The Civilian Complaint Review Board and Civilian Oversight of Policing

Testimony of Donna Lieberman, Executive Director of the New York Civil Liberties Union before The New York City Council Committee on Public Safety and the Committee on Civil Rights regarding The Civilian Complaint Review Board and Civilian Oversight of Policing

Introduction

City officials have become alert to policing practices following the police shooting of Sean Bell and the release of data that reveals the police have been conducting stop and frisks at unprecedented levels.

The attention is welcome. It is unfortunate, however, that it takes a fatal police shooting and headlines about the soaring numbers of stop-and-frisks to elicit such attention.

For there is ample evidence that New York City has a serious problem with police misconduct – and the problem has been evident for some time.

The numbers of police-misconduct complaints filed with the Civilian Complaint Review Board (CCRB) have jumped 66 percent between 2002 and 2006 – from 4,612 complaints filed in 2000, to 7,669 complaints filed in 2006.

These complaints typically allege serious acts of police misconduct. Historically half of all complaints filed with the CCRB charge that a police officer used excessive force. Between 2002 and 2006 excessive-force complaints have increased by 77 percent – a rate of increase that exceeds by 11 percent the rise in total complaints filed.

What’s more, following excessive force allegations the largest number of police misconduct allegations filed with the CCRB involve improper stop, frisk or search; unauthorized entry or search of premises; threat of arrest; threat of force – misconduct that could precipitate a confrontation between a police officer and a civilian.

These data compel us to ask the following questions:

Is the CCRB conducting a vigorous investigation and review of police-misconduct complaints?

Are the agency’s senior staff and board members identifying patterns of police misconduct and recommending reforms in policing policies and practices?

Is the NYPD holding police officers accountable for acts of police misconduct directed at civilians?

The NYCLU has studied these issues. That study leads us to conclude that the civilian oversight system is not working. It is a failed system.

I want to make clear at the outset that the CCRB must be analyzed in the context of the oversight system within which it operates. The agency is a central component of that system. Its performance, however, is contingent upon the cooperation of the police department’s Internal Affairs Bureau (IAB), which is responsible for obtaining and producing records and documents that the CCRB requires to conduct its investigations.

To be effective the CCRB also needs a partner in the police commissioner. Absent the commissioner’s support for the mission and work of the civilian oversight agency, it cannot succeed.

Finally, the CCRB cannot meet its charge under the City Charter without the strong advocacy of the mayor and the city’s legislative leaders.

The CCRB, however, has been failed by all of its partners.

City officials have abdicated their responsibility in addressing the problem of police misconduct.

City Council Member Peter Vallone has stated that the CCRB is the stepchild of city government. He is correct. And most prominent among those who have abandoned the agency are the mayor and the members of the City Council.

To establish accountability for the use, and misuse, of police authority, the city’s chief executive and its legislative leaders must become advocates for a vigorous, first-rate civilian oversight operation.

The NYCLU calls on the mayor and the members of the City Council to step up to that responsibility.

The NYCLU is in the process of completing an in-depth review of the city’s civilian oversight system.

We will share our findings with the members of the City Council in the coming weeks.

Today I will present a summary of our preliminary findings and offer recommendations that we believe are necessary to make the CCRB a viable oversight agency.

Findings

  • The CCRB has been unable to establish an effective investigative operation.
    The CCRB has historically failed to initiate an investigation in approximately half of all complaints disposed of in any given year. In 2006 the number of “truncated” complaints jumped to 60 percent. The CCRB is only able to make a finding on the merits in about three of every ten complaints it reviews. Investigators have reported in interviews conducted by the NYCLU that as the numbers of complaints have increased in recent years, there is increasing pressure to truncate complaints without an investigation.
  • The CCRB has failed to become an effective advocate for reform of police practices that pose an undue risk of harm to civilians.
    The CCRB has done little to identify patterns of police misconduct and to recommend reforms in police practices that pose an undue risk of harm to civilians. Even when the CCRB has documented a pattern of misconduct, and recommended reforms, the agency has often been silent when the department failed to act on the recommendations. The CCRB has failed to address effectively patterns of police misconduct related to unlawful strip searches, racial profiling, the execution of “no-knock” warrants, and the overzealous policing of lawful public demonstrations.
  • The NYPD fails to cooperate with the CCRB, seriously undermining the civilian oversight function.
    New York City Comptrollers Alan Hevesi and William C. Thomson have documented the NYPD’s failure to respond in a timely fashion to the CCRB’s request for documents. CCRB investigators report that it routinely takes months for the police department to produce documents that are necessary to proceed with an investigation.

    What’s more, investigators report (and CCRB documents confirm) that in any given month nearly 50 percent of police officers scheduled for an interview at the CCRB’s offices fail to appear. The police department’s obstructionism subverts timely and thorough complaint investigation. The department’s failure to cooperate with CCRB investigations is in violation of the City Charter.

  • The NYPD rejects CCRB disciplinary findings and recommendations in the overwhelming majority of cases.
    In the five-year period 2000-2004 the CCRB recommended the filing of charges and specifications – the most serious disciplinary recommendation – against 75 percent of police officers against whom a complaint of misconduct had been substantiated. (The CCRB recommends charges against a police officer – who then faces an administrative trial -- in cases that involve the more serious forms of police misconduct, such as brutality, unauthorized entry of premises, strip search, pointed gun, retaliatory arrest.) But in 45 percent of such cases referred by the CCRB during this period, the police commissioner reduced the charges to command discipline -- which involves a verbal admonishment or a loss of up to ten vacation days – or to instructions.

    The CCRB has provided no analysis of (nor does it appear that the agency has conducted an inquiry into) the department’s downgrading of disciplinary recommendations.

    Of the cases referred to an administrative trial during this period, consistent with the CCRB’s recommendation, 64 percent resulted in no disciplinary action. The explanation for the large number dismissals or not-guilty findings in the police department’s trial room is well documented: The department advocates conducted little if any case preparation. The New York City Commission to Combat Police Corruption has published two reports – one in 2000 and a follow-up in 2004 – that analyzed the performance of the Department Advocates Office. These reports found that the NYPD’s prosecution of CCRB complaints failed to meet minimum standards of competence.

    Recommendations

    The CCRB’s performance falls far short of the standards prescribed in the City Charter: thoroughness and impartiality, fairness and independence. The CCRB’s ineffectiveness is attributable to many factors. Some are within the agency’s control and others are not.

    A diagnosis of the agency’s failures requires an assessment of the performance of the CCRB’s board members and of the agency’s senior staff and front-line investigators; the role of the police department’s Internal Affairs Bureau in facilitating (or frustrating) access to police department documents; the police commissioner’s role in supporting, or frustrating, the work of the CCRB; and the role of the NYPD Department Advocates Unit in the prosecution of CCRB complaints.

    Each of these factors is difficult to analyze. However, this much is clear: the failure of the CCRB constitutes an immediate risk to public safety. It is therefore incumbent upon the mayor and legislative leaders to address this crisis with the seriousness it deserves.

    • The NYCLU calls upon Mayor Bloomberg, in consultation with the City Council, to appoint an independent commission on police accountability that is charged with conducting a comprehensive, in-depth analysis of the civilian oversight system – including all city departments and agencies that are involved directly or indirectly in the investigation and review of police misconduct complaints, and in the related adjudicative and disciplinary procedures.

      The commission must undertake a rigorous and searching investigation. Its work product should include a diagnostic assessment of the CCRB’s ineffectiveness, as well as prescriptive recommendations for making the agency effective. The commission’s process must be open and public; it must have the power to subpoena individuals and records, and to conduct public hearings.

      The NYCLU offers the following specific recommendations to the mayor, the members of the City Council, and to the members of the proposed police accountability commission.

    • The city must conduct a comprehensive evaluation of the financial and human resources that are needed to staff and administer an effective civilian oversight system. The CCRB’s budget is based on a baseline established when the agency was a unit of the police department. The agency was made an independent agency, with an expanded mission but with a reduction in its budget relative to its predecessor agency within the police department. The CCRB’s budget has been increased incrementally (and, on occasion, decreased); but it has been calculated in relation to a baseline for which there is no sound rationale.

      The agency has a demonstrably weak investigative function. As complaints rise, so too do the number of complaints truncated without an investigation. This phenomenon is, at least in part, a function of inadequate resources. If the civilian oversight system is to perform its oversight function effectively, it requires a budget commensurate with its mission.

    • A first task to be taken up by the proposed police accountability commission is a comprehensive reassessment of the CCRB’s investigative operation, including the hiring, promotion, training and supervision of investigators; and the establishment of meaningful performance standards and appropriate case loads. This reassessment must be undertaken with the objective of making the CCRB capable of conducting rigorous, thorough and timely investigations of police-misconduct complaints.
    • The NYCLU recommends that the city establish CCRB units in every borough, staffed by in-take personnel and investigators who are available after business hours and on weekends. The CCRB is largely invisible in the communities that are most in need of its services; even members of these communities who may have heard of the CCRB often have little understanding of its function and operations.

      An agency whose lower-Manhattan office is open during business hours cannot well serve the city’s residents, most of whom will require reasonably convenient access to the CCRB’s staff after business hours in order to file a complaint. The CCRB has an obligation to facilitate the filing and investigation of complaints more effectively. Satellite offices in each borough would help establish the credibility and effectiveness of civilian oversight.

    • The CCRB must create a unit dedicated to analyzing patterns of police misconduct – and to recommending reforms in policing policies and practices that can ameliorate tension and conflict between civilians and the police. The analysis of police practices is a critical function of a civilian review board. A well-thought-out change in policing methodology can prevent conflict from arising in hundreds of interactions between police officers and civilians.

      The CCRB’s leadership has objected that the agency lacks the resources to perform this function. This objection is shortsighted. Within the New York City metropolitan area there is a wealth of expertise on the full range of policing issues that arise in the course of reviewing misconduct complaints. The CCRB would be well advised to recruit experts from this pool of scholars, police professionals and legal practitioners who may assist, pro bono, in analyzing policing policies and practices.

    • The CCRB must create and implement a more ambitious and effective public education program – one that is more responsive to the needs of New York City residents. The agency has terminated approximately half of all complaints without undertaking an investigation. The CCRB reports that a significant cause of the high truncation rate is the unavailability or uncooperativeness of complainants.

      Civilians who believe they have been the victims of police misconduct need to learn how to become advocates in their own behalf – that is, they need instruction and guidance in documenting and filing complaints. The CCRB’s data on truncated and inconclusive investigations make apparent the need for the CCRB to undertake a more rigorous public education program.

    • Mayor Bloomberg must fulfill the commitment made by his predecessor, Mayor Rudolph Giuliani, to establish and fund a CCRB litigation unit that prosecutes police officers against whom administrative charges are recommended by the CCRB. As documented by the Police Corruption Commission, the adjudication of complaints by the Department Advocates Office is little more than a charade of justice. The Commission has endorsed the recommendation that the CCRB prosecute substantiated cases in the police department trial room and before other administrative tribunals. The adjudication of CCRB complaints should be removed to the Office of Administrative Trials and Hearings or to another administrative tribunal that is independent of the NYPD.
    • The city must transfer to an official independent of the police commissioner the authority to impose discipline on police officers who have committed acts of misconduct against civilians. The NYPD’s disciplinary practices regarding police misconduct directed at civilians do little to punish or deter misconduct, but rather serve to condone it. Civilian oversight of policing is an empty exercise if the police commissioner has the authority to reject unilaterally the findings and recommendations of the oversight agency. This has been the practice of every police commissioner as regards the disposition of complaints that have been substantiated by the CCRB.