If Beer and Wrestling are “Essential,” So Is Easter

COVID-19, Freedom of Religion or Belief, and Public Health and Safety in Australia and the United States—Why Rights Matter^†

55 New Eng. L. Rev. 45 (2020)

INTRODUCTION

As COVID-19 (“coronavirus”) sweeps the globe, tightening its deadly grip on almost all nations¹, a palpable tension has emerged between the rightful duty of governmental officials to take reasonable steps to preserve “public health and safety”² on the one hand, and the rights of persons in free, democratic societies on the other hand.³ The question thus becomes one over the extent to which state authorities can place restrictions on individual freedom in furtherance of public safety constituting violations of individuals’ rights to freedom of religion or belief (“FoRB”). This inquiry is no mere academic exercise.

One has but to watch TV, go online, listen to the radio, or read newspapers and magazines to observe how emerging threats to FoRB in the United States have already resulted in litigation challenging these restrictions with mixed results.⁴ These suits have disputed the extent to which governmental officials may have exceeded their authority⁵ in taking unprecedented actions purportedly aimed at protecting the general welfare⁶ by restricting personal freedom as to the free exercise of religion with the stated goal of inhibiting the spread of the coronavirus.

As they purportedly carried out their duties, public officials have limited individuals’ rights to the free exercise of religion by restricting their opportunities to attend worship services celebrating Easter but may well have overstepped the bounds of their licit authority because “federal Constitutional rights don’t go away in an emergency.”⁷ These conflicts ought to cause deep concern for not only people of faith in the United States but also for people in Australia and the world over in light of Franklin’s dictum that “[t]hose who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”⁸

In the first of two of perhaps the most egregious American examples of proliferating governmental encroachment on FoRB,⁹ the United States Department of Justice issued a statement of interest¹⁰ in favor of the plaintiffs who opposed the order of the mayor of Greenville, Mississippi, prohibiting individuals from gathering at a “drive in” Easter service.

As in other locales, notably Louisville, Kentucky, as described in the next paragraph, the forbidden activities in Greenville, Mississippi, applied to individuals and families who drove their cars into their church’s parking lot, consistent with the social distancing standards in President Trump’s “Coronavirus Guidelines for America,”¹¹ with the windows closed, to listen to, and participate in, a service their minister was broadcasting over the radio.¹² Yet, the directive “appear[ed] to permit citizens to sit in a ‘car at a drive-in restaurant with [their] windows rolled down,’ but not ‘at a drive-in church service with [their] windows rolled up.’”¹³ While the mayor withdrew the directive a day after the Department of Justice released its statement of interest, these disputes remain ripe for discussion.¹⁴

In a similar dispute from Louisville, Kentucky, a federal trial court judge issued a temporary restraining order against a directive from the city’s mayor preventing churches from conducting drive-in services subject to a $500 fine he later rescinded.¹⁵ Yet, the mayor’s order also allowed individuals to go to drive-in restaurants to pickup their orders and permitted shopping centers to remain open, with cars in the parking lots, while people walked in the lots and aisles of the stores on the basis that these were essential activities.

Expressing his incredulity at the mayor’s order, the federal trial court judge in Kentucky declared that, “[t]he Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is ‘essential,’ so is Easter.”¹⁶ Shortly thereafter, the parties reached a settlement, dissolving the temporary restraining order in which the church agreed to abide by specified social-distancing guidelines, with city officials delineating the steps they would take in dealing with attendees who disregarded these safety rules.¹⁷

Similar restrictions remain in force in many countries,¹⁸ including Australia.¹⁹ As such, this article examines how disputes of this nature would be handled in the federal constitutional democracies in Australia and the United States. We do so for two reasons. First, to demonstrate that even in the face of a serious public health crisis, which COVID-19 certainly is, FoRB still matters, and, second, that these sorts of disputes ought to be mediated using an entrenched bill of rights.

We thus demonstrate how the restrictions imposed in such states as California, Mississippi, Kentucky, Kansas, and Virginia would be dealt with in a jurisdiction with little or no constitutional rights protection, and in one where there is such protection. As reflected in the cases we discuss pertaining to equal protection,²⁰ the United States, of course, has had significant litigation aimed at challenging these limitations as violating the right of the people to the free exercise of religion as delineated in the First Amendment in the Bill of Rights on the basis of failing to be sufficiently narrowly tailored.

It may surprise readers to know that Australia has no such protection, constitutional or otherwise. Instead, one finds a patchwork quilt of scattered rights in the Australian Constitution and in various pieces of federal and state legislation. While together these protections may establish a form of “bill of rights,” it is not constitutional, forming the supreme law of the land, in the same way that the Bill of Rights operates in the United States. Unlike the Bill of Rights, what rights do exist in the Australian Constitution are scattered throughout the text, are not comprehensive, and do not apply to both the federal government, known as the Commonwealth, and the states.²¹ Further, while FoRB is seemingly protected in this patchwork, what might seem a strong protection proves, in practice, to be illusory.

This leads to the second reason for this article: we make the case for why such constitutional protections are necessary. Without sufficient protection for fundamental freedoms, it may not only be FoRB which suffers when governments go too far in acting on valid public health reasons, but the entire spectrum of fundamental rights and freedoms that every free and democratic society ought to protect, which have been usefully summarized in the Universal Declaration on Human Rights²² and the International Covenant on Civil and Political Rights.²³

Indeed, the protection of FoRB “creates the conditions, the ‘constitutional space,’”²⁴ making possible the full panoply of rights typically associated with a free and democratic society. It thus matters that we remain vigilant about the protection of FoRB because what appear to be well-intentioned and legitimate governmental responses to a valid public health crisis can rapidly escalate, becoming problematic infringements, not merely of FoRB, but of a range of important rights. For while the “community may well think that these laws make sense . . . at the moment . . . this thinking might change dramatically as the risk posed by the COVID-19 begins to dissipate . . . .”²⁵

As further evidence of the need to protect rights, researchers at Oxford University have already developed a mobile phone digital contact tracing app aimed at slowing or even stopping coronavirus transmission allowing for an end to the restrictions imposed in such states as California, Mississippi, Kentucky, Kansas, and Virginia.²⁶ This is no idle speculation or academic exercise because Singapore²⁷ and Australia²⁸ are already using similar technology. These may be beneficial developments that allow for a return to some sort of normalcy. But, the question becomes how much might governments make use of such technology before it begins to encroach on the legitimate privacy expectations of citizens?²⁹ The only means of mediating such conflicts between public health and general welfare and individual liberty and freedom is through constitutional rights protections.³⁰

The remainder of this article contains three parts and a postscript. Following this introduction, Part I sets out how FoRB concerns raised by opponents of the restrictions that have been raised in a variety of locations including, but certainly not limited to, California, Mississippi, Kentucky, Kansas, and Virginia would be dealt with under the Australian Constitution. We begin with this Australian analysis first because it serves as a proxy for a jurisdiction which has no constitutional protection of fundamental rights and freedoms, such as FoRB. This analysis suggests that these excesses might go without remedy when rights are not protected. The American analysis demonstrates what happens when rights are protected.

Part II turns to an analysis of the same restrictions pursuant to the American First Amendment right to free exercise of religion.³¹ This part, too, serves as a proxy for how these restrictions can be dealt with in a jurisdiction which provides for comprehensive constitutional protection of fundamental rights and freedoms. Our objective is to demonstrate that when rights are protected, the correct approach to dealing with the restrictions such as those imposed in such states as California, Mississippi, Kentucky, Kansas, Virginia, and elsewhere is to balance the need to preserve public health while respecting the right to FoRB for all.

Part III provides concluding reflections on why protecting FoRB matters. Safeguarding religious freedom matters because in the absence of protection for rights, the sorts of excesses which encroach on FoRB might, almost imperceptibly, creep far beyond the violation of but one right to deny many rights which form the core principles of liberty, freedom, and the rule of law itself—concepts which underpin the very nature of democratic government. The article rounds out with a postscript highlighting the then latest development in the United States.

This article, then, is for three audiences. It is for Americans to help them to develop a deeper understanding of and appreciation for the value of the Bill of Rights. It is for Australians, making clear what they lack and why they need a comprehensive constitutional protection of rights. Finally, it is for all people to understand the value of protecting rights when it is still possible to do so, before it is too late.

I. Constitutional Analysis in Australia

A. Section 116

The Australian Constitution contains only scattered protections for fundamental rights and freedoms.³² Two rights, one express, § 116, the other implied by the text, address the right to freedom of political communication. This article considers both and their application to the sort of restrictions imposed on religious gatherings in such jurisdictions as California, Mississippi, Kentucky, Kansas, and Virginia, in turn. Section 116 provides that:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

As a matter of textual analysis, § 116 therefore seems to provide four guarantees against: (i) establishment of a state religion; (ii) the observance of a state religion; (iii) prohibiting the free exercise of any religion; and (iv) the imposition of a religious test for the holding of a Commonwealth office or public trust. Yet, while the scope of the protection created seems at least the equal, if not the better, of the First Amendment, the scant interpretation given this provision by the High Court, the Australian equivalent of the United States Supreme Court, has rendered nugatory any value which § 116 might have as an individual right.

Instead, the High Court, adopting a general interpretive approach to the provision,³³ treats § 116 as “not, in form, a constitutional guarantee of the rights of individuals; . . . instead[, it] takes the form of express restriction upon the exercise of Commonwealth legislative power.”³⁴ Thus, “Section 116 is a denial of legislative power to the Commonwealth, and no more.”³⁵ Insofar as this paper is concerned here only with how § 116 might protect FoRB as infringed by provisions such as those imposed in such states as California, Mississippi, Kentucky, Kansas, Virginia, and beyond, our focus is only the High Court’s interpretation of the third guarantee, namely, the one against prohibiting the free exercise of a religion.

While its jurisprudence is most developed in relation to this third guarantee, that nonetheless involves only three High Court opinions: Krygger v. Williams (“Krygger”),³⁶ Adelaide Co. of Jehovah’s Witnesses v. The Commonwealth (“Jehovah’s Witnesses”),³⁷ and Kruger v. Commonwealth (“Kruger”).³⁸ In Krygger, the Court interpreted a provision of the Defence Act 1903–1911 (Cth) which established a part-time national service training and non-combatant duties for conscientious objectors as being constitutional. In rejecting Krygger’s claimed infringement of free exercise,³⁹ Griffith, CJ wrote that the guarantee protects against:

Prohibiting the practice of religion—the doing of acts which are done in the practice of religion. To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of [s.] 116 . . . .⁴⁰

The High Court affirmed this approach in Jehovah’s Witnesses;⁴¹ Latham, CJ explained that “the word ‘for’ shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of prohibited character.”⁴² A majority of the High Court confirmed this approach in Kruger.⁴³ In joint judgments, the High Court determined that the operative test for infringement was that a law have the “purpose of achieving an object which § 116 forbids.”⁴⁴ That purpose “refers to an end or object which legislation may serve” and that “it is the Court which must decide whether the measure possesses the requisite character”⁴⁵ and that it “refers not to underlying motive but to the end or object the legislation serves.”⁴⁶

Or, put another way, therefore, where the purpose of the impugned legislation is not to prohibit the free exercise of a religion, even where that might be the effect, § 116 is not violated. This narrows the applicability of the free exercise guarantee “to the internal forum, with no relevance to public acts.”⁴⁷

The judicial interpretation of the FoRB guarantee means that § 116 becomes operative only when the direct objective of legislation, or action thereunder, is to remove the ability to practice one’s religion. As the American restrictions only prevent the place in which one might gather to engage in worship and not the right to worship itself, § 116 would confer no protection whatsoever. While the effect of the American restrictions is clearly to limit the ability to worship in a way that is meaningful to those so engaged, it is the direct operation of a law or action taken thereunder, and not the effect of that law or action, that matters. Anyone affected by such actions taken by Australian governments have no recourse pursuant to § 116 to redress such violations.

B. Implied Freedom of Political Communication

Yet, in addition to the limited express rights, such as § 116, the High Court has also “implied” rights into the Australian Constitution as a consequence of the federal democratic framework established by the text as a whole, using this rationale:

Elections of federal Parliament provided for in the Constitution require freedom of movement, speech and other communication, not only between the States, but in and between every part of the Commonwealth. The proper operation of the system of representative government requires the same freedoms between elections. These are also necessary for the proper operation of the Constitutions of the States (which now derive their authority from Ch. V of the Constitution. From these provisions and from the concept of the Commonwealth arises an implication of a constitutional guarantee of such freedoms, freedoms so elementary that it was not necessary to mention them in the Constitution.⁴⁸

In 1992, the High Court recognized the existence of an implied freedom of political communication in Nationwide News Pty Ltd v. Wills⁴⁹ and Austl. Capital Television Pty. Ltd v. Commonwealth,⁵⁰ which was modified in Lange v. Australian Broadcasting Corporation⁵¹ and Coleman v. Power & Ors.⁵² Together, those cases stand for the proposition “that there is to be discerned in the doctrine of representative government which the Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth.”⁵³ Significantly, the High Court has since held that this freedom is logically indivisible and, as such, applies to both the Commonwealth and the States.⁵⁴

For present purposes, we need not spend any time on precisely what this implied freedom protects. Rather, it is enough to say that the High Court has ruled that political speech broadly includes communication on all political matters,⁵⁵ and suggests that such speech encompasses “religious speech.” In Attorney-General (SA) v. Corporation of the City of Adelaide (“Street Preachers Case”), the Court wrote, in obiter, that:

Some “religious” speech may also be characterised as “political” communication for the purposes of the freedom. . . . Plainly enough, preaching, canvassing, haranguing and the distribution of literature are all activities which may be undertaken in order to communicate to members of the public matters which may be directly or indirectly relevant to politics or government at the Commonwealth level. The class of communication protected by the implied freedom in practical terms is wide.⁵⁶

In Clubb, the High Court dealt with two challenges to exclusion zones—one from Victoria and one from Tasmania—restricting communication and activities near abortion clinics. While the Court did not directly consider whether the speech of those challenging the laws was religious, it can be assumed that it was at least motivated by religious or moral concerns. And the Court determined that

A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial.⁵⁷

At the same time, the Court conceded “the line between speech for legislative or policy change and speech directed at an individual’s moral choice ‘may be very fine where politically contentious issues are being discussed.’”⁵⁸ The Court left open the possibility that such speech may, in fact, constitute protected speech. These High Court pronouncements seem to allow for the possibility that religious speech may enjoy constitutional protection pursuant to the implied freedom of political communication.

Given that the text on which the implied freedoms depend includes the express protection of FoRB in § 116, the implication of protection for political communication must also contain, to some extent, the freedom to communicate about religious matters, provided that it touches on “political choices to be made by the people of the Commonwealth as the sovereign political authority.” And, because the protection is implied from the Constitution as a whole, it would likely apply to both the Commonwealth and to the States.⁵⁹

It may be possible, then, that if the restrictions present in the U.S. occurred in Australia, they would run afoul of the freedom of political communication, to the extent that it was possible to claim that such speech was being restricted. But that would be a hollow victory at best. For it is not merely the speech that concerns religious adherents, but the associational aspects of the gathering that is being infringed in these restrictions. Additionally, for that, there would simply be no protection pursuant to the Australian Constitution. Moreover, even if it could be established that there was a violation of the implied freedom of political communication, it would still be open to the Commonwealth and State’s governments to demonstrate that those limitations were justifiable limitations aimed at controlling a public health crisis. We turn now to a brief consideration of that issue in Australian law.

Of course, because no right is absolute, in Jehovah’s Witnesses, Latham, CJ argued in respect of § 116 that it must be “possible to reconcile religious freedom with ordered government.”⁶⁰ And Murphy, J, in respect of the implied freedoms, said:

The freedoms are not absolute, but nearly so. They are subject to necessary regulation (for example, freedom of movement is subject to regulation for purposes of quarantine and criminal justice; freedom of electronic media is subject to regulation to the extent made necessary by physical limits upon the number of stations which can operate simultaneously). The freedoms may not be restricted by the Parliament or State Parliaments except for such compelling reasons.⁶¹

Similarly, in respect of the implied freedom for politician communication, in McCloy v. New South Wales,⁶² the High Court was of the opinion that “[i]t is not an absolute freedom. This freedom may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.”⁶³

While the High Court has never enunciated a standard by which to assess § 116 violations, in McCloy v. New South Wales,⁶⁴ it crafted a three-stage test for application to political communication violations:

The question whether a law exceeds the implied limitation depends upon the answers to the following questions . . .

1. Does the law effectively burden the freedom in its terms, operation or effect?

If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends.

2. If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as “compatibility testing.”

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends.

3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision;

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power.⁶⁵

It is possible, then, that the restrictions in such states as California, Mississippi, Kentucky, Kansas, Virginia, and elsewhere, if imposed in Australia, would constitute a burden placed on the freedom of political communication, provided that freedom is sufficiently expansive to protect religious speech within its ambit. Assuming that the restrictions were found to burden the implied freedom, the question would then arise as to whether the relevant burden had a legitimate purpose in the sense that it was compatible with the maintenance of the constitutionally prescribed system of representative government.

It seems likely that Australian courts, like their American counterparts, would treat the governmental purpose in protecting health and safety in the face of the threat posed by COVID-19 as legitimate as one which did no harm to the system of representative government if officials narrowly focused their directives. Yet, even if the governmental purpose did fail on that second stage of the McCloy test, it would almost certainly fail at the third: namely, that the means adopted to achieve the legitimate goal of preventing the spread of COVID-19 would be viewed as reasonably appropriate and adapted to advance that legitimate purpose. Using the proportionality testing outlined by the High Court, the restrictions would almost certainly be deemed suitable, necessary, and adequate in their balance.

Even if a plaintiff did succeed in an action for a violation of the implied freedom, it would be a weak alternative to full protection for FoRB. It would allow for worship but not for the associational rights necessary to allow for gathering to this end. Because only full protection for FoRB can provide that protection, to understand what that might look like, we turn to an assessment of how the restrictions would be analyzed pursuant to First Amendment jurisprudence in the United States.

II. Constitutional Analysis in the United States

A. Historical Background

Before examining the contemporary judicial tests applied in disputes over the free exercise of religion in the United States, it is worth highlighting two significant early cases that serve as pre-history in this important arena. In the first case, Reynolds v. United States,⁶⁶ a member of the Church of Jesus Christ of Latter-Day Saints, more commonly known as Mormons, challenged a federal polygamy statute on the ground that the law forbade him from practicing his faith under the Free Exercise Clause. The Supreme Court rejected his claim, finding that while persons are free to believe anything they wish, Congress had the authority to prohibit practices that violate the law. In an interesting side note, Reynolds was the first case in which the Court used the metaphor of the “wall of separation of state,” coined by Roger Williams in the 1640s,⁶⁷ but popularized by Thomas Jefferson in 1802, the view most often associated with its First Amendment Court’s jurisprudence for the better part of the past seventy-five years.⁶⁸

Until 1940, the First Amendment only prohibited Congress from making laws establishing religion. However, in 1940, in Cantwell v. Connecticut, the second noteworthy early case on point, the Supreme Court applied the First Amendment to the states through the Fourteenth Amendment.⁶⁹ In Cantwell, the Court invalidated the convictions of Jehovah’s Witnesses for violating a statute against soliciting funds for religious, charitable, or philanthropic purposes without the prior approval of the Office of the State Secretary of Public Welfare. The Court found the law gave too much discretion to a licensing officer to determine whether activities were for religious purposes.⁷⁰ Consequently, following Cantwell, individuals have the same rights in litigation against state governments and officials as they do in suits against the federal government involving limits on freedom of religion.⁷¹

B. The Supreme Court's Modern Free Exercise Jurisprudence

The overarching theme in the U.S. Supreme Court’s modern Free Exercise Clause jurisdiction follows equal protection analysis. At the heart of equal protection is the concept that individuals or groups who are “similarly situated should be treated alike.”⁷² Put another way, all within a certain classification must be accorded the same rights and privileges while being subjected to the same duties. Under equal protection analysis, the general constitutional test for evaluating classifications is whether they are rationally related to legitimate governmental purposes.⁷³ Given the strong, but rebuttable, presumption that criteria adopted via legislative processes are constitutional,⁷⁴ it is difficult for plaintiffs to succeed if courts apply this test.

On the other hand, when legislation or governmental actions allegedly infringe on fundamental rights such as those mentioned explicitly in the Federal Constitution—as illustrated by the free exercise of religion in the form of attending worship services—are identified by the Supreme Court, or disadvantage members of some groups by categorizing individuals based on constitutionally “suspect” classifications such as race,⁷⁵ the courts apply “strict scrutiny,” the most stringent form of constitutional analysis. Suspect classes, defined groups needing extraordinary protection from the majoritarian political process, have been subjected purposefully to unequal treatment or are relegated to positions of virtual political powerlessness.⁷⁶

Under strict scrutiny analysis, the burden shifts to the government to demonstrate a compelling need and that the classifications its officials have created are drawn as narrowly as possible and are based on compelling interests. When courts apply strict scrutiny, governmental actions are likely to fail.

Between 1963 in Sherbert v. Verner⁷⁷ and 1990 in Employment Division, Department of Human Resources of Oregon v. Smith,⁷⁸ as the Supreme Court’s modern jurisprudence on the right to the free exercise of religion emerged, the Justices made two major exceptions deferring to the rights of believers. Otherwise, the Court generally ruled in favor of the government when individuals sought exemptions from regulations that conflicted with their right to the free exercise of religion.⁷⁹

Sherbert was the first modern case in which the Supreme Court expanded the scope of protection for the Free Exercise Clause was Sherbert v. Verner.⁸⁰ In this case, a Seventh Day Adventist filed suit after state officials refused to grant her unemployment compensation benefits because she would not work on Saturday, her Sabbath. Ruling in favor of the plaintiff, the Court made two important points. First, the Justices observed that the actions of state officials were coercive because they forced the plaintiff to make a choice between freely exercising her religion or receiving unemployment benefits. Second, the Court invalidated the actions of state officials because in refusing to grant the plaintiff benefits, they failed to demonstrate that they had a compelling interest⁸¹ limiting her fundamental right to the free exercise of her religion.

In 1972, in Wisconsin v. Yoder,⁸² the Supreme Court again expanded the scope of the Free Exercise Clause, honoring the request of Amish parents to excuse their children from formal education past the eighth grade on the basis that they learned all they needed for life in their communities. Yoder is noteworthy because in it the Court exempted the Amish from a general regulatory law insofar as their faith forbade them from sending their children to school beyond the eighth grade, noting that “[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.”⁸³

The Supreme Court’s free exercise jurisprudence took an abrupt turn in 1990 in Employment Division, Department of Human Resources of Oregon v. Smith.⁸⁴ The Court upheld the dismissal of drug counselors who were fired for ingesting peyote as part of a sacramental ritual in the Native American Church, a legally organized religious movement that was recognized by the federal government.⁸⁵ Rejecting Sherbert, the Court determined that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling government interest.⁸⁶

Congress repudiated Smith in adopting the Religious Freedom Restoration Act (RFRA) that President Bill Clinton signed into law on November 16, 1993.⁸⁷ Congress enacted the RFRA “specifically for the purpose of reversing the ‘neutral, generally applicable’ test of Employment Division v. Smith and reinstating the compelling interest and least restrictive means tests of Wisconsin v. Yoder and Sherbert v. Verner.”⁸⁸

At issue in City of Boerne v. Flores⁸⁹ was the application of a local ordinance dealing with historic landmarks that was neutral on its face as applied to a church designated as a historic landmark. The statute’s facial neutrality notwithstanding, the local Catholic bishop successfully challenged the law because it would have prevented him from demolishing the facade of the church in order to construct a needed larger church facility. Finding in favor of the Bishop, the Justices invalidated the RFRA as applied to state and local governments. In so doing, the Justices created a statutory remedy based on the free exercise test that they essentially eliminated in Smith on the ground that Congress exceeded its authority in the enforcement of provision of § 5 of the Fourteenth Amendment.

Three years later, Congress superseded Boerne by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA) that President Bill Clinton signed into law on September 22, 2000.⁹⁰ RLUIPA protects land use as religious exercise,⁹¹ thereby making it applicable to the state-imposed restrictions discussed in this paper as well as to individuals who are incarcerated—a topic beyond the scope of this article.⁹²

In a final case buttressing religious freedom under the Free Exercise Clause, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunities Commission,⁹³ the Supreme Court again recognized that there are limits to the enforceability of generally applicable laws. Distinguishing the dispute at bar from Smith, the Court unanimously upheld the constitutionality of the ministerial exception, albeit under the Americans with Disabilities Act⁹⁴ rather than Title VII.⁹⁵ The Court reasoned that officials at a Lutheran elementary school in Michigan could dismiss a teacher who was also a commissioned minister in the church because, consistent with the Free Exercise Clause, religious leaders alone retained the power to decide who qualified as a minister.

As discussed in this review of constitutional analysis and related litigation in this third part of the paper, the United States Supreme Court has evidenced something of a mixed history with regard to protecting the FoRB rights of Americans under the Free Exercise Clause, deferring to governmental restrictions on religion more often than not. Yet, in light of the Court’s apparent change of attitude with regard to free exercise (as evidenced in Hosanna Tabor) and various congressional efforts to safeguard what is often regarded as America’s “first freedom,”⁹⁶ requiring attempted restrictions of the fundamental right of religious freedom to be based on a compelling governmental interest while being drawn as narrowly as possible to achieve their goals, then change may be in the offing.

It is worth acknowledging the success the plaintiffs had against the overly broad orders promulgated by the Mayor of Louisville, Kentucky, and Governor of Kansas—both of whom went too far in trying to protect public safety. It may be that these two cases are the harbingers of a new day so that out of the darkness of the battle against COVID-19 is the hope of a new dawn whereby America’s “first” freedom⁹⁷ regains its rightful place as primary among the hierarchy of the many rights that Americans enjoy.

III. Concluding Reflections: Why Freedom of Religion and Blelief Matters

“[I]f they take you in the morning, they will be coming for us that night.”⁹⁸

We make three key points in this article. First, that FoRB matters—it matters because it serves as an indication of how any government, regardless of where it is located, might, in the face of serious public health crises such as that posed by COVID-19, seek to protect health, well-being, and the economy. Yet, and this is our second point, that in seeking to achieve the laudable objective of public health, governmental officials in any nation, not just Australia and the United States, can go too far, infringing on the legitimate liberty and freedom interests of citizens, including the FoRB interest in public communal worship, whether if drive-through modes or in group settings as long as participants comply with social distancing norms.

Our third point is that absent comprehensive constitutional protection for the free exercise of religion, freedom and liberty can be reduced, if not entirely eliminated, in very short order in any nation. These encroachments can occur without us ever really noticing that one freedom after another is falling before a wave of popular sentiment that such restrictions are necessary in order to protect people and the economy. Accordingly, it is imperative for public officials, working in consultation with their lawyers, to be mindful of remaining within the contours of their constitutional authority, balancing it against the rights of the people they serve.

This article has sought to demonstrate that when courts are asked to intervene in the conflict between FoRB and public health, jurists must balance the competing interests of freedom of religion identified in the previous paragraph against governmental concerns for safety that, however well-intended, may be overreaching. At the same time, it is important to keep in mind that the courts can only act as neutral arbiters if comprehensive frameworks of rights and protections are in place such as is the case with the American Bill of Rights.

Our analysis of First Amendment jurisprudence in the United States demonstrates that, as important as public health is, if the restrictions governmental officials have designed to help safeguard Americans fail to take the narrowest possible route to achieving that end, then as evidenced by successful challenges in Kentucky and Kansas, they will be enjoined, at least temporarily, as overly broad.⁹⁹ Concomitantly, our assessment of the Australian law reveals that absent a framework for assessing rights and for balancing those instances in which rights come into conflict, no protection may exist at all, not only for FoRB, but also for the panoply of rights which freedom of religion, paralleling its role as the “first freedom” in the United States, makes possible.

The complete lack of legal challenges to the COVID-19 closures affected by Australian state governments demonstrates how the absence of a clear framework for balancing the competing interests has the potential to constitutionalize governmental overreach which infringes upon fundamental rights and freedoms. Thus, insofar as the synergy of rights are thought to form the core of the rule of law in constitutional jurisdictions such as Australia and the United States, it is of paramount importance that they be afforded explicit protection.¹⁰⁰

More importantly, though, FoRB is but one of the possible rights which may be violated by such restrictions as officials are now enacting in the United States to fight COVID-19. Add to what national leaders have already done in attempting to restrict religious freedom, the sort of digital tracking being developed and used via cell phones to alert individuals that they were exposed to persons who tested positive raises threats of a different kind. Safeguards should be in place protecting individual rights because digital tracking “was a powerful tool in controlling the spread of COVID-19, the disease caused by the new coronavirus, in China, South Korea, and other Asian nations—but at a cost to privacy many Americans [and perhaps Australians] would never tolerate.”¹⁰¹ Should such tracking or monitoring continue, then a much wider range of interests associated with liberty and freedom may come under threat.¹⁰²

As reflected in the words of the epigraph to this conclusion, history is replete with examples that when we become complacent about the protection of the rights of others, it may not be very much longer before we experience similar incursions on our own rights, and before we face the outright loss of such rights. The FoRB rights of a few matter to the many because they serve as the bellwether of what might be coming, the canary in the coal mine, so to speak, for a few others, maybe even for many others, but ultimately for you, too. If today they come for our neighbor, we must all take notice, and take action. For soon, reminiscent of the haunting words of Lutheran Pastor Martin Niemöller, a vociferous opponent of the Nazis who called on fellow Germans to accept their responsibility for Nazi atrocities,¹⁰³ they may be coming for us, for you, and for our religious freedom.¹⁰⁴

POSTSCRIPT

Religious freedom in the United States suffered a stunning blow on May 29, 2020. On this date, in South Bay United Pentecostal Church v. Newsom, Chief Justice John Roberts, in a lone concurrence¹⁰⁵ handed down late on a Friday evening, the graveyard of news stories, joined the Supreme Court’s liberal bloc¹⁰⁶ in its unsigned order affirming the denial of a request for injunctive relief¹⁰⁷ against Governor Gavin Newsom of California’s Executive Order setting restrictions on worship services during the COVID-19 pandemic. After calling for residents to “‘flatten the curve,’ which Gov. Newsom said was achieved in mid-April,”¹⁰⁸ this order seemed to move the goal posts by limiting attendance at worship services “to 25% of building capacity or a maximum of 100 attendees, whichever is lower.”¹⁰⁹

Chief Justice Roberts’ brief concurrence repudiated his prior support for religious freedom,¹¹⁰ deferring to state officials on the basis that decisions about reopening facilities are best left to their judgments.¹¹¹ In so doing, the Chief Justice ignored both his own history and relevant precedent cited by the dissent in support of religious freedom. With little analysis, Chief Justice Roberts wrote that “[a]lthough California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment.”¹¹¹

What Chief Justice Roberts missed is that houses of worship are more than mere places for social gatherings or locations where commercial transactions transpire. Rather, houses of worship are special places where people of faith not only gather with like-minded individuals to share their common beliefs, but also where they freely exercise a fundamental human right—and one of the most cherished of American rights—freedom of religion to worship as believers see fit.

Justice Kavanaugh’s pointed dissent, joined by Justices Thomas and Gorsuch but a bit surprisingly not Alito, in light of his usual stance in support of religious freedom, asserted that “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses”¹¹³ in violation of the First Amendment. Justice Kavanaugh reasoned that “[t]he basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.”¹¹⁴ Acknowledging that the Court has ruled that “discrimination against religion is ‘odious to our Constitution,’”¹¹⁵ Justice Kavanaugh would have rejected California’s policy because it was not “‘justified by a compelling governmental interest’ and ‘narrowly tailored to advance that interest.’”¹¹⁶

In a wry twist, Justice Kavanaugh chided California officials and, by extension, the majority for a condescending view towards people of faith. Justice Kavanaugh pointed out that insofar as “California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices . . . [it] cannot ‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.’”¹¹⁷ Justice Kavanaugh concluded that “California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment.”¹¹⁸

Of course, because arguably it applies only to the parties to the dispute, the Supreme Court’s denial of the request for injunctive relief without reaching the merits is of limited precedential value. Nonetheless, combined with the Court’s refusal to grant similar relief in a case from Illinois,¹¹⁹ where the order banned gatherings of more than ten people admittedly expired on May 29, 2020, its unwillingness to protect religious liberty sends an ominous message not only to people of faith, but to all people.

South Bay United Pentecostal Church marks the Supreme Court’s first effort to walk the fine line in protecting both the rights of believers and the need for public safety during the COVID-19 pandemic. Still, the Court’s refusal to intervene on behalf of religious freedom ought to cause concern for all people. By failing to engage in a sufficiently careful balancing of the competing interests, people ought to worry that similar incursions on other fundamental rights and freedoms may also be allowed to stand. As the first freedom,¹²⁰ the Court's seemingly dismissive treatment of the free exercise of religion sends an important message to governments about the potentially limitless boundaries of their legitimate authority when responding to public health emergencies and a warning to people of faith of the importance to remain viligant against threats to religious freedom.

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^† Both authors would like to dedicate this article to those who gave selflessly of themselves in serving those who were sick, and dying, from COVID-19.
¹ The title of this article is adapted from On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-JRW, 2020 WL 1820249, at 7 (W.D. Ky. 2020) wherein the judge mused: “[t]he Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is ‘essential,’ so is Easter.” See also Jared Moskowitz, Memorandum Regarding Additions of Essential Services to the List Under EO 20-91, State of Fla. Div. of Emergency Mgmt. (Apr. 9, 2020), https://perma.cc/5C49-3PN8 (declaring professional wrestling to be an essential service in the state of Florida); for an op-ed column expressing a similar perspective, Michael W. McConnell & Max Raskin, If Liquor Stores Are Essential, Why Isn’t Church?, N.Y. Times (Apr. 21, 2020), https://perma.cc/3UUJ-UQZT. Cf. Robin Fretwell Wilson, Brian A. Smith & Tanner J. Bean, Defiant Congregations in a Pandemic: Public Safety Precedes Religious Rights, Canopy F.: On the Interactions of L. & Religion (Mar. 21, 2020), https://perma.cc/QSE7-C5AU. See, e.g., Melissa Healy, Coronavirus Outbreak Is Now an International ‘Public Health Emergency,’ WHO Declares, L.A. Times (Jan. 30, 2020, 7:15 PM), https://perma.cc/X76C-CBN5; Lisa Mascaro, Zeke Miller, Andrew Taylor & Jill Colvin, Trump Declares Virus Emergency; House Passes Aid Package, AP (Mar. 14, 2020), https://perma.cc/ELC3-T7ZW; Eryk Bagshaw, Austl. Ready for a Coronavirus Pandemic and Sustained Outbreak, Sydney Morning Herald (Feb. 27, 2020, 5:18 PM), https://perma.cc/WPA9-6FL9.
² The United States Supreme Court has long recognized the duty of state officials to safeguard “public health and safety.” See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 30 (1905) (upholding the constitutionality of a mandatory vaccination statute).
³ In the United States, for instance, every state has issued guidelines limiting social interactions while recognizing religious exemptions. For a comprehensive overview of religious exemption in the United States with regard to social distancing, see Virginia Villa, Most States Have Religious Exemptions to COVID-19 Social Distancing Rules, Pew Research Ctr. (D. Kan. Apr. 27, 2020), https://perma.cc/334J-ZMZY. In Australia, citizens are petitioning authorities concerning similar governmental restrictions. See, e.g., Igor Mijatovic, Petition to: the Australian Catholic Bishops Conference The Church and the Sacraments are Essential!, CitizenGo (Apr. 27, 2020), https://perma.cc/M6QB-2V6X.
⁴ For example, plaintiffs succeeded in Kansas in First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 U.S. Dist. LEXIS 68267, at 1–30 (Apr. 18, 2020), obtaining a temporary restraining order against the enforcement of an overly broad order banning religious assemblies of more than ten congregants but which granted broad exemptions for twenty-six types of secular activities from this gathering ban, including, bars and restaurants, libraries, shopping malls, retail establishments, and office spaces but singled out “churches and other religious services or activities”; Kan. Exec. Order No. 20-18, State of Kan. (Apr. 7, 2020), https://perma.cc/4NYV-PR23. The parties later reached a settlement allowing leaders in the two churches involved to conduct in-person services as long as congregants comply with social distancing protocols. Tim Carpenter, Kansas Coronavirus Update: State’s Oil Industry on Life Support with Double-Barrel Woe of Price War, Pandemic, Hutchinson News (Apr. 26, 2020, 1:41 AM), https://perma.cc/K2KT-54VL. See also First Pentecostal Church of Holly Springs v. City of Holly Springs Mississippi, No. 3:20CV119 M-P, 2020 WL 1978381, at 3 (N.D. Miss. Apr. 24, 2020) (establishing guidelines on the extent to which states or localities can limit church services in efforts to prevent the spread of COVID-19); Pl.’s Compl., First Pentecostal Church of Holly Springs v. City of Holly Springs Mississippi, No. 3:20-CV-119-MPM-RP, 2020 WL 1972372 (N.D. Miss. Apr. 23, 2020). On the other hand, plaintiffs had mixed results in Kentucky, prevailing in On Fire Christian Ctr., Inc., 2020 WL 1820249 at 7, as they procured a restraining order against a directive from the city’s mayor preventing churches from conducting drive-in services. At the same time, plaintiffs failed in Maryville Baptist Church v. Beshear, No. 3:20-cv-278-DJH, 2020 U.S. Dist. LEXIS 70072, at 1–10 (W.D. Ky. Apr. 18, 2020), as a federal trial court judge rejected their request for a temporary restraining order against enforcing the governor’s ban on mass gatherings, including in-person religious services.
⁵ See generally John Gage, De Blasio Threatens to Permanently Close Places of Worship That Resist Shutdown Order, Wash. Examiner (Mar. 29, 2010, 6:44 PM), https://perma.cc/ZXS3-QSH3 (reporting that in overstepping his authority, “New York City Mayor Bill de Blasio warned religious leaders that their places of worship could be shut down permanently if they did not follow the city's order to pause services during the coronavirus pandemic”).
⁶ See U.S. Const. art. I, § 8 (stating “The Congress shall have Power to . . . provide for the . . . general Welfare of the United States . . .”).
⁷ Katie Pavlich, Attorney General Bill Barr Explains Whether Constitutional Rights Go Away During an Emergency, Townhall (Apr. 21, 2020, 11:30 AM), https://perma.cc/5QTB-9QQL (quoting Attorney General William P. Barr); see also Memorandum from William P. Barr, Attorney Gen., U.S. Dep’t of Justice, to Eric Dreiband, Assistant Attorney Gen. for Civil Rights & All U.S. Attorneys, Balancing Public Safety with the Preservation of Civil Rights (Apr. 27, 2020), https://perma.cc/3DBU-5SBF.
⁸ Walter Isaacson, Benjamin Franklin: An American Life 169 (2003).
⁹ For other challenges to state restrictions on the free exercise of religion, see, e.g., Compl. Abiding Place Ministries v. Wooten et al., Apr. 9, 2020, No. 3:20-cv-00683-BAS-AHG (pending trial); Metropolitan Tabernacle Church v. City of Chattanooga, No. 1:20-cv-00100-JRG-SKL (E.D. Tenn. filed Apr. 16, 2020, dismissed Apr. 29, 2020); Compl. Global Impact Ministries v. City of Greensboro, Apr. 14, 2020, No. 1:20-cv-00329 (pending mediation); Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY, _ F. Supp.3d _, 2020 WL 1905586 (D.N.M. Apr. 17, 2020); Lighthouse Fellowship Church v. Northam, No. 2:20cv204, _ F.Supp.3d _ 2020 WL 2110416 (E.D. Va. May 1, 2020), injunction pending appeal denied, _ F. Supp.3d _ 2020 WL 2614626 (E.D. Va. May 21, 2020); First Pentecostal Church of Holly Springs v. City of Holly Springs Miss., No. 3:20CV119 M-P, _ F. Supp.3d _, 2020 WL 2495128 (N.D. Miss. May 14, 2020), remanded, 959 F.3d 669 (5th Cir. May 22, 2020); Hawse v. Page, No. 4:20cv588 RLW, 2020 WL 2322999 (E.D. Mo. May 11, 2020), appeal filed, (8th Cir. May 12, 2020); Spell v. Edwards, _ F. Supp.3d _, 2020 WL 2509078 (M.D. La. May 15, 2020); Elim Romanian Pentecostal Church v. Pritzker, No. 20 C 2782 _ F. Supp.3d _, 2020 WL 2468194 (N.D. Ill. May 13, 2020), aff’d, 962 F.3d 341 (7th Cir. 2020); Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, May 1, 2020, (No. 1:20-cv-00377-AJT-IDD; Antietam Battlefield KOA v. Hogan, No. CCB-20-1130 _ F. Supp.3d _, 2020 WL 2556496 (D. Md. May 20, 2020), appeal filed (4th Cir. May 22, 2020); South Bay United Pentecostal Church v. Newsom, No. 20-cv-865-BAS-AHG, 2020 WL 2529620 (S.D. Cal. May 18, 2020), aff’d 959 F.3d 938 (9th Cir. 2020), and appeal filed (U.S. May 26, 2020); Compl. Edgewater Christian Fellowship v. Brown, May 26, 2020, No. 6:20-cv-00831; Bullock v. Carney, 806 Fed. App’x 157 (3d Cir. 2020).
¹⁰ The U.S.’ Statement of Interest in Supp. of Pls., Apr. 14, 2020, No. 4:20-cv-64-DMB-JMV; see also Attorney General William P. Barr Issues Statement on Religious Practice and Social Distancing; Department of Justice Files Statement of Interest in Mississippi Church Case, Dep’t of Justice (Apr. 14, 2020), https://perma.cc/UZV9-WWJD. Subsequently, Barr sent a memorandum to all U.S. Attorneys to watch out for state and local COVID-19 orders infringing on constitutional and civil rights, including religious freedom, Memorandum from William P. Barr, supra note 7. The Department of Justice sent a similar letter to Governor Gavin Newsom of California complaining that Executive Orders N-33-20 and N-60-20 and documents relating to California’s Reopening Plan discriminates against places of worship, Letter from Eric S. Dreiband, Assistant Attorney Gen., Dep’t of Justice, to Gavin Newsom, Governor of Cal. (May 19, 2020), https://perma.cc/35K7-6RRY.
¹¹ See The President’s Coronavirus Guidelines for America, White House (Mar. 16, 2020), https://perma.cc/W5WF-3NCG.
¹² See generally Tyler O’Neil, Greenville Mayor Stands By Tyrannical Ban on Drive-In Church Services to Fight Coronavirus, PJ Media (Apr. 13, 2020, 5:51 PM EST), https://perma.cc/S55D-BN6W (describing the outrage of citizens and religious groups over the ban on drive-in religious services).
¹³ The U.S.’ Statement of Interest in Supp. of Pls. 2.
¹⁴ See, e.g., Tyler O’Neil, Legal Battles Over Drive-In Church Service Bans Continue Even After $500 Fines Dropped, PJ Media (Apr. 20, 2020, 11:32 AM EST), https://perma.cc/PN7Y-BZXR.
¹⁵ See Tyler O’Neil, Mayor Gives Infuriatingly Flimsy Excuse for Fining Christians $500 Over Drive-in Church Services, PJ Media (Apr. 16, 2020, 1:28 AM EST), https://perma.cc/9JCJ-9Y5E [hereinafter Flimsy Excuse]; see also McKinney, Tex., Third Revised Mayoral Declaration of Local State of Disaster Due to Public Health Emergency § 7(5) (Mar. 25, 2020), (stating that “[r]eligious and worship services may only be provided by video and teleconference. Religious institutions must limit in-person staff to ten (10) people or less when preparing for or conducting video or teleconference services, and all individuals must follow the Social Distancing Guidelines including the six-foot social distancing. Funerals are allowed with appropriate social distancing.”); Tyler O’Neil, Texas City Singles out Religious Services for Special Coronavirus Restrictions, PJ Media (Mar. 28, 2020, 10:43 AM EST), https://perma.cc/4C3G-5PA4.
¹⁶ On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-JRW, 2020 WL 1820249, at 7 (W.D. Ky. Apr. 11, 2020). But see Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY, 2020 WL 1905586, at 35 (D.N.M. Apr. 17, 2020) (“[T]he Court respectfully declines to follow Judge Walker’s reasoning.”).
¹⁷ Catherine Kirk, Mayor Simmons Announces Drive-In Church Services Now Allowed in City, Delta Democrat-Times (Apr. 15, 2020, 5:08 PM EST), https://perma.cc/K7Z5-G8Y3.
¹⁸ See, e.g., Bree Alexander, Keeping an Eye on Police Powers, Eureka Street (Apr. 18, 2020), https://perma.cc/ZD27-8DGX; Melissa Butz, Italian Bishops Call for Religious Freedom, Public Masses as Business Reopen, Net TV (Apr. 27, 2020), https://perma.cc/9FR5-2HUK (reporting that “Italy’s bishops are complaining that religious freedom is being stifled in the country as the government makes plans to get back to normal.”); John Carpay, Alberta's Bill 10 Is an Affront to the Rule of Law, Nat'l Post (Apr. 14, 2020), https://perma.cc/SQ97-Y8X2; Jeanne Smits, Armed Police Storm Catholic Parish in France, Demand Priest Stop Mass, LifeSite (Apr. 24, 2020, 5:41 PM EST), https://perma.cc/7EG2-GHMB (reporting that police acted “to stop what they considered to be an illegal Mass in view of France’s confinement regulations linked to the coronavirus”).
¹⁹ See, e.g., Australian Government Department of Health, Limits on Public Gatherings for Coronavirus (COVID-19), https://perma.cc/5H8Q-HHJE (last updated June 26, 2020); see also Sarah Moulds, Pandemic and Human Rights: Watching Over the Watchdogs, InDaily (Apr. 22, 2020), https://perma.cc/YK5D-L8M8; Alexander, supra note 18.
²⁰ See infra text accompanying note 73.
²¹ See Paul T. Babie, Australia’s “Bill of Rights,” 97 U. Det. Mercy L. Rev. 187, 187 (2020) (explaining the absence of comprehensive constitutional protections for rights in Australian law); Paul Babie & Neville Rochow, Feels Like Déjà Vu: An Australian Bill of Rights and Religious Freedom, 2010 BYU L. Rev. 821, 821 (2010).
²² Universal Declaration of Human Rights, Dec. 10, 1948, 24. G.A. Res. 217 A (III).
²³ International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. No. 14668, 171 (entered into force Mar. 23, 1976); see also International Covenant on Economic, Social and Cultural Rights art. 27, Dec. 19, 1966, 993 U.N.T.S No. 14531, 3 (entered into force Jan. 3, 1976); Optional Protocol to the International Covenant on Civil and Political Rights art. 1, Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976); Optional Protocol to the International Covenant on Economic, Social and Cultural Rights art. 2, Sept. 24, 2009 (entered into force May 5, 2013).
²⁴ Brett G. Scharffs, Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent, and Those Hostile to Religion Should Care, 2017 BYU L. Rev. 957, 958 (2018).
²⁵ Moulds, supra note 19.
²⁶ Digital Contact Tracing Can Slow or Even Stop Coronavirus Transmission and Ease Us Out of Lockdown, Univ. of Oxford (Apr. 16, 2020), https://perma.cc/AF2E-MKW3.
²⁷ Max S. Kim, Seoul’s Radical Experiment in Digital Contact Tracing In South Korea, the Government Is Disseminating Detailed Tracking Data on People with COVID-19, New Yorker (Apr. 17, 2020), https://perma.cc/5EA2-6Q2L.
²⁸ Media Release: COVIDSafe: New App to Slow the Spread of the Coronavirus, Dep't of Health (Apr. 26, 2020), https://perma.cc/9ECJ-NAXY; see Australian Government Attorney-General’s Department, COVIDSafe Legislation, https://perma.cc/P32C-A9CX (last visited Sept. 28, 2020) (showing that privacy protections were enacted pursuant to amendments made to the Biosecurity Act 2015 (Cth) by the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth)).
²⁹ See R.J. Vogt, How Virus Surveillance and Civil Liberties Could Collide, LAW360 (Apr. 26, 2020, 8:02 PM EDT), https://perma.cc/4TK6-ULR8; Margie M. Tannock & Connor McClymont, How Safe Is “COVIDSafe” – Australia’s COVID-19 Contact Tracing App?, Nat'l L. Rev. (Apr. 30, 2020), https://perma.cc/42DG-SY32; Pauline Wright, Opinion Piece: Australians’ Personal Freedoms Could Be Under Serious Threat With the New ASIO Bill, Law Council of Austl.> (May 14, 2020), https://perma.cc/427J-QC73; John Elder, The Privacy Paradox | The COVID Conversation | Ep. 8 | PODCAST, The New Daily, https://thenewdaily.com.au/podcast/the-privacy-paradox-the-covid-conversation-ep-8-podcast/ (last updated May 29, 2020, 5:04 PM). See generally ‘We Can't Give That All Back’: Premiers Cool on Easing Virus Restrictions, The New Daily, https://perma.cc/XJ9N-SV7W (last updated May 7, 2020, 3:51 PM).
³⁰ See Isabelle Lane, Contact Tracing App Could Help Combat Coronavirus, But Privacy Fears Remain, The New Daily, https://perma.cc/FD4Q-VA45 (last updated Apr. 21, 2020, 2:25 PM); Alexander, supra note 18.
³¹ According to the crucial language of the First Amendment, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble….” (U.S. Const. amend. I). While they are beyond the scope of this paper because it focuses on the free exercise of religion, many of the governmental restrictions under discussion also limit freedom of speech and assembly insofar as those challenging governmental directives cannot gather in or near their churches to pray together.
³² See, e.g., Austl. Const. ch. 1, pt. 5, § 51 (xxxi) (property), ch. 3 § 80 (jury trial), ch. 4 § 92 (interstate trade and commerce), ch. 5 §§ 116, 117 (religion & non-discrimination for residents of other states), and the implied freedom of political communication on which; see Anne Twomey, The Application of the Implied Freedom of Political Communication to State Electoral Funding Laws, 35(3) U. N.S.W. L.J. 625, 626 (2012).
³³ See Richard Ely, Unto God and Caesar: Religious Issues in the Emerging Commonwealth 1891–1906 (1976).
³⁴ Attorney-General (Vic.); ex rel. Black v. The Commonwealth, 146 CLR 559, 605 (1981).
³⁵ Id. at 653.
³⁶ Krygger v. Williams, 15 CLR 366, 366 (1912).
³⁷ Adelaide Co. of Jehovah’s Witnesses v. The Commonwealth, 67 CLR 116, 116 (1943).
³⁸ Kruger v. Commonwealth, 190 CLR 1, 2 (1997).
³⁹ Krygger, 15 CLR at 369, 371.
⁴⁰ Id. at 369.
⁴¹ See Adelaide Co. of Jehovah’s Witnesses Inc., 67 CLR at 116.
⁴² Id. at 132.
⁴³ See Kruger 190 CLR at 9–10, 32, 61–62, 130.
⁴⁴ Id. at 9–10.
⁴⁵ Id. at 61 (quoting Austl. Communist Party v. The Commonwealth, 83 CLR 1, 273 (1951)).
⁴⁶ Id. at 153 (quoting Austl. Communist Party, 83 CLR at 273).
⁴⁷ Michael Hogan, Separation of Church and State: Section 116 of the Australian Constitution, 53 Austl. Q. 214, 220 (1981); see also Anthony Gray, Section 116 of the Australian Constitution and Dress Restrictions, 16 Deakin L. Rev. 293, 316 (2011).
⁴⁸ Ansett Transp. Indus. (Operations) Pty. Ltd. v. The Commonwealth, 139 CLR 54, 88 (1977) (internal citations omitted).
⁴⁹ Nationwide News Pty. Ltd. v. Wills, 177 CLR 1, 8, 14 (1992).
⁵⁰ Austl. Capital Television Pty. Ltd. v. The Commonwealth, 177 CLR 106, 38–39 (1992).
⁵¹ 189 CLR at 520.
⁵² 220 CLR at ¶¶ 89–92.
⁵³ Nationwide News Pty. Ltd., 177 CLR at ¶¶ 72–73.
⁵⁴ Austl. Capital Television Pty. Ltd., 177 CLR at ¶ 120.
⁵⁵ Id. at 107–108; e.g., Nationwide News Pty Ltd., 177 CLR 1; Theophanous v. Herald & Weekly Times Ltd., 182 CLR 104 (1994); Stephens v. West Austl. Newspapers Ltd., 182 CLR 211(1994); Lange, 189 CLR at 520; APLA Ltd. v. Legal Serv. Comm’r (NSW), 224 CLR 322 (2005); Hogan v. Hinch, 243 CLR 506 (2011); Unions NSW v. State of New South Wales, 88 ALJR 227 (2013); McCloy v. New South Wales, HCA 34 (2015); Brown v. Tasmania, HCA 43 (2017); Unions NSW v. New South Wales, HCA 1 (2019); Spence v. Queensland, HCA 15 (2019); Smethurst v. Comm’r of Police HCA 14 (2020).
⁵⁶ Attorney-General (SA) v. Corp. of the City of Adelaide, 249 CLR 1, ¶ 67 (2013).
⁵⁷ Clubb v. Edwards; Preston v. Avery, HCA 11, ¶ 29 (2019).
⁵⁸ Martin Clark, Clubb v Edwards; Preston v Avery, Opinions on High (Apr. 18, 2019), https://perma.cc/F57M-RFBA (quoting Clubb v. Edwards; Preston v. Avery, HCA 11, 37 (2019)).
⁵⁹ See, e.g., Attorney-General (SA), 249 CLR at 1; Brown, HCA at 43; Clubb, HCA at 11; Preston, HCA at 11; McCloy, HCA at 34; Spence, HCA at 15; Unions NSW, HCA at 58.
⁶⁰ George Williams, Sean Brennan & Andrew Lynch, Blackshield and Williams Australian Constitutional Law & Theory: Commentary and Materials 1175 (6th ed. 2014) (citing Adelaide Co. of Jehovah’s Witnesses v. The Commonwealth, 67 CLR 116, 132 (1943)).
⁶¹ Ansett Transport Industries (Oper.) Pty. Ltd. v. Commonwealth, 139 CLR 54, 13 (1977).
⁶² McCloy, HCA 34 at 1–2.
⁶³ Id. at 1 (footnotes and internal citations omitted).
⁶⁴ Id.
⁶⁵ Id. at 2–3 (footnotes and internal citations omitted), aff’d Brown v. Tasmania, HCA 43, 123–31, 236 (2017).
⁶⁶ Reynolds v. United States, 98 U.S. 145, 145 (1878).
⁶⁷ See Roger Williams, Mr. Cotton’s Letter Lately Printed, Examined and Answered, in 1 The Complete Writings of Roger Williams 313, 392 (Reuben Aldridge Guild A.M. ed., 1963) (“when they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wilderness of the world. . . . ”).
⁶⁸ For a seminal case protecting the free exercise of religion in education, albeit under the Fourteenth, rather than First, Amendment, see Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534–35 (1925) (invalidating a voter-approved initiative from Oregon that would have required all children, other than those who would today be identified as needing special education, to attend public schools because the law would have seriously impaired, if not destroyed, the profitability of the schools’ businesses but also insofar as “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” affirming that the State “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control”).
⁶⁹ Cantwell v. Connecticut, 310 U.S. 296, 296 (1940). But see Barron v. Mayor and City Council of Balt., 32 U.S. 243, 243 (1833) (refusing to apply the Bill of Rights to the states because its history indicated that it was limited to the federal government).
⁷⁰ For other early cases invalidating limits of distributing religious materials, see Jamison v. Texas, 318 U.S. 413, 413 (1943); Murdock v. Pennsylvania, 319 U.S. 105, 105 (1943).
⁷¹ For another noteworthy early case, see W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (affirming that a state regulation requiring children who were Jehovah’s Witnesses to salute the American flag exceeded constitutional limits on governmental power by “invad[ing] the sphere of intellect and spirit which it is the purpose of the First Amendment”).
⁷² City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (rejecting a city’s requirement of having operators of a group home obtain a special use permit but refusing to treat its intended residents, individuals with intellectual disabilities, as members of a quasi-suspect group).
⁷³ The Supreme Court declared, “. . . if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.’’ Romer v. Evans, 517 U.S. 620, 631–32 (1996) (invalidating an amendment to Colorado’s Constitution forbidding legislative, executive, or judicial action designed to protect individuals who are gay from discrimination on the basis that it violated the Fourteenth Amendment’s equal protection clause).
⁷⁴ See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (“[W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”).
⁷⁵ For a notorious case allowing a race-based classification to survive strict scrutiny during the Court’s modern era, see Korematsu v. United States, 323 U.S. 214, 215 (1944) (upholding the internment of Japanese Americans during World War II based on their ancestry).
⁷⁶ In limited circumstances, the Supreme Court adopted an intermediate standard of review that is not as difficult for the government to meet as compelling interest but involves less deference to legislation than the rational relations test. Under this test, the Court upholds classifications only if they bear “substantial relationships” to “important” governmental interests. See Plyler v. Doe, 457 U.S. 202, 219–20 (1982) (forbidding officials from denying admittance to public schools to children whose parents were not legal residents even though the Court did not explicitly use this test).
⁷⁷ Sherbert v. Verner, 374 U.S. 398, 399 (1963).
⁷⁸ Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 874 (1990).
⁷⁹ See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–42 (1988) (ruling that in a forest the federal government owned, it did not need a compelling interest to cut down trees in an area sacred to the religion of Native Americans who lived nearby); Goldman v. Weinberger, 475 U.S. 503, 504 (1986) (finding that the Free Exercise Clause did not mandate that the Air Force permit a clinical psychologist, who was an ordained rabbi, to wear a yarmulke with his military uniform while on duty). In another win for free exercise, Congress superseded Goldman in 10 U.S.C. § 774(a)–(b) (2020) (permitting members of the military to wear religious apparel on duty unless the Secretary of Defense prohibits the practice because it would interfere with their job performances or the item of apparel is not neat and conservative).
⁸⁰ Sherbert, 374 U.S. at 398.
⁸¹ Id. at 408 (finding no showing of a compelling state interest enforced in the eligibility provisions of South Carolina unemployment compensation statutes which would justify denial of benefits to claimant who refused because of religious beliefs to accept employment that would require her to work on Saturday).
⁸² Wisconsin v. Yoder, 406 U.S. 205, 205 (1972).
⁸³ Id. at 220. For representative commentary on this case, see, e.g., Ralph D. Mawdsley, Has Wisconsin v. Yoder Been Reversed? Analysis of Employment Division v. Smith, 63 Educ. L. Rep. 11 (1990); James D. Gordon III, Wisconsin v. Yoder and Religious Liberty, 74 Tex. L. Rev. 1237 (1996).
⁸⁴ Employment Div., Dep’t of Human Res. of Or., 494 U.S. at 872; see Employment Div., Dep’t of Human Res. of Or. v. Smith, 485 U.S. 660, 674 (1988) (showing how in an earlier iteration of this case, the Justices remanded the dispute to a state court to consider whether state law forbade all uses of peyote, including worship services).
⁸⁵ Smith, 494 U.S. at 890. While the Court ignored the rights of a minority religion, during the same term, it deferred to the rights of the majority faith to organize prayer and Bible study clubs in public secondary schools in Bd. of Educ. of the Westside Cmty. v. Mergens, 496 U.S. 226, 234 (1990). For a discussion of this anomaly, see David L. Gregory & Charles J. Russo, Let Us Pray (But Not “Them”!): The Troubled Jurisprudence of Religious Liberty, 65 St. John's L. Rev. 273, 273 (1991); see also Charles J. Russo, Mergens v. Westside Community Schools at Twenty-Five and Christian Legal Society v. Martinez: From Live and Let Live to My Way or the Highway?, 2015 BYU Educ. & L.J. 453, 453 (2015).
⁸⁶ Smith, 494 U.S. at 890. But see Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 524 (1993) (invalidating city ordinances against animal slaughters as neither being neutral nor of general applicability). Referring to Smith, the Court remarked that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Id. at 531.
⁸⁷ 42 U.S.C. § 2000bb–4 (1993) (codifying the RFRA).
⁸⁸ Ralph D. Mawdsley, Employment Discrimination on the Basis of Religion: Where Should the Line Be Drawn?, 111 Educ. L. Rep. 1077, 1087–88 (1996) (internal citations omitted).
⁸⁹ City of Boerne v. Flores, 521 U.S. 507, 507 (1997). For a representative commentary, see generally Ralph D. Mawdsley, Invalidating the Religious Freedom Restoration Act: Implications for Religious Liberty, 123 Educ. L. Rep. 431 (1998).
⁹⁰ Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (2000). See generally Daniel P. Dalton, The Religious Land Use and Institutionalized Persons Act: Recent Developments in RLUIPA's Land Use Jurisprudence, 44 Urb. Law 647, 647 (2012) (providing representative commentary on the Act); Marci A. Hamilton, Federalism and the Public Good: The True Story Behind the Religious Land Use and Institutionalized Persons Act, 78 Ind. L.J. 311, 311 (2003) (providing representative commentary on the Act).
⁹¹ 42 U.S.C.S. § 2000cc(a)(1) (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution . . . .”).
⁹² See 42 U.S.C. § 2000cc(1).
⁹³ Hosanna-Tabor Evangelical Lutheran Church and Sch. v. Equal Emp’t Opportunities Comm’n, 565 U.S. 171 (2012). For representative commentary on this case, see Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harv. J.L. & Pub. Pol’y 821 (2012); Christopher C. Lund, Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor, 108 NW. U. L. Rev. 1183 (2014).
⁹⁴ Equal Opportunity for Individuals with Disabilities, 42 U.S.C. §§ 12101–12213 (2012).
⁹⁵ 42 U.S.C.S. §§ 2000e et seq. (2020).
⁹⁶ See, e.g., William Lee Miller, The First Liberty: America's Foundation in Religious Freedom 109‒10 (1986); Michael W. McConnell, Why Is Religious Liberty the “First Freedom”?, 21 Cardozo L. Rev. 1243, 1243 (2000).
⁹⁷ For works developing the notion that religion was the first freedom in the United States, see James Wood, First Freedom: Religion and the Bill of Rights (1990); Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986); Miller, supra note 96; McConnell, supra note 96.
⁹⁸ James Baldwin, An Open Letter to My Sister, Angela Y. Davis, in Angela Y. Davis, If They Come in the Morning: Voices of Resistance 19, 23 (Angela Y. Davis, et al. eds., The Third Press, 1971).
⁹⁹ See Laurie Sobel & MaryBeth Musumeci, Litigation Challenging Mandatory Stay at Home and Other Social Distancing Measures, KFF (June 5, 2020), https://perma.cc/7MXP-F6L2.
¹⁰⁰ See Justin Glyn, Beyond Binaries in COVID-19 Discussions, Eureka Street (Apr. 20, 2020), https://perma.cc/W2WP-2VJX.
¹⁰¹ Sandi Doughton, When Will This End, and What Comes Next? Health Officials and Epidemiologists Are Working to Figure out Washington’s Coronavirus End Game, The Seattle Times, https://perma.cc/6Z3F-UNG5 (last updated Apr. 11, 2020, 10:52 PM).
¹⁰² Gabriela Schulte, Poll: 74 Percent of Voters Concerned About Losing Freedoms Due to COVID-19, The Hill (Apr. 20, 2020, 6:45 PM EDT), https://perma.cc/WB5G-VQBR (reporting that, according to a recent poll of registered voters, seventy-four percent are concerned about the loss of various freedoms).
¹⁰³ See Pastor Martin Niemöller - HMD 2021, Holocaust Memorial Day Trust, https://perma.cc/4F25-Y4PX (last visited Sep. 28, 2020); Pastor Martin Niemöller, First They Came, Holocaust Memorial Day Trust, https://perma.cc/G8MV-P38V (last visited Sep. 28, 2020).

First they came for the Communists
And I did not speak out
Because I was not a Communist
Then they came for the Socialists
And I did not speak out
Because I was not a Socialist
Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist
Then they came for the Jews
And I did not speak out
Because I was not a Jew
Then they came for me
And there was no one left
To speak out for me

¹⁰⁴ Francis Cardinal George, The Wrong Side of History, Catholic New World (Nov. 3, 2012), https://perma.cc/HN9L-6897. The prescient words of Francis Cardinal George, late prelate of Chicago, serve as a chilling reminder of what can happen to religious freedom: “I am (correctly) quoted as saying that I expected to die in bed, my successor will die in prison and his successor will die a martyr in the public square.”
¹⁰⁵ South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring); see also Adam Liptak, Split 5 to 4, Supreme Court Rejects Nevada Church’s Challenge to Shutdown Restrictions, N.Y. Times (July 24, 2020), https://perma.cc/KA96-4NM4.
¹⁰⁶ Liptak, supra note 105 (reporting that “[t]he vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority”); see also Jim Dey, Durbin to Supreme Court on Gun-Rights Case: Back Off or Else, The News-Gazette (Aug. 20, 2019), https://perma.cc/SBA4-LRZF (identifying “the [C]ourt’s five conservative justices [as] John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas . . . [and its] four liberals - Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg”).
¹⁰⁷ South Bay United Pentecostal Church, 140 S. Ct. at 1613.
¹⁰⁸ Melanie Kaidan, Suicide Killing More in California Than Coronavirus Warn Doctors as They Target Lockdown, Express (May 23, 2020, 7:24 AM), https://perma.cc/9J3D-E5WL.
¹⁰⁹ COVID-19 Industry Guidance: Places of Worship and Providers of Religious Services and Cultural Ceremonies, CDPH, 3 (July 29, 2020), https://perma.cc/755G-KQN4.
¹¹⁰ For two cases wherein Roberts authored majority opinions defending religious freedom, see, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 189 (2012) (observing that “the text of the First Amendment itself . . . gives special solicitude to the rights of religious organizations”); Trinity Lutheran Church v. Comer, 137 S. Ct. 2012, 2019 (2017) (explaining that “The Free Exercise Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’”).
¹¹¹ For an interesting take on this issue at the national level, see Lena H. Sun, Josh Dawsey & Michelle Boorstein, Reopening Guidance for Churches Delayed After White House and CDC Disagree, Wash. Post (May 20, 2020, 9:07 PM EDT), https://perma.cc/YS2S-7MGL (“Guidance for reopening houses of worship amid the coronavirus pandemic has been put on hold after a battle between the Centers for Disease Control and Prevention and the White House, which was resistant to putting limits on religious institutions . . . .”). See also Anne Gearan, Lena H. Sun, Josh Dawsey & Michelle Boorstein, Trump Tells States to Let Houses of Worship Open, Sparking Cultural and Political Fight Over Pandemic Restrictions, Wash. Post (May 23, 2020), https://perma.cc/2N6S-TAP9.
¹¹² South Bay United Pentecostal Church, 140 S. Ct. at 1613.
¹¹³ Id. at 1614.
¹¹⁴ Id.
¹¹⁵ Id. (borrowing the term “odious” from Trinity Lutheran Church, 137 S. Ct. at 2025, and rejecting Missouri’s denial of generally available state aid simply because institutions were faith-based). In addition, Judge Kavanaugh cited cases such as Good News Club v. Milford Cent. Sch., 533 U.S. 98, 120 (2001) (allowing a religious club to meet after classes ended in a public school because secular groups could access the facility while addressing similar issues from a secular perspective); Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 546–47 (1993) (holding that denying a generally available benefit solely due to religious identity violates the free exercise of religion and can be justified only by a compelling state interest); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) (allowing a religious group to use public school facilities that were available to secular organizations for similar activities); see also William E. Thro & Charles J. Russo, Odious to the Constitution: The Educational Implications of Trinity Lutheran Church v. Comer, 346 Educ. L. Rep. 1, 1 (2017); Charles J. Russo & Ralph D. Mawdsley, And the Wall Keeps Tumbling Down: The Supreme Court Upholds Religious Liberty in Good News Club v. Milford Central School, 157 Educ. L. Rep. 1, 2 (2001).
¹¹⁶ South Bay United Pentecostal Church, 140 S. Ct. at 1614 (quoting Lukumi, 508 U.S. at 531–32).
¹¹⁷ Id. at 1615.
¹¹⁸ Id.
¹¹⁹ Elim Romanian Church v. Pritzker, No. 19A1046, S. Ct. , 2020 WL 2781671, at 1 (U.S. May 29, 2020).
¹²⁰ See Schulte, supra note 102.

Reforming the NYPD and Its Enablers Who Thwart Reform

The New York City Police Department (NYPD), like many other police departments throughout the United States, is a highly insular organization that historically has done its very best to operate in secrecy—and, like many other police departments throughout the United States, it has been enabled to do so by other agencies of the government of which it is a part. In New York City government there are many enablers, most notably the City’s Law Department (the Corporation Counsel).

Now that there have been protests throughout the nation following the death of George Floyd at the hand of a police officer, whose numerous previous misdeeds had been repeatedly covered up by his police department, it is vital that close attention be paid to systematic government suppression of police misbehavior. In New York City, so many agencies have closed ranks to protect miscreant officers that under other circumstances, a RICO conspiracy prosecution would be appropriate. There are several officers in the NYPD with records as bad or worse than the record of the officer who killed George Floyd. Their misdeeds are rarely punished, and they are promoted from officer to sergeant, lieutenant, or detective with dazzling regularity.

After spending twenty years in the public sector suing corrections departments and litigating against prosecutors who were seeking the death penalty—both in New York and across the nation—I imagined that a private practice concentrating on suing NYPD officers over brutality, false arrests, and other forms of misconduct would not be all that different. Additionally, before entering private practice, I had been an executive in the NYC Corporation Counsel’s office whose responsibilities included monitoring the NYPD, and in that capacity I had absorbed a great deal about the NYPD and its vulnerabilities.

I was wrong. Never have I encountered a government agency more resistant to reform, more determined to hide its infirmities from the public, more prone to sweeping under the rug even the most hideous misconduct of its employees, and more successful in enlisting other agencies of city government to enable its penchant for secrecy. I do not contend that New York City is by any means unique in this regard, or that the methods for challenging such behavior are unique to New York City. Many local police forces and local governments employ the same strategies for erecting an institutional Blue Wall of Silence. But hopefully one can learn from an analysis of the New York City quagmire and what can be done to eradicate it.

This article will explore, based upon my experiences inside the government monitoring the NYPD and outside the government suing it, ways in which the NYPD can and should be reformed. It is by no means an impossible task, but it will require a concerted effort of persuasion directed at the governmental entities that to date have enabled the NYPD to maintain the status quo. That effort should serve as a blueprint for attorneys and other concerned citizens throughout the United States who are determined to combat the institutional Blue Wall of Silence that is so pervasive in American society.

ABOLISH THE NYPD “TRIAL ROOM”

A good start would be to abolish the NYPD’s “trial room”—the forum in which the NYPD gets to adjudicate all disciplinary charges against its own officers—and transfer the cases to the Mayor’s independent Office of Administrative Trials and Hearings (OATH).

The trial room is the administrative court in which disciplinary charges against NYPD officers are tried. The officials who preside over these trials, and make recommendations of guilt or innocence and punishment, are appointed by the Police Commissioner and serve at the Commissioner’s pleasure. This presents a significant problem: unlike most judicial or quasi-judicial officials, they are not independent are therefore highly susceptible to the internal politics of the NYPD and can be pressured into making inappropriate decisions.

The NYPD is the only New York City agency that has its own trial room. Disciplinary cases against employees of every other city agency—including the other uniformed forces—are heard before independent OATH judges who serve for fixed terms and cannot be fired or demoted for running afoul of inter-agency political machinations.

The only reason why the NYPD gets its own trial room is an obscure state statute dating back to 1940, NYS Unconsolidated Laws § 891. The statute provides that no police officer with civil service protection in New York State can be fired without a hearing held by the officer having the power to fire or by “a deputy or other employee of such officer,” i.e., in New York City, a deputy of the Police Commissioner.

There is a long and ugly history to the misuse of § 891 to perpetuate the NYPD trial room. The chief culprit is former police commissioner Raymond Kelly, who chose to disregard a reform agreed to in 2001 by former Mayor Rudy Giuliani—an individual hardly known for passionately favoring NYPD reforms.

In 2001, the last year of the Giuliani Administration, Mayor Giuliani agreed to a comprehensive Memorandum of Understanding (MOU), according the Civilian Complaint Review Board (CCRB) exclusive prosecutorial power over all cases in which the CCRB substantiated and recommended charges and specifications. The 2001 MOU also provided that all CCRB-substantiated matters would come before OATH rather than the NYPD trial room.

The MOU unfortunately was stayed during litigation by the Police Benevolent Association (PBA) challenging its validity. The principal issue in the litigation was whether the Police Commissioner could lawfully delegate the prosecutorial function to the CCRB, although the PBA did also challenge the provision concerning OATH. Manhattan Supreme Court Justice Leland DeGrasse upheld the transfer of the prosecutorial function to the CCRB. He also upheld the OATH provision with one minor modification, ruling in conformity with § 891 that the rare cases in which termination is a possibility must still be heard in the trial room.

In Lynch v. Giuliani,¹ the Appellate Division affirmed that the transfer of the prosecutorial function to the CCRB was lawful, but it modified Justice DeGrasse’s ruling with regard to OATH. The Court misinterpreted § 891 as applying to all NYPD disciplinary proceedings, requiring that all such proceedings be adjudicated by a deputy or other employee of the Commissioner—whether or not termination was a possible outcome of the disciplinary process. As any observer of the NYPD disciplinary process knows only too well, most cases result in the mere loss of a few vacation days and terminations are exceedingly rare.

The City never appealed. Neither did the PBA. The reason? Commissioner Kelly simply reneged on the 2001 Giuliani MOU in its entirety. He never had any intention of implementing even the part of it that had been upheld by the Appellate Division, and insisted on having the Department Advocate retain prosecution of all CCRB cases.

Not until April 2012 did Kelly finally relent, albeit slightly, agreeing to a very limited MOU under which the NYPD still exercises far more control over the process than it would have retained under the 2001 Giuliani MOU. And in light of Lynch v. Giuliani, CCRB-substantiated cases remain in the trial room and OATH may not hear any NYPD cases. In 2009, Council Members Bill de Blasio (now Mayor), Letitia James (now NYS Attorney General), and eight others introduced a bill implementing the Giuliani MOU, Int. No 1048-2009, but Council Speaker Christine Quinn kept it bottled up.

As the 2001 Giuliani MOU envisioned, it would obviously enhance public confidence in the NYPD disciplinary process if hearings were conducted by OATH rather than by officials who serve at the pleasure of the Police Commissioner. In a 2008 report I co-authored for Citizens Union (CU), CU advocated legislation "that would allow CCRB complaint hearings to go through OATH, or an alternative independent body, to create a needed level of independence and perception of impartiality,” and further citizen confidence in the process.²

The OATH Administrative Law Judges (ALJs) are independent and highly respected. The Mayor appoints the OATH Commissioner (who is also the City’s Chief Administrative Law Judge), who in turn appoints the other ALJs. They serve for five-year terms, a term-length explicitly designed to be longer than that of the Mayor, and are removable only for cause.³

From my years as an executive at the NYC Law Department, with access to information and documents that are not made public, I know for a fact that the NYPD trial room judges (i.e., the deputy commissioner for trials and the assistant commissioners for trials) have off-the-record communications with the First Deputy Commissioner’s office and the Commissioner’s office in advance of final decisions. That is one of the many corrupt features of the NYPD disciplinary system. Since NYPD administrative hearing officers serve at the pleasure of the police commissioner, they must worry if they run afoul of powerful confidants of the commissioner. When I was in the Law Department, I reviewed many trial room opinions that simply didn’t make sense. The only explanation for them was that pressure had been exerted on the hearing officers.

Ironically, only a few years before the 2001 MOU, the PBA negotiated a provision in the collective bargaining agreement enabling the commissioner to send disciplinary cases to OATH rather than the trial room, arguing that the OATH judges were more impartial than the trial room judges who serve at the pleasure of the commissioner. For a brief period until the Appellate Division’s 2003 Lynch v. Giuliani decision, approximately twenty-five percent of all NYPD disciplinary cases were processed by OATH, and OATH’s final decisions in those cases were made public without objection from the PBA and the other police unions. Apparently, the unions later reversed course and decided that their disdain for the CCRB and its determinations outweighed their preference for OATH over the NYPD trial room.⁴

The State Legislature should simply repeal § 891. The Appellate Division’s Lynch determination that § 891 applies to all NYPD disciplinary matters, whether or not termination is a possibility, was erroneous; but Lynch is the law unless overruled by the Court of Appeals, and even if that were to occur it would take years of litigation. The simplest, fastest, and most effective route to having all NYPD disciplinary cases (or at least all CCRB cases) come before OATH is to repeal Unconsolidated Laws § 891. The 1940 statute is a relic of another time and is not appropriate in this day and age.

ABOLISH THE NYC LAW DEPARTMENT’S “SPECIAL FEDERAL LITIGATION DIVISION”

Since the NYPD is notoriously unwilling to punish police misconduct administratively in the trial room—even when the CCRB has substantiated civilian complaints and recommended punishment—it should come as no surprise that victims of police misconduct turn to the courts.⁵

Many of my clients in federal civil rights lawsuits alleging police misconduct state that they are more interested in seeing the officers genuinely punished than in obtaining large sums of money from the city. They turn to lawsuits because they feel they have no other effective option. The CCRB rarely substantiates complaints, marking most cases “unsubstantiated” unless it believes the evidence of wrongdoing is overwhelming. And even when the CCRB does substantiate, it is well documented that in most cases the NYPD either ignores the CCRB’s findings or metes out only the weakest penalties.⁶

The plaintiff in one of my false arrest cases, when asked at a deposition what he hoped to gain from the lawsuit, simply stated “I want Justice.” He was an African American educator with no prior criminal record who had been arrested on especially attenuated charges that were dismissed at the first court appearance after arraignment. His response at the deposition encapsulated a refrain I have heard frequently. Some clients have even broken down crying upon receiving their settlement checks, sobbing that money alone will never adequately address their trauma and that they would much prefer a result that prevents the guilty officer from inflicting trauma on others.

But when victims of misconduct file civil rights lawsuits, they unfortunately encounter another city agency that is every bit as determined as the NYPD to sweep police misconduct under the rug.

The NYC Law Department has been the NYPD’s most important enabler. In 1999, it established a special unit devoted solely to defending police officers in federal civil rights cases. The stated reason was supposedly to improve the City’s production of discovery material—a response by then Corporation Counsel Michael Hess to a federal civil rights lawsuit in which the City had been assessed sanctions and attorney’s fees by Judge Martin for lackadaisical behavior in discovery of NYPD materials.⁷ But today that alleged purpose is long forgotten and the unit has been repeatedly criticized and sanctioned for misbehavior in discovery and other unethical conduct. Instead the unit boasts of its ardent defense of police officers, falsely attributing the huge increase in lawsuits to unscrupulous lawyers who bring “frivolous” actions.

Former Corporation Counsel Cardozo was even quoted in the New York Times as declaring war on police misconduct plaintiffs, stating that he was determined to stop “feeding the monster.”⁸ Former Corporation Counsel Carter and his staff at the Law Department unfortunately displayed a similar attitude. One can only hope that his successor, James Johnson, who has been associated with the progressive N.Y.U. Law School’s Brennan Center for many years, will reverse that attitude. Johnson took office in November 2019. In February 2020, he appointed Asim Rehman as his Chief of Staff, who had been First Deputy in the office of the NYPD Inspector General, an independent office within the City’s Department of Investigation (DOI). Both Johnson and Rehman have deep experience with police misconduct and, more importantly, with the ways in which police misconduct is covered up by the police and their enablers. But they are dealing with a problem that has been festering for decades and are up against entrenched bureaucracies that are extremely resistant to change.

Most Law Department supervisors who fought tenaciously against the Stop-and-Frisk and Central Park 5 settlements have not been replaced. Carter even appointed one to head the special division that defends all federal police misconduct lawsuits—even though she is so pugnacious that she was once rebuked by a Brooklyn federal judge for being unethical, dishonest, and disrespectful in her trial behavior.⁹

It was astonishing that Carter would entrust such a sensitive position to a hard-liner who sets the tone for the City in police misconduct cases. He fought hard as U.S. Attorney for the EDNY, together with the Civil Rights Division of the Justice Department, for a pattern-and-practice lawsuit against the Giuliani NYPD in the waning years of the Clinton Administration. Attorney General Janet Reno vetoed the effort at the last minute. The history of police community-relations in the Bloomberg-Kelly-Cardozo years would have been very different had Carter and the Civil Rights Division prevailed.¹⁰ But after several years in private practice Carter apparently came to believe that his first and foremost duty was to defend the “client” regardless of the public policy consequences, and he narrowly defined his principal clients as the NYPD and miscreant police officers, who were to be defended at all costs to preserve their reputations and save the City money.

Because of that tone, the City has recently been sanctioned—twice—by federal judges for deliberately withholding vital evidence in discovery. For example, in Martinez v. The City of New York, Magistrate Judge Pollak observed that:

[T]his case has been marked by an unprecedented and disturbing pattern of delay and failure to comply with the Orders of this Court. This Court has had to hold 13conferences to resolve various discovery disputes, including two hearings to address plaintiff’s motions for contempt and sanctions, and has issued 14 Orders to defendants to produce discovery that is clearly mandated by the Federal Rules of Civil Procedure even in the absence of a request or order.

[T]he Court finds that defendants and their counsel have demonstrated a pattern of willful noncompliance with the Court’s Orders and basic discovery obligations over almost two years despite 14 Court Orders.

Ultimately, the City paid approximately $142,000 in attorneys’ fees and costs as discovery sanctions for its misconduct.¹¹

Similarly, in Allen Brown v. The City of New York, the Court stated:

As clearly and correctly explained by Judge Reyes in great detail, defendants' remarkable negligence in meeting their discovery obligations led to unjustified delay, prejudice and additional costs to Plaintiff. Defendants unpersuasively argue that precluding defendants from using plaintiff’s original deposition at trial, on motion, or at a new deposition of plaintiff, prejudices defendants. However, given the unjustified delay and prejudice to plaintiff due to defendants' negligence, it is clear that the sanctions ordered by Judge Reyes are appropriate and well within his authority.

Magistrate Judge Reyes had been even more blunt in his description of the behavior of the City’s Special Federal Litigation lawyers. Responding to their excuse that they had merely made an “innocent mistake,” he stated:

Upon review of the facts this Court rejects the Defendants’ claim of innocence and finds that their failure to disclose the IAB [Internal Affairs Bureau] Audio was at the very least the product of negligence, if not negligence so gross as to be willful.¹²

The City avoided sanctions by settling the case in May 2019 for $325,000, inclusive of attorney’s fees and costs.

A New York Times article in September 2018 described four other cases in which sanctions have been imposed or threatened. The article included a statement by prominent civil rights attorney Joel Rudin, co-counsel for the plaintiff in the Allen Brown case, that summarized the views of many of my colleagues: “They will use every trick in the book to prolong a case and wear down the plaintiff and the plaintiff’s lawyers, delaying discovery and basically making fights over nothing.”¹³ In one case described in the article, an Eastern District federal judge "sanctioned the city after one of the unit's lawyers 'acted improperly' at an officer's deposition, objecting nearly 600 times to questions, even though many were deemed to be 'relevant to the case.'"

In another particularly egregious case described in the article, a city lawyer refused to let the plaintiff’s lawyer use any Law Department telephone to call a Magistrate Judge to seek a ruling against the city lawyer’s misbehavior at a deposition—a procedure mandated by the Court’s rules.¹⁴ The Magistrate Judge handling the case, James Orenstein, stated that he was considering referring the matter to the Court's grievance committee for a “very troubling” apparent violation of professional rules. Judge Orenstein had previously criticized the City for advancing “truly absurd” arguments in resisting his discovery orders and had threatened defendants with contempt citations for outright refusal to comply with his discovery orders. The City escaped the consequences of its misbehavior by writing abject letters of apology to the Court (one from the lawyer at the deposition admitting wrongdoing, and the one from her supervisors who denied responsibility for what happened at the deposition but who had overseen that lawyer’s other misbehavior in discovery) and then settling the case for $280,000—$150,000 to the plaintiff and $130,000 in attorneys’ fees, for the time spent combating the City’s misbehavior in discovery.¹⁵

In another case described in the Times, SDNY Magistrate Judge Gorenstein was so aggravated by the City’s lawyer repeatedly missing discovery deadlines that he ordered the city to explain the delays in a formal memorandum and ordered that it be personally signed by the Special Federal Litigation Division’s chief. More recently, in the same case, the District Judge Castel excoriated the City for initially claiming that a crucial record of police radio calls had been destroyed, and then miraculously finding it when required to submit a sworn declaration attesting to its supposed destruction. Plaintiff’s motion for sanctions and attorney’s fees is pending.¹⁶

Perhaps the worst example of dishonest behavior described in the article is DaCosta v. The City of New York, in which United States District Judge Jack Weinstein excoriated the City’s lawyers for ignoring their ethical obligations after it emerged that they knew a plaintiff had accidentally sued the wrong detective for malicious prosecution. But instead of promptly notifying the plaintiff of his mistake, the City’s lawyers had the audacity to oppose his motion to amend the complaint to add the correct detective as a defendant, arguing that the statute of limitations had expired and could not relate back to the date of the original filing.¹⁷

The Special Federal Litigation Division attorneys defending the case had sought several extensions of time to answer or move to dismiss the original complaint, on the ground that they needed the extensions in order to “acquire as much information as possible concerning this matter to properly assess the case and respond to the Complaint.” They obtained plaintiff’s consent to these extensions by assuring him that the delay would “not affect any other deadline in this case.”¹⁸ After nine months of extensions, the City’s lawyers, “armed with the knowledge that Plaintiff sued the wrong individual,” moved to dismiss the complaint.¹⁹ When plaintiff sought to depose the other detective whom the City had named in its motion as being involved, in order to clarify whether that detective was in fact the arresting officer whom plaintiff should have named as a defendant, the City’s lawyers delayed matters further by moving (unsuccessfully) to quash the subpoena for his deposition. Plaintiff then promptly deposed that detective, and upon completing the deposition, promptly sought leave to amend the complaint to add the detective as a defendant. The City’s lawyers, who by now had known for months that the plaintiff had named the wrong detective, obstinately fought that motion. Judge Weinstein rejected their opposition.

Judge Weinstein wrote an exhaustive analysis of the heightened ethical obligations of city attorneys in civil cases, noting that they represent the people of their jurisdictions as well as government employees and the city itself.²⁰ He explicitly criticized former Corporation Counsel Cardozo for taking the position that “government attorneys owe an obligation to only governmental institutional interests,”²¹ and he concluded as follows, directly condemning Corporation Counsel Zachary Carter, on whose watch the misconduct in DaCosta had occurred:

For months the City sat in silence while a resident it serves had a readily curable defect in his complaint that the Corporation Counsel now claims deprives him of his right to have his claim adjudicated on the merits.

The Corporation Counsel did not adhere to its ethical and discovery obligations in this case. The Corporation Counsel has shown indifference to fairness of outcome and process. Because the Corporation Counsel has not complied with these obligations, it cannot assert the statute of limitations as a defense. Its conduct substantially contributed to plaintiff’s failure to name the proper defendant prior to expiration of the statute of limitations.²²

Yet in response to Judge Weinstein’s criticism, the City shamelessly stuck to its guns, moving for reconsideration and absurdly claiming that the plaintiff’s only recourse was to sue his lawyer for malpractice. Judge Weinstein emphatically disagreed, stating that it would be a “miscarriage of justice” to allow the City to profit off the misbehavior of its lawyers.²³

Adding together the City’s payments in Pettiford, Allen Brown, and Martinez (to date—Martinez is still pending), a unit that claims to be saving the City money by its arduous defense of police misconduct cases has had to pay approximately $750,000 of the taxpayers’ money, in large measure to avoid the consequences of its own misconduct. Kevin Brown and Martinez (on the merits) are still pending, and will undoubtedly add to a total that is likely to exceed One Million before they come to an end. As Judge Weinstein observed in his opinion denying rehearing in DaCosta:

What would have been the legal harm in consenting to the addition of Detective Tranchina instead of filing a motion to dismiss? Why would Corporation Counsel seek to quash a subpoena issued for the deposition of Detective Tranchina when it knew he was the proper defendant? . . . Had civility ruled the litigation, this litigation would likely have ended some time ago. The Corporation Counsel’s hardball tactics may end up costing the residents of New York more money because plaintiff’s counsel has been forced to litigate what would be otherwise unnecessary motions in a case with potential for fee shifting.²⁴

More recently, the Corporation Counsel’s office was castigated by a United States Magistrate Judge for ordering confiscation of an officer’s memo book that later mysteriously disappeared, resulting in a spoliation ruling according the plaintiff an adverse inference at trial.²⁵ The officer in question had turned against the City and was keeping a record of illegal stops and frisks, arrest quotas, and other misconduct. When one of the lead Special Federal Litigation Division attorneys defending the stop-and-frisk cases learned of the officer’s EEOC complaint, she ordered the NYPD to confiscate the memo pad and an NYPD Integrity Control Officer did so. The officer’s attorneys in his subsequent employment discrimination action repeatedly served notice that the memo pad must be preserved. Yet when they requested it in discovery, the City initially objected, then agreed to produce it, but then—astonishingly—admitted that it had disappeared. The Court (Magistrate Judge Cave) found the City guilty of “grossly negligent spoliation.”²⁶

Victims of NYPD misconduct are mistreated twice these days, first by the misconduct itself and then by City attorneys who withhold or acquiesce in the destruction of vital discovery and abuse legitimate plaintiffs with unethical tactics.

In the 1980s, there was an ethos within the Law Department that the Corporation Counsel is not merely a political defense lawyer for the City and its employees. He is an Attorney General for the people of the City. As former Corporation Counsels Frederick A.O. Schwartz Jr. and Peter Zimroth—Mayor Koch’s appointees—frequently noted, the Charter itself specifies that the Corporation Counsel represents not only the City but also “the people thereof.”²⁷ Judge Weinstein, who served as County Attorney for Nassau County before being appointed to the federal judiciary and has extensive experience with the requirement that government attorneys must represent the people of a jurisdiction as well as its agencies and employees, explicitly alluded to this obligation in DaCosta.²⁸ But in New York City that ethos of independence is long gone, having disappeared decades ago.²⁹

The current administration remains fixated on squelching most police misconduct lawsuits as “frivolous” and has entrusted highly biased zealots with the sensitive task of administering a special unit that defends such lawsuits. Litigation “victories” for the Special Federal Litigation Division in such cases, if they result from more clever lawyering or fortuitous juries, are hardly victories for our City if misconduct in fact occurred, decent law-abiding people were harmed, and rogue officers escaped unscathed. Victims of police misconduct become embittered by the virulent, pugnacious tactics of city lawyers focused more on winning cases than doing justice.

Of course some lawsuits brought by unscrupulous lawyers are frivolous, and some plaintiffs insist on filing cases that are lacking in merit. That is true of all litigation. I receive meritless complaints on a weekly basis and decline them. Nonetheless, there are thousands of cases that do have merit, and so long as the NYPD’s disciplinary system remains impervious to even the most extreme misbehavior of officers, there will continue to be thousands of such cases.

Until the late 1990s police misconduct cases were handled by City attorneys who defended a variety of cases and who therefore had a better perspective than attorneys who are solely defenders of the police. When I served on the Law Department Executive Staff in the Koch and Dinkins Administrations there was occasionally talk of establishing a special unit to defend the police. However, the idea was consistently rejected because it would inevitably produce a cadre of lawyers who would become far too close to the NYPD and develop into a unit with the philosophy that (i) every officer must be defended to the fullest no matter how strong the evidence against the officer, and (ii) wrongdoing by an officer that becomes known to a City lawyer in the course of defending a case must never be reported to the NYPD. That is exactly what has happened.³⁰

If the Mayor and his newly-appointed Corporation Counsel are truly committed to improving police-community relations, they should require the Law Department to disband the Special Federal Litigation Division and return to the system of having more objective lawyers assigned to represent the City in police misconduct cases. If that does not happen, the next Mayor should require his or her Corporation Counsel to institute this important reform.

On November 5, 2019, the voters approved a Charter Amendment requiring City Council approval of a Mayor’s Corporation Counsel appointment.³¹ It is hard to imagine a scenario under which the Council would block the proposed appointment of a Corporation Counsel over the nominee’s refusal to commit to any particular set of reforms, but one can always hope. The Mayor retains the power to remove the Corporation Counsel at will,³² so the danger remains that the Corporation Counsel will be influenced to “prioritize the interests of the Mayor, which may not be in the City’s overall interests,”³³—i.e., to place the Mayor’s political fear of criticism from the police unions above the public good. The Council should vigorously use its new advise-and-consent power to require adherence by Corporation Counsels to Charter Ch. 17, § 394(c), the provision specifying that the Corporation Counsel represents not only the City, its elected officials, agencies, and employees, but also “the people thereof.”³⁴

In addition, the Council should enact legislation expanding the reporting requirements of NYC Administrative Code § 7-114 (enacted in 2017), a measure first introduced by Councilmember, now Public Advocate, Jumaane Williams, in 2014. In addition to the Law Department data the Council now requires concerning settlements and judgments against NYPD officers, the NYPD should be required to issue a report to the Council in every case in which the Law Department has settled allegations of police wrongdoing or in which there has been a verdict of police wrongdoing after trial. The report should advise the Council as to what specific disciplinary actions—if any—have been taken against the defendant officers. And the Law Department should be required to report what specific steps—if any—it has recommended to the NYPD to safeguard against a repetition of misconduct by the officers involved.³⁵

INCREASE PENALTIES FOR NYPD DEPARTMENTAL DISCIPLINE

At present, if a police officer is not terminated in an NYPD disciplinary proceeding, a New York City local law dictates that the most severe penalty is suspension without pay for thirty days and one year of dismissal probation.³⁶ The police unions are happy to keep it that way. So is the City Council, which has for decades given in to the unions and resisted numerous calls for more meaningful penalties.

The strengthening of penalties was advocated by the Knapp Commission nearly fifty years ago in response to the Serpico-era scandals, yet has never been enacted. The Knapp Commission Report even stated that the absence of sufficiently strong disciplinary penalties was “the most troublesome issue in the disciplining of policemen[].”³⁷ The Commission recommended increasing NYPD disciplinary penalties to include suspension without pay for a year, monetary fines of up to $25,000, and demotion in grade or title with a commensurate reduction in salary.

In 1994, the Mollen Commission Report³⁸ advocated the same reform. More than a decade later, Mayor Giuliani’s Commission to Combat Police Corruption again recommended it. So did Citizens Union in its 2008 report³⁹ and follow-up position papers in 2012 and 2016.

Early in William Bratton’s first term as commissioner, the Giuliani Administration actually had a bill introduced in the Council to implement the stronger NYPD disciplinary penalties advocated by the Knapp Commission and later by the Mollen Commission. The bill, sponsored by Queens Councilmember Leffler, stated that it was being introduced “by the request of the Mayor.”⁴⁰

This measure is a no-brainer, and the failure to enact it during the past fifty years is scandalous. Police commissioners have occasionally forced officers to accept slightly stronger penalties than allowed under current law under threat that they will be terminated if they do not agree, but that happens very rarely. If the Council were to enact the amendment to Administrative Code § 14-115 and the police commissioner were to utilize the powers accorded by the amendment—and there would surely be public pressure on the commissioner to do so—it would go a long way toward putting teeth into the NYPD disciplinary system.

A 2018 article in the New York Times reported that former Commissioner O’Neill reduced penalties recommended by the Civilian Complaint Review Board (CCRB) in “a substantial majority of cases,” even where the CCRB had itself recommended relatively low penalties in an effort to find common ground with the NYPD.⁴¹ That watering down of CCRB recommended penalties, which placed the CCRB itself on the list of City agencies that enable the NYPD to sweep serious misconduct under the rug, was nonetheless deemed inadequate by the NYPD. And almost half of the most serious CCRB-substantiated cases closed in 2017 “ended with no discipline” at all. As one recent former CCRB Chair told the Times, the CCRB is “no longer a meaningful part of the disciplinary process, and is just a palliative to people who complain with no real consequence.”⁴²

A Charter revision approved by the voters on November 5, 2019, requires the Commissioner to notify the CCRB of written reasons for every downward deviation from the CCRB’s recommendations, and with the repeal of NYS Civil Rights Law § 50-a, those reasons should not be kept secret. But in all likelihood the Commissioner will continue to water down CCRB recommendations, even in the face of public scrutiny.

This has to change, and action by the Council increasing the penalties for police misconduct would send an important message that it must change. The reform proposed by the Knapp and Mollen Commissions and other respected bodies could, if utilized effectively as a result of pressure on the NYPD, actually have an impact on reducing the huge increase in police misconduct lawsuits.

Administrative Code §14-115 is a local law that can be amended by the Council alone. State legislation is not required. Yet for nearly fifty years, Council leaders have been afraid to stand up to the police union opposition, thwarting any amendment to the local law. The Council, as well as the Law Department, has been an enabler to the NYPD and to the police unions that steadfastly resist reform.

VIGOROUSLY ENFORCE PENALTIES FOR MAKING FALSE OFFICIAL STATEMENTS

NYPD Patrol Guide (PG) 203-08 states that the penalty for intentionally making a material false official statement must be dismissal, absent exceptional circumstances as determined by the police commissioner on a case-by-case basis. However, as a recent report of an independent panel appointed by the police commissioner determined, this provision is routinely ignored.

The independent panel, headed by former U.S. Attorney for the Southern District of New York Mary Jo White, called upon the NYPD to enforce strictly Patrol Guide 203-08. The panel’s recommendations included requiring the NYPD to “investigate potential false statement cases aggressively,” bring more such cases under PG 203-08, and not reduce those charges to lesser offenses to circumvent the presumptive penalty of termination. The panel also recommended that any time the commissioner elects not to terminate under PG 203-08, the commissioner should be required to “meaningfully explain in writing the exceptional circumstances justifying a lesser punishment.”⁴³

The panel noted⁴⁴ that these recommendations were based largely upon identical recommendations issued nearly eighteen months earlier, in August 2017, in a report by the Mayor’s Commission to Combat Police Corruption (CCPC).⁴⁵ But the panel did not address the question of why that Commission’s report had been ignored for nearly a year and a half.

More importantly, the panel neglected to mention that the very same CCPC had urged virtually identical recommendations twenty-two years ago in a report issued on December 12, 1996, to coincide with the promulgation of PG 203-08 by then-Commissioner Safir. At that time the CCPC urged “that a strong message of intolerance towards lying be communicated throughout the Department.”⁴⁶ The report continued:

Strengthening the disciplinary system to actively prosecute and seriously penalize officers who make false official statements is critical . . . [O]fficers must be aware that absent exceptional circumstances, false statements, including false statements made to cover the misconduct of other officers, will result in termination from the force, not a forfeiture of vacation days⁴⁷. . . By punishing those who make false statements in a clear, unambiguous manner, the Department sends a message which enhances the credibility of the overwhelming percentage of officers who perform their responsibilities with courage and integrity . . . This policy of termination absent exceptional circumstances can serve a critical role in the Department’s efforts to achieve the highest levels of integrity.”⁴⁸

Only two years earlier, the Mollen Commission had severely criticized the NYPD for condoning a culture of falsifications of arrest records and outright perjury, finding that the practice was routinely deemed acceptable by the Department’s top commanders and further describing the practice as “so common in certain precincts that it has spawned its own word: ‘testilying.’”⁴⁹

Given the NYPD’s failure to follow through on recommendations going back more than two decades, it should come as no surprise that solemn promises to comply with the latest panel recommendation are to be taken with a grain of salt.

The NYPD historically was so resistant to taking action against officers who lied that it even did its best to prevent the CCRB from doing anything about officers who lied to the CCRB in the course of its investigations. For many years the NYPD insisted that the CCRB had no jurisdiction in such cases, and must refer questions of whether to file charges and whether to prosecute them departmentally to the NYPD. Whenever the CCRB recommended charges and specifications for false official statements pursuant to PG § 203-08, the NYPD insisted that any such infraction was outside the jurisdiction of the CCRB—even though the alleged false official statements were made to the CCRB during its investigation of the underlying incident. The NYPD demanded that it alone had the power under the Charter to discipline officers for making false official statements to the CCRB. And even if the NYPD filed charges and specifications for false official statements, the NYPD insisted on controlling prosecution of that infraction even while the CCRB prosecuted the underlying charge. That was really silly. It should come as no surprise that departmental prosecutions for making false official statements to the CCRB were extremely rare.

A Charter revision approved by the voters on November 5, 2019 amended the Charter slightly to codify that the CCRB may investigate and recommend false official statement charges—which it already does anyhow under the heading “other misconduct”—but the measure does not require the NYPD allow the CCRB to prosecute the charge, and the CCRB would be limited to recommending false statement charges only against the officer who is the subject of the complaint, as opposed to other officers who may have lied in support of that officer. The Commission’s Final Report admits that of the eighty-one false statement cases referred by the CCRB between 2010-2018, the NYPD “imposed discipline on only two such cases,” and in the other seventy-nine found no wrongdoing or minor misconduct such as failing to fill out a memo pad properly.⁵⁰ The 2019 Charter revision unfortunately will do nothing to force the NYPD to strictly enforce PG § 203-08.

In the absence of any serious effort by the NYPD to punish officers for lying, one would hope that the City’s district attorneys would vigorously prosecute officers who commit the Class E felony of Offering a False Instrument for Filing in the First Degree.⁵¹ The overwhelming majority of false official statements by police officers are made in Criminal Court complaints in which police officers falsely accuse an individual of criminal conduct. The prosecutors routinely dismiss cases in which they doubt the officers’ credibility, but rarely do they follow through with criminal prosecutions.

Penal Law § 175.35 is applicable to the intentional filing of any false statement in a court “for the purpose of frustrating the State’s power” to fulfill its responsibility to carry out the law.⁵² Yet the city’s prosecutors, eager to maintain a good working relationship with the NYPD, nearly always look the other way. A March 2018 series of articles in the New York Times by investigative reporter Joseph Goldstein demonstrated that even in the most obvious and severe cases of police mendacity, including blatant lying on the witness stand, the DAs do not prosecute.⁵³ They simply ignore obvious criminal misconduct when that misconduct is committed by a police officer.

Convictions for violation of Penal Law § 175.35 would result in what the NYPD has consistently failed to do—terminate police officers from public employment for lying—because violation of the statute is a Class E felony and any officer convicted of a felony must be automatically fired by rule of law.⁵⁴

A 2018 BuzzFeed News investigation revealed dozens of cases in which police officers had been kept on the force despite proof that they lied to assistant district attorneys and had even lied before grand juries. There was even one case in which an officer was found to have lied about using force when arresting a man who later died in police custody, yet the officer faced no disciplinary action at all. BuzzFeed further reported that a draft report on police lying prepared by the NYPD Inspector General, an independent official in the city’s Department of Investigation (DOI), was squelched by the DOI Commissioner.⁵⁵

The Mollen Commission explicitly chastised the City’s district attorneys for turning a blind eye to police falsifications of arrest records and perjurious testimony: “several former and current prosecutors acknowledged—‘off the record’—that perjury and falsifications are serious problems in law enforcement that, though not condoned, are ignored.”⁵⁶

Recently three of the City’s district attorneys addressed the problem, but they did so in the most limited, feeble and ineffective manner imaginable—and only in response to Freedom of Information Law (FOIL) demands. The Brooklyn District Attorney responded to an online news service’s FOIL demand by releasing a list of seven police officers blacklisted by its prosecutors as untrustworthy and forty-seven more who gave testimony that state and federal judges determined lacked credibility. One of the worst of the seven had been promoted from sergeant to lieutenant despite his reputation for mendacity, and altogether the officers listed had cost the City more than $5 million in lawsuits. But not a single one of the fifty-four officers listed was prosecuted by the Brooklyn DA’s office or disciplined by the NYPD.⁵⁷ The Manhattan DA’s office followed up in December 2019 with a list of sixty-one officers whom judges had deemed to have “adverse credibility issues.” The list was made public in response to a FOIL demand by the Daily News, which reported that the Queens DA had a similar list of sixty-five officers. The Manhattan DA claimed that it did “not necessarily” concur with each judge’s finding.⁵⁸

Do the prosecutors seriously expect the public to believe that of the 180 officers on the three lists combined, not a single one can be prosecuted? Does the NYPD seriously expect the public to believe that not a single one of the 180 can be proved by a preponderance of the evidence in a disciplinary proceeding to have committed the offense of making a false official statement, the punishment for which is presumptively dismissal from the Department under PG § 208-08?

In this instance the NYPD’s principal enablers are clearly the City’s five district attorneys, who are reluctant to prosecute police officers for lying even in cases where the evidence of mendacity is overwhelming. Other enablers are the City Council, which could force the NYPD to take more aggressive action against officers who lie, and the DOI, for withholding the 2018 Inspector General’s Report.

However, the Law Department is also an enabler. In many cases Assistant Corporation Counsels recommend settlements because they know that the defendant officers are lying, but they never report that conclusion and the reasons therefor to the NYPD or the prosecutors. As noted earlier, the Law Department’s principal obligation is not to the individual defendant officers, and Assistant Corporation Counsels are free to report officers’ wrongdoing and admissions of wrongdoing to the NYPD. But that ethos has long since faded into oblivion, certainly since the establishment of the Special Federal Litigation Division in 1999, if not before.

REQUIRE CLOSE REVIEW BEFORE OBTAINING AND EXECUTING ALL NO-KNOCK SEARCH WARRANTS

In the early years of Raymond Kelly’s tenure as Mayor Bloomberg’s police commissioner, a totally innocent woman, Alberta Spruill, died of a heart attack when the police stormed her Harlem apartment armed with a “no-knock” warrant. The police had obtained and executed the search warrant based solely on incorrect and unverified information from a confidential informant (CI). In the wake of this tragedy, Kelly promised a series of reforms designed to prevent a recurrence. Yet within a few years the reforms were being totally ignored by the NYPD, and the NYC Law Department was vehemently defending every civil rights action brought by innocent victims of “no-knock” raids.

In light of the death of Breonna Taylor in Louisville, Kentucky last March 13, it is instructive to review the reforms promised by Kelly and their abandonment by the NYPD.

Kelly’s Report of May 30, 2003, to the Mayor on the Spruill death case explicitly required NYPD officers to continue checking on both the informant and the informant’s information even after a “no-knock” warrant was issued.⁵⁹ A police supervisor “must carefully review all steps and procedures that have taken place before the execution of the search warrant,” must “ascertain that all necessary computer checks have been performed and documented for review in the future,” and “ensure that all necessary checks . . . have been performed prior to the execution of the search warrant.”⁶⁰ The supervisor must determine “whether the execution [of the warrant] may be delayed until further investigation is performed to ensure the certainty of the location and to validate the information from the CI [Confidential Informant].”⁶¹ The police were required “to verify information contained in warrants” before the warrants are executed, by having a supervisor (Captain or above) “review all procedures taken to validate information received from a confidential informant” and “ascertain the urgency of [executing] the warrant.”⁶² The Report also required ten different computer checks to determine who actually lives in the targeted premises and whether the apartment or its occupants have any history of involvement with drugs.⁶³

In testimony before the City Council, Kelly also emphasized that CIs must be scrutinized carefully regardless of what they say or claim to know. “[G]ood, law abiding people like Ms. Spruill live in precincts that have more shootings and drug activity than others, which is why the Police Department must be careful.” Kelly added, “Most confidential informants are criminals.”^{64<s/up> “You look at the credibility, the veracity of the informant, [and] you look at the credibility of the information that he or she provides.”65 Accordingly, in addition to requiring an extensive paper trail of computer checks, the Report established a central CI database to evaluate the reliability and accuracy of every CI.66 It also required a Formal Critique of every warrant execution to assess current practices and take corrective measures to address any shortcomings.67}

Virtually none of these measures are followed today by the NYPD’s Narcotics Enforcement squads. I have represented several victims of raids that were based on faulty information and turned up none of the contraband sought. In some cases the police didn’t even know who lived in the targeted premises. In cases where raids merely led to discovery of a single marijuana cigarette, rather than the major drug-selling operation claimed by the CI, the police marked the results as “positive” and did not even bother with the requisite post-execution Formal Critique.⁶⁸

In the absence of anything remotely resembling compliance with the Kelly-pledged reforms, the federal courts have begun cracking down. In McColley v. County of Rensselaer,⁶⁹ (a non-NYC case), the Second Circuit denied qualified immunity where the police had acted on information that they knew was suspect yet had failed to inform the warrant-issuing magistrate of the infirmities of the CI’s claims. The police in McColley didn’t even know who lived at the targeted address, and had no information that the woman who lived there had ever been involved in any drug-dealing. McColley held that liability applies if the police affidavit in support of the warrant “‘knowingly and intentionally, or with reckless disregard for the truth, made a false statement’ . . . or omitted material information, and that such false or omitted information was ‘necessary to the finding of probable cause.’”⁷⁰ The Circuit held in McColley that “recklessness is inferred when the omitted information was ‘clearly relevant to the determination of probable cause.’”⁷¹ It further held that “any omissions” in the presentation to the warrant-issuing magistrate “become all the more glaring because any material omission necessarily alters the ‘totality of circumstances’ upon which confidential information is to be assessed. Each omitted fact necessarily alters this totality.”⁷² McColley concluded that:

The information omitted from the warrant application was indeed “necessary to the finding of probable cause” because both McColley’s identity and the lack of criminal activity observed at her home go directly to the “totality of circumstances” review that underlies the assessment of probable cause based upon information provided by confidential informants. The Appellants would have this Court conclude that once information has been provided by a confidential informant who has proven reliable in the past, a warrant is necessarily supported by probable cause when based upon information from that confidential informant. This view misapprehends the “totality of circumstances” test—in assessing whether there is probable cause based upon a confidential informant’s reports, courts must look to all of the circumstances bearing upon the information’s reliability.⁷³

Judge Calabresi’s concurring opinion in McColley described the horrors of military-style execution of “no-knock” warrants:

Here, the method of entry was more akin to a military invasion than the knocking and entering envisioned . . . . [M]embers of Troy's Emergency Response Team, at six o'clock one morning, shattered the window of McColley's living room and threw a flash-bang grenade inside before breaking down the door and storming in, brandishing automatic [weapons. McColley was] wearing only a t-shirt and underwear when the officers burst in. Thus attired, she was handcuffed and forced to lie face-down on her bed while an officer guarded her, weapon drawn, and a dog searched her room. By the time the police had left—having discovered only an electric bill and McColley's college course schedule—McColley's furniture had been overturned, her rug and wall bore burn marks, her bookshelf, window, and doors had been broken, and her toiletries and clothes, along with her daughter's, had been strewn across the floor.⁷⁴

The NYC Law Department vigorously responded to McColley by arguing in cases such as Alston v. The City of New York that in every raid based upon a “no-knock” warrant, the police are automatically entitled to “qualified immunity” and the lawsuit must be dismissed—period. It has even claimed that the plaintiff is not entitled to obtain in discovery the police affidavit filed in support of the warrant—the single most important item of discovery under the Second Circuit’s test for liability. It further claims in support of dismissal of the complaint that whoever lives in the apartment isn’t even relevant—the exact opposite of the McColley holding. In short, the City will say anything, no matter how ridiculous, to defend officers who obtain and execute “no-knock” warrants.⁷⁵

A raid in Alston v. The City of New York resulted in no arrests and no discovery of anything sought by the warrant; one of the occupants was accused of possessing a tobacco “crusher” allegedly containing a “residue” of marijuana, but it was never even tested and the charge was dismissed. That did not prevent the architect of the raid from advising his supervisors that the result of the raid was “positive.”⁷⁶

Sooner or later New York City is likely to experience another Alberta Spruill incident or, worse yet, a Breonna Taylor incident. Instead of pretending that McColley doesn’t exist, the NYPD must begin actually enforcing the reforms promised by Kelly nearly two decades ago.⁷⁷

LIMIT THE EXTENT TO WHICH TAXPAYER DOLLARS SUBSIDIZE POLICE MISCONDUCT

As noted previously in this article and in numerous annual reports of the NYC Comptroller, millions of dollars of taxpayer money are squandered every year to compensate victims of police misconduct. One could argue that this money should come from the NYPD budget rather than from the Adjudications and Claims budget of the Comptroller’s office, and that the NYPD should also be required to pay the Law Department for the hours spent defending miscreant officers. But even if such radical solutions are beyond the realm of possibility, there are lesser measures that can and should be adopted.

For example, the Law Department should stop authorizing indemnification of punitive damages awards against police officers. Even though General Municipal Law §50-k (3) grants the Law Department discretion to deny indemnification of punitive damage awards against police officers, stating that the duty to indemnify “shall not arise” where there was “intentional wrongdoing or recklessness,” the Law Department uniformly agrees to indemnify in every case.

Punitive damages are supposed to punish and deter, but they do not do so in cases against NYPD officers because the City pays rather than the officers. The City’s uniform policy of indemnifying punitive damages in all cases in which it represents the police officer was sanctioned by Corporation Counsel Paul Crotty in Papa v. City of New York, indemnifying $1 million in punitive damages against five officers who committed vicious acts of excessive force causing horrible injuries.⁷⁸ The Law Department sought for many years to hide its policy of indemnifying for punitive damages, requesting jury instructions requiring consideration of the officers’ ability to pay if such damages were awarded.⁷⁹ But the policy of uniform indemnification was eventually conceded in the City’s responses to discovery in Gyasi v. The City of New York⁸⁰ —discovery ordered by Judge Scheindlin over the Law Department’s vigorous opposition. It remains the City’s policy today.

The relevant data, including evidence of recent indemnifications by the City for punitive damages, is set forth in painstaking detail by UCLA Law Professor Johanna Schwartz in Police Indemnification.⁸¹ In recent years punitive damages awards as high as $2.7 million have been indemnified. The City has never failed to indemnify for punitive damages any officer it has represented and sometimes even indemnifies punitive damages awarded against officers represented by their unions.⁸²

Recently the NYS Court of Appeals upheld a decision by Nassau County denying indemnification in a particularly pernicious incident of police misconduct.⁸³ It would be refreshing if New York City were to follow Nassau County’s lead.

How can the NYPD turn its back on incidents so horrible that a jury awards punitive damages, and take no action whatsoever against the miscreant officers? These officers suffer no consequences and are free to repeat their misconduct against others in the future.

Many of my colleagues in civil rights litigation generally like the City’s policy of indemnifying punitive damages, because the City’s potential punitive damages exposure promotes larger settlements and hence larger fees. But I for one would gladly forego such riches in return for a system in which bad officers are severely punished monetarily by non-indemnification of punitive damages. At the very least the officers should be forced to pay the maximum that can be extracted from them, with the City paying the remainder so that the plaintiffs receive appropriate compensation.

The punishment of punitive damages should fall squarely upon the individuals who are supposed to be punished. Yet in New York City it doesn’t. The rogue officer is left unscathed. Only the taxpayers are punished.

One would think that at least when police officers commit off-duty misconduct totally unrelated to their duties as officers, the city would in that extreme case require the officers or their unions to undertake representation. Unfortunately, even in that instance the taxpayers are not let off the hook.

NYS General Municipal Law § 50-k (2) provides that the City must defend municipal employees in lawsuits against them when the employees so request—with an important exception. The Corporation Counsel can deny representation if the employee was not “acting within the scope of his public employment and in the discharge of his duties . . .”⁸⁴ When civilians who are arrested or injured during personal altercations with a police officer sue the officer, the City is under no obligation to utilize its resources to defend. The issue arises most frequently where officers misuse their status to arrest or assault civilians with whom they are having off-duty personal altercations. Such lawsuits typically arise as a result of barroom brawls, vehicular “fender-bender” accidents, and disputes with neighbors or other acquaintances, where officers illegally “pull rank” by arresting the civilians and charging them with offenses such as assault, harassment, or disorderly conduct.

Under §50-k (2), the Corporation Counsel can also deny indemnification to officers facing NYPD departmental discipline over a civil lawsuit. For example, an officer departmentally charged with brutality can be denied representation when the officer’s victim files a civil lawsuit. That’s the law. But what the taxpayers don’t know is that they are in fact paying for the defense of police officers even when the Law Department refuses to represent them.

After enactment of § 50-k the police unions demanded in collective bargaining that the City pay for the civil defense of officers who are denied representation by the Law Department. The City first gave in to this demand in the 1984-87 contracts. In subsequent contracts the City was required to pay $75 per officer per year into “Civil Legal Defense Funds” for each police union, which amounts to more than $2.5 million annually. The Funds continue to exist to this day.

Use of such Funds is supposed to be limited solely to defense of civil lawsuits. However, since the unions’ finances are not subject to audit by the City, there is no way of knowing whether the unions adhere to this requirement. The Funds might be diverted to other uses such as the unions’ civil lawsuits against the City over disputed policies, or even the defense of officers charged with crimes. In past years some New York City union leaders and some union lawyers have been criminally convicted for various misuses of union funds.

But even if the monies are used solely for the defense of officers in civil lawsuits where the Law Department has declined representation, that use is unwarranted. Millions of taxpayer dollars are spent defending police officers who are being sued over off-duty misbehavior in personal altercations having nothing whatsoever to do with their work as officers, or over on-duty misbehavior so aggravated that the NYPD itself has brought charges against them. Such Civil Legal Defense Funds are a gross misuse of public monies and should be eliminated.

THE CITY COMPTROLLER MUST BE PROACTIVE

Although the Law Department, the District Attorneys, the City Council, the Department of Investigation, and the CCRB are all enablers of the NYPD, the City Comptroller’s office also has for many years abdicated its responsibility to rein in police misconduct.

The Comptroller is in a unique position to force change. City Charter § 394 (c) provides that the Law Department cannot settle any case, including police misconduct cases in both the state and federal courts, “without the previous approval of the comptroller.”⁸⁵ And nothing in the Charter precludes the Comptroller from attaching conditions—such as requiring the NYPD to take disciplinary action against the defendant officers—before such approval is granted.

Additionally, City Charter § 93(i) accords the Comptroller broad power to settle claims against the City unilaterally without Law Department approval—both before claims ripen into lawsuits and even after lawsuits are filed.⁸⁶ If the Comptroller believes that the Law Department is being too litigious in cases that have merit, the Comptroller has the power to intervene and settle those cases. Again, nothing in the Charter prevents the Comptroller from attaching preconditions to such action.

Accordingly, the Comptroller has significant leverage to force the NYPD to take meaningful action against police officers who abuse their powers.

When Elizabeth Holtzman was Comptroller in the early 1990s, she attempted to couple Comptroller approval of settlements with commitments from the NYPD to punish such officers who had cost the City substantial sums because of their misbehavior. The Law Department and the NYPD in the Dinkins Administration fiercely resisted her efforts, and subsequent Comptrollers have not dared to pursue such measures. Comptrollers Hevesi, Liu, and now Stringer all grumble from time to time about the huge cost to the taxpayers of police misconduct, but they have consistently failed to do anything about it even though they have the power to do so.

In 2019 two victims of gross misconduct by a notoriously violent “Anti-Crime Unit” sergeant-detective decided to settle with the Comptroller’s office rather than spend years fighting a lawsuit. But they asked the Comptroller’s office to accompany the settlement with a public request by Comptroller Stringer that the NYPD take action against the detective. Their request was flatly denied; Stringer’s second-highest settlement official stated that, “We don’t do that.”⁸⁷ The detective in question, Sgt. David Grieco, also known as “Bullethead,” had amassed seventeen lawsuits costing the City more than $500,000 with more than a dozen other lawsuits against him pending—a record far worse than that of the officer who killed George Floyd in Minneapolis. (The CCRB later substantiated the claimants’ allegations in part but merely recommended “instructions”—the lowest level of punishment, and did not even address the detective’s misconduct in detaining the claimants for 18 hours over possession of four marijuana cigarettes in violation of a state statute (Criminal Procedure Law Sec. 150.75) requiring that they be “promptly” released on a desk appearance ticket. The NYPD recently disbanded Grieco’s Anti-Crime Unit due to a “disproportionate percentage of complaints and shootings,” but the unit’s officers will merely be re-assigned rather than disciplined.⁸⁸

Sometimes the Comptroller’s staff has actually acted in a counter-productive manner that adds to the frustration of victims of police misconduct. Occasionally a Law Department lawyer will recognize that a particular officer has behaved very badly and will propose a reasonable settlement, only to find that a bureaucrat in the Comptroller’s office determined to lower costs has refused to approve the settlement. This happens less frequently these days since the Law Department has declared war on police misconduct plaintiffs for bringing “frivolous” lawsuits, but it does happen. Forcing legitimate victims of false arrests or brutality either to accept tiny settlements that would barely cover a month’s living expenses, or else endure many years of litigation in which the City aggressively defends bad officers, is extremely harmful to police-community relations.

MAKE PUBLIC THE RECORD OF ALL NYPD DISCIPLINARY INVESTIGATIONS AND PROCEEDINGS

Recently, the NYS Legislature finally repealed Civil Rights Law §50-a, after years of inaction—even in the otherwise productive 2019 session when the Democrats finally took control of the State Senate. It is instructive to review just why it took so long to get the statute repealed, because the reasons are indicative of the historic failure of city and state officials to do anything meaningful about police misconduct. As one State Senator observed during the repeal debate, “This is no time for rejoicing. This bill has been around for over a decade . . . And the only reason why we’re bringing it to the floor now because the nation is burning."⁸⁹

The independent panel appointed by the police commissioner to review NYPD discipline, headed by former S.D.N.Y. U.S. Attorney Mary Jo White, did not go nearly far enough in its recommendations regarding the transparency of NYPD disciplinary proceedings. It recommended that the State Legislature amend Civil Rights Law § 50-a to permit disclosure of substantiated final determinations, but failed to recommend disclosure of cases in which the NYPD has marked disciplinary charges “unsubstantiated.”⁹⁰ Yet even that limited proposal was killed in the 2019 session.

Given the numerous other infirmities in the NYPD’s disciplinary system recognized elsewhere in the panel’s report, this conclusion made no sense. It is hard enough to get the NYPD to bring charges and specifications against an officer in the first place. If the case is strong enough to merit the filing of charges and specifications, the public has a right to know about it.

In my career I have had access to numerous confidential NYPD documents. The grounds on which some meritorious complaints have been swept aside are downright ludicrous and would never survive scrutiny in the court of public opinion. That’s precisely why the PBA and the NYPD would like to keep such documents secret.

§ 50-a was never intended to be the monster it became. As the panel recognized, “[t]he historical impetus for § 50-a was narrow: it was designed to prevent defense attorneys in criminal cases from impeaching the testimony of officers . . .”⁹¹ The measure’s main sponsor when it was enacted in 1976, the late State Senator Frank Padavan, even admitted that “it was never meant to prevent the disclosure of police misconduct.”⁹² The statute wasn’t even necessary, because state criminal trial judges have broad discretion to preclude the use of officers’ disciplinary records and other controversial evidence where the probative value of the material is outweighed by the potential for undue prejudice, delay, and confusion.⁹³

Nonetheless, at the urging of local governments and police unions, the state courts expanded § 50-a well beyond its original purpose.⁹⁴ Worse yet, the De Blasio administration allowed the NYPD and the Law Department to take an even more expansive view of § 50-a, imposing even more secrecy than the Giuliani and Bloomberg Administrations had allowed and encouraging the courts to do likewise.

The turning point arose in the notorious case of the 2014 death of Eric Garner on Staten Island. The identity of the officer at issue, PO Pantaleo, was already widely known and release of his highly flawed disciplinary record would hardly have led to any greater notoriety than he already had. A Manhattan State Supreme Court Justice exercised her discretion under § 50-a, in a well-reasoned opinion, to release the officer’s disciplinary record to the Legal Aid Society. De Blasio could have ordered the Law Department not to appeal, just as he ordered it to withdraw its appeal of the federal district court decision invalidating the Bloomberg Administration’s stop-and-frisk policies. Instead, the Law Department’s hard-liners were allowed to appeal, and they persuaded the Appellate Division to reverse.⁹⁵ Meanwhile, the NYPD chose to end its decades-old policy of posting Personal Orders reflecting the results of disciplinary proceedings.

The Mary Jo White panel recognized that “there is a legitimate public interest in knowing that an allegation could not be substantiated.” It also pointed out that, in the forty years that the NYPD regularly posted Personnel Orders for inspection before the relatively recent determination of the De Blasio Administration to reverse that policy, “there was no evidence that any officer was harassed as a result of a posting.” It also noted that in Chicago, despite the posting of approximately 240,000 police records online in a publicly searchable database, “no increase in threats against officers or their families has been reported.”⁹⁶ Yet it endorsed the NYPD’s determination to keep secret even the results, let alone the records, of all pending and “unsubstantiated” disciplinary cases.

When police officers investigate past wrongdoing by a civilian suspected of a new offense, they hardly limit their inquiry to charges for which the suspect was convicted. They look to arrests and the charges filed in those arrests. This is perfectly understandable. The investigators recognize that, given the infirmities of the justice system, past arrests and charges may well be indicative of misconduct and should factor into the investigators’ assessment. In short, as the saying goes, “where there’s smoke, there’s fire.”

Yet that same understandable precept of investigative thoroughness was hypocritically swept aside whenever the shoe was on the other foot and an officer was suspected of misconduct. In that instance, (i) as yet unresolved civilian complaints, (ii) disciplinary charges, (iii) internal determinations by the CCRB, the Internal Affairs Bureau, or the NYPD’s prosecutors (the Office of the Department Advocate), or (iv) trial room commissioner’s reports declaring charges “unsubstantiated,” were considered so sacred that the public must never even get to know about them.

Many allegations of police officer misconduct result in civil lawsuits, and the records of those lawsuits generally are not sealed even if the plaintiff fails to meet the burden of proving wrongdoing by a preponderance of the evidence. The charges, i.e., the allegations of the complaint that initiate the lawsuits, are in the public record. The transcripts of officers’ depositions are rarely sealed, and, if there is a trial, the transcript of that proceeding is publicly available. So are judicial opinions in which the charges and the evidence against the officer, including their disciplinary records, are frequently discussed in detail—despite ardent efforts by the Law Department to have all court filings about such records kept under seal.⁹⁷ So are the results—whether or not the defendant officers are found to be liable. No one has seriously suggested that this openness of our civil justice system has placed officers in danger. Why should the NYPD disciplinary system have been any different?

At the very moment that the Legislature was hurtling towards adjournment in 2019 without repealing 50-a and without even giving the repeal bill a hearing, a Brooklyn United States District Judge excoriated the NYPD for covering up numerous allegations of misconduct by an officer. In Jenkins v. City of New York, Senior District Judge Raymond J. Dearie reviewed the career of NYPD Detective Orlen Zambrano, who had accumulated thirty “unsubstantiated” complaints (and eight settled lawsuits). Judge Dearie, a 33-year veteran of the federal bench appointed by President Reagan, concluded as follows:

The investigations in these cases, fairly characterized, were at best modest and no genuine fact-finding occurred. Of the 30 complaints filed against Zambrano, many alleging conduct strikingly similar to the claims alleged yet again in this litigation [excessive force], it appears that not a single complaint was ever credited. The record further reveals that investigators routinely forgo any classic fact finding, even where there is clear corroborating evidence, preferring instead to affix the unsubstantiated label once the accused officer denies the conduct in question. The clear, unmistakable impression is that if there is no irrefutable corroborating evidence, the matter is conveniently labeled “unsubstantiated,” which, as a practical matter, the City equates with exonerated. Apparently, unless an officer is caught red-handed or his conduct is undeniable for whatever reason, the NYPD and the City simply chose to regard the allegation as a non-event having no factual or legal evidentiary significance in terms of supervisory responsibility or legal analysis, no matter the frequency or similarity in the complaints.⁹⁸

In Jenkins, the NYPD’s most egregious enabler, the Law Department’s Special Federal Litigation Division, seriously argued that Judge Dearie should simply ignore the defendant’s officer’s abominable record. The Court vigorously disagreed:

The City takes great comfort from the fact that the overwhelming percentage of complaints against Zambrano were found to be unsubstantiated. It suggests that unsubstantiated means exonerated and that the number of complaints, no matter how many, has no probative force and is of no concern. The City maintains this position despite evidence of a demonstrably flawed system that is supported by plainly inadequate investigations that are in most instances effectively stymied by an officer’s simple denials. The NYPD knows how to investigate when they choose to do so. Given the evidence before the Court, a reasonable fact-finder could conclude that in Zambrano’s case, the City chose not to conduct an investigation or meaningfully monitor his performance but instead chose to disregard a problem officer and invite his continued abuse.⁹⁹

One would think that, in a 2019 NYS legislative session marked by numerous reform measures in areas as diverse as rent control, bail reform, and discovery by the defense in criminal cases, the repeal of § 50-a to shed sunlight on as yet unresolved or “unsubstantiated” complaints would have been a foregone conclusion. Yet the measure never made it out of committee and was never even the subject of a committee hearing. An editorial by the New York Daily News (June 4, 2019) and a lengthy, compelling editorial in the New York Times the following week (June 13, 2019) fell on deaf ears.

According to an article in The Chief Leader, the principal reason for the New York State Legislature’s inaction in 2019 on such a simple measure with overwhelming support was fierce lobbying by the Police Benevolent Association (PBA).¹⁰⁰ But the article also reflected complaints from legislative sponsors that former Police Commissioner O’Neill, who endorsed at least the panel’s limited reform proposal as soon as it was issued,¹⁰¹ did not approach any of them and offered no support whatsoever. O’Neill’s successor, former Chief of Detectives Dermot Shea, has been no better, and a Daily News editorial similarly complained that Mayor de Blasio—the politician who was elected in 2013 on the promise of police transparency and reform—had given only lip service in support.¹⁰²

The PBA can be excused for standing up for its members like any labor union. But the willingness of public officials who know better to cave in to the PBA’s lobbying was simply outrageous. The PBA is a relatively small union that no longer has any significant electoral power in New York City (except perhaps in the middle and south shore of Staten Island) and its clout in the nearby suburban counties such as Westchester and Nassau has dwindled due to changing demographics. Its only power is the power to make noise—turning backs on the Mayor at a funeral and yelling that he had “blood on his hands” or picketing an arbitrator who had ruled against a pay increase or demanding that the Governor remove the Mayor and Police Commissioner after the officer who choked Garner to death was finally fired¹⁰³—and these shenanigans are typically staged with the sort of street-swagger that many officers think is needed to assert their authority and domination on patrol. But that showmanship does not translate into votes. For example, the PBA vigorously opposed the November 2019 Charter revisions concerning the CCRB, arguing that giving the CCRB even limited additional power “will leave the city even less safe.”¹⁰⁴ Yet the revisions passed overwhelmingly with nearly 75% of the vote.

The Sergeants Benevolent Association (SBA) is even worse, spouting vitriolic attacks on Mayor de Blasio and even illegally posting his daughter’s personal information online when she was arrested recently for allegedly participating in an unlawful demonstration, claiming that she had been throwing objects when the actual charge made no such accusation. The head of the SBA had previously stated that “the members of the N.Y.P.D. are declaring war” on the mayor, proclaiming that “you sold the N.Y.P.D. to the vile creatures, the 1 percent who hate cops but vote for you.”¹⁰⁵

The cowardice of politicians who let themselves be intimidated by virulent PBA and SBA tactics is unforgivable.¹⁰⁶

Secrecy in the police disciplinary process has only enhanced the poisonous suspicion of the police that is pervasive in the City’s African American and Latino communities. The Assembly Speaker (Carl Heastie of the Bronx) and Senate Majority Leader (Andrea Stewart-Cousins of Yonkers-New Rochelle in lower Westchester) are both African Americans who must answer to those communities. They should have known better than to cave in to the bullying behavior of the PBA. The Times 2019 editorial noted that, of the fifty states, only New York and Delaware had such restrictive laws imposing blanket secrecy on police disciplinary records. Yet the bill never saw the light of day. It took the murder of George Floyd and massive demonstrations to finally scare the legislators into doing what they should have done long ago and especially in 2019, when they had finally achieved majorities in both houses of the legislature for the first time since the 1960s.

The PBA opposed the very creation of the current Civilian Complaint Review Board at a raucous City Hall rally in 1992, blocking the Brooklyn Bridge amidst racist slogans and placards depicting Mayor Dinkins as a drug dealer and a washroom attendant. There were very few arrests (as opposed to the police response to protests during the 2004 Republican convention in New York City—many of which involved no such civil disobedience—resulting in numerous false arrest lawsuits eventually costing the City $18 million in settlements) and minimal disciplinary response by the NYPD leadership.¹⁰⁷ But Mayor Dinkins stood up to the PBA and persuaded the City Council to pass the measure. There was similar opposition to the creation of an Inspector General for the NYPD in 2013, with Mayor Bloomberg, Commissioner Kelly, and the PBA all loudly proclaiming that the measure was a threat to public safety and would guarantee an increase in crime. But the Council stood its ground.¹⁰⁸

Unfortunately, such political courage is not a frequent occurrence among New York politicians. One would hope that the current political climate may bring about meaningful change, but there is always the risk that as demonstrations die down and memories fade the politicians will once again give in to the NYPD, its numerous enablers within city government, and the police unions.

Ironically, the NYPD ignored § 50-a whenever it served its purposes to do so. For example, the 2019 recommendation of the hearing officer in the Garner case that Pantaleo be fired was provided to the media, and subsequently the details of that report, including a finding that Pantaleo had lied to investigators (itself a basis for dismissal under PG 203-08), were also publicized. By contrast, three years earlier the Law Department had tried to limit public outcry over the Garner death by litigating to keep Pantaleo’s unsavory CCRB record secret on the basis of § 50-a, and when a CCRB employee leaked that record he was immediately fired. The Law Department also prohibited the CCRB from appealing a lower court ruling wrongfully denying the CCRB’s request to review the minutes of Pantaleo’s testimony before a Staten Island Grand Jury. (Law enforcement agencies such as the CCRB are entitled to review grand jury minutes to aid in their investigations.) The decision later took on added importance because the NYPD trial commissioner subsequently branded Pantaleo a liar and if he also lied to the Grand Jury a perjury indictment was a distinct possibility.¹⁰⁹ And such mendacity might have tipped the scales in favor of a civil rights prosecution by the Brooklyn federal prosecutors. Yet by 2019 the NYPD was feeling such political heat that it disclosed the hearing officer’s recommendation and then the text of her report finding that Pantaleo had lied—and no one said a word about § 50-a.

The fact that both the CCRB and the Inspector General’s Office have woefully under-performed, as demonstrated above, illustrates that even reforms implemented despite vehement opposition can still be marginalized in practice. More than 25 years after its creation, the CCRB is still a weak agency whose recommendations are largely ignored by the NYPD’s disciplinary apparatus. The Inspector General’s reports have either been squelched or ignored by the NYPD.

Accordingly, the repeal of § 50-a is not a panacea by any means. But anything that sheds additional sunlight on the NYPD’s corrupt disciplinary mechanisms will be helpful. Court decisions such as Judge Dearie’s Jenkins opinion are infrequent, and they only come about when plaintiffs’ lawyers obtain disciplinary records in discovery in lawsuits. But investigative journalists are plentiful in New York City and the repeal of § 50-a opens the door to greater public awareness. And such openness might even force the NYPD occasionally to fire a miscreant officer who repeatedly abuses the public—not necessarily because the NYPD truly believes that termination is deserved, which is rare, but simply to quell the public outcry that would not have occurred were § 50-a still in effect.

On the other hand, the police unions can be expected to fight vigorously against every effort by journalists to obtain police disciplinary records, citing privacy exceptions to the state’s Freedom of Information Law (FOIL), Public Officers Law Secs. 87 (2) (b), 89 (2) (b), and 96 (1) (c). Former Commissioner O’Neill once advocated amending the Public Officers Law to require all police, corrections, and firefighter/paramedic administrative agencies to place the results of all substantiated disciplinary cases online without the necessity of a FOIL request, and declare that such records are not exempt from FOIL.¹¹⁰ Such an amendment, expanded to include all pending and “unsubstantiated” disciplinary charges, may well be necessary to prevent the unions from mounting a rear-guard effort to circumvent the § 50-a repeal. The unions will undoubtedly demand that (i) the NYPD and CCRB not disclose any officer’s disciplinary records absent a formal FOIL request and (ii) the NYPD and the CCRB reject every FOIL request for an officer’s disciplinary records under the privacy exceptions to the FOIL statutory scheme. Although the legislative intent in repealing § 50-a was crystal clear—to have such records made public—the unions will agitate and litigate to the bitter end to delay and derail disclosure. And the Law Department may well continue its long-standing practice of demanding protective orders precluding public disclosure of disciplinary records produced in discovery in civil rights cases.¹¹¹

It should not have taken so long for the State Legislature to repeal Civil Rights Law § 50-a in its entirety. Police officers have more power over the citizenry than any other City employees: they carry firearms, batons, pepper spray, and handcuffs, and on their say alone an individual can lose his or her physical liberty for at least twenty-four to forty-eight hours and be dragged through the horrific squalid conditions of Central Booking—and if they lie convincingly to the prosecutors they can subject the arrested individual to a nightmare of repeated Criminal Court appearances until the case is finally dismissed. That enormous power must be counterbalanced by a truly objective and transparent disciplinary system. Despite their awesome powers, police officers historically have been accorded far more stringent protections against public knowledge of their misdeeds than virtually all other government employees. That is totally irrational. Secrecy in the NYPD disciplinary process necessarily arouses suspicions and distrust of the police and harms police-community relations. Such widespread secrecy must end.

CONCLUSION

The fabled Blue Wall of Silence is much more than a national code of honor amongst police officers and their unions. It has been institutionalized by police departments throughout the United States. In New York City, this has been accomplished not only by the NYPD itself, but also by the complicit behavior of numerous governmental enablers: the NYC Law Department, the CCRB, the District Attorneys, the NYC Comptroller’s Office, and the NYC Department of Investigation—and with inaction or ineffective cosmetic action by the City Council, the State Legislature, and a long succession of Mayors and Governors. Unless these enablers change their policies and engage in a concerted effort to force meaningful and long-overdue reform, the institutional Blue Wall of Silence will live on for many years to come.

55 New Eng. L. Rev. 1 (2020)

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¹ Lynch v. Giuliani, 301 A.D.2d 351, 356–57 (N.Y. App. Div., 1st Dept., 2003).
² Public Oversight of Police Misconduct, Citizens Union of the City of New York 4 (May 2008), https://perma.cc/KQL4-QY3E [hereinafter Citizens Union].
³ N.Y.C., N.Y., Charter § 1049(a) (2020).
⁴ See Christian Covington, Who’s Afraid of Police Transparency? History Says There’s Little to Fear, City Limits (Nov. 21, 2019), https://perma.cc/Y25P-W4P9.
⁵ Claims Report: Fiscal Year 2017, Off. of the N.Y.C. Comptroller (Feb. 2018), https://perma.cc/R55V-B5CU. According to one of the NYC Comptroller’s most recent Claims Reports, police action claims (false arrest, excessive force) nearly doubled between 2008–2014, from just under 3,000 to nearly 6,000. There has been a modest decrease in recent years due to the decline in stop-and-frisks, but police action claims still account for the highest payout—nearly 25% of all payouts in Fiscal Year 2017 and a 59% increase over Fiscal Year 2016. The Police Department remains by far the City agency sued the most—more often than any other City agency. It is sued far more often than the Department of Transportation ("slip and fall" tort actions) or the Department of Correction (beatings and slashings in the City’s jails) or the Health and Hospitals Corporation (medical malpractice).
⁶ See Benjamin Mueller, Low Ebb for Relations Between Police and Civilian Oversight Board, N.Y. Times, Apr. 13, 2018, at A23.
⁷ See James v. City of New York, 1998 WL 677583 (S.D.N.Y. 1998) (the undersigned represented the plaintiff in the James case).
⁸ Benjamin Weiser, To Curb Suits, City Now Opts to Fight Them, N.Y. Times (Feb. 25, 2013), https://perma.cc/Y5WL-UXVK.
⁹ Jocks v. Tavernier, 97 F. Supp. 2d 303, 310–11 (E.D.N.Y. 2000). The attorney in question was rebuked by Judge Platt in the U.S. District Court for the Eastern District of New York in this case. The Judge stated that during the Jocks trial, his rebukes of Attorney Miller “were necessary to maintain order and control over the proceedings. A few of Miller’s habits included repeatedly arguing matters which were previously ruled upon, refusing to allow other attorneys to speak, although they patiently waited for her to finish, and once other attorneys managed to gain the floor, Miller would continually interject and speak over the other attorneys.” Judge Platt also accused Miller of being “disingenuous at best” for lying to the Court, “claiming ignorance” of the need to produce a NYPD witness whose production the plaintiff had repeatedly requested, including in writing. Judge Platt further stated that “Ms. Miller should be grateful that the parties did not seek personal sanctions against her and that the Court only imposes mild sanctions against the City.” Judge Platt also cited as further support for his statements an affirmation of the plaintiff’s attorney, stating, “This attorney, Patricia Miller, was without a doubt one of the most discourteous and obnoxious attorneys I have ever had the misfortune of trying a case against. The lack of respect for the Court that she demonstrated time and time again was tantamount to disdain.” He further stated that Miller “attempted to provoke the Court by trying to speak over the Court,” and by “repeatedly arguing with the Court regarding matters which were previously ruled upon.” He added that her “trial strategy was to provoke the Court in such a manner that the Court was forced to bluntly order counsel to cease and desist, so that Corporation Counsel could later claim that the Court should recuse itself.” (Jocks was reversed on appeal on grounds totally unrelated to the Judge’s comments about Miller’s misconduct in his courtroom. See Jocks v. Tavernier, 316 F.3d 128 (2d Cir. 2003)).
¹⁰ See Joel Berger, The Feds Should’ve Started Monitoring the NYPD Long Ago, N.Y. Daily News, (June 24, 2020), https://perma.cc/V424-PEGC.
¹¹ See Martinez v. City of New York, 2018 WL 604019 (E.D.N.Y. 2018) (affirming monetary sanctions); Martinez v. City of New York, 2018 WL 1835935 (E.D.N.Y 2018) (Judge Donnelly imposing sanctions and fees); Martinez v. City of New York, 330 F.R.D. 60, 89 (E.D.N.Y. 2019). Judge Donnelly asked the parties to resolve the amount of sanctions and fees among themselves, but the City balked at paying for anything remotely close to the hours that had to be expended by plaintiff’s counsel to combat the City’s misbehavior. Magistrate Judge Pollak had to step in and decide the issue, ordering payment of approximately 80% of the sums sought by plaintiff’s attorneys, and the parties eventually settled the issue. (16 CV 79, Dkt. Doc. 176). The case on the merits is still pending.
¹² Brown v. City of New York, 2018 WL 3193208 (E.D.N.Y. 2018) (Judge Matsumoto, affirming Magistrate Judge Reyes’ order in 15 CV 4488 (Dkt. Doc. 58, E.D.N.Y.)).
¹³ Alan Feuer, The Lawyers Protecting the N.Y.P.D. Play Hardball. Judges Are Calling Them Out., N.Y. Times (Sept. 12, 2018), https://perma.cc/UX6Z-M7GX.
¹⁴ S. and E. Dist. of N.Y. Local Ct. R. 37.3(b); see also Pettiford v. City of New York, No. 17 CV 5273, 2018 U.S. Dist. LEXIS 82612 (E.D.N.Y. May 15, 2018).
¹⁵ See Pettiford, 2018 U.S. Dist. LEXIS (Dkt. No. 48, 52, 67, 95, 112 and Order Re. 112, 114, 116, 117, 118, and 122).
¹⁶ See Pl.’s Mot. for Sanctions 1–30, Jun. 13, 2019, No. 1:15-cv-04091-PKC-GWG, Doc. 235, https://perma.cc/2848-3EMH; see also Stephen Rex Brown, NYC Settles Suit over Asthmatic Bronx Man Who Died in NYPD Custody for $2.6M, N.Y. Daily News (Feb. 3, 2020, 12:01 AM), https://perma.cc/SYV5-WZLN (settling the case for $2.55 million, the N.Y.C. Law Department thereby short-circuited “an ongoing fight about whether the city misled the court about evidence in the case”); Stephen Rex Brown, Judge Slams City Lawyers, NYPD for Misleading Info on Bronx Man Who Died of Asthma Attack While in Police Custody, N.Y. Daily News (Feb. 26, 2019, 6:00 AM), https://perma.cc/5G37-ZT3U.
¹⁷ DaCosta v. City of New York, 296 F. Supp.3d 569 (E.D.N.Y. 2017).
¹⁸ Id. at 604-05.
¹⁹ Id. at 605.
²⁰ Id. at 599-603.
²¹ Id. at 603.
²² Id. at 605.
²³ DaCosta v. Tranchina, 285 F. Supp. 3d 566, 579 (E.D.N.Y. 2018).
²⁴ Id. at 575; see also supra text accompanying note 9. DaCosta was subsequently dismissed in an unpublished summary order on grounds totally unrelated to Judge Weinstein’s comments about the Law Department’s unethical behavior, the Second Circuit holding that there was arguable probable cause for Detective Tranchina to have arrested the plaintiff. DaCosta v. Tranchina, 783 F. App’x. 54, 55 (2d Cir. 2019) (citing Martinez v. City of New York, in which the City’s lawyers similarly failed to identify a key witness).
²⁵ See Raymond v. City of New York, No. 15 CV 6885, slip op. at 27–33 (S.D.N.Y. Mar. 5, 2020).
²⁶ Id. at 43.
²⁷ N.Y.C., N.Y., Charter § 394(c) (2020).
²⁸ See generally DaCosta v. City of New York, 296 F. Supp. 3d 569, 600–03 (E.D.N.Y. 2017).
²⁹ The Department’s ethos of independence actually began crumbling under Mayor Dinkins, whose first Corporation Counsel, Victor Kovner, was a close political associate. During his administration the Law Department defended (unsuccessfully) the City’s refusal to enforce a court order requiring African American protesters to remain fifty feet from the entrance of a Korean grocery they were boycotting, on the absurd argument that the NYPD was not a party to the litigation. See Boung Jae Jang v. Brown, 161 A.D.2d 49, 53 (N.Y. App. Div. 1990). The politicization of the Law Department continued to escalate under Mayor Giuliani, in cases such as the effort to de-fund the Brooklyn Museum over a work of art Giuliani found offensive. See generally Brooklyn Inst. of Arts & Scis. v. Rudolph W. Giuliani, 64 F. Supp. 2d 184, 189 (E.D.N.Y. 1999). Mayor Bloomberg’s Corporate Counsel Cardozo heartlessly tried to straight-arm victims of a disastrous Staten Island ferry crash that killed eleven people and injured seventy others, some very seriously, by using an antiquated nineteenth century admiralty statute that limited damages to the worth of the vessel; the tactic was rejected by the federal judiciary. See In re City of New York, 475 F. Supp. 2d 235 (E.D.N.Y. 2007), aff’d, 522 F.3d 279 (2d Cir. 2008). Cardozo also defended the stop-and-frisk campaign of former Mayor Bloomberg and former Police Commissioner Kelley to the hilt, even though it was obviously illegal under Terry v. Ohio, 392 U.S. 1 (1968). See Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013). Bloomberg has since admitted that the policy was wrong and has apologized. Kelly, the architect and chief enforcer of stop-and-frisk, has said no such thing. Cardozo, a former President of the Association of the Bar who should have known better, has remained silent to date. As noted previously, Cardozo was criticized by Judge Weinstein in De Costa for taking the position that his only obligation is to government interests (i.e., in Floyd), and for simply doing the Mayor’s bidding instead of advising him of the obvious illegality of the reign of terror being inflicted upon young African American and Latino men by Kelly.
³⁰ The Special Federal Litigation Division’s blind defense of all wrongdoing also extends to cases concerning the misconduct of correction officers in the City’s jails. For example, where a detainee was horribly disfigured in a slashing by other inmates after the only officer on duty allegedly abandoned his post and left the maximum security cell block unguarded, the Division argued that the officer’s misconduct was “mere negligence” rather than deliberate indifference (the standard for federal jurisdiction), sought dismissal of the case from federal court, and refused to offer more than $15,000 in settlement. The Division even appealed a District Court ruling denying dismissal, and succeeded in winning reversal in a poorly-reasoned Second Circuit opinion that was unpublished and therefore has no precedential value. See generally Ross v. City of New York, 2014 U.S. Dist. LEXIS 107553 (S.D.N.Y. Aug. 4, 2014). The case wound up in Bronx Supreme Court, where after long delays a different Law Department office had to settle for $200,000 on the negligence issue. Index No. 304080 (Sup. Ct. Bronx Cty. Jan. 22, 2018). The Division’s stubborn approach actually cost the City thousands of dollars, as the plaintiff would have settled for far less to obtain a speedier result in federal court.
³¹ See N.Y.C. Charter Revision Commission, Final Report of the 2019 New York City Charter Revision Commission 65, NYC.Gov (Aug. 2, 2019), https://perma.cc/8UUH-8AG6 [hereinafter Charter Revision Comm’n].
³² Id. at 63.
³³ Id. at 65.
³⁴ The advise-and-consent Charter amendment took effect immediately, but in anticipation of its approval by the voters on November 5, 2019, the Mayor appointed Carter’s successor on October 31, 2019, thereby depriving the Council of the opportunity to question the new Corporation Counsel at a confirmation hearing.
³⁵ Law Department policy, dating back to at least 1985, requires that in a police misconduct case the Law Department’s principal obligation is to the City rather than the individual officers. That year, Corporation Counsel Frederick A.O. Schwartz, Jr. commissioned a study of the subject by former NYS Chief Judge Charles Breitel. Judge Breitel found no ethical problem in taking sides against a rogue officer—e.g., reporting the officer’s misconduct and any incriminating statements of the officer that had come to light during the Law Department’s representation of the officer—because all officers represented by the Law Department waive confidentiality in return for free representation and indemnification of any settlement or compensatory damages judgment against them.
³⁶ N.Y.C., N.Y., Admin. Code §14-115 (2020).
³⁷ Whitman Knapp et al., The Knapp Commission Report on Police Corruption 229 (1972).
³⁸ Mollen Commission Report, Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, N.Y.C. 143–44 (July 7, 1994) [hereinafter Mollen Commission Report].
³⁹ Citizens Union, supra note 2, at 7.
⁴⁰ N.Y.C. Int. 250-1994.
⁴¹ Benjamin Mueller, Police, at Odds with Oversight Board, Reject More of Its Penalties, N.Y. Times (Apr. 12, 2018), https://perma.cc/LK25-UQAJ.
⁴² Id.
⁴³ Mary Jo White, Robert L. Capers & Barbara S. Jones, The Report of the Independent Panel on the Disciplinary System of the New York City Police Department, Indep. Panel Rep. 54 (Jan. 25, 2019), https://perma.cc/RP7E-UGWV.
⁴⁴ Id. at 40, 54.
⁴⁵ Comm’n to Combat Police Corruption, Eighteenth Annual Report of the Commission, CCPC 171-72 (Aug. 2017).
⁴⁶ Comm’n to Combat Police Corruption, The New York City Police Department’s Disciplinary System: How the Department Disciplines Its Members Who Make False Official Statements, CCPC 10 (Dec. 12, 1996), https://perma.cc/QB3F-EVTJ.
⁴⁷ Id. at 34.
⁴⁸ Id. at 39–40.
⁴⁹ Mollen Commission Report, supra note 38, at 36–43.
⁵⁰ Charter Revision Comm’n, supra note 31 at 54–55.
⁵¹ See generally N.Y. Penal Law § 175.35 (McKinney 2014).
⁵² People v. Kase, 76 A.D.2d 532, 538 (N.Y. App. Div. 1980), aff’d “for the reasons stated in the Per Curiam Opinion at the Appellate Division,” 53 N.Y.2d 989 (1981).
⁵³ See Joseph Goldstein, 'Testilying' by Police: A Stubborn Problem, N.Y. Times (Mar. 18, 2018), https://perma.cc/T8SL-3J5R; Joseph Goldstein, Promotions, Not Punishments, for Officers Accused of Lying, N.Y. Times (Mar. 19, 2018), https://perma.cc/GK8F-Q33U; Joseph Goldstein, Police Officer Is Charged with Lying About Finding a Gun, N.Y. Times (Mar. 27, 2018), https://perma.cc/MT6D-7AKC.
⁵⁴ See N.Y. Pub. Off. Law § 30(1)(e) (McKinney 2018).
⁵⁵ Kendall Taggart, The Former Top Official Overseeing the NYPD Inspector General Shelved a Report About Officers Who Lied, Buzzfeed News (Nov. 26, 2018, 11:28 AM ET), https://perma.cc/WET9-AXSB.
⁵⁶ Mollen Commission Report, supra note 38, at 42.
⁵⁷ See George Joseph, Exclusive: Brooklyn DA Releases Secret List of Cops They Don’t Trust, The Gothamist (Nov. 6, 2019, 6:00 PM), https://perma.cc/4QSB-FNT4; John Annese, Brooklyn Bad-Cop List: DA Names Officers with Credibility Woes, 7 Barred as Sole Witnesses, N.Y. Daily News (Nov. 7, 2019), https://perma.cc/4QHL-MK66.
⁵⁸ See generally John Annese & Graham Ryan, Manhattan Prosecutors Release List of Cops with “Adverse Credibility” Issues in Court Testimony, N.Y. Daily News (Dec. 13, 2019, 7:06 PM), https://perma.cc/T8VW-TCP2.
⁵⁹ Raymond W. Kelly, The Police Department’s Examination of the Circumstances Surrounding the Death of Ms. Alberta Spruill, Following Enforcement of a Search Warrant on May 16, 2003 at 310 W 143rd Street, Apartment 6F, in Manhattan, New York City Police Department: A Report to Michael R. Bloomberg (May 30, 2003).
⁶⁰ Id. at 12.
⁶¹ Id. at 9.
⁶² Id. at 8.
⁶³ Id. at 12, 20. Although Kelly’s Report represented a fervent mea culpa in the wake of a death that outraged the city, many observers were skeptical that the promised reforms would take hold and last—mostly because it appeared that Kelly would say almost anything to placate the criticism the NYPD was encountering. For example, the Report recommended that to verify an informant’s claims, the police could visit an apartment “on a fictitious radio run to determine if the apartment interior matched the description given by the confidential informant.” That statement was sheer nonsense, since if the apartment was really a drug-dealing location such a visit would tip off the drug dealers and they would move their operation elsewhere. Kelly did not repeat this recommendation in his City Council testimony five days later.
⁶⁴ N.Y.C. Council Comm. on Pub. Safety, Oversight: How Does the NYPD Obtain and Execute Search Warrants? Tr. No. T2003-1020, at 14, 105 (N.Y.C. 2003).
⁶⁵ Id. at 49.
⁶⁶ Id. at 11, 33-34.
⁶⁷ Id. at 10-11, 16-17.
⁶⁸ See, e.g., Robinson v. City of New York, 2018 WL 4344949 (E.D.N.Y. Sept. 11, 2018); Carlos v. City of New York, 04 CV 8826 (S.D.N.Y.); Gonzalez & Stroman v. City of New York, NYC Comptroller Claims 2018PI020328 & 329, CCRB Complaint 201901422 (Nov. 18, 2019).
⁶⁹ See McColley v. County of Rensselaer, 740 F.3d 817 (2d Cir. 2014).
⁷⁰ Id. at 823 (quoting Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993), which in turn quoted Golino v. City of New Haven, 950 F.2d 592, 604 (2d Cir. 1991)).
⁷¹ McColley, 740 F.3d at 823.
⁷² Id. at 824.
⁷³ Id. at 826 (emphasis in original).
⁷⁴ Id. at 832 (Calabresi, J., concurring).
⁷⁵ See Alston v. City of New York, Order Granting Pls.’ Mot. Compel, Dec. 3, 2019, No. 1:19-CV-03978 (ordering, over the City’s objection, production of the affidavit submitted by the police to the warrant-issuing magistrate); Order Granting Pls.’ First Mot. Amend/Correct/Supp., Feb. 6, 2020, No. 1:19-CV-03978 (rejecting the City’s claim that amending the complaint to incorporate the affidavit’s reckless omissions would be “futile” because the issuance of the warrant was per se grounds for dismissal); Order Pre-Mot. Conf., Mar. 6, 2020, No. 1:19-CV-03978 (advising the City at a pre-motion conference that its proposed motion to dismiss was itself futile and would be rejected under McColley, whereupon the City withdrew the proposed motion).
⁷⁶ The unit at issue in Alston, Brooklyn Narcotics South, has a long history of misconduct including stealing drugs during raids and trading drugs for sexual favors and information from drug addicts and prostitutes, and even planting drugs and pressuring arrestees to perform sex acts in order to win release from custody. See Larry McShane, Ex-NYPD Cops Dodge Jail Time for Sex with Suspect Inside Police Van in Plea Deal Despite Brooklyn DA’s Opposition, N.Y. Daily News (Aug. 29, 2019, 3:37 PM), https://perma.cc/26H5-VKSD; John Annese, Narcotics Unit Where Former Detectives Accused of Rape Worked is ‘out of Control’: Lawyer, N.Y. Daily News (June 4, 2018, 8:00 PM), https://perma.cc/KJ4P-BC7F; John Marzulli, Rocco Parascandola & Larry McShane, Cops Made Money by Fabricating Drug Charges Against Innocent People, Stephen Anderson Testifies, N.Y. Daily News (Oct. 14, 2011, 4:00 AM), https://perma.cc/QX73-SNEN; Trymaine Lee, Stephen Anderson, Ex NYPD Cop: We Planted Evidence, Framed Innocent People to Reach Quotas, Huffington Post (Oct. 13, 2011, 5:55 PM ET), https://perma.cc/Z57M-F6BT; Alison Gendar & William Sherman, Brooklyn Narcotics Cops Benched over Drug and Sex for Information Charges, N.Y. Daily News (Jan. 22, 2008, 2:17 AM), https://perma.cc/MXC5-Y778; Al Baker, Drugs-for-Information Scandal Shakes up New York Police Narcotics Force, N.Y. Times (Jan. 23, 2008), https://perma.cc/6MNF-BVF9 (describing four officers arrested, fifteen suspended or placed on desk duty, and several high-ranking supervisors transferred). It should come as no surprise that such a unit would cut corners in order to obtain a search warrant.
⁷⁷ Although the principal victims of military-style no-knock SWAT raids are African American and Latino, the raids have also become the subject of considerable concern for libertarian groups. See, e.g., Radley Balko & Joel Berger, Wrong Door: SWAT Raids Are out of Control, Wall St. J. (Sept. 2, 2006, 12:01 AM ET), https://perma.cc/LR3G-4RCA; see also Radley Balko, Rise of the Warrior Cop: The Militarization of America's Police Forces (2013).
⁷⁸ Papa v. City of New York, 194 A.D.2d 527, 532–33 (N.Y. App. Div. 1993).
⁷⁹ See generally, e.g., Gonzalez v. Bratton, 147 F. Supp. 2d 180 (S.D.N.Y. 2001) (In one case revealed by the Gyasi interrogatory responses, the Court required affidavits detailing the defendants’ “individual incomes, assets and liabilities. It did so because the City’s lawyers had expressly “represented to the Court [that] the City of New York does not authorize indemnification” for punitive damages. Yet the Gyasi interrogatory responses confessed that, even there—in direct contradiction of the representation of the City’s lawyers to Judge Marrero—the City had in fact indemnified the punitive damages awarded against three different officers, for a total of $110,000. In short, the City’s lawyers told Judge Marrero one thing and then did precisely the opposite. The intentional misleading of Judge Marrero was particularly reprehensible because the parties had agreed that if the jury found punitive damages to be appropriate the Court, rather than the jury, would determine the amount of the punitive damages awards against the miscreant officers).
⁸⁰ Gyasi v. City of New York, 05 CV 9453 (S.D.N.Y. 2006).
⁸¹ Johanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 983 (2014).
⁸² See Joel Berger, Punitive Damages Against Police Officers Do Not Punish Anyone – Except the Taxpayers, N.Y. L.J. (Mar. 11, 2019), https://perma.cc/W23K-MLJH (providing a more detailed treatment of the Law Department’s policy of indemnifying officers who have committed acts of misconduct so aggravated that the jury awards punitive damages, and its Herculean efforts to hide that policy from judges and juries alike).
⁸³ Lemma v. Nassau County Police Officer Indem. Bd., 31 N.Y.3d 523 (2018).
⁸⁴ N.Y. Gen. Mun. Law § 50-k (2) (Consol. 2020).
⁸⁵ N.Y.C., N.Y., Charter § 394(c) (2004).
⁸⁶ Id. § 93(i).
⁸⁷ Gonzalez & Stroman v. City of New York, NYC Comptroller Claims 2018PI020328 & 329, CCRB Complaint 201901422 (Nov. 18, 2019).
⁸⁸ Brittany Kreigstein, Graham Rayman & John Annese, NYPD to Disband Plainclothes Anti-Crime Units After ‘Disproportionate Percentage of Complaints and Shootings’, N.Y. Daily News (June 15, 2020), https://perma.cc/F5QT-VSYJ (noting that Grieco was one of the worst Anti-Crime Unit detectives); see also Rocco Parascandola, Much-Sued NYPD Sergeant Gets Slap on the Wrist After Abuse of Authority Claim Substantiated: Sources, N.Y. Daily News (Dec. 2, 2019), https://perma.cc/JB6P-DENU.
⁸⁹ Marina Villeneuve, Michael R. Sisak & Jim Mustain, New York Passes Bill to Unveil Police Discipline Records, Boston Herald (June 9, 2020), https://perma.cc/2FHE-7BP4 (explaining a statement from Brooklyn State Senator Kevin Parker on the Senate floor).
⁹⁰ See White, supra note 43, at 45.
⁹¹ White, supra note 43, at 17.
⁹² Chokeholds and Police Abuse, Kept From the Public, N.Y. Times (June 12, 2019), https://perma.cc/G2T3-3DKG
⁹³ E.g., People v. Powell, 27 N.Y. 3d 523, 526 (N.Y. 2016); People v. Cass, 18 N.Y.3d 553, 555–56 (2012); People v. Primo, 96 N.Y.2d 351, 355 (2001). The rule has been used by both sides in criminal cases, on issues such as defense requests for admission of evidence of third-party culpability or prosecution requests for admission of defendants’ prior criminal convictions or prior bad acts. Prior bad acts by officers alleged in civil lawsuits can be used on cross-examination to challenge credibility (People v. Smith, 27 N.Y. 3d 652, 661–62, (2016)). But thanks to § 50-a, defense counsel was barred from ever knowing about an officer’s disciplinary record and had no opportunity to ask the court to exercise its discretion in favor of admissibility.
⁹⁴ See Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145, 153–54 (1999).
⁹⁵ Luongo v. Records Access Appeals Officer, 49 Misc. 3d 708 (N.Y. Sup. Ct., 2015), rev’d, 150 A.D.3d 13 (N.Y. App. Div., 1st Dept., 2017), appeal denied, 30 N.Y.3d 908 (2017).
⁹⁶ White, supra note 43, at 46.
⁹⁷ See J. David Goodman, De Blasio Faces Mounting Pressure on Matters of Transparency, N.Y. Times (Sept. 9, 2016), https://perma.cc/T597-Z4A4 (“In federal court, city lawyers have gone so far as to request that an attorney’s letters [to the Court] be sealed or redacted, even after settling of a case, if there was even the briefest mention of an officer’s disciplinary history.”). These efforts are frequently unsuccessful, with cases holding that materials submitted to a court are judicial documents presumed to be available to the public under both common law and the First Amendment. See, e.g., Raffaele v. City of New York, No. 13-CV-4607, 2014 WL 2573464, at 1 (E.D.N.Y. 2014); Richt v. City of New York, 1:14-CV-1977-PKC-VMS (E.D.N.Y. Dec. 9, 2014). The Law Department nonetheless fights vigorously against discovery requests for defendant officers’ disciplinary records, and even if motions to compel discovery of those records are granted the records thus far have rarely been made public. In the past, plaintiffs’ lawyers have been required to agree to a Protective Order rendering all disciplinary records obtained in discovery confidential and, despite cases such as Raffaele and Richt denying motions for filing under seal, the Law Department has threatened plaintiffs’ lawyers with contempt or sanctions if they publicly file anything referencing an officer’s disciplinary record in violation of the Protective Order. That may change in light of the repeal of 50-a—but it may not change, given the Law Department’s history of protecting even the worst police officers with its strenuous defense of every civil rights action.
⁹⁸ Jenkins v. City of New York, 388 F. Supp. 3d 179, 188 (E.D.N.Y. 2019).
⁹⁹ Id. at 193.
¹⁰⁰ See Richard Khavkine, Expect No Changes to New York State Law Shielding Cops’ Disciplinary Records: PBA Opposition Likely to Keep Bill Bottled up as Legislative Session Ends, The Chief Leader (June 14, 2019), https://perma.cc/S3F5-BJ5V.
¹⁰¹ James O’Neill, Let NYC See Police Records, Now: We Must Reform State Law Keeping Disciplinary Actions Secret, N.Y. Times (Feb. 7, 2019, 7:10 PM), https://perma.cc/UR4A-29E4.
¹⁰² See also J. David Goodman & Ashley Southall, For Third Time, Mayor Passes over a Black Chief to Run the N.Y.P.D., N.Y. Times (Nov. 5, 2019), https://perma.cc/U8AH-9G47 (explaining that De Blasio “has repeatedly opted for old-guard leaders for the police department,” and that approximately 80% of the NYPD’s most powerful leadership, those above the rank of captain, are Caucasian. As one critic of the Shea appointment bluntly stated in the article, “they have not experienced stop-and-frisk. Their children have not experienced stop-and-frisk.”); Jonathan Dienst, Gunman Who Allegedly Ambushed Cops Arraigned as Tension Between NYPD, Elected Officials Escalates, NBC N.Y. (Feb. 10, 2020, 10:53 PM), https://perma.cc/NYC5-BC53 (explaining that when a deranged individual attempted to kill police officers in February 2020 Shea promptly blamed the entire “Black Lives Matters” movement for inspiring such behavior, thereby echoing the raucous conduct of the police unions instead of recognizing that a police commissioner must be sensitive to protests from the African American and Latino communities). Just recently Shea was caught on video at a meeting of NYPD officials calling City Hall leaders "cowards" who "won't stand up for what's right" and "don't have a goddamn clue what they're talking about." He was particularly incensed at a measure passed by the City Council—and signed by the Mayor who appointed him—that prohibits police from sitting, kneeling or standing on someone’s chest or back in a way that could obstruct their breathing. He even called demonstrators pressing for police reform "the 1% fringe lunatics," echoing the absurd claim of the Sergeants Benevolent Association that the thousands of protestors in the streets of New York City are a “vile . . . one percent” minority. See infra note 105 (Rubinstein & Mays). Shea continues to mouth the inflammatory and intemperate language of the police union leaders rather than the more measured tone expected of a police commissioner during these troubled times. See Rocco Parascandola & Thomas Tracy, NYPD Commissioner Bashes City Leaders as ‘Cowards’ in Police Brass Meeting: ‘They Are Failing At Every Possible Measure to be Leaders’, N.Y. Daily News (July 18, 2020), https://perma.cc/C5BK-NKMY.
¹⁰³ Michael M. Grynbaum et al., In Police Rift, Mayor de Blasio’s Missteps Included Thinking It Would Pass, N.Y. Times (Jan. 11, 2015), https://perma.cc/56ZK-FBH2; Thomas Tracy, 1% Raise Is Official for Cops in Patrolmen’s Benevolent Association, N.Y. Daily News (Nov. 13, 2015), https://perma.cc/2FH6-3C9V; Ashley Southall, Daniel Pantaleo, Officer Who Held Eric Garner in Chokehold, Is Fired, N.Y. Times (Aug. 19, 2019), https://perma.cc/P234-PVFG.
¹⁰⁴ Thomas Tracy, Police Union Balks at Charter Commission Proposal to Expand CCRB’s Powers, N.Y. Daily News (Oct. 27, 2019), https://perma.cc/NE53-ZZ4B.
¹⁰⁵ Dana Rubinstein & Jeffery C. Mays, Police Union Discloses Arrest of de Blasio’s Daughter in Privacy Breach, N.Y. Times (June 1, 2020), https://perma.cc/Z47K-RZZF; see also The N.Y.P.D. Has Rejected Reform for Decades. It Can’t Anymore., N.Y. Times (July 13, 2020), https://perma.cc/DFW7-P6EV (noting that the episode illustrates the degree to which the city’s police unions and their members feel “insulated . . . from oversight”).
¹⁰⁶ The “in-your-face” behavior of police union leaders often is mirrored even by high-level NYPD administrators who have worked their way up from patrol. During the Dinkins years, I and other Law Department executives were once berated at a meeting by the NYPD’s First Deputy Commissioner who bellowed that the Law Department “doesn’t stand up for the cops”—as if that were our only civic obligation. Other large City agencies such as the Board of Education or the Human Resources Administration were more likely to respond to criticism with passive resistance, promising to look into matters and then never following through. But rarely was there anything passive about the response of NYPD officials to criticism.
¹⁰⁷ See James C. McKinley Jr., Officers Rally and Dinkins Is Their Target, N.Y. Times (Sept. 17, 1992), https://perma.cc/969J-YUMD; Catherine S. Manegold, Rally Puts Police Under New Scrutiny, N.Y. Times (Sept. 27, 1992), https://perma.cc/2YRW-YMPS; Erin Durkin & Daniel Beekman, City Pays $18 Million to Settle Lawsuits Stemming from 2004 Republican National Convention at Madison Square Garden, N.Y. Daily News (Jan. 15, 2014), https://perma.cc/S6B6-NQMS.
¹⁰⁸ Rocco Parascandola, Ray Kelly to Mayoral Candidates (and Especially Christine Quinn): Don’t Create an NYPD Inspector General, N.Y. Daily News (Mar. 26, 2013), https://perma.cc/Z6WD-YPKT.
¹⁰⁹ See Richard Emery, A Chokehold, Lies and Videotape: How Daniel Pantaleo Lost His Job, but Still Beat the System, N.Y. Daily News (Aug. 19, 2019), https://perma.cc/U9PN-8XV6.
¹¹⁰ See O’Neill, supra note 101.
¹¹¹ See Goodman, supra note 97.