New bill would seal unproven complaints against officers

What if we had the Clean Slate Act, but for cops? Democratic Assembly Member Sam Berger is introducing a new bill that would seal records of unproven complaints against law enforcement officers as soon as one year after an officer is cleared – similar to the way that the Clean Slate Act, enacted last year, seals people’s old criminal records. But there's one key difference: while the Clean Slate Act seals most convictions, Berger's bill would only seal those complaints that were never proven. Substantiated complaints would remain accessible to the public.

Berger believes the bill could aid retention and recruitment in law enforcement agencies across the state, which he said are currently struggling to attract and keep candidates as public perception of cops hovers near an all-time low. 

Police officers have complained that public access to unproven complaints against them has resulted in their names being besmirched in the absence of evidence, which can follow them to a private sector job, loan applications and even divorce court. It’s a prospect that they said can scare off candidates from applying to the force and convince current law enforcement to leave amid a statewide staffing crisis. 

Berger’s bill would seal such records from anyone but law enforcement agencies, the state Attorney General’s office and approved oversight agencies after a certain amount of time has passed. In the case of unfounded complaints – those that are determined to be untrue following an investigation – the record would be sealed after one year. Exonerated complaints, which are found to be true but justified, would be sealed immediately. Unsubstantiated complaints, which don’t have sufficient evidence to be proven, would be sealed after three years if law enforcement personnel have no founded claims or disciplinary actions against them. 

Although proponents of criminal justice reform worry that the legislation is yet another blow to police transparency, Berger said that it would level the playing field. “The idea behind Clean Slate was that if you were convicted of a crime, people deserve a second chance,” Berger told City & State. “This is saying they didn't even commit the crime, so clearly, this isn't about giving them a second chance. This is about giving them the first chance.”

Police officers themselves are eager to work with Berger on the bill. “False and baseless complaints not only derail police officers’ careers — they are often distorted and weaponized by anti-police activists to harass police officers both on the job and off it,” said Patrick Hendry, president of the New York City Police Benevolent Association. “Meritless complaints should not appear on police officers‘ records at all, and they certainly shouldn’t follow officers around forever. We look forward to continuing to work with Assemblymember Berger on this proposal.”

Berger said the bill already has the support of a number of his colleagues in the Assembly and will soon have a state Senate sponsor.

Despite Berger’s insistence that the bill will still allow organizations like the New York City Civilian Complaint Review Board to access records, reformers see the legislation as a nonstarter that would decrease police transparency. They argue that the state Legislature already picked a side on the issue in 2020, when lawmakers repealed state Civil Rights Law Section 50-a, which had prohibited the public from viewing police disciplinary records. 

The New York Civil Liberties Union currently maintains a public database of 20 years’ worth of state police misconduct and use of force records, which it obtained and released following the repeal of 50-a. Berger’s bill would not require the civil rights organization to remove old complaints that it has already released publicly, though it may stop the group and others from obtaining records of unfounded, exonerated and unsubstantiated complaints in the future.

“We're talking about this on a statewide issue,” said Michael Sisitzky, assistant policy director at New York Civil Liberties Union. “Not every locality has an agency like the CCRB, and in a lot of cases we're talking about police departments that are responsible for investigating themselves, and that is an area where there is a critical need for public oversight to know what happens when we're asking law enforcement agencies to investigate themselves. Are they taking complaints seriously? Do they have robust investigative processes, or are they just sweeping misconduct under the rug?”

Sisitizky added that prior legal challenges to 50-a’s repeal revealed that the release of police complaint records had minimal adverse effects on the lives of police officers whose records were made public. 

Ulster County Sheriff Juan Figueroa said that while the imbalance between public access to law enforcement’s disciplinary records and the privacy of citizens is less than ideal, “the issue runs much deeper than that.” 

“I don’t think the problem is with sealing records,” Figueroa said. “I think the problem is with, is it worth it to do 20 years with a department?” In the course of running a law enforcement agency, he said, he has found that the police department’s retirement system has lost its luster to most applicants. Coupled with the stress and realities of the job, he said, your average 21-year-old won’t view being a police officer as worthwhile enough to overcome the public stigma. “People in Walgreens make more and don’t have all the headaches that come with this job,” Figueroa said. 

Berger said he hoped that his peers in the Legislature and Gov. Kathy Hochul, who has boasted of her investments in law enforcement and made public safety a core theme of her administration, will get behind the bill.  “There's a need for transparency in law enforcement,” Berger said. “But you also need to balance that with the need for officers to be able to go about their daily lives without having to carry the stain of a false accusation in perpetuity.”