This case was originally filed on July 14, 2020 in the New York County Supreme Court of the State of New York. Plaintiffs were a collection of New York emergency services associations, including the Uniformed Fire Officers Association, the Uniformed Firefighters Association of Greater New York, the Correction Officers' Benevolent Association of the City of New York, the Police Benevolent Association of the City of New York, the Sergeants Benevolent Association, the Lieutenants Benevolent Association, the Captains Endowment Association, and the Detectives' Endowment Association. They sued numerous New York City officials including Mayor Bill de Blasio, the City of New York, the Fire Department of New York, the New York City Department of Correction, Commissioner of New York City Department of Correction Cynthia Brann, Commissioner of New York City Police Department Dermot F. Shea, the Civilian Complaint Review Board, and Chair of the Civilian Complaint Review Board Federick Davie. The plaintiffs were represented by private counsel.

The complaint arose out of proclamations by city officials that they would disclose records concerning disciplinary proceedings and investigations into New York City police officers, firefighters, and corrections officers. This came after the New York state legislature repealed the controversial 50-a law. That law made confidential the disciplinary records of police officers, corrections officers, and other public servants. The plaintiffs argued that this would violate the terms of their Collective Bargaining Agreements, would constitute breach of contract, represented violations of Due Process and Equal Protection under the U.S. and New York constitutions, and that disclosure would violate New York statutory law (N.Y. C.P.L.R. § 7803). The plaintiffs sought declaratory and injunctive relief in the form of a temporary restraining order and a preliminary and permanent injunction.

The plaintiffs submitted an order to show cause seeking a temporary restraining order on the same day. However, the defendants sought removal to the federal courts on July 15, citing original jurisdiction with respect to the alleged violations of the U.S. Constitution. Justice Carol Edmead approved the removal that day. It was removed to the U.S. District Court for the Southern District of New York, where Judge Katherine Polk Failla was assigned the case.

Things appeared to get bungled somewhat in the removal process. At the state court, Justice Edmead had issued a stay that would prohibit the city from disclosing the documents until the court could hear arguments regarding a proper temporary restraining order. However, when the case was removed to the S.D.N.Y., the plaintiffs asserted that this stay was functionally a temporary restraining order itself, so there is no need to continue hearing defendants' arguments regarding a temporary restraining order. Defendants also argued against discovery requests by the plaintiffs, claiming that the entire question was a purely legal matter for which discovery was irrelevant. Doc. 13.

On July 22, the court granted the plaintiffs' request for a temporary restraining order, although it was granted orally at a hearing, so there is not a great deal of information as to its terms. However, the TRO seemed to apply to the New York Civil Liberties Union as well, since that organization had already obtained approximately 81,000 records from the Civilian Complaint Review Board via a Freedom of Information Law request. They submitted a letter to the court arguing that the July 22 TRO was a prior restraint on speech, and therefore violative of the First Amendment, and that the court did not have the power to issue the TRO against them. On July 29 the court issued an order that modified the TRO as to no longer apply to NYCLU. However, the plaintiffs then issued a notice of interlocutory appeal. At the 2nd Circuit, the New York Times filed a motion to intervene against the emergency stay motion that the plaintiffs submitted. The 2nd Circuit issued an order which stayed the District Court's July 29th order modifying the TRO to no longer include the NYCLU.

Meanwhile, the parties engaged in a heated discovery battle. The court had set a deadline for document production for August, but the plaintiffs felt as though the defendants were not cooperating with their requests. On the other hand, the defendants argued that they were moving as fast as they could and that the plaintiffs' requests were overly broad.

On July 28, Legal Aid also requested to join as amicus curiae. The court granted that motion the next day. Additionally, an activist group called Communities United for Police Reform filed an emergency motion to intervene as a defendant in the case on July 29. They claimed they had right of intervention because they had substantial interests in the litigation, and those interests were not protected by any party. Alternatively, they argued that they should be granted permissive intervention.

Throughout early August, numerous groups filed amicus curiae briefs, including the NYCLU.

On August 20th and August 21st, the plaintiffs were dealt two consecutive blows by the 2nd Circuit Court of Appeals and the District Court respectively. On August 20th, the 2nd Circuit denied the plaintiff's motion for stay of the District Court's July 29 order. Recall that this order exempted NYCLU from the TRO prohibiting disclosure of the uniformed officers' records, despite the fact that they already had tens of thousands of complaints against uniformed officers. The 2nd Circuit held that granting the stay would only be appropriate if the District Court did not have authority to exclude NYCLU from the order. However, since NYCLU was not operating "in active concert" with the city defendants, it was proper for the District Court to exclude them from the order. 2020 WL 5048477.

On August 21, the District Court partially denied the plaintiffs' motion for a preliminary injunction. However, the motion was granted to the extent that the New York Police Department and Civilian Complaint Review Board may not disclose "schedule A" command discipline violations. In response, the plaintiffs made another interlocutory appeal. On August 27, the 2nd Circuit granted a stay to allow the parties to brief the issue.

Meanwhile, by late August the District Court granted permissive intervention (but not intervention by right) to the activist group Communities United for Police Reform (CUPR). Recall that they had requested intervention in late July. The court found that they did not have intervention by right, as their interests were already sufficiently represented by defendants. However, since the court found their briefings useful, Judge Polk Failla granted them permissive intervention. After Judge Polk Failla granted them intervention, CUPR appealed the August 21 order that partially granted the plaintiffs' motion for a preliminary injunction.

In early September the defendants submitted a motion to dismiss, as did CUPR. The case is ongoing as of September 19, 2020.

Jack Hibbard - 08/05/2020
Jack Hibbard - 08/19/2020


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