Nearly five years ago, Officer Daniel Pantaleo of the New York Police Department was charged with killing a 43-year-old man named Eric Garner. Since then, Pantaleo has managed to avoid criminal prosecution. For the past two weeks, he has been on administrative trial with the NYPD. The worst punishment he faces is the loss of his job and pension. That is the extent of the justice Garner’s family can expect.
The trial is also the only public accounting there will be for an episode of police violence that, thanks to its capture on video, rocked the country, fueled the Black Lives Matter movement, and helped trigger a national reevaluation of America’s relationship with policing. Yet reporters assigned to cover it, myself among them, have come up against a remarkable lack of transparency. There are no public transcripts or recordings of the proceedings, nor are any of the underlying documents—charges, motions, rulings, exhibits—publicly available. Journalists and members of the public are allowed into the courtroom at police headquarters while the trial takes place, but space is severely limited. Reporters who haven’t lined up hours beforehand, or who haven’t brought the right police-issued credentials, have found themselves shut out.
The arguments conclude next month, at which point Rosemarie Maldonado—the deputy police commissioner, who is acting as the judge in the trial—will make a recommendation about what discipline, if any, Pantaleo should face. That recommendation will be secret. James O’Neill, the police commissioner, will not be bound by her recommendation; he will make his own, final decision on Pantaleo’s fate. This decision, too, will be secret.
For national media and other reporters unaccustomed to covering the NYPD, this situation can seem a bit baffling. Veterans with some experience covering the New York Police Department shrug. The NYPD is one of the most stubbornly opaque public organizations you’ll find, and it’s been that way for as long as anyone can remember.
That’s not to say the NYPD can’t be helpful to the press when it wants to be. In the mid-aughts, early in my career as a New York City journalist, I worked for a small weekly community newspaper that covered Lower Manhattan. My duties regularly took me to the 1st Precinct, where Detective Rick Lee, still years away from fame as the “Hipster Cop,” would sit down with me and patiently run through the past weeks’ police logs, which consisted mainly of bike thefts, missing purses, and the odd drunken disturbance.
Years on, as a stringer for The Wall Street Journal, I was dispatched around the city to collect quotes and color for breaking metro stories. The office of the Deputy Commissioner for Public Information (DCPI), the NYPD press office, was invariably prompt and thorough in answering the questions that arose from that work: What was the location of the incident? How many injured? How many arrested? What are the charges? Can we get a picture of the guy you’re looking for?
These kinds of interactions probably constitute the overwhelming volume of press inquiries the DCPI handles, and there are entire categories of journalists working in New York who may never have had cause to complain about the department’s responsiveness. Many of the reporters in closest contact with the NYPD aren’t on the cops beat, but on the crime beat—and in those cases, everyone’s interests more or less align.
When reporters turn their scrutiny on the department itself, however, it’s another story. As a staffer at the Village Voice and a freelancer for other outlets, I’ve written a lot about the NYPD: about its refusal to adopt training that would probably help its officers stop killing so many people; about its disconcerting tendency to blame cyclists and pedestrians for their own deaths in motor accidents; about its tenacious refusal to comply with public records laws; about police who perjure themselves on the stand; about its treatment of political demonstrators, from infiltrating nonviolent movements with violent undercover agents to roughing up and arresting journalists to using dangerous acoustic weapons on protesters at close range. And of course, I’ve written about some of the many instances in which officers have killed unarmed Black men.
This isn’t the sort of press attention that the NYPD is eager to facilitate. Calls and emails to DCPI about these stories routinely go unanswered. The last time I tried to cover a departmental trial was in 2017. Officer Richard Haste had shot an unarmed 18-year-old named Ramarley Graham in his bathroom after breaking into Graham’s home without a warrant. Informed of my name and publication, a DCPI officer asked me to wait as he escorted in other reporters and an entire school field-trip class, then turned to me and cheerfully apologized that the room was at capacity.
One of the ways the NYPD exerts control over the press is through its monopoly on credentialing journalists. If you want to cover breaking news, or courts, or government hearings in New York City, you’re much more likely to get within earshot of the goings-on if you’ve got DCPI press credentials. Yet persuading the police that you’re worthy of a press pass in the first place can be difficult—Gothamist, an online news outlet, spent eight years trying, and ultimately had to hire a lawyer to get one. The power to revoke a press pass is also a potent coercive tool. As the back of every NYPD press pass reads: “This card is the property of the New York City Police Department. It may be taken away by competent authority at any time.”
For spot news photographers in particular, a press pass is effectively a work permit, and losing it is tantamount to unemployment. When a building collapsed in midtown Manhattan in 2015, killing a construction worker and trapping another, the NYPD herded photographers and other journalists down the block, away from any clear view of the scene. A recent Daily News story had laid the blame for a recent spike in construction deaths at the mayor’s feet and, as emails sent that day would later reveal, City Hall was concerned that this latest disaster would only bolster that narrative. J.B. Nicholas, then a contract photographer for the Daily News, managed to avoid the police corral, and got the coveted shot: the injured worker being loaded onto an ambulance. Police officials, enraged, confiscated Nicholas’s credentials. Nicholas had to sue to get them back, and ultimately won a decision enjoining the NYPD from revoking press credentials without due process. “If the cops control who can report the news, the cops control the news, right?” Nicholas tells me. “You can’t let that happen. That’s called censorship.”
And so on: In 2012, Robert Stolarik was photographing a stop-and-frisk arrest in the Bronx when police confiscated his credentials and violently arrested him. The NYPD eventually returned his credentials and, three years later, the arresting officer was convicted of lying about the incident.
Another way the NYPD avoids scrutiny is by routinely dodging its responsibility under New York’s Freedom of Information Law (FOIL). In 2013, Bill de Blasio, who was then the New York City Public Advocate, surveyed city agencies on their compliance with public records laws, and gave the NYPD an “F,” noting that the department failed to so much as respond to nearly a third of requests. Four years later, de Blasio was mayor, and a Village Voice investigation found that the NYPD kept the most incomplete and erroneous FOIL log of any city agency surveyed.
It took a lawsuit and a court order to force the NYPD to end its years-long—illegal—insistence on only accepting FOIL requests via snail mail. I’ve written about the efforts of a historian to get the department to cough up records on a political movement from half a century ago; she had to file a lawsuit, and only after it got some press were the records fortuitously discovered. There are a zillion stories like this. Everyone who’s asked the NYPD FOIL office for something has similar stories.
Recently, the NYPD began answering some Freedom of Information requests with “Glomar” responses, saying that it could neither confirm nor deny the existence of responsive records. Previously, Glomar responses had been limited to national security agencies, but the NYPD wanted to use them to avoid disclosing whether it was illegally using cell-tower spoofers to disrupt the phones of non-violent protesters. Only another lawsuit and a strongly worded judicial opinion would put an end to Glomar responses; the request for records about spoofers is still pending.
The secrecy surrounding the Pantaleo trial is owed largely to Section 50-a of the New York State Civil Rights Law, which stipulates that “All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department…shall be considered confidential and not subject to inspection or review.” Adopted in 1976, it was used to keep defense lawyers from trolling police witnesses’ personnel files for embarrassing write-ups of off-duty misconduct, it has been interpreted over the years in increasingly broad terms. In December, a New York Appeals Court ruled that even anonymized police disciplinary records must be kept hidden from public view.
Police Commissioner O’Neill has expressed frustration with 50-a, saying that he wishes his hands weren’t tied, and that the law should be changed. In the state legislature, a few bills to repeal or reform 50-a are stuck in committee; their supporters say that O’Neill and de Blasio have done nothing to advocate for their passage.
Reporting on this beat, one starts to get a sense that the mechanisms of democracy have gotten stuck in a paralyzing loop. The public can’t know if the NYPD harbors killers because of an anti-transparency law. The political leadership lacks the will to change the law because they’re afraid of the power of the police unions. The unions magnify a sense of grievance among police officers that predates the Black Lives Matter movement but has grown in response.
Entering the courtroom for Pantaleo’s trial each day, Garner’s family must walk through One Police Plaza’s Hall of Heroes, where a large memorial floral arrangement proclaims that Blue Lives Matter. Pat Lynch, president of the Police Benevolent Association, argues that officers like Pantaleo are acting on policies handed down by the city’s leaders and the people who elect them. Blaming beat cops when the ugly realities of policies are revealed is rank hypocrisy, in Lynch’s view. But if some of the responsibility for police action lies with the New Yorkers in whose name they act, shouldn’t the public know what officers are doing?
It’s the job of the press to inform people. It’s hard for us to do that when we’re stonewalled by a culture of police silence, backed by the highest levels of political power. For this story, the NYPD did not respond to a request for comment.