NYPD Disciplinary Practices in Cases of Police Misconduct

 Testimony of the New York Civil Liberties Union

before

The New York City Council

Committee on Public Safety

regarding

NYPD Disciplinary Practices in Cases of Police Misconduct

Substantiated by the New York City Civilian Complaint

Review Board

__________

Presented by NYCLU Executive Director Donna Lieberman and

Associate Legal Director Christopher Dunn

January 29, 2009

_______________________________________________

            The New York Civil Liberties Union submits this testimony in response to recent actions by the New York City Police Department that are effectively destroying the already woefully inadequate system of civilian oversight of police misconduct that has been in place since 1993.  In light of the current oversight crisis, we specifically call on the Public Safety Committee and on the New York City Council to take steps necessary to transfer to the New York City Civilian Complaint Review Board (CCRB) responsibility for the prosecution of cases in which the CCRB concludes police misconduct in fact occurred.

Background

            The NYCLU was instrumental in the creation of the CCRB.  Since the City Council legislatively mandated an independent CCRB in late 1992 and since the CCRB began operating in July 1993, the NYCLU has been consistently and integrally involved in efforts to assure the agency’s vigorous and effective oversight of the New York City Police Department.

            As part of our ongoing work, we have published a number of reports examining the operations of the CCRB and examining the overall regime of civilian oversight of the NYPD.  Most recently, in September 2007 we released “Mission Failure, Civilian Review of Policing in New York City, 1994-2006,” a 63-page report that looked at the first thirteen years of independent civilian oversight of the NYPD.

A Dramatic Change in NYPD Prosecutorial Practices

            Most complaints that are filed about police mistreatment of civilians are investigated by the Civilian Complaint Review Board, an official city agency outside the police department.  In the cases in which the CCRB concludes a police officer engaged in misconduct – called “substantiated” cases – the agency forwards the case to the NYPD for further action. 

            Once CCRB-substantiated cases arrive at the NYPD, the Department Advocate’s Office (DAO) assumes responsibility for it.  As the prosecutor, the DAO can take a range of actions, including taking the case to trial, negotiating a plea agreement, or simply closing the case without any further action or discipline.  In cases in which an officer is disciplined, the police commissioner ultimately is responsible for imposing the discipline, which can range from dismissal as the most severe to “instructions” as the most lenient.  The commissioner is not required to explain (and does not explain) why discipline is or is not imposed or why any particular penalty is imposed.

            Between 2002 and 2004 — the first three years of Raymond’s Kelly most recent tenure as the NYPD’s commissioner — the Police Department’s handling of cases referred by the CCRB was fairly consistent.  During that period, about one-half of officers received discipline more severe than instructions, about one-quarter received instructions, and a tiny percentage of cases were closed by the Department without further action.  (The remaining cases ended without discipline for miscellaneous other reasons.)

            Starting in 2005, statistics on the department’s disciplinary actions started to shift dramatically.  From 2005 to 2007, officers receiving discipline more severe than instructions dropped by nearly a half to about one-quarter of the cases disposed of during those years.  Meanwhile, officers receiving slaps on the wrist in the form of instructions increased substantially, jumping to over one-half of the cases disposed of in 2006.

            Most troubling, the number of cases simply being closed by the Department without any action or discipline — referred to as “DUP” cases, for Department Unwilling to Prosecute — has spiked, from an annual rate of less than 4 percent between 2002 and 2006 to nearly 35 percent in 2007.   And the abrupt change in 2007 has proved not to be an aberration.  Indeed, figures released two weeks ago by the CCRB disclose that the NYPD dismissed without any action 34.1% of the cases it closed in of 2008.  The annual DUP figures for the last seven years are as follows:

                         Year                            Cases Dropped by NYPD (% of all closed cases)

                        2002                                        8 (3.9%)

                        2003                                        3 (.8%)

                        2004                                        15 (2.9%)

                        2005                                        11 (2.3%)

                        2006                                        12 (3.3%)

                        2007                                        102 (34.5%)

                        2008                                        91 (34.1%)

            It is important to understand that many of the cases being dropped by NYPD prosecutors involve significant violations of civil rights.  For instance, our review of CCRB reports about cases from 2007 reveals that about 45% percent of the cases dropped by the Department that year involved substantiated complaints of stop, question, and/or frisk; in 2008 the figure was about 35 percent for the reported cases.[1]  As the Council is aware, Department stop-and-frisk practices have been the subject of substantial public controversy, given the huge number of stops in the last five years and the marked racial disparities of those being stopped.

            Even more troubling is the NYPD dismissal out of hand of cases in which the CCRB has substantiated complaints of excessive force by police officers.  Our analysis of CCRB reports reveals that in 2008 nearly a quarter of the reported cases dismissed by the NYPD involved substantiated force complaints.[2]

            Not only have NYPD prosecutors started to dismiss without any action a large portion of CCRB-substantiated cases, they also have, for the remaining cases, effectively stopped pursuing trials against officers.  In 2007 for instance, Department prosecutors took only 2.7 percent (8 out of 296 cases) to trial.  Just four years earlier, 24.5 percent (90 out of 367) cases went to trial.  For the last seven years, the figures are as follows:

                        Year                                         Cases Taken to Trial (% of all closed cases)

                        2002                                                    46 (22.7%)

                        2003                                                    90 (24.5%)

                        2004                                                    88 (17.1%)

                        2005                                                    93 (19.6%)

                        2006                                                    44 (12.2%)

                        2007                                                    8 (2.7%)

                        2008*                                                  18 (7.0%)

*Through 11/30/08

            This sharp reduction in the DAO’s willingness to try cases removes from the prosecutorial process the primary threat that would encourage officers to accept substantial plea bargains.  If officers know that prosecutors simply will not take their cases to trial, officers are far more likely to be able to negotiate resolutions of their cases with far less discipline, further undermining the entire disciplinary process.

The Impact of the Changes in NYPD Disciplinary Practices

            While the Department may contend the changes of the last two years are somehow attributable to the CCRB, neither NYPD officials nor anyone else has identified any change in CCRB practices that could possibly account for the abrupt and dramatic shift in the NYPD’s disciplinary practices.  In light of the available figures, it is difficult to reach any conclusion other  than that NYPD prosecutors have made a conscious decision — or have been directed — to stop pursuing cases of CCRB-substantiated police misconduct.

            The failure to pursue discipline for officers found to have engaged in misconduct by the CCRB has a number of serious consequences, all of which undermine both the Department and public safety:

            !         Officers who have engaged in misconduct escape punishment;

            !         All police officers receive the very clear message that those who engage in misconduct may do so without fear of punishment. 

            !         The public receives the very clear message that officers can engage in misconduct with impunity and that it is a waste of time to file a CCRB complaint.

            !         The entire CCRB process is undermined, with devastating consequences for the morale of the agency’s staff.

A Needed Reform: CCRB Control of Prosecutions

            The NYCLU believes that the entire system of civilian oversight is broken and requires fundamental reform, which would require the allocation of significant new resources and possible legislative changes at the local and state level.  The dramatic changes in NYPD disciplinary practices over the last two years, however, have created an unprecedented crisis that can be addressed through more limited action that must be taken now.

            Today, we call upon the Public Safety Committee and the full City Council to work with the Administration, the NYPD, and the CCRB to transfer to the CCRB the authority and responsibility for prosecuting cases in which the CCRB has found misconduct.  While the NYCLU long has endorsed this change, developments of the last two years make this reform imperative now.

            As the Council is aware, during the administration of former Mayor Giuliani the NYPD and CCRB agreed to a Memorandum of Understanding (MOU) that effected this exact change.  The City adopted this reform in light of concerns expressed then about problems with the Police Department being responsible for prosecuting its own members in cases of misconduct against civilians.  Though the MOU’s prosecutorial shift never went into effect because of successful litigation challenging a separate part of the MOU (moving trials out of the Police Department), the courts expressly upheld the authority of City officials to agree to transfer prosecutorial authority to the CCRB.

            This reform can make an important difference, both in terms of addressing police misconduct and improving public confidence in the NYPD.  From our perspective, this reform will have several important benefits:

     !    It will assure vigorous prosecution of all cases in which the CCRB has found an officer to have engaged in misconduct because it removes the NYPD from being able to decide how and whether to proceed in a case of one of its own officers.

      !   It will promote thorough and professional CCRB investigations because the CCRB will remain responsible for handling those cases in which it has found misconduct.  Under this new arrangement, no longer will prosecutors be able to blame another agency for sloppy investigations as an excuse for not pursuing cases.

       !  It will expedite the resolutions of substantiated cases by eliminating the delays that inevitably follow when one agency hands a case off to another.  (Indeed, on occasion the NYPD has created huge delays by reinvestigating cases substantiated by the CCRB.)

Additional Reforms

            By our testimony today, we do not mean to suggest that the sole problem in civilian oversight lies in the NYPD’s prosecution of CCRB-substantiated cases.  To the contrary, as we detailed in our Mission Failure report from 2007, we believe that systemic reform is needed.  We do not discuss the details of our broader concerns at this time solely in the interest of focusing on the particular problem that has arisen from the recent changes in NYPD disciplinary practices.

            Nonetheless, there are two other reforms we believe the Council can and should enact in the near term:

Mandate a Practice-Reform Unit at the CCRB– We long have believed that one of the most beneficial – and most cost-effective – reforms in the civilian-oversight process would be to create a dedicated unit within the CCRB that would (1) analyze NYPD policies and practices that are contributing to police misconduct and (2) recommend reforms in such policies and practices.  As the City agency that processes the bulk of complaints about police officers, the CCRB is in a unique position to identify and respond to patterns of police misconduct.  Even a relatively small unit could make an enormous difference in reducing police misconduct.

Create a Neighborhood CCRB Presence– We long have been concerned about the insularity of the CCRB.  Agency staff work out of a single office in downtown Manhattan, which means that many complainants will not follow up on complaints because of the substantial inconvenience of having to travel to the CCRB office for interviews.  This geographic isolation also assures that the agency has little if any in-person contact with communities that are the victims of police misconduct.  While we recognize that in the current fiscal climate satellite CCRB offices are likely not feasible, many steps can be taken to use existing neighborhood city facilities as points of contact for the CCRB.  To take just two examples, local offices of Councilmembers and the Borough Presidents could be made available to CCRB staff to meet with civilians about complaints and with community members concerned about police misconduct.