This case was originally filed on July 14, 2020 in the Supreme Court of the State of New York, New York County. 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 Frederick Davie. The plaintiffs were represented by private counsel.

This case arose after city officials announced 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 This came after the New York state legislature repealed the controversial 50-a law.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. In particular, the plaintiffs objected to the disclosure of disciplinary allegations that were not "substantiated" or finalized. 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 moved for a temporary restraining order on the same day. However, the defendants sought removal to federal court 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. The case was removed to the U.S. District Court for the Southern District of New York, where District 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 was 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.

At a July 22, 2020 hearing, Judge Failla orally granted the plaintiffs' request for a temporary restraining order. However, in addition to binding the various city defendants, the TRO applied to the New York Civil Liberties Union (NYCLU): Earlier, the NYCLU had filed a request under New York's Freedom of Information Law for NYPD disciplinary records from the Civilian Complaint Review Board, a city agency that investigates allegations of police misconduct. Suspiciously quickly, in Judge Failla's opinion, the CCRB produced approximately 81,000 records to NYCLU. To prevent the case from being mooted by NYCLU's disclosure (and perhaps because she was concerned that NYCLU and the CCRB had been illicitly cooperating), Judge Failla applied the TRO to NYCLU.

NYCLU, who was not a defendant in this case, submitted a letter to the court arguing that the July 22 TRO was a prior restraint on speech, and therefore violated the First Amendment, and that the court did not have the power to issue the TRO against them. On July 29 Judge Failla 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 Second Circuit, the New York Times filed a motion to intervene against the emergency stay motion that the plaintiffs submitted. The Second Circuit (Judges Jon O. Newman, Rosemary S. Pooler, and Peter W. Hall) issued an order which stayed the District Court's July 29 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, the Legal Aid Society 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 (CUPR) 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 20 and August 21, the plaintiffs were dealt two consecutive blows by the U.S. Court of Appeals for the Second Circuit and the District Court respectively. On August 20, the Second Circuit denied the plaintiffs' motion for stay of the District Court's July 29 order. (That 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 Second 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 Second Circuit granted a stay to allow the parties to brief the issue.

Meanwhile, by late August the District Court granted permissive intervention to CUPR. The court found that they could not intervene by right, as their interests were already sufficiently represented by defendants. However, since the court found their briefings useful, Judge Failla granted them permissive intervention. After Judge 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 filed a motion to dismiss, as did CUPR.

The plaintiffs responded by filing an amended complaint on September 25, 2020, which consolidated two causes of action under New York state law and contained more detailed allegations about the manner in which the release of disciplinary records would harm the plaintiffs. The defendants, in turn, moved to dismiss the amended complaint on October 16, 2020. That motion remains pending.

In a February 16, 2021 summary order, the Second Circuit affirmed the limited preliminary injunction that Judge Failla had issued on August 21, 2020. The Second Circuit also found that if the Schedule A infractions that the injunction was limited to encompassed anything other than "technical violations," modification of the injunction might be warranted.

On March 17, 2021, CUPR took up the Second Circuit's invitation and wrote to Judge Failla arguing that Schedule A violations included more than "technical infractions." CUPR asked the court for discovery on the question of how Schedule A violations were used by city agencies to determine whether a modification of the preliminary injunction was warranted. Judge Failla scheduled a hearing on the matter for April 13, 2021.

The case is ongoing as of March 31, 2021.

Jack Hibbard - 08/05/2020
Jack Hibbard - 08/19/2020
Jonah Hudson-Erdman - 03/31/2021


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