Testimony Regarding Police Accountability

Testimony of Michael Sisitzky on Behalf of the New York Civil Liberties Union

Before the 2019 New York City Charter Revision Commission Regarding Police Accountability

The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony in connection with the 2019 Charter Revision Commission’s expert forum on police accountability.

The NYCLU, the New York affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices throughout the state and more than 180,000 members and supporters. The NYCLU’s mission is to promote and protect the fundamental rights, principles, and values embodied in the Bill of Rights of the U.S. Constitution and the New York Constitution.

Defending New Yorkers’ right to be free from discriminatory and abusive policing is a core component of the NYCLU’s mission. Protecting this right requires robust systems for investigating abusive officers and holding them accountable. It also requires vigorous oversight of police surveillance practices and mechanisms to ensure that New Yorkers can fully participate in conversations about protecting civil liberties while ensuring public safety. The City Charter provides the basic framework for how these systems are regulated, but it does not go far enough to ensure that these systems function effectively. We encourage the Commission to consider the ways in which the Charter can better serve New Yorkers most impacted by police misconduct and unwarranted surveillance.

The City Charter Must Ensure Independent and Effective Oversight of Police Misconduct

No legislative body or commission, alone, can fully resolve the systemic issues related to police accountability. The State Legislature has a role to play in repealing laws that keep misconduct records secret and that give special treatment to administration of police disciplinary proceedings. The New York City Council must do its part to require greater transparency regarding how the NYPD applies its own standards for discipline and to mandate better tracking and reporting on disciplinary outcomes. And the Charter Revision Commission can work to ensure that the institutions of New York City’s government—the Civilian Complaint Review Board (“CCRB”)—in particular, do not continue allowing the NYPD to police itself.

Local and independent civilian oversight is a necessary component for promoting fair and accountable policing, and the NYCLU has long supported efforts to ensure such oversight for the NYPD. 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, we have consistently worked to ensure that the agency lives up to its mandate in the City Charter. As part of our work, the NYCLU has published a number of reports examining the operations of the CCRB,^[1] testified on multiple occasions before the City Council on proposals to strengthen the CCRB’s independence and effectiveness,^[2] and have attempted through litigation to gain a better understanding of how the NYPD decides disciplinary outcomes in CCRB-substantiated cases.^[3]

While the CCRB has authority to investigate and, pursuant to a 2012 memorandum of understanding, prosecute certain cases of police misconduct, its recommendations on disciplinary outcomes are ultimately not binding on the NYPD. The police commissioner’s exclusive authority to decide and impose discipline for officers stems from the City Charter, with Section 434 providing that the commissioner’s cognizance and control extends to the “disposition and discipline of the department.”^[4] This authority is reinforced in the Charter section governing complaints filed with the CCRB, which states that its provisions “shall not be construed to limit or impair the authority of the police commissioner to discipline members of the department.”^[5]

Together with the provisions of the City Administrative Code that provide additional structure to the Charter’s mandate,^[6] these provisions empower the police commissioner with full discretion to accept, modify, or outright reject the findings and recommendations of the CCRB. In practice, the exercise of this discretion is serious cause for alarm.

In 2017, the most recent year for which we have full data, the police commissioner imposed penalties weaker than those recommended by the CCRB in the majority of cases.^[7] For the majority of misconduct cases, where the CCRB recommended disciplinary penalties that would not lead to a full departmental trial, the commissioner departed from CCRB recommendations 58 percent of the time; the CCRB noted that this was the highest rate of NYPD rejection of its recommendations since 2013.^[8] In the most serious misconduct cases that involved full administrative trials, the police commissioner imposed discipline consistent with CCRB recommendations in just 27 percent of cases.^[9]

The low rate of concurrence with CCRB recommendations has been a persistent problem across administrations and has not been tied to any one police commissioner. It is a result of structural powers more than it is the result of any one commissioner’s view of or relationship to the CCRB. In 2007, an NYCLU report that analyzed data from 2000 to 2004—a period that included the tenures of three separate police commissioners—found that the NYPD rejected CCRB recommendations at a rate of 63 percent.^[10]

Noting the persistence of this problem across administrations, the NYCLU has previously called on the City to remove the commissioner’s exclusive authority to decide disciplinary outcomes and to transfer that power to an independent, civilian oversight agency.^[11] The NYPD has proven time and again its willingness to ignore calls for outside oversight and its unwillingness to hold itself to the high standards of accountability that the public expects of its police force. To be clear, the NYCLU remains concerned about the CCRB’s own commitment and willingness to pursuing serious discipline for officers who engage in misconduct, even if it were empowered to decide outcomes. In 2017, we sent a letter to the CCRB expressing our concern about the agency’s dramatic shift away from recommending the most serious types of discipline and its increasing move toward recommending trivial consequences for officers found to have engaged in misconduct.^[12]

Still, the current system in which the NYPD is accountable only to itself is untenable. Civilian oversight of policing is an empty exercise if the police commissioner has the authority to reject unilaterally the findings and recommendations of the very agency specifically entrusted to engage in that oversight. The Charter Revision Commission should explore options for removing or otherwise cabining the police commissioner’s exclusive authority over matters of police discipline. Outright transfer of that authority outside the police department is one option, but the Commission may also want to consider approaches that would impose restrictions on how the police commissioner exercises discretion, which could include requiring the NYPD to accept the findings of the CCRB but retaining the ability to decide the precise degree of punishment according to a defined disciplinary matrix.

We also note that the CCRB itself has proposed a number of potential changes to the Charter that would enhance its ability to operate independently and effectively, including the codification of its Administrative Prosecution Unit, provisions that would allow for delegation of the Board’s subpoena power, and language clarifying the extent of the NYPD’s duty to cooperate with CCRB requests for information.^[13] While these proposals may lessen some of the administrative challenges facing the CCRB, they do little to alter the structural imbalance of power between the NYPD and its civilian oversight agency, and we encourage the Commission to closely review and consider amending the Charter provisions that allow that imbalance to persist.

The City Charter Must Require Public Oversight of Surveillance Technology

Efforts to promote fair and accountable policing are further undermined when the police are able to engage in secretive and unchecked surveillance, and the NYPD has a long and troubling history of engaging in surveillance tactics that target political dissent, criminalize communities of color, and jeopardize all New Yorkers’ privacy.^[14]

The NYPD uses numerous forms of powerful, invasive and covert surveillance technologies to police New York City streets every day. These surveillance technologies can capture vast amounts of information about the places we visit, people we communicate with, the frequency of those communications, where we are located inside our home, and our most recent social media post. While surveillance technologies, by themselves, can pose significant risks to privacy, public health and other civil liberties and rights, the lack of transparency and oversight regarding how these technologies are acquired and used by the NYPD threatens our democracy.

To date, most of what we know regarding the NYPD’s use of surveillance technologies is based on costly Freedom of Information Law litigation by the NYCLU and other organizations, investigative journalism, and inquiries by the criminal defense community. Two examples that illustrate the problems created by the lack of transparency and oversight regarding the NYPD’s acquisition and use of surveillance technologies are Stingrays and X-ray vans.

Stingrays are surveillance devices that mimic cell site towers and allow the NYPD to pinpoint a person’s location, and some models can collect the phone numbers that a person has been texting and calling as well as intercept the contents of communications. When Stingrays seek information for a targeted phone in a place as densely populated as New York City, they also sweep up information from hundreds or thousands of nearby cell phones. Stingray devices can cost over $100,000 per unit, and this does not include the additional costs of the training and maintenance packages that are necessary to use the devices.

In 2015, the NYCLU sent a FOIL request to the NYPD about Stingrays. We learned that the NYPD used these devices in more than 1,000 investigations since 2008, ranging from robbery and drug cases to criminal contempt of court.^[15] The NYPD has been successful in concealing their use of Stingrays because they are used without a warrant and without an internal policy guiding their use. Currently, all that the public knows regarding the NYPD’s use of stingrays is based on the results of our FOIL request. We still do not know the full fiscal implications of the NYPD’s use of Stingrays because they have failed to reveal how many they own or which models have been purchased.

X-ray vans are military-grade surveillance equipment that utilize x-ray radiation to see inside of cars and buildings. These devices were used to search for roadside bombs in Afghanistan, but are also used on the streets of New York City.^[16] The company that manufacturers X-ray vans determined that the vans expose bystanders to a 40% larger dose of ionizing radiation than that delivered by similar airport scanners. Exposure to ionizing radiation can mutate DNA and increase the risk of cancer. In fact, the European Union and United States Transportation Security Administration banned the use of this type of radiation technology in airports citing privacy and health concerns. Additionally, X-ray vans costs between $729,000 and $825,000 per unit, which can have significant fiscal implications. Until ProPublica’s FOIL lawsuit, which revealed some of what we know about x-ray vans, the NYPD has largely refused to disclose anything about how it uses x-ray vans on the streets of New York. The NYPD’s attempt to keep these devices secret runs counter to best practices because other agencies, including the Department of Homeland Security, already revealed the same types of information sought by ProPublica in its FOIL lawsuit.

The secretive process by which the NYPD obtains and uses these technologies runs counter to good governance principles and threatens the digital security of all New York City residents and visitors. The NYPD is able to acquire and deploy these devices in secret because, unlike police departments in Seattle, Washington;^[17] Oakland, California;^[18] and Cambridge, Massachusetts,^[19] the Police Department is not required to seek City Council approval before obtaining new surveillance technologies. The NYPD further relies on federal grants and private donations to thwart what little transparency is already required under procurement rules.

Legislation supported by the NYCLU and pending in the City Council would require the NYPD to disclose the types of surveillance tools currently used against New Yorkers and to engage with the public before acquiring new types of surveillance technologies in the future.^[20] While this is an important measure within the City Council’s authority to pursue, the Charter Revision Commission should consider going even further. The Commission should explore amending the Charter to set up a process similar to what exists in Seattle, Oakland, and other municipalities^[21] that have acted to curb abusive surveillance practices by providing that such technologies can only be acquired with express City Council approval. Such procedures should mandate that this approval would only happen following an opportunity for the public as a whole to review and comment on proposed policies for their use and to assess whether adequate safeguards are in place. And if, following this public engagement, New Yorkers and their elected representatives are not satisfied that these technologies are worth the costs to our budget and our privacy, the Council should be empowered to prevent the NYPD from going forward with acquisition.

Conclusion

We thank the Charter Revision Commission for the invitation to present testimony on the topic of police accountability. The NYCLU looks forward to working with the Commission as it finalizes its proposals for strengthening and improving our framework for local government.