NYCLU asks to intervene in Schenectady police misconduct case

NYCLU asks to intervene in Schenectady police misconduct case

SCHENECTADY — A judge is expected to rule in two weeks on the New York Civil Liberties Union petition to get involved in a lawsuit the police officers’ union filed over whether Schenectady can release police files that include unfounded and unsubstantiated accusations of misconduct by an officer.

State Supreme Court Justice Mark Powers was expected to rule on the case  Tuesday but his decision will now be delayed to allow  the Schenectady Police Benevolent Association and the city’s attorney to file motions in response to the NYCLU’s motion to intervene in the case.

Powers said he will rule Oct. 27 on whether to allow the NYCLU to intervene.

Attorney Sofia Arguello, representing the NYCLU, said over the phone during the court proceeding that while she understands the questions and issues before the court have a public interest component she also argued that the agency is “directly impacted by these proceedings.”

Outside court, Melanie Trimble,  NYCLU’s Capital Region chapter director, said  “we’re just hoping we get included in the case,” because it would “allow us to do our own arguing.

Since the state repealed a law that shield police records from the public, the NYCLU has obtained and released thousands of New York Police Department records and they’ve intervened in a similar lawsuit about the records of officers in the Buffalo Police Department.

At issue in the Schenectady case is the file of Officer Brian Pommer, a patrolman who was caught on video apparently kneeling on the neck or head of a vandalism suspect in July.

A lawyer for the Schenectady police union is trying to convince Powers that unfounded and unsubstantiated complaints against Pommer – and effectively all officers in the police department – should remain hidden despite the state’s repeal of 50-a, a part of civil rights law that for years kept police disciplinary files closed.

The Police Benevolent Association sued the city to block the release of the documents after news organizations, including the Times Union, requested access to Pommer’s file. The police union also wants the city to withhold information about cases that resulted in Pommer receiving a “counseling notice.” Most of the records in the lawsuit are sealed and it is unclear what the “counseling notice” refers to.

The union did not contest the release of substantiated disciplinary complaints and Powers ruled last month that the city was free to disclose those records, which showed Pommer was suspended for three days earlier this year for failing to enforce social distancing rules at a local ice cream shop that was eventually forced to close over health violations.

Embattled Schenectady officer previously suspended for not enforcing social distancing

The city has indicated its willingness to release Pommer’s entire file.

The PBA’s attorney, Jack Calareso, and Schenectady’s attorney, Corporation Counsel Andrew Koldin, were in court Tuesday.

Afterwards, protesters calling for Pommer’s police discipline file to be made public, decried Powers’ decision.

The case is one of at least three that are in the courts in New York as police unions fight to keep at least some disciplinary records shielded from disclosure. Last week, a state Supreme Court justice ruled the Buffalo Police Department could release records of unsubstantiated and pending allegations against police officers.

That last ruling states in part that “the fact remains that it is the law of this state and can only be set aside by a court when it clearly offends the federal or state constitutions” and that it is “inappropriate” for the petitioners to attempt  a “pre-emptive strike that will serve as a blanket prohibition on the release of any and all information regarding any complaint deemed unsubstantiated.”

The Schenectady lawsuit grew out of Pommer’s arrest of 31-year-old Yugeshwar Gaindarpersaud on July 6. The police department and the Schenectady County District Attorney’s office are investigating the altercation. So far, neither office has said whether an outcome has been reached. Gaindarpersaud is charged with resisting arrest and criminal mischief.

The incident at Bumpy’s Polar Freeze took place on April 6, exactly three months before Pommer was videotaped punching and placing his knee on the head and neck of Gaindarpersaud, who ran off after objecting to being questioned about a neighbor’s allegation he vandalized a car.

Last week, Bumpy’s owner Dave Elmendorf was arrested on an assault charge for allegedly stabbing a private investigator with a pen when the investigator went to his home to serve legal papers.

Published at Tue, 13 Oct 2020 05:46:00 +0000

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