ALBANY — The union representing thousands of state troopers recently issued a directive instructing its members to "not cooperate" with a special unit in the attorney general's office that was empowered last year to investigate fatal encounters in New York involving police officers.
The directive was issued during an August meeting of the executive board of the Police Benevolent Association of the New York State Troopers. The board also advised its members to invoke their Fifth Amendment right and decline to answer questions when they are compelled to testify in an attorney general's investigation. The PBA's more than 4,000 uniformed State Police members include the ranks of trooper, sergeant, lieutenant, captain and major.
"Members will not cooperate with the (State Police Bureau of Criminal Investigation) in relation to the attorney general’s ... investigations," minutes from the board meeting state. "If ordered to appear for an interview members will appear with counsel and invoke their Fifth Amendment rights."
The directive comes as the PBA is appealing a state Supreme Court justice's decision earlier this year dismissing the union's lawsuit alleging the attorney general's office is abusing its authority under a new section of state Executive Law that authorizes the office to investigate incidents in which a civilian dies during an encounter with a trooper who is off-duty. The issue is unfolding as the PBA also has undergone an unrelated recent leadership shakeup that sparked internal questions about its spending and hiring practices.
The attorney general's intervention in fatalities involving police began in 2015 when former Gov. Andrew M. Cuomo issued an executive order empowering that office to investigate fatal encounters between police and unarmed civilians. Cuomo signed the executive order that year after a series of deadly incidents involving police in New York and across the nation.
Six years later, the order was codified by the Legislature under a new chapter of Executive Law that created the attorney general's Office of Special Investigation and gave the office the expanded authority to investigate nearly any incident in which a civilian — armed or unarmed — dies during an encounter with a peace officer, which includes both police officers and correction officers.
Other states have created similar entities — including Maryland, where a special unit in the attorney general's office reported last month that in its first year it had investigated 23 fatalities involving police. But in that state, local prosecutors decide whether or not to file criminal charges as a result of the cases brought by the state's Independent Investigations Division.
The New York attorney general's office, in response to the PBA's lawsuit, has asserted the new chapter of Executive Law also gives them authority to investigate incidents in which a person dies during an encounter with an officer who is off-duty.
The PBA argued in its lawsuit that interpretation of the law is "overly broad" and that the statute was created to remove any potential conflicts of interest by local district attorneys when they are required to investigate fatalities involving police officers with whom their offices often work with on a regular basis. The union contends extending the law to include conduct by off-duty officers violates their equal protection rights.
"Understandably, I am not inclined to publicly discuss the specifics of the legal advice I provide to our troopers," said Daniel E. Strollo, the PBA's general counsel. "That being said, our troopers do not answer to the attorney general’s office. Given the current attorney general’s multiple politically motivated attacks on law enforcement, we deeply distrust her office’s motivations and willingness to conduct fair investigations. The PBA will not allow troopers to be subject to a political witch hunt."
In response to the PBA’s directive to its members, the attorney general's office issued a statement noting it "is obligated to do thorough investigations of these matters, and we would hope that all law enforcement agencies would cooperate with these investigations."
A State Police spokesman said their "policy requires members to cooperate with prosecutors in pending criminal matters," but added that "if a member is a target of a criminal investigation, they would have the constitutional right not to answer questions to avoid possible self-incrimination, the same as any other citizen."
A landmark 1967 decision by the U.S. Supreme Court found that while police officers can be compelled through labor agreements to give statements in order to keep their jobs, those statements cannot be used against them in any subsequent criminal case. But the ruling also established that a police officer cannot be terminated for invoking their Fifth Amendment right against self-incrimination. That case involved local police officers who were involved in a ticket-fixing scandal and had been threatened with termination if they didn't cooperate in an internal investigation.
The union's legal challenge in state Supreme Court was filed after an investigator with the attorney general's Office of Special Investigation went to a hospital where a State Police lieutenant and his female companion were being treated following a head-on car crash in July 2021. The trooper was off-duty during the incident in Onondaga County.
The attorney general's investigator requested that the trooper provide a blood sample to check for any impairment. The lieutenant complied voluntarily but the blood sample did not reveal any illicit substances or alcohol in his system, according to court records and State Police officials. It was determined the off-duty trooper was not at fault in the crash — and that the vehicle of the other driver, who was killed, had crossed the center line and struck the trooper's vehicle.
The PBA argued in its civil complaint that the office has been exceeding its authority under the law; the unions contends it should only be invoked to investigate the use of deadly force during on-duty encounters with civilians.
The attorney general's office has "applied a vague and overbroad interpretation which virtually gives themselves unfettered investigative authority into matters which have no reasonable relationship to law enforcement conduct or whether there has been a discharge of a firearm or not," their complaint states.
Timothy E. Dymond, president of the New York State Police Investigators Association, the union representing State Police investigators, said they are not instructing their members not to cooperate with the attorney general's investigations. But he said their members will be accompanied by attorneys if they are interviewed in connection with an investigation and may be advised not to answer questions.
"We're going to provide them counsel, and it's going to be on a case-by-case basis whether or not they provide a statement," Dymond said.
State Police members have complained that they believe there are sometimes questionable justifications for the criminal investigations that have been initiated by the attorney general’s office — even if they are dropped after an initial assessment without charges being pursued.
In one instance, the actions of an investigator who was serving as a hostage negotiator was investigated after the man he was trying to help killed himself during the incident in Westchester County.
Another case that rankled the labor groups involved two investigators who went to the residence of a man who was facing child pornography allegations. The man saw the investigators through a window when they knocked on his door and began to hang himself. The investigators broke through his door and cut him down when they realized what was happening — but their efforts to save him, including administering life-saving tactics, were not successful and he later died, according to a State Police official who described the incident on the condition he not be identified.
The attorney general’s office has previously highlighted that it is tasked with not only investigating the use of deadly force, but whether a police or correction officer's actions — or their failure to act — may have contributed to someone’s death.
Still, the legal challenge by the PBA, which is pending in the mid-level appellate division of state Supreme Court in Albany, contends the law does not give the attorney general’s office the authority to investigate "matters that have no reasonable relationship to law enforcement activities or official police duties."
The attorney general’s office, on its website, contends the legislation requires it to "investigate and, if warranted, prosecute any alleged criminal offense or offenses committed by a person, whether or not formally on duty, who is a police officer ... or a peace officer ... concerning any incident in which the death of a person, whether in custody or not, is caused by an act or omission of such police officer or peace officer or in which the attorney general determines there is a question as to whether the death was in fact caused by an act or omission of such police officer or peace officer."
The office further states that it will investigate "every incident in which a police officer caused or may reasonably have caused the death of a person, whether the person is armed or unarmed, and whether the officer is on duty or not."
In October, the attorney general's office issued a mandated annual report summarizing its investigations of fatal incidents involving police over the previous year. The investigations led to four criminal indictments of police offices, including charges of murder and reckless endangerment against Trooper Christopher Baldner. He is awaiting trial on charges of using his State Police vehicle in December 2020 to ram another vehicle during a high-speed pursuit on the Thruway. The collision caused the fleeing suspect's vehicle to flip and eject 11-year-old Monica Goods, who died from her injuries.
Baldner also was charged with endangering the lives of another driver and his passengers in September 2019 when he also allegedly used his police vehicle to ram their vehicle during a pursuit.
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