Unsealed NYPD Documents Reveal New Information in Shooting Case
Sarah Betancourt, New York Law Journal
July 15, 2016
A federal judge has declined New York City's request to seal a "letter of instruction" placed in the file of a police lieutenant involved in the fatal shooting by officers of a mentally disturbed man.
Southern District Judge P. Kevin Castel, ruled that the city had failed to meet the burden to justify sealing of the personnel document.
"While a violation of police regulations does not, in itself, establish a constitutional violation, it may be relevant in determine the objective reasonableness of the defendant officer's actions," Castel wrote in Bah v. City of New York, 13-cv-6690. "Further, defendants have failed to point out countervailing factors that would overcome the presumption of public access and warrant sealing."
Castel acknowledged that the lieutenant had an expectation of privacy in his personnel records, but said that the letter of instruction was "directly relevant to the issues in the current litigation."
On Sept. 25, 2012, police officers from the Emergency Service Unit (ESU) responded to a call from Mohamed Bah's mother saying she needed an ambulance for her son. After one of the officers saw Bah, naked and armed with a knife, through an open door, Lt. Michael Licitra ordered the door reopened and breached to insert a pole camera.
According to the police, Bah rushed out of the apartment and stabbed several officers. The officers opened fire, striking him 10 times.
Bah's estate sued the police officers and the city alleging among other things that he had been the victim of excessive force.
The estate asked for the unsealing of several documents that they had been given pursuant to a confidentiality agreement: the letter of instruction; a departmental firearms discharge report; the tactical guide of the department's hostage negotiating team and the training course outline for new emergency service officers.
The city responded in court papers that "public disclosure of the tactical training documents would present a risk to the safety and effectiveness of two specialized NYPD units. Disclosure of the letter of instruction would service no purpose except to impinge upon the recipient officer's privacy interests and besmirch his reputation."
Castel granted the motion to unseal the letter and the firearms report but denied it for the other documents.
The June 24, 2014 letter of instruction faulted Licitra for failing to wait for authorization from a duty captain "prior to taking additional action against an armed emotionally disturbed person who was contained and posed no immediate threat or danger to any person." It directed the lieutenant to "familiarize" himself with a NYPD policy on dealing with disturbed persons.
The April 29, 2014 firearms report observed that the officers involved had followed department policy but observed, "if the door was never breached, they would not have found themselves in that situation."
The city has filed a motion for summary judgment in which it argues that the police acted reasonably.
Nicholas Paolucci, a spokesman for the city's Law Department said in a statement, "The extent to which the documents could be taken into account is a legal issue for the court and is not determinative of the issue of the city's civil liability. It is for the court to determine separately whether Mr. Bah's constitutional rights were violated."
The city is represented by Ashley Garman, senior counsel for the Law Department's federal litigation team.
Bah family attorney, Debra Cohen of Newman Ferrara, said in a statement that "The unsealing of these documents allows the public to learn what the Bah family already knew. Mohamed Bah's death was caused by the failure of those in charge of the ESU team to provide him the help he needed and deserved."