Albany Police Block Misconduct Investigations, Neutering Landmark Oversight Law

By Chris Gelardi and Naina Purushothaman

On August 2, 2023

Albany empowered its community oversight board. But the police department and the city’s top attorney are stonewalling.

AT A JUNETEENTH celebration in Albany last year, a city cop allegedly threw a 12-year-old to the ground so hard his shoe flew off. The next day, local police shot a man in the chest during a domestic dispute call.

The city’s Community Police Review Board called an emergency meeting that week to discuss the events. A new ordinance known as Local Law J had made the cprb — until recently, a relatively dim spotlight on police misconduct — among the most powerful of its kind in the country, and it was ready to exercise its investigative might.

But more than a year later, the cprb has been blocked from carrying out its new mandate. Emails and memos obtained by New York Focus, as well as interviews and public testimony, reveal how the Albany Police Department and its backers have rebuffed virtually every aspect of Local Law J, which passed with support from the entire city legislature and 70 percent of voters. The department has refused to hand over records and made others nearly impossible to thoroughly review. Officers have skipped out on interviews with cprb investigators. And officials have stifled the board’s most powerful new tool: subpoena power.

The crpb hasn’t been able to take legal action against the recalcitrant cops. The city legal office that until recently represented the board also represents the police department — and effectively sided with its law enforcement client, shielding the police from investigator inquiries.

With nowhere else to turn, the board has raised its issues with the legislature, known as the Common Council, which will discuss Local Law J in a meeting Wednesday evening. Tom Hoey, head of the council’s public safety committee, declined an interview request. “We are trying to work this out and commenting at this time would be counterproductive to making headway,” he said.

The police department’s roadblocks have protected its officers from the scrutiny that could lead to accountability. cprb investigators still don’t have access to all of the records from the Juneteenth and June 20 shooting incidents, for example, while officers involved in the shooting have ignored subpoenas to testify — and both cases are now past the one-year statute of limitations for police discipline.

“It’s just blatant disrespect at this point,” Nairobi Vives, chair of the cprb, told the Common Council in a hearing last week. “There’s no more benefit of the doubt, no more ‘maybe they didn’t understand.’ … They do not want this [law]. They do not respect our authority.”

NEWLY EMPOWERED BY Local Law J, the cprb’s first major hurdle to ramping up oversight was staffing up. Among other measures, the law gave the board the authority to conduct its own misconduct investigations and review police case files — too much for the nine volunteer board members and one paid staffer alone. The cprb took much of 2022 to contract with the personnel — including former prosecutors, police, and other investigators — needed to exercise those responsibilities.

The board also attempted to convince officials — mostly unsuccessfully — to expand its spending power to hire more. For its 2023 budget, the cprb requested $2.8 million. But the Common Council allotted less than a quarter of that.

With some investigators finally on payroll, the board launched its expanded investigations in earnest around late 2022. But it soon encountered other obstacles.

Albany city code mandates that the police department “not remove” any “confidential” records from city offices. The cprb asserts that the law is meant to ensure that original versions of important documents don’t get lost — after all, police regularly send copies to prosecutors and defense attorneys for court proceedings. But the police department has decided that the law prohibits it from giving the cprb copies of any of its records.

nstead, the department has adopted a system that sends cprb investigators links to view case files over the internet. The files can’t be downloaded, and the links expire after a brief window: normally seven days, including weekends, but sometimes as little as 48 hours.

That’s far too little time to conduct thorough investigations, board members and staff assert. Case files often include more material than is possible to review in a week; one case currently under cprb review has more than 12 days’ worth of officer body-worn camera footage alone, according to the board.

cprb investigators have asked for longer windows to review large case files, but the police department has often denied them, saying they need to re-request the files. But when the department re-sends links, they frequently don’t work.

The Albany Police Department did not respond to New York Focus’s questions, instead allowing the city’s legal office, known as corporation counsel, to answer for it. Corporation counsel didn’t respond to questions about the viewing timeframes except to say that the police were extending the standard window to 14 days.

That was news to the cprb. “Just today we heard, not from the apd, but from a reporter, that the apd extended the viewing window,” a board member complained to the Common Council last week after New York Focus asked the cprb about the new policy. The next day, the head of the police department’s internal affairs unit emailed board members to explain that “technical issues” with resharing evidence prompted the policy change.

But according to the cprb, officers still aren’t following the new policy. This week, after asking to revisit the more than 80 pieces of evidence in the Juneteenth case, they received a link that will expire after three days, according to an email reviewed by New York Focus.

Adding to the difficulties, the police department doesn’t upload all necessary files to the internet links; investigators must inspect certain records in person. (Since many investigators are contracted from New York City, that can entail a nearly three-hour drive.) In one instance in February, emails show, the department claimed that it couldn’t upload documents because it didn’t have a color scanner. For another case in March, officers claimed that a video required a “special player,” so investigators needed to watch it in person.

Investigators can only review records in person in the presence of an internal affairs official. According to board member John Levendosky, those officers are often unavailable or cut sessions short. “‘Oh, I have to go home to my wife for dinner,’” Levendosky said one official told an investigator. “‘Oh, I can’t do that tonight,’” said another, he claimed.

In an email to New York Focus, corporation counsel included its correspondence with a police department spokesperson. In response to a question about requiring in-person inspection of certain records, the spokesperson simply wrote, “Not true.” Emails show that it has been a department policy since at least November.

Board members charge that there’s no reason to make it so difficult to inspect records — other than obstruction.

“The cprb is over 20 years old. We have a pristine record of not leaking material,” Levendosky told New York Focus. “So there’s not even a precedent for them to be this concerned with regard to how we handle documents.”

ALBANY POLICE HAVEN’T only made investigators jump through hoops to review documents. In some cases, they’ve withheld evidence entirely.

Local Law J gives the cprb the power to investigate “any and all” police conduct, even if no one filed a complaint. But when it comes to evidence, the law only mandates that the police department’s internal affairs unit hand over its own files investigating an incident — allowing it to dictate what records the cprb can see.

For example, in an investigation into officers’ handling of a child sexual assault case, the police department refused to let cprb investigators access body camera footage, witness statements, and medical documents. Head Corporation Counsel Marisa Franchini backed them up — and doubled down, asserting that criminal investigation files “are not relevant” to the cprb and could “endanger public safety.” She has also cited the “sensitive nature” of the sexual assault case. The lead cprb investigator on the case is a former head sex crimes prosecutor. She took on the investigation at the request of the mother of the alleged victim, who reported the crime and signed a privacy waiver.

Albany Mayor Kathy Sheehan, who promoted Franchini to the top corporation counsel job in 2020, sided with her appointee on the matter. “apd has complied with this section of the Code by providing the [internal affairs] case file,” her chief of staff wrote in an email to New York Focus, with Franchini and the police spokesperson cc’d. He added: “The City stands ready to assist the cprb whenever possible to ensure they are able to review the approximately 100 outstanding cases on their docket.”

“I should not have to ask over and over for things the law provides and that the cprb is clearly entitled to,” the investigator wrote to Franchini in May, pointing out that she’d have to tell the victim that they can’t move forward with the misconduct case.

“We will not be turning over this criminal file absent a subpoena,” Franchini responded.

But Franchini has blocked cprb subpoenas — Local Law J’s trump card — too.

A frustrated CPRB investigator emails an Albany police commander on June 6, 2023. [Part 2]

Only about 40 percent of the roughly 160 community police oversight groups nationwide have subpoena power, which gives court-enforceable weight to their civilian inquiries. But Albany officers have routinely ignored the cprb’s subpoenas. In June, for instance, after the police department refused to share files related to a January 2022 police shooting, the cprb subpoenaed four officers for testimony and information.

They heard nothing back. They subpoenaed again. Still nothing.

“They’re not even challenging them or fighting them,” said Levendosky. “They’re just plain ignoring them.”

Violating subpoenas is punishable by fines or even jail time. But that requires the cprb to take the officers to court, which in turn requires its lawyers. And until recently, the cprb’s designated legal representation has been the city’s corporation counsel — which also represents the police department.

Posed with that conflict of interest, the office appears to have chosen a side: After advising the cprb to issue subpoenas for records and testimony from uncooperative officers, corporation counsel has shielded officers from them.

In correspondence with the board, Franchini has pointed to a part of state law that says that administrative subpoenas need to be signed by a judge. In response, the cprb has cited court decisions going back more than 50 years, ruling that that law only applies to entities that, unlike the board, don’t have their own legally bestowed subpoena power.

Corporation counsel gave New York Focus a different justification for why the police department is allowing officers to ignore subpoenas: Under us labor law, the office said, the officers can’t be required to participate unless they’ve agreed to it in their union contract.

(Corporation counsel sent a copy of the contract to New York Focus. When a cprb member had asked for a copy, the office told him he needed to submit a public records request for it, the cprb said. The first time the board saw the full document was when New York Focus forwarded its copy.)

The collective bargaining agreement recently expired; the city and the police officers’ union have agreed on a new contract, but its language is still being drafted. Corporation counsel did not respond to questions about whether the new contract will include a section about outside investigations, and representatives for the union did not respond to requests for comment.

Whatever the new contract’s terms, the cprb may soon be able to more aggressively subpoena officers. In March, the board put out a solicitation for independent legal representation. Last month, they signed on two lawyers, the board said.

MEANWHILE, THE OVERSIGHT board has continued its casework. Despite limited access to files, investigators were able to watch enough body camera footage in the Juneteenth case to reveal that the 12-year-old had been walking away from the incident when the officer, Sergeant Jarrod Jourdin, took him to the ground. In May, the board unanimously voted to sustain the “improper use of force” allegation against him.

But for all its new powers, the cprb ultimately can only recommend discipline. Albany Police Chief Eric Hawkins, who has the final say, took no action against Jourdin. He didn’t dispute or engage with the board’s findings — he simply ignored them. Juneteenth 2023 came and went, and with it, any chance at holding Jourdin accountable: The police union contract stipulates a one-year statute of limitations on discipline for most misconduct cases.

“The department and the chief can disagree with us, and that’s a part of this, and we understand that,” said Levendosky. “But at the same time, having no answer really is worse than having an answer that goes against us.”

On July 25, more than a month past the statute of limitations, the police department finally issued its own report, asserting that Jourdin “pulled” the 12-year-old away from him, causing him to “fall to the ground.” It deemed the improper use of force allegation “unfounded.”

As for the June 20 shooting, cprb investigators issued another preliminary report, surmising that the shooting was possibly justified — but that the officers mishandled the call leading up to it, which could have prevented the violence. But that report, too, was based on limited evidence: The officers involved ignored subpoenas, and, citing a protective order in the case, corporation counsel advised the police department to decline to share evidence. And again, the chief didn’t respond to the board’s report until after the statute of limitations had passed. The full cprb investigation remains open, but discipline is unlikely.

Levendosky, a former police officer, said that no one ultimately wins from the crippled law.

By not disciplining officers, “you’re really creating a situation where officers don’t know where the line is,” he said. “That’s not fair to the officers and not fair to the public.”

This piece was republished from the NYS Focus.