NYPD Ordered to Turn Over Additional Police Records
Rankin & Taylor attorney Robert Quackenbush was successful in getting this decision from New York Supreme Court Justice Sylvia Ash ordering the NYPD to produce additional records regarding prior misconduct by the officers involved in assaulting our client Joel Zabala.
The New York Law Journal covered the decision in this front page article:
Law Department Told to Review Assertion of Privilege for Police Records
New York Law Journal July 15, 2011
Daniel Wise
A Brooklyn judge has ordered the Corporation Counsel’s Office to re-examine its practice of routinely asserting blanket privilege claims in defending police brutality cases.
That approach misapprehends the role of the court and burdens it with the “toilsome task” of deciding which documents should be subject to disclosure, said Supreme Court Justice Sylvia G. Ash (See Profile) in Zabala v. City of New York.
The ruling came in response to a request for records compiled by the New York City Civilian Complaint Review Board (CCRB) in a lawsuit brought by Joel Zabala, who claims he suffered brain damage from a police beating in 2009.
The Corporation Counsel’s Office made a “pro forma” objection to the disclosure of the entire file as it does in the majority of cases where sensitive personnel information may be involved, Justice Ash wrote.
“The Court’s role is to resolve issues,” she added, “not find issues to resolve.”
Finding New York City’s approach to be detrimental, Justice Ash directed the Law Department “to examine its practice and make appropriate changes.”
Mr. Zabala also sought the records of the New York City Police Department’s internal affairs bureau. He asked both agencies for files relating to any investigation of complaints against three officers concerning the use of excessive force in the last 10 years.
The review board has produced its records relating to substantiated instances of excessive use of force for Justice Ash’s inspection, but the internal affairs bureau is still gathering its information.
Justice Ash ordered the city to turn over for discovery, with one exception, all the review board records she has reviewed.
Richard D. Emery, a veteran plaintiffs’ civil rights litigator, said the city “routinely raises blunderbuss objections to block discovery of personnel records of officers against whom brutality claims are raised.”
But, he added, the responses of state judges vary, with some ordering the records to be produced in wholesale fashion and others conducting “a very focused examination to determine whether CCRB records have probative value.”
Some judges will consider that a review board finding that an officer was disrespectful to a citizen as probative of a brutality claim, while others will not, said Mr. Emery, a partner at Emery Celli Brinckerhoff & Abady.
A Chase Acknowledged
According to his complaint, Mr. Zabala, knowing that he did not have a valid driver’s license, did not respond when a police car, with its lights flashing and siren on, tried to pull him over in Bushwick, Brooklyn, on the afternoon of March 8, 2009.
After being pursued for several blocks, Mr. Zabala stopped and exited his vehicle. Mr. Zabala alleged the police car pulled up alongside his Ford Explorer, hitting him and knocking him to the ground. Mr. Zabala claims he fled and was subsequently surrounded by officers as he attempted to hide under a parked car. He said one of the officers hit him three times with a radio and others kicked him, resulting in extensive facial injuries that resulted in his being hospitalized for eight days.
Mr. Zabala’s lawyer, Robert M. Quackenbush, said in an interview that the blows left his client with permanent brain damage, causing him to suffer seizures.
Asserting a federal civil rights claim under 42 U.S.C. §1983 and state tort claims, Mr. Zabala sued three NYPD officers and New York City.
In discovery, Mr. Quackenbush, of Rankin & Taylor, sought records compiled by internal affairs and the complaint review board relating to investigations over the last 10 years of claims that the three officers had used excessive force.
Internal affairs has yet to turn over its records to the city’s lawyers, but Justice Ash, who is in charge of tort cases against New York City filed in Brooklyn, ordered that civilian complaint review board records be given to Mr. Zabala within 45 days.
“It is not enough for the City to simply turn over the files to the Court, which usually consist of hundreds of pages of documents, and expect the Court to go through each document to determine what information is privileged, highly sensitive or not subject to disclosure,” the judge wrote.
The sole exception she made in her order was for 11 pages from a review board file relating to a complainant’s medical records.
New York City and the three officers were represented by Assistant Corporation Counsel Katherine M. Frank. An office spokeswoman said the decision is being reviewed.
