and the NYPD, don’t deny that they’re accessing the records the law says should be sealed. Instead, they’ve argued that the law actually allows police to access sealed records without a court order. Judge Alexander Tisch rejected those arguments outright in a 2019 ruling, finding that NYPD is, in fact, bound by the law and that if the department “were seeking sealed information for an investigation, it would have to make an application to the court.”

Even after the judge ruled that the NYPD is indeed bound by the law, the NYPD continues to break it, accessing sealed arrest records without court order, public defenders say.

In an effort to put an end to this, lawyers for the class filed a motion last week asking for a preliminary injunction to require the department to comply with the law, instructing officers that they are not allowed to access sealed arrest records without a court order and, significantly, directing the department to stop making sealed arrest data easily available to officers through the network of police databases.

The motion also made public the existence of sealed evidence that city lawyers and the NYPD are attempting to keep secret from the public.

As part of discovery in the case, lawyers for the class had asked the NYPD for any materials the department uses to train officers on the subject. City lawyers initially refused to turn over training materials, arguing that the training actually amounted to privileged legal communications between officers and their lawyers. The judge on the case found that claim meritless and compelled the NYPD to turn over the training as part of discovery in the lawsuit. City lawyers, however, would only do so under seal, which means that although lawyers for the class are now able to see the training materials, neither their clients nor the public at large are able to.

The class lawyers’ motion filed last week, while redacting from the public quotations of the training, makes clear that the trainings contain “misstatements of black letter law,” telling officers that they are allowed to access sealed arrests without a court order, in violation of the law.

“We’re not allowed at this point to tell you what’s in the trainings, but I can tell you that the trainings give directions that are contrary to the law,” Jain, the Bronx Defenders lawyer, told The Intercept. “We also know that the NYPD gives officers access to millions of field arrest records that they are not supposed to have access to. That systemic violation of rights affects a huge class of over 3.5 million people. And right now, none of those class members are able to see that training document that is telling officers how to how to access records that are private records. People have a right to that transparency.”