By Judge Joan Shkane
This is a continuing discussion of Legal Myths and Reality because those informed are always the most successful.
MYTH: New York State is always behind the times, and can’t get things done.
REALITY: New York State recently passed police reform bills, and they did it in three days! The goal of all of these laws is to increase efficiency in policing and in public safety, to protect an individual’s safety, and to increase public confidence in law enforcement. Making these laws, as always, required a balancing of equities, this time between law enforcement and the public they are sworn to protect and defend. Some argue that the following new laws do not go far enough, some that they go too far. Time will tell, as it always does.
Now police disciplinary records will be available to New Yorkers by Freedom of Information requests, in accordance with disclosure rules governing all other records kept by public agencies. Sensitive personal contact and health information will not be available so as to protect officers’ privacy. See the next myth below.
Now a person has the right to record police actions, and to keep that recording and not surrender it to police. Three-fifths of all states permit private recording and private custody of recordings, and courts have recognized that this is a free speech First Amendment right.
Now police cannot use chokeholds on suspects. If the police do, they may be charged with the new crime of Aggravated Strangulation, a very serious major crime.
Now courts must put together and publish racial information about low-level offenses.
Now police must submit annual reports on any deaths occurring during the arrest. The Governor, Legislature, and State Criminal Justice Services must be advised of the contents of the reports.
Now people can be sued for money damages if a person calls the police to report a crime or imminent threat by a minority person, a gay person, or another member of a particular protected group, without a reason that can be put into words. This is at least in part because of the woman in New York City Central Park who called police on a Black birdwatcher who asked her to leash her dog, as required by park rules. She now has been charged criminally.
Those in police custody have the right to medical and mental health attention.
Police must wear and turn on a recording body camera any time the officer is on patrol and during other situations where violence could develop.
Police and peace officers must report shooting a weapon wherever a person could have been or was shot, within six hours of the shooting. This applies whether or not the officer was on duty.
Now an office of special investigation will investigate any death caused by a police or peace officer. This office will be under the direction of the NYS Attorney General.
The NYS Attorney General will also investigate law enforcement misconduct, and will study and make recommendations on programs, policies and practice of local law enforcement.
MYTH: Newly enacted laws are exactly what they seem to be.
REALITY: New York police disciplinary records are now going to be open to the public just as records of other professions for which licensing is required. Some of these professions are doctors, attorneys, and teachers. Records of these groups can be accessed under the Freedom of Information law. However, in the short several weeks since the new police law was enacted, disputes have arisen. Some say the new law does not go far enough, some say it goes too far. Those opposed to the current formation of the law say that the only complaints that will be available to the public are those that are found to have merit and are true. Those that are not found to be meritorious may not be disclosed. Opponents say that as long as the police judge themselves, then it is too easy for those police judges to find no merit, sweep the whole thing under the rug, and people will never see the complaint. More importantly, people will never see the process by which the judgment was made. The message to the police is just don’t issue discipline, and the whole matter remains secret.
Those in favor of the new law say that the new law is a significant step from where we were, and treats police just as othered licensed professions. For example, claims against teachers that are not substantiated may not be discovered by the public.
All sides agree that there is no perfect solution since the problem is so deep-rooted, and again, time will tell how well it works.
MYTH: Women and minorities in the Court System have made huge advances since 2017.
REALITY: The New York State Bar Association commissioned a study in 2017 about women in the courts. They were concerned about the under-representation of women lawyers in courtrooms. This concern was despite thirty years of law school graduating women at about 50% of each class. The Bar Association then recommissioned the study in 2020. What they found is woeful. In the three studied years, female lead attorneys in the public sector (like Legal Aid, Public Defender or prosecutor offices) declined to 35.1 % of all lawyers; women attorneys working in private law firms were 38.2 %. This is not overly surprising since we are in the middle of a health crisis. During crises, women and minority society members are badly impacted out of proportion to the number of people in the population. Crises affect them harder. Women attorneys appearing in courts in civil and criminal cases was only 20.7%. The vast number of trial lead counsel are men, and women are most often second counsel, if at all. Upstate courts had more participation by women in court, perhaps because there are fewer total attorneys upstate to go around. The lowest rate of women attorneys is in the Commercial Division of New York County at 18.7% of lawyers. The question has been posed as to why this remains so low. Judge Shira A. Scheindlin, former U.S. district judge and now a mediator and arbitrator, answers that she believes there is still a lack of trust of women lawyers. She suggests that in an important and complex legal problem, businesses and the public feel safer with the middle-aged to elderly white male image, like Perry Mason! She believes that the bar leaders, judiciary and corporate counsel, and especially the public need to come to understand that intelligence and talent are not related to gender. Supreme Court Associate Justice Ruth Bader Ginsburg, who was tied for first place in her Columbia Law School class, could not find a single law firm who would hire her, solely because of her gender. Locally, this happened to one of the best lawyers in recent memory in Oneida and Herkimer Counties, Mary Panarites (sadly now deceased). Many years ago (and with all due respect to the Rev. Al Sharpton at the George Floyd memorial service), Justice Ginsburg said “You need to get your foot off our necks!”
Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.