SCHENECTADY — A judge has granted the New York State Civil Liberties Union’s request to join the lawsuit over the release of disciplinary files for a city police officer involved in a controversial arrest this summer.
State Supreme Court Justice Mark Powers approved the civil rights watchdog’s request for intervenor status on Tuesday, a measure expected to present a more muscular defense for why Officer Brian Pommer’s full personnel record should be released.
“Obviously we think this is a great first step and now the court can move on to argue the actual substance and arguments behind it,” said Bobby Hodgson, senior staff attorney for the NYCLU.
What’s being argued is not Pommer’s behavior during the altercation with Yugeshwar Gaindarpersaud on July 6, but rather the release of his entire personnel file during his seven-year tenure with the department, including claims that were ultimately unfounded, unsubstantiated or did not result in formal disciplinary action.
Powers said the NYCLU had argued that they are “better positioned” than city agencies, including the city Police Department, “to advocate the public’s interest” when it comes to whether unsubstantiated claims of misconduct against Pommer should be released.
“The court needs a full-throated defense of transparency and accountability,” Hodgson said.
Pommer knelt on Gaindarpersaud’s head and neck area on July 6 and punched him several times in the torso after he fled while being questioned about a report of property damage. Police have completed an investigation of the July 6 altercation but have not released a final report. That document will be released once the two misdemeanor charges Gaindarpersaud faces as a result of the incident, resisting arrest and disorderly conduct, are adjudicated, Chief Eric Clifford has said. Pommer has been placed on desk duty.
Following the posting of a video of the arrest, which ignited immediate protests, the Daily Gazette and other media outlets filed requests for Pommer’s disciplinary file under the state’s Freedom of Information Law. The city denied the requests, citing a lawsuit filed by the Schenectady PBA to keep the records shielded.
The NYCLU requested Pommer’s file on July 15 and filed a “more substantive” request on Sept. 30.
The city has argued his entire file should be released; the Schenectady PBA contends unsubstantiated claims and unfounded allegations would be damaging to Pommer’s reputation.
Black Lives Matter activists, several of whom were in the courtroom on Tuesday, welcomed the decision.
“They have a track record of being involved in these types of cases,” said All of Us co-founder Shawn Young about the NYCLU.
Schenectady PBA opposed NYCLU’s request, Powers said.
Powers cited the non-profit’s direct involvement to repeal 50-a, a statute used by municipalities to shield police discipline records, in June as evidence that they have a “real and substantial interest” in the case.
Now that they’ve been granted intervenor status, NYCLU will be provided copies of all sealed filings, but is barred from releasing them, as per a temporary injunction issued by Powers last month.
The NYCLU will be given two weeks to review materials and proceedings are expected to resume on Nov. 10.
A decision could be rendered within 10 days after that, Powers said.
Schenectady PBA is among the several unions representing police departments across the state that have sought to block release of unsubstantiated and pending claims, including those in New York City and Buffalo, where state Supreme Court Justice Frank Sedita III rejected a similar effort.
The case in Schenectady could potentially be precedent-setting, Hodgson said.
“This is an issue of statewide importance,” he said.
The city has already released some portions of Pommer’s file, including an informal sanction that resulted in the officer being suspended for three days for failing to enforce social distancing regulations at Bumpy’s Polar Freeze, an embattled ice cream parlor that is now closed.