Testimony before the New York City Council Committee on Oversight and Investigations

May 5, 2014

The New York Civil Liberties Union respectfully submits the following testimony regarding the Council’s consideration of Intro. 119, which would require the NYPD Inspector General to submit quarterly reports of the number and disposition of civil actions filed against the police department.

With 50,000 members and supporters, the New York Civil Liberties Union (NYCLU) is the foremost defender of civil liberties and civil rights in New York State and a longstanding advocate for government transparency and oversight of police practices. We are pleased to support this bill to require the Inspector General to provide reports of civil actions against the NYPD, as a mechanism for permitting public oversight of activities by police officers that subject the City to liability.

I. Introduction
We applaud the Council’s work to create the office of NYPD Inspector General (IG) in 2013 by passing the NYPD Oversight Act (Local Law 70, 2013). Alleged patterns of police violence, racial profiling, discourtesy, and unprofessional conduct were too often ignored during the Bloomberg “Stop and Frisk” era, when the focus was more often on individual bad actors. And though the political climate has shifted, the Council has an obligation to ensure that the will to improve oversight and accountability of the NYPD outlasts the current administration and Council terms. We believe Intro. 119 is a part of creating that foundation, but only a part. We hope the Council will continue to explore ways to maximize the impact of the NYPD IG and hold the NYPD accountable.
In our testimony today, we make three recommendations:

1. We recommend that the Council create a mechanism to seek further investigation by the IG where the reports issued under Intro. 119 reveal patterns of misconduct, abuse, mismanagement, or other issues.
2. We urge the Council to use its oversight authority to ensure the NYPD IG dedicates proper focus and resources to systemic issues within the NYPD, rather than individual allegations of wrongdoing.
3. We recommend the Council begin to think more broadly about creating a lasting culture of transparency at the NYPD, including, for example, ensuring compliance with the City’s Open Data Law and requiring public reporting of data generated by non-criminal summonses.

II. Investigating Patterns of Misconduct
The NYCLU wholeheartedly supports the City taking a closer look at civil complaints for what they can reveal about policing. For many years, advocates have urged the NYPD to adopt an “early warning system” to alert police supervisors of patterns of misconduct among officers. Where individual officers really are “bad apples,” it is incumbent on the Department to recognize and address that fact as early as possible, to reduce the risk to New Yorkers who come into contact with those officers. Monitoring of civil complaints is not a substitute for, but can be an important supplement to, that early warning system.

While the filing of civil lawsuits is not proof of officer misconduct or structural failures, the IG must use his investigation powers and authority to look beyond the numbers and seek out patterns that require decisive action. The Council must be willing to hold hearings to examine this information and to press the IG to take on meaningful investigations.

III. Guarding the Inspector General’s Mandate
In 2007, the NYCLU issued a report, “Mission Failure,” that documented the many ways the Civilian Complaint Review Board (CCRB) was not living up to its promise to bring transparency and accountability to police practices. One of the primary failures was the CCRB’s inability or reluctance to recognize systemic issues revealed by repeated individual complaints, though it was well-positioned to make those connections. In 2013, we issued another report, “Beyond Deliberate Indifference: An NYPD for All New Yorkers,” that sadly demonstrated the continuation of those same issues at the CCRB.

Until creation of the NYPD IG last fall, systemic oversight of NYPD policies and practices did not exist. The City Council fought hard to create the office of the IG, and it must keep focus on the mission, operations, and evaluation of that office moving forward. While Intro. 119 brings a much needed level of oversight to one aspect of the police department, we caution that the resources of the IG must be preserved for investigations into systemic issues within the police department, and not diverted into investigations against individual police officers, even in egregious cases.

Among police reform advocates, the creation of the IG signaled the City’s recognition that systemic issues of training, supervision, and choices about policing tactics were causing real harm to New York communities. Those system-level decisions could not be addressed through IAB or CCRB investigations, and until the passage of the Community Safety Act (Local Law 71, 2013), were difficult to address in the courts. Investigating and scrutinizing those issues will always be less politically popular than sorting out “good” from “bad” police officers. The office must not become redundant of the Internal Affairs Bureau (IAB) or CCRB, both agencies that investigate allegations of wrongdoing by individual officers.

Where the system itself is broken, even good officers cannot redeem it. The Committee on Oversight and Investigations has the responsibility to ensure that the IG lives up to its mandate, focusing resources on investigation of systemic flaws and not individual wrongdoing. We recommend the Committee review carefully all reports issued by the IG, and be on alert for circumstances where more decisive action is warranted. We also recommend the Council use its oversight powers over the Department of Investigations and NYPD IG to be vigilant against a de facto shift in the IG’s mission.

IV. Additional Areas for Consideration
Finally, we recommend the Council take this opportunity to examine other areas of police practice that remain hidden from public scrutiny, particularly in this moment, when a new administration has yet to write its policing philosophy in stone. The NYPD has historically been one of the most resistant city agencies when it comes to transparency. It is time for a change.

To begin with, the NYPD remains egregiously out of compliance with the New York City Open Data Law (Local Law 11, 2012). This law demonstrated great leadership and vision by the City Council, and has the potential to create one of the most powerful open government programs in the nation. The law requires government agencies to upload all databases maintained by the agency to a publicly accessible web portal, in a format that is easy to download and easy for technologists and programmers to make use of. Currently, the majority of NYPD databases are not posted to the Open Government portal at all. Those that are available are locked into .pdf format, which is not permitted under the law, and which defeats the “open” format of the portal. The NYPD must be made to comply with this mandate.

As another example, aggressive NYPD enforcement of non-criminal violations continues to impact police-community relations but is hidden from public scrutiny. Officers can issue a summons for non-criminal wrongdoing, such as violation of the open container law, riding a bicycle on the sidewalk, or engaging in “disorderly conduct.” During the Bloomberg administration, the Department issued more than six million of these summonses, which can result in serious collateral consequences for people, including fines and even jail time. As with the Stop and Frisk program, advocates believe the NYPD may unfairly enforce these non-criminal violations against communities of color (preliminary data suggests that black and Latino New Yorkers have received nearly 2/3 of these summonses in some years).

Yet there is no public reporting of the race or other demographic information about New Yorkers who receive criminal court summonses from the NYPD. As it was during our City’s reckoning with the Stop and Frisk program, it is imperative that policymakers and the public have the opportunity to examine demographic information and think critically about maintaining safety in a way that is healthy for all communities. The NYCLU would be pleased to assist the Council in obtaining current information on summonses and exploring a program to require the regular reporting of that information.

These are just two examples of the failure of a culture of transparency to take hold at the NYPD. We hope the Council will continue building a solid foundation of transparency that will outlast individual elected officials, and will ensure the NYPD works for all communities across the City.

We thank the Council for its dedication to bringing oversight and accountability to the operations of the NYPD and we hope there will be more improvements to come. In the name of promoting greater transparency and accountability to the community, we trust the IG and the Council will make the reports generated under Intro. 119 available publicly. We look forward to working with you to bring lasting change to New York City.