mission failure: civilian review of policing in new york

Mission Failure:

Civilian Review of Policing

in New York City

1994-2006

125 Broad Street, New York, NY 10004 212.607.3300

Donna Lieberman, Executive Director

Mission Failure:Civilian Review ofPolicing in New York City1994-2006

This report was written by Robert A. Perry.

Christian Smith-Socaris was a contributing writer and researcher; he created the tables and graphs that appear in the report.

Additional research for this reportwas conducted by Ankush Khardori,Jacob Hupart, Julie Ebenstein, andIrum Taqi.

Editorial assistance was provided by Margaret Hunt Gram and Jamarah Harris.

The report was designed by Li Wah Lai, who generously donated her time.

Thanks to Christopher Dunn, Lisa Fox, Peter Kane, and DonnaLieberman for their assistance inpreparing this report.

The NYCLU gives special thanks to the Nathan Cummings Foundationand to the Reed Foundation for their support.

Introduction and Summary of Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. New York City’s Civilian Oversight System . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II. New York City Police Department Disposition of Substantiated Complaints: Condoning Police Misconduct . . . . . . . . . . . . . . 19

III. Gaming the System: How the New York City Police Department Subverts Civilian Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

IV. Extraordinary Deference to the New York City Police Department . . . . . . . . 39

V. When Civilian Review Fails . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Contents

Appendix A: Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52Table 1: CCRB disposition of complaints, 1994 – 2005Table 2: Substantiated complaints, 1994 – 2005Table 3: Unsubstantiated complaints, 1994 – 2002Table 4: Complaints with one or more excessive force allegations, 1998 – 2005Table 5: NYPD disposition of substantiated complaints that resulted in no discipline:

force vs. non-force, 1998 – 2004

Appendix B: Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54Civilian Complaint Review Board to New York City Police Department, May 9, 2006New York City Police Department to Civilian Complaint Review Board, May 10, 2006New York Civil Liberties Union to New York City Police Department, May 15, 2006

Appendix C: Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61Executive Order No. 40, Oct. 21, 1997 Table 6: Disposition of substantiated CCRB cases at trial, 1997-1999:

Cases tried by NYPD Deputy Commissioner of Trials vs. Cases tried by Office of Administrative Trials and Hearings

Mission Failure:Civilian Review

of Policing in New York City

1994-2006

Appendices

Figure 1 – Increase in civilian misconduct complaints filed with the CCRB against uniformed members of the NYPD, and increase in complaints per NYPD officer, 2000 - 2005

Figure 2 – Number of allegations in CCRB complaints by allegation type, 1993 - 2005

Figure 3 – Increase in allegations contained in CCRB complaints by allegation type, 2000 - 2005

Figure 4 – Dispositions of civilian complaints filed with the CCRB, 1996 - 2005

Figure 5 – Rate at which CCRB substantiates civilian complaints, 2005 - 2006

Figure 6 – Rate at which CCRB closes civilian complaints without an investigation, 2005 - 2006

Figure 7 – CCRB substantiation rates for force allegations vs. other allegations, 2003 - 2006

Figure 8 – Discipline imposed by NYPD on officers with substantiated CCRB complaints, 2000 - 2005

Figure 9 – Discipline imposed by NYPD on officers with substantiated CCRB complaints: instructions vs. other discipline, 2000 - 2005

Figure 10 – Discipline imposed by NYPD on officers with substantiated CCRB complaints: instructions vs. other discipline, 2005 - 2006

Figure 11 – NYPD disposition of cases substantiated by the CCRB and referred to an administrative trial, 1998-2004 (based upon year of referral to NYPD)

Figure 12 – Discipline imposed on officers named in substantiated CCRB cases that were referred to NYPD administrative trial, 1998 - 2004 (based upon year of referral to NYPD)

Figure 13 – CCRB allegations charging that police officer used unlawful physical force or another form of force, 1998 - 2005

Figure 14 – Rate at which NYPD imposes no discipline in substantiated force and non-force CCRB cases, 1998 - 2004 (based upon year of referral to NYPD)

Figure 15 – Examples of police department discipline in substantiated CCRB cases that involve serious misconduct

Figure 16 – CCRB allegations charging that police officer refused to provide name or shield number, 1998 - 2005

Figure 17 – Allegations of question and/or stop; frisk and/or search; and threat of arrest, 1998 - 2005

Figure 18 – Liability incurred by New York City for police misconduct directed at civilians, 2000 - 2004

List of Figures

DEDICATION

This report is dedicated to the memory

of Officer John William Perry.

John was an attorney, a champion of

civil liberties and civil rights, an athlete,

an actor, a linguist, and a generous and

loyal friend.

As a member of the New York City

Police Department, he worked in

pursuit of police accountability and

advocated for a strong and independent

Civilian Complaint Review Board.

John was a friend of the New York

Civil Liberties Union and a member

of its Nassau Chapter board.

He responded as a police officer to the

emergency at the World Trade Center

on September 11, 2001, and perished

while assisting in rescue work.

Introduction and Summary of Findings

In commenting on his 2005 ManagementReport, Mayor Bloomberg suggested that“New York City is the safest big city inAmerica.”1 It was a pre-election report

card that gave city government very goodgrades. The mayor’s presentation on thestate of the city was documented with aplethora of statistics.

New York may be the nation’s safest largecity when it comes to certain index crimes,but perhaps not when it comes to acts ofpolice misconduct directed at civilians. Since 2000 there has been a steady, signifi-cant increase in police-misconduct complaintsfiled with the Civilian Complaint ReviewBoard (CCRB). In 2005 civilians filed 6,796CCRB complaints – a 65 percent increaseover the 4,116 complaints filed in 2000.2

Complaints filed in 2006 jumped again, to 7,669 – a 13 percent increase relative to2005.3

A 2005 New York Times story stated thatpolice misconduct complaints filed with theCCRB “do not rise to the level of a crime.”4

The assertion is demonstrably untrue. Itreflects, however, a common misperceptionregarding the nature of police misconduct inNew York City.5

Half of all complaints filed with the CCRBcharge that a police officer used excessive force.The unjustified use of force is a crime; it is noless a crime if committed by a police officer.

In 2005 alone, civilians filed 6,264 complaintallegations of excessive force with the CCRB.6(A complaint may include more than one alle-gation of misconduct.) The use of force bypolice is a common occurrence. And, accord-

ing to the thou-sands of NewYork City resi-dents who filedcomplaints withthe CCRB, policeofficers engage inthe unlawful useof force everyday, many timesa day.

Other than allega-tions of excessive

physical force, the allegations most frequentlyfiled involve serious “abuse of authority” –such as improper stop, frisk or search; unau-thorized entry or search of premises; threat ofarrest; threat of force – police actions thatcould provoke conflict between a civilian and a

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1

1 Michael R. Bloomberg, Mayor of the City of New York, Mayor’s ManagementReport - Fiscal 2005, September 2005, p. 160.

2 New York City Civilian Complaint Review Board Status Report, January-December 2005 (Hereafter, “CCRB Status Report”), p. 43; and CCRB StatusReport, January-December 2004, p. 41. Note: Data published in the CCRB’s sta-tus reports are not finalized until several years after they are first reported.Statistical reporting of allegations and complaints may be re-categorized uponreview and closure. Therefore in this report a statistic regarding complaintactivity or disposition in a particular year may be cited in a CCRB report pub-lished several years later. As a general rule, the data cited are taken from thelatest published CCRB status report.

3 CCRB, Executive Director’s Report, February 2007 (“Total Complaints ReceivedYear-to-Date – January-December 2005 v. January-December 2006”).

4 Michael Wilson, “Top Officers Are Said to Ignore Complaint Board’s Inquiry,”New York Times, September 15, 2005.

5 The assertion that police misconduct complaints within the CCRB’s jurisdiction“do not rise to the level of a crime” has become boilerplate copy in the NewYork Times. This language has appeared verbatim in five news stories in asmany years. Notwithstanding its repetition in news accounts, the statement isfactually incorrect, and is incorrect as a matter of law. See New York Times,“Top Officers Are Said to Ignore Complaint Board’s Inquiry,” Sept. 15, 2005;“Civil Liberties Group Sees No Need for Police Panel,” Nov. 6, 2004; “PoliceCreate Panel on Abuse Claims at Convention,” Nov. 5, 2004; “Report FindsPolice Abuse Unpunished,” Dec. 7, 2000; “More Police Officers Being Punished,but Not More Severely,” July 28, 2000.

6 CCRB Status Report, January-December 2005, p. 43.

Half of all complaintsfiled with the CCRBcharge that a police offi-cer used excessive force.The unjustified use offorce is a crime; it is noless a crime if committedby a police officer.

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police officer. Such conduct may also violatethe penal code.

If documented incidents of this nature wereattributed to any other sector or group, theincident reports would set off alerts in theNew York City Police Department’s (NYPD’s)Compstat system. And in response the policedepartment would mobilize a special anti-crime task force. But city officials – themayor, City Council members, police offi-cials – become unusually circumspect whenthe unlawful conduct is attributed to policeofficers. Compstat computer screens seem togo dark.

This report analyzes complete CCRB datafor the years 1994-2005. It includes 2006updates for certain data catagories. Thesedata indicate that police misconduct is sys-temic – and that in certain communities it isroutine. The problem bears the unmistak-able signs of racial animus. In 2005, eightof every ten complainants who filed a police-misconduct complaint were black or Latino.7

This is not news. Year in and year out,blacks represent more than 50 percent of allcomplainants – two times their representa-tion in the general population.8

But even as complaints of police misconducthave increased sharply, the CCRB has beenclosing more than half of all complaints with-out an investigation. And of those complaintsthe CCRB has substantiated, the police com-missioner has been rejecting the CCRB’s disci-plinary findings and recommendations withgreat frequency. (Police commissioners haveroutinely rejected the findings and recommen-dations of the civilian-run CCRB; the problemis a matter of degree.)

Of the more egregious cases of misconductthat have been substantiated by the CCRB andreferred to the NYPD for disciplinary actionbetween 2000 and 2004 – the last year forwhich complete data are available on discipli-nary action – the police commissioner hasrejected the CCRB’s findings in 63 percent ofthose cases.9 When discipline was imposed, itwas strikingly lenient in light of the severity ofthe misconduct that has been documented bythe CCRB.

The record compiled in this report allows forno other conclusion than this: the city’s civil-ian oversight system has failed. It has beensubverted and co-opted by the police depart-ment. This has occurred for the same reasonthe CCRB was created in the first instance:the police department as an institution of gov-ernment is defiant of independent oversight,particularly as regards police misconductdirected at civilians.

The oversight agency has been a party to itsown fecklessness. It has ceded its statutoryauthority to the NYPD and has deferred topolice officials as they nullified findings andrecommendations regarding both the imposi-tion of discipline and the reform of policingpolicies and practices.

This is not to say that the principle of civil-ian oversight is invalid or that the structureof the city’s civilian review model is fatallyflawed. It is widely recognized by police pro-

7 CCRB Status Report, January-December 2005, p. 49.8 Ibid.

9 See Figure 11. Complaints substantiated and referred to the NYPD for disciplinein any given year may not be disposed of by the NYPD until a subsequent year.Therefore 2004 is the last year for which nearly all complaints referred by theCCRB for disciplinary action have been disposed of by the police department.

There has been an abdication of leadership on theissue of police accountability. The civilian-oversightagency has been left by the city’s political leadersto fight its own battles with the police department.In this political contest the CCRB is badly outclassed.The mayor, police commissioner, City Council members, and the CCRB’s board are collaborators in this failure. Its cost is reflected in harm sufferedby the victims of police misconduct, in violations of fundamental rights and liberties, in diminishedrespect for police.

fessionals and criminal justice scholars thatindependent civilian oversight is essential toestablishing accountability for the use, andmisuse, of police authority.10 In New YorkCity this may require amendments that givethe agency greater authority and autonomy.No civilian review system can function effec-tively, however, without a strong advocate inthe offices of the mayor and legislative lead-ers – and without the police commissioner’srespect for the mandate with which the over-sight agency is charged under law.

The CCRB lacks a strong advocate. There hasbeen an abdication of leadership on the issue ofpolice accountability. The civilian-oversightagency has been left by the city’s political leadersto fight its own battles with the police depart-ment. In this political contest the CCRB is badlyoutclassed. The mayor, police commissioner, CityCouncil members, and the CCRB’s board are col-laborators in this failure. Its cost is reflected inharm suffered by the victims of police miscon-duct, in violations of fundamental rights and lib-erties, in diminished respect for police.

And there are financial costs. The city’s failureto establish accountability for police misconductmay well rise to the level of deliberate indiffer-ence – a standard that has legal significanceregarding the city’s financial liability for acts ofpolice misconduct.

Between 2000 and 2004 New York City tax-payers have paid more than a quarter of a bil-lion dollars in damages to compensate the vic-tims of police misconduct, and to pay the legalcosts incurred by the city in defending lawsuits brought against police officers chargedwith acts of brutality.11

Summary of Findings

● The CCRB is failing to fulfill its mission asmandated in the City Charter.

The New York City Charter mandates thatthe CCRB undertake “complete, thoroughand impartial” investigations of police-mis-conduct complaints brought by civilians, andthat these investigations are conducted in amanner in which both the public and thepolice have confidence.12 The CCRB fails tomeet this standard. The agency investigatesfewer than half of all complaints that itreviews, and it produces a finding on the mer-its in only three of ten complaints disposed ofin any given year. The agency has failed towin the confidence of the city’s residents; thepolice department is largely dismissive ofCCRB findings and recommendations.

● The CCRB has been unable to establish aneffective investigative operation.

The CCRB has historically closed about50 percent of police-misconduct com-plaints without initiating an investigation;between 2002 and 2005 the “truncation”rate increased to 55 percent. In 2006 theCCRB closed 60 percent of all complaintswithout undertaking an investigation.

The CCRB has conducted a full investiga-tion in fewer than half of the complaints ithas reviewed and disposed of. In 2002-2005 the CCRB closed only 42 percent ofcomplaints with a full investigation.

Of complaints fully investigated by theCCRB, the agency has disposed of approxi-mately one-third as unsubstantiated – orinconclusive.

The CCRB has substantiated, on average,5.2 percent of complaints closed – far belowthe substantiation rates reported by civilianoversight agencies nationally.

● The CCRB has failed to advocate effectivelyfor reform of police practices that pose arisk to public safety.

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10 See Samuel Walker, Police Accountability: The Role of Civilian Oversight(Belmont: Wadsworth Group, 2001), p. 15; and Jerome H. Skolnick, James Fyfe,Above the Law, Police and the Excessive Use of Force (New York: The FreePress, 1993), p. 230. (“In the long run, only an independent investigative bodycan allay public suspicions of the police and render a convincing exoneration ofpolice who have been accused of misconduct.”)

11 See Figure 18, herein. William C. Thompson, Comptroller of the City of New York,Claims Report: Fiscal Year 2004, Appendix C, Tables 1 and 3, November 2005.

12 New York City Charter, Chapter 18-A, §440(a).

The CCRB has done little to identify pat-terns of police misconduct and to recom-mend reforms in police practices that posean undue risk of harm to civilians. TheCCRB has failed to address effectively pat-terns of police misconduct related to racialprofiling, the execution of “no-knock”warrants, and the policing of lawful pub-lic demonstrations.

Even when the CCRB has documented apattern of misconduct, and recommendedreforms, the agency has often been silentwhen the department failed to act on therecommendations.

● Civilian complaints of police misconducthave been rising sharply.

Complaints filed with the CCRB haveincreased 65 percent between 2000 and2005 – from 4,251 complaints in 2000, to6,796 filed in 2005. In 2006 civiliansfiled 7,669 complaints with the CCRB –an increase of 13 percent relative to thenumber filed in the preceding year. (SeeFigure 1.)

The number of allegations made in CCRBcomplaints has increased by more than 100percent between 2000 and 2005 – from 9,387allegations made in 2000, to 19,041 in 2005.

(A complainant may allege that a police offi-cer or police officers engaged in more thanone act of misconduct.)

● CCRB complaint data indicate that themore serious forms of police misconductoccur with significant frequency.

Half of all complaints filed with the CCRBinclude an allegation of excessive force.The ratio of force complaints to total com-plaints has been consistent since the inde-pendent CCRB was established.

In 2006, however, the number of allega-tions of excessive force increased by 26.8percent as compared with 2005 – nearlydouble the increase in complaints filed.

The most frequently filed allegationsinvolve serious abuse of authority –improper stop, frisk or search; unautho-rized entry or search of premises; threatof arrest; threat of force – police actionsthat could provoke a confrontationbetween a police officer and a civilian.

● Complaints that accuse police officers of usingexcessive force rarely result in discipline. The CCRB substantiates approximatelyone-third as many force allegations ascompared with non-force allegations.


Source: Complaints received – CCRB Status Reports, January-December: 2004, p. 41; 2005, p. 43. Complaints per officer – Comptroller of the City of New York, William C. Thompson, Comprehensive Annual Financial Report of the Comptroller for Fiscal Year Ended June 30, 2005, p. 301.

0%10%20%30%

40%50%60%70%80%

90%100%

2000 2001 2002 2003 2004 2005

Percent Change in Complaints per Officer

Percent Change in Complaints

FIGURE 1 – Increase in civilian misconduct complaints filed with the CCRB against uniformed members of the NYPD, and increase in complaints per NYPD officer, 2000-2005

Of those police officers who face poten-tial disciplinary action for the use ofexcessive force, relatively few are actuallydisciplined. Between 2000 and 2004 theNYPD closed about three times as manysubstantiated CCRB force cases withoutimposing discipline as compared withsubstantiated non-force cases.

● The NYPD condones acts of police mis-conduct by nullifying CCRB findings andrecommendations.The department takes no disciplinaryaction against almost 30 percent of police

officers named in substantiated CCRBcomplaints. Between 2000 and 2005 theNYPD disposed of substantiated com-plaints against 2,462 police officers: 725received no discipline. When disciplinewas imposed, it was little more than aslap on the wrist. Of the 1,607 policeofficers who were disciplined in this timeperiod, 534 received instructions regard-ing the misconduct.

Another 717 police officers received com-mand discipline – which at the discretion ofthe precinct commander may involve nothing


0

2,000

4,000

6,000

8,000

10,000

12,000

Abuse of Authority

Force

Discourtesy

Offensive Language

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

Source: CCRB Status Reports, January-December: 2001, p. 45; 2002, p. 41; 2003, p. 45; 2004, p. 41; 2005, p. 43.

FIGURE 2 – Number of allegations in CCRB complaints by allegation type, 1993-2005

-20%

0%

20%

40%

60%

80%

100%

120%

140%

160%

2000 2001 2002 2003 2004 2005

Abuse of Authority

Force

Discourtesy

Offensive Language

FIGURE 3 – Increase in allegations contained in CCRB complaints by allegation type, 2000-2005

Source: CCRB Status Reports, January-December: 2004, p. 41; 2005, p. 43.

more than a verbal admonishment. The mostsevere sanction imposed under command dis-cipline is a loss of ten vacation days.

In recent years it appears that the NYPDhas adopted a radically more lenient disci-plinary standard as regards acts of policemisconduct directed at civilians. In 2004the police department ordered instructionsin approximately 30 percent of all discipli-nary actions related to a substantiatedCCRB complaint. In 2005 instructionsrepresented nearly 60 percent of such dis-ciplinary actions; and in 2006 instructionsrose to 72 percent of all disciplinaryactions related to police misconductdirected at civilians. Suspension of apolice officer has become an extraordinar-ily rare occurrence, even when egregiousacts of misconduct are involved.

Of the 1,076 police officers who werereferred to an administrative trial to facecharges between 1998 and 2004, approxi-mately 63 percent received no discipline.(2004 is the last year for which completedata are available on disciplinary actiontaken by the NYPD, based on the yearCCRB complaints were referred for disci-pline.) In most of those cases, the adminis-trative trial judge dismissed the charges orfound the police officer not guilty. Duringthis time period, cases were dismissedagainst 198 police officers against whomthe CCRB had substantiated misconductcomplaints. In another 363 cases adminis-trative judges issued non-guilty findings.

● The NYPD has co-opted the civilian oversight system.

Commenting on the independent CCRB fiveyears after it had been established, a leadingscholar on policing stated, “the police aredoing . . . their best to make [the CCRB] asineffective as they can.”13 There is consid-erable evidence that indicates this assertionis still accurate.

The police department has consistently andpersistently withheld documents or delayedthe production of documents needed by theCCRB to investigate police-misconduct com-plaints. This problem has been documentedin reports published by the New York CityComptroller’s office in 1998 and 2002.

The CCRB’s investigators report that thepolice department’s delay-and-deny tacticsin response to records requests hobbles theoperations of the oversight agency.Investigation of serious misconduct runs upagainst the eighteen-month statute of limita-tions, which results in the premature cur-tailment of CCRB investigations.

Investigators also report that on any givenday approximately half of all police officersscheduled for an interview at the CCRB –including witnesses and those named in acomplaint – fail to appear, further compro-mising investigators’ ability to conducttimely investigations.

The police department’s Internal AffairsBureau conducts investigations of certainserious complaints (for example, complaintsthat include excessive-force allegations) con-currently with the CCRB. This practice fur-ther delays the production of documentsthat the CCRB requires to complete itsinvestigations.

● The NYPD’s prosecution of substantiatedCCRB cases fails to meet minimum standards of competence.

The New York City Commission on PoliceCorruption has published comprehensivereports (in 2002 and 2004) on theDepartment Advocate’s Office (DAO), the NYPD unit that prosecutes officerswho face administrative charges related to substantiated CCRB complaints. Thesereports find that the DAO conducts littleif any case preparation. Complainantsand witnesses are not contacted, and


13 Paul G. Chevigny, “Police Violence: Causes and Cures,” Journal of Law andPublic Policy, Vol. 7, p. 90 (1998).

documentary evidence is not requested.Prosecutors’ trial skills, according to theCommission’s reports, fail to meet mini-mum standards of professionalism.

The CCRB’s investigators state that the officeof the Deputy Commissioner of Trialsemploys an improperly heightened standard ofproof in adjudicating substantiated CCRBcomplaints. The New York City Commissionto Combat Police Corruption has made thesame observation in a published report. If theDeputy Commissioner of Trials requires ashowing greater than a preponderance of theevidence to establish that misconduct hasoccurred, then the city’s civilian oversight sys-tem is fundamentally compromised.

● The CCRB demonstrates extraordinary deference to the police department.

Agencies charged with providing oversightof policing face stiff resistance from lawenforcement. Political officials are oftensilently complicit in this standoff. Facedwith this political dynamic, the oversightagency’s board members and top adminis-trators often defer to the police. Thisdynamic has undermined the civilian-reviewfunction in many United States cities, andthis is the case in New York City as well.

The CCRB has failed to analyze the policedepartment’s frequent rejection of the over-sight agency’s findings and disciplinary rec-ommendations; nor has the agency analyzedor objected to the extraordinarily lenient dis-ciplinary action taken by the department,even in cases that involve serious misconduct.

The CCRB has failed in its reporting toaddress the fact that the NYPD rarely disci-plines police officers for acts of excessiveforce: a police officer against whom theCCRB has substantiated a complaint involv-ing excessive force is 70 percent less likelyto receive discipline than a police officerwith a substantiated complaint that doesnot involve force.

In more than one instance the CCRB hasdocumented a troubling pattern of mis-conduct allegations and forwarded a poli-cy recommendation to the police commis-sioner – only to fall silent as the policecommissioner blatantly disregards theagency’s recommendation. The agencyhas failed to address persistent police mis-conduct involving strip searches, stop-and-frisk activity, and police officers’ failure toidentify themselves to civilians.

● The failure of the city’s civilian oversightsystem has had serious harmful consequences – for the victims of policemisconduct and for law enforcement.

The failure of the civilian oversight system hascreated grave risks to public safety and toindividual liberty. In the name of law enforce-ment, police officers have inflicted seriousphysical, psychological and financial harm onmany thousands of the city’s residents.

The city’s failure to hold police officersaccountable for acts of misconduct directedat civilians undermines confidence in lawenforcement and discourages cooperationwith criminal investigations.

Without meaningful oversight there is noaccountability. Police officers commitmisconduct without facing discipline andwithout consequence for their employ-ment status.

The CCRB has failed to discover, or hasignored, patterns of police misconduct; andthe NYPD has therefore failed to adoptreforms – in police training, tactics, policiesand practices – that could prevent foresee-able risks of harm.

New York City taxpayers also incur signifi-cant financial costs as a consequence of thefailure to deter police misconduct. Between2000 and 2004 the city has expended morethan a quarter of a billion dollars to resolvelawsuits brought against police officers for


egregious acts of misconduct. (Not includ-ed in this calculation are those lawsuits thatare filed and litigated, but that do not resultin a judgment or settlement.)

● The city has failed to establish meaningfulaccountability for police misconduct.

City officials have been silent in the faceof voluminous evidence that the civilianoversight system is failing. There has beenan abdication of responsibility and effec-tive leadership by the mayor, the policecommissioner, the City Council and theappointed members of the CCRB. As aconsequence the city is failing to complywith the City Charter’s mandate that the

CCRB provide independent oversight andaccountability for acts of police miscon-duct directed at civilians. ■


The following is paraphrased from theCCRB’s 2005 status report.

On May 7, 2003, a plain-clothes sergeantand a patrol officer from Manhattan’s23rd Precinct Tracer Unit approached aman on Third Avenue near East 115thStreet after the man bought two “dimebags” of cocaine.

The man tossed the bags into his mouth.The patrol officer – according to accountsthat the man later gave to the CCRB –responded by grabbing the man’s throatand choking him in an attempt to stop himfrom swallowing the bags. The patrol offi-cer and the sergeant then tackled theman, handcuffed him, and repeatedlypunched and kicked him in the torso.

The officers arrested the man and tookhim to the 23rd Precinct, where heimmediately informed NYPD personnelthat he had been injured. He was takento a hospital and diagnosed with musclestrain. Officers returned him to the

precinct, where the patrol officer issuedhim a summons for disorderly conductand released him.

Two days later, the man returned to thesame hospital complaining of pain to hisleft rib cage area; five days after that hecalled 911 and was taken to another hos-pital, which determined that his spleenhad been severely shattered. The hospitalalso determined that the man had a non-displaced fracture of two ribs and that athird was probably fractured as well. Asurgeon removed the man’s spleen.

After the man filed a complaint with theCCRB, the patrol officer and the sergeanttold a CCRB investigator that they hadnever choked, hit or kicked the man andthat he must have sustained his injurieswhen he fell to the ground. But an expertin forensic pathology at the city’s Officeof the Chief Medical Examiner concludedthat the man’s injury had been caused bythe May 7, 2003, altercation with the ser-geant and patrol officer; that the week of

lag time between the incident and the911 call made sense given that there is anormal delay period before a spleen rup-ture becomes clinically manifest; and thatan individual would not have sustainedsuch an injury by falling onto a flat sur-face such as a sidewalk. Such an injury,the medical examiner said, could onlyhave been caused by a focal blow to theman’s spleen by some type of hard pro-truding object.

The CCRB concluded in 2004 that thesergeant (the patrol officer had left theforce) had used excessive force againstthe man. The department accepted theboard’s disciplinary recommendation andfiled charges against the sergeant; inApril 2005 an assistant deputy commis-sioner of trials conducted a hearingabout the incident.

In August 2005 the sergeant was foundguilty of using excessive force. By wayof punishment, the department strippedthe sergeant of ten vacation days.

Officer Docked Ten Vacation Days after Kicking, Punching, andRupturing Spleen of Handcuffed Arrestee

I. New York City’s Civilian Oversight System

9


Effective July 1993, by amendment to itsCharter, the City of New York mandatedthat civilian complaints of police miscon-duct would be subject to investigation

and review by an independent oversight agencyadministered and staffed by civilians.14 Priorto the enactment of this local law, a civilianwho wished to report police misconduct wasrequired to file a complaint with the NYPD.Complaints were investigated by police depart-ment investigators and then reviewed by theCivilian Complaint Review Board, which waslocated within the police department.Proponents of an independent civilian over-sight agency protested that the NYPD couldnot be expected to conduct impartial investiga-tions of police officers charged by civilianswith acts of misconduct. Civilians, it wasargued, were reluctant to take their complaintsto the agency that employed the police officeragainst whom disciplinary action was sought.

Complaint activity in the first years after thenew, independent CCRB opened its doors in1993 appeared to support the theory that civil-ians did not trust the NYPD to police itself. In1991 and 1992, civilians filed an average of3,408 complaints each year with the policedepartment’s Civilian Complaint InvestigationBoard.15 In 1994, the first full calendar yearafter the independent CCRB was created, theall-civilian unit received 4,877 complaints – an increase of 43 percent as compared withthe number of complaints filed in 1991 and1992.16

Between 1994 and 2005, the CCRB received atotal of just under 62,000 complaints.17 (SeeAppendix A, Table 1.) An analysis of these

complaint data offer important insights intothe nature of police misconduct in New YorkCity. The CCRB’s presentation of data alsoconceals much; but the manner in which the

14 New York City Charter, Chapter 18-A, §440(a).15 CCRB Status Report, January-December 2001, p. 45.

16 Ibid.17 CCRB Status Reports, January-December: 2001, p. 45; 2002, p.41; 2003, p. 45;

2004, p. 41; and 2005, p. 43.

The New York City Charter mandates that the CCRB “receive,investigate, hear, make findings and recommend action” uponcomplaints filed by members of the public against members ofthe police department. “It is in the interest of the people of thecity,” the Charter reads, that investigations of such complaintsare “complete, thorough and impartial” and that these investiga-tions are “conducted fairly and independently, and in a manner inwhich the public and the police have confidence.”

The agency is administered and staffed entirely by civilians. Staffinvestigators conduct complaint investigations. A thirteen-memberboard, appointed by the mayor, reviews the findings and recom-mended dispositions prepared by the staff. (The City Council desig-nates, for appointment by the mayor, five board members; thepolice commissioner designates three board members.)

When a complaint is substantiated, based upon a preponderanceof the evidence, the board refers its findings and disciplinary rec-ommendation to the police commissioner. The Board also makesrecommendations regarding policing policies and practices.

The CCRB’s jurisdiction is limited to the investigation and reviewof police-misconduct complaints that allege “excessive use offorce, abuse of authority, discourtesy, or use of offensive lan-guage, including, but not limited to, slurs relating to race, ethnici-ty, religion, gender, sexual orientation and disability.”

Sources: New York City Charter, Chapter 18-A, §440 (c)1; Rules of the CivilianComplaint Review Board, Title 38A, Chapter 1, Subchapter D, §1-33(b).

The Civilian Complaint ReviewBoard: Mission and Mandate

agency presents (or withholds) informationoffers equally important insight into thenature of the city’s oversight system.

What is striking about the CCRB’s dispositionof complaints over this time period is the rela-tively small number of complaints that areinvestigated, the even smaller number of inves-tigations that result in a finding on the merits,and the far, far smaller number of complaintsthat are upheld, or substantiated.

Accounting for police misconduct: a weak investigative operation

The City Charter directs that the CCRB under-take “complete, thorough, and impartial [investi-gations] in a manner in which the public and thepolice have confidence.”18 If thoroughness andimpartiality is the standard – and public confi-dence, the test as to whether the standard ismet – the CCRB is failing in its mission.

● Complaints closed without an investigation

The CCRB closes about one of every twopolice misconduct complaints without eveninitiating an investigation. The CCRB ter-minates a complaint when investigatorsdetermine (with board members’ review)that a complainant is “unavailable” or“uncooperative” or when the complainantwithdraws the complaint. The case is thendisposed of as a “truncated” complaint.19

The CCRB truncates most complaintsbecause the complainant cannot be contact-ed or because he or she is unable or unwill-ing to appear at the CCRB for an interview,the first step in an investigation. When thisoccurs, investigators are instructed to rec-ommended closure. There is no furtherinvestigation. A panel of board members

summarily adopts the recommendation totruncate the complaint.

In 1994, the CCRB’s first full year of opera-tion, the agency terminated 57 percent of allcomplaints prior to investigation.20 Thatpercentage dropped to an average of 42 per-cent in 1997-1998.21 In 1999 the trunca-tion rate jumped to 50 percent,22 andremained constant at that rate through2001.23 In more recent years the rate ofpre-investigation complaint closure has beenon the rise. In 2003 through 2005 theCCRB truncated, on average, 55 percent ofcomplaints disposed of annually.24 (SeeAppendix A, Table 1.) In 2006, accordingto preliminary data, the truncation rateclimbed to 60 percent.25


18 New York City Charter, Chapter 18-A, §440(a).19 CCRB Status Report, January-December 2005, p. 6.20 CCRB Status Report, January-December 1998, p. 115.21 CCRB Status Reports, January-December: 2001, p. 118; and 2002, p. 96.

22 CCRB Status Report, January-December 2003, p. 97.23 CCRB Status Report, January-December 2005, p. 85.24 Ibid.25 CCRB, Executive Director’s Report, February 2007 (“CCRB Disposition of

Cases”).

Following the investigation of a complaint, the CCRB’sinvestigative staff refers its findings and a recommendeddisposition to the agency’s board members. Sitting in three-member panels, the board issues one of the following dis-positions regarding each complaint:

SUBSTANTIATED. At least one allegation of police mis-conduct is found to have occurred. (A complaint mayhave more than one allegation of misconduct.)

UNFOUNDED. The alleged police misconduct is found notto have occurred.

EXONERATED. The conduct complained of did occur, butit is deemed to have been lawful and appropriate.

UNSUBSTANTIATED. The investigative record is insufficientto support a finding as to the merits of the complaint.

Source: CCRB Status Report, January-December 2005, p. 7.

How the CCRB Rules on a Complaint

The CCRB does not report the types of allega-tions that are truncated. But given the pre-dominance of allegations that involve exces-sive force and abuse of authority, it is reason-able to conclude that police-misconduct com-plaints involving serious charges drop out ofthe civilian-review process in large numbers.

● “Fully investigated” complaints

The CCRB reports that it conducts “fullinvestigations” of all complaints other thanthose that are truncated, as describedabove, or referred to mediation.26

Following a full investigation, the CCRBmakes one of the following dispositions.The complaint is “substantiated” if at leastone allegation is upheld. If it is determinedthat the alleged misconduct did not occur,the complaint is ruled “unfounded.” Thepolice officer is “exonerated” if the CCRBdetermines the conduct complained of waslawful and appropriate. And if the inves-tigative record lacks sufficient evidence tosupport one these three findings, the com-plaint is ruled “unsubstantiated.”

A full investigation is not necessarily athorough investigation. For example, the

CCRB counts as fully investigated thosecomplaints that are closed because theaccused police officer could not be identi-fied. The number of these cases is notinsignificant: between 2002 and 2005 theCCRB reported that more than 500 fullyinvestigated complaints were closedbecause it was not possible to identify the police officers responsible for thealleged misconduct.27

And a far greater number of fully investigat-ed complaints were closed with a recordthat was insufficient to reach a finding onthe merits. The CCRB’s status reports indi-cate that about one in three fully investigat-ed complaints were inconclusive as towhat happened.

The CCRB, at its best, has conducted what itconsiders full investigations in about half ofall complaints closed in any given year. In2001-2002, the agency conducted a full inves-tigation in 47 percent of complaints disposedof.28 There was a 5 percent drop in the num-ber of complaints fully investigated in 2003-2005. (Truncated complaints in 2003-2005increased 5 percent relative to the precedingtwo years.29) (See Figure 4.) The percentage


26 CCRB Status Report, January-December 2004, p. 6. The CCRB also reports asfully investigated those complaints referred to the police department’s InternalAffairs Bureau.

27 CCRB Status Report, January-December 2005, p. 85.28 Ibid.29 Ibid.

0%

10%

20%

30%

40%

50%

60%

70%Truncated Investigations

Full Investigations

Complaints with One or More Allegation Substantiated

Complaints Referred for Mediation

Source: CCRB Status Reports, January-December: 2000, Table 49; 2001, p. 118; 2002, p. 95; 2003, p. 97; 2004, p. 83; 2005, p. 85.

FIGURE 4 – Dispositions of civilian complaints filed with the CCRB, 1996-2005

2001 2002 2003 2004 20051996 1997 1998 1999 2000

of complaints fully investigated in 2006dropped to 36 percent.30

● Unsubstantiated complaints

Of those complaints that the CCRB considersfully investigated, approximately one-thirdare closed without sufficient evidence to makea conclusive finding. These complaints areclosed with a disposition of “unsubstantiat-ed” – a finding of “no finding.”

Between 1998 and 2002 the CCRB madedeterminations that 4,071 complaints – morethan 800 per year – were unsubstantiated.31

(See Appendix A, Table 3.) Thus after clos-ing, or truncating, approximately half of allcomplaints before undertaking an investiga-tion, the CCRB closed about one in three ofthose that remained after concluding therewas insufficient evidence to determine whatoccurred between the complainant and theaccused cop. The bottom line: the CCRB isable to make a finding on the merits in onlythree of every ten complaints.

It appears that the CCRB has continued toclose at least one-third of fully investigatedcomplaints with a disposition of unsubstanti-ated.32 However, as of 2003 the CCRB’s pub-lic status reports no longer report complaintsclosed with such a disposition. The CCRBstatus reports are silent on this large subset offully investigated complaints closed without afinding on the merits. (See below:“Discounting Inconclusive Investigations.”)

● Substantiated complaints

The CCRB substantiates a complaint when itfinds that at least one allegation has beenproved (a complaint may include several alle-

gations). Only a small fraction of the com-plaints the agency reviews each year are sub-stantiated. Between 1994 and 2005 theCCRB has substantiated each year, on aver-age, 5.2 percent of complaints closed.33 Thatis, following an investigation and a subse-quent review by board members, the CCRBdetermined that of every 100 civilians whofiled complaints against police officers, onlyabout five individuals had actually been thevictim of verifiable misconduct. The substan-tiation rate has ranged from a low of 3.4 per-cent, in 1995,34 to a high of 6.9 percent in2004.35 (See Appendix A, Table 2.)

Two competing theories are advanced toexplain a consistently low substantiation rate:The first posits that police rarely engage inacts of misconduct against civilians; the sec-ond, that the civilian oversight system lacksinvestigative rigor. Analysis of the substantia-tion rate in the context of the other datareported by the CCRB strongly supports thelatter theory – as do the first-hand accountsof CCRB investigators. (See herein, SectionIII: “Investigators Perspectives.”)

There are no recognized criteria for deter-mining an acceptable substantiation rate.36

However, civilian oversight agencies in theUnited States substantiate police-misconductcomplaints at an average rate of between 12and 13 percent.37 The Police Foundationhas found that municipal police depart-ments substantiate about 10 percent of allcomplaints filed by citizens.38 Measured bythese standards, the rate at which the CCRBsubstantiates civilian complaints of policemisconduct is far below national norms.

While the substantiation rate is a meaning-ful indicator, the substantiation rate alone is


30 CCRB, Executive Director’s Report, February 2007 (“CCRB Disposition of Cases”).31 CCRB Status Report, January-December 2002, p. 95.32 When the CCRB stopped reporting the complaint “unsubstantiation” rate, it

was 37.5 percent of fully investigated complaints. (CCRB Status Report,January-December 2002, p. 95) The unsubstantiation rate for allegations (acomplaint may include more than one allegation) has remained virtuallyunchanged since that time. It is reasonable to assume therefore that the rate atwhich complaints are disposed of as unsubstantiated approximates the ratereported in 2002.

33 CCRB Status Reports, January-December: 1997, p. 117; 1998, p. 115; 1999, p.

126; 2000, p. 109; 2001, p. 118; 2002, p. 95; 2003, p. 97; 2004, p. 83; and 2005,p. 85.

34 CCRB Status Report, January-December 1999, p. 126.35 CCRB Status Report, January-December 2005, p. 85.36 Samuel Walker, Police Accountability: The Role of Civilian Oversight (Belmont:

Wadsworth, 2001), p. 120.37 Ibid.38 Anthony M. Pate and Lorie A. Fridell, Police Use of Force (Washington, DC: The

Police Foundation, 1993), p.114 (cited in Samuel Walker, Police Accountability:The Role of Civilian Oversight, p. 120, supra, note 36).

not sufficient to provide an adequateassesssment of performance. There are otherindicia of performance that may be relevantin appraising the effectiveness of an over-sight agency. It has been widely observedthat a civilian review agency can be mosteffective by identifying ineffective or harm-ful policing practices, and by recommendingreforms that address systemic problems.39

However, patterns and practices of policemisconduct will not become apparent with-out the rigorous investigation of individualcomplaints. Absent thorough investigation itis unlikely that discipline of an individualpolice officer or reform of flawed policingpractices will occur. Complaint investigationis therefore the critical function of an over-sight agency.

The CCRB has substantiated many com-plaints, including those alleging serious mis-conduct. (See Figure 15.) It appears, however,these are well-documented complaints that donot require extensive investigation.

Why so few complete investigations?

There are multiple factors that explain why theCCRB truncates high numbers of police-mis-conduct complaints – and why it producesfindings on the merits in such a relatively smallnumber of complaints.

These factors include complainants’ difficultygetting to the CCRB’s office in lower Manhattanfor an intake interview; CCRB investigators’limited efforts (at the direction of management)to conduct vigorous outreach in an effort tocontact complainants and witnesses; and thecity’s failure to allocate the resources andstaffing that the CCRB needs to hire and retainskilled and productive investigators.

For many victims of police misconduct, thefirst obstacle in pursuing a complaint is theremoteness of the CCRB’s location. A person


39 See Samuel Walker, “The New Paradigm of Accountability: The U.S. JusticeDepartment ‘Pattern or Practice Suits in Context.’” St. Louis University PublicLaw Review, Vol. 22 No.1, pp. 3-52, (2003).

CCRB data indicate that in the periodJanuary 2005 through December 2006 the quality and thoroughness of theagency’s investigations remain poor orcontinue to decline.

FIGURE 5 – Rate at which CCRB substantiates civilian complaints, 2005-2006

2.9%

3.1%

3.3%

3.5%

3.7%

3.9%

4.1%

4.3%

Jan. - June 2005

July - Dec. 2005

Jan. - June 2006

July - Dec. 2006

Source: CCRB Executive Director's Report: July 2005, July 2006, February 2007 (CCRB Disposition of Cases); CCRB Status Report, January-December 2005, p. 85.

FIGURE 6 – Rate at which CCRB closes civilian complaints without an investigation, 2005-2006

30%

35%

40%

45%

50%

55%

60%

65%

Jan. - June2005

July - Dec.2005

Jan. - June2006

July - Dec.2006

Truncated Investigations

Full Investigations

Source: CCRB Executive Director's Report: July 2005, July 2006, February 2007 (CCRB Disposition of Cases); CCRB Status Report, January-December 2005, p. 85.

The rate at which the CCRB substantiates complaintsremains at or below 4 percent.

The rate at which the CCRB closes complaints withoutinitiating an investigation has increased to 60 percent.

who wishes to file a complaint must appear atthe CCRB’s downtown-Manhattan office dur-ing business hours on a weekday. This canmean losing pay or jeopardizing one’s employ-ment. Police officers face no such obstacles.A police officer called to appear at a CCRBinterview is given leave from regular duties anduse of a NYPD vehicle.

The difficulty a complainant has in getting tothe CCRB is compounded by the CCRB’s limit-ed efforts to conduct outreach and field inves-tigations. As the number of police-misconductcomplaints has increased in recent years, theCCRB’s investigative outreach has declined.The agency attributes this to budget con-straints. As a consequence, “. . . investigatorsno longer routinely make time-consuming fieldtrips simply to interview complainants andalleged victims who have not expressed aninterest in following up on their complaints.”40

The combined effect of complainants’ difficul-ty reaching the CCRB and investigators’ limit-ed outreach is clearly reflected in the largenumbers of truncated complaints. The CCRBreports that it closes about 54 percent of allcomplaints because the complainant is unco-operative, unavailable, or because the com-plainant withdraws.41 However, the degree towhich CCRB investigators are available orcooperative certainly plays a role in these pre-mature complaint closures.

CCRB investigators interviewed for this reportconfirmed that field visits are increasingly infre-quent. (See herein, Section III: “InvestigatorsPerspectives.”) Even so-called full investigationsare in most instances “desk investigations.”These interviews also provided support for theproposition that rigorous field investigations canyield a more complete evidentiary record.Investigators told of a CCRB supervisor whohad made it a policy that investigators in his unitconduct at least one field visit before truncatinga complaint. These investigators reportedly hadthe highest substantiation rate of any unit in the

agency – approximately 20 percent of com-plaints fully investigated.

These observations and findings recommend sev-eral measures that could reinvigorate the CCRB’sinvestigative operation: (1) establish communityoffices in all five boroughs; (2) maintain officehours in the evenings and on weekends; and (3)allocate the resources required to hire, train,retain and motivate a highly skilled team ofinvestigators in sufficient numbers to conductrigorous, thorough investigations.

Finally, the CCRB must develop a public edu-cation program that supports the agency’smission. The CCRB is still unknown tomany residents of communities with a highincidence of police misconduct. Those whodo know of the CCRB are often skepticalthat filing a complaint will lead to a mean-ingful investigation that holds policeaccountable for acts of misconduct. (Seeherein, Section V: “When Civilian ReviewFails.”) To become a viable oversight agency,the CCRB must establish credibility in thecommunities it serves.

Efficiency trumps effectiveness: understating the problem of police misconduct

The CCRB states that the performance objec-tives for its investigations are quality, thor-oughness and timeliness. In its 2005 statusreport the agency gave itself high marks for“continu[ing] to improve productivity by everymeasurable standard” – cases closed, cases fullyinvestigated, and cases concluded with a findingon the merits.42 As a practical matter, however,productivity seems to mean efficiency: casesclosed in a timely manner.

The rigor and thoroughness of investigations areopen to serious question. And in some instancesthe manner in which the CCRB has categorized,


40 CCRB Status Report, January-December 2005, p. 24. The CCRB provided thesame budgetary rationale for diminished outreach to complainants in 2003 and2004. See CCRB Status Report, January-December 2004, p. 25; and CCRB

Status Report, January-December, 2003, p. 40.41 CCRB Status Report, January-December 2005, p. 8542 CCRB Status Report, January-December 2005, p. 23.

counted and reported the disposition of com-plaints has misrepresented and concealed impor-tant information about both police misconductand the CCRB’s performance.43

● Less is more: misrepresenting the numberof full investigations

The CCRB’s 2005 productivity report isupbeat. The agency reports that it closed“more full investigations than it had since1997, and more total cases than it had in tenyears.”44 The CCRB’s administrators considerthe number of fully investigated complaintsan important performance indicator. (MayorBloomberg’s 2005 Management Report statesthat the percentage of full investigations con-ducted by the CCRB remains steady – a “per-formance highlight.”45)

What is not stated is that the CCRB truncated(closed without undertaking an investigation)more complaints in 2005 than it had in anyyear since 1993, when the independent CCRBwas established.46 The agency also failed tonote that only 41 percent of all complaintswere fully investigated in 200547 – the lowestnumber of full investigations relative to casesclosed since 1997. On this performancemeasure the CCRB has demonstrated a steadydecline since 2001.48 (See Figure 4.)

● Little merit in “findings on the merit”

The CCRB’s “finding on the merits” disposi-tion is similarly misleading. These are com-

plaints in which the misconduct allegation issubstantiated or, alternatively, complaints inwhich it is determined that the alleged mis-conduct did not occur – or that the policeaction was lawful and appropriate.

The CCRB’s 2005 annual status reportstates that the agency continues to produce“findings on the merits in fully investigatedcases” at a steady rate of 65 percent.49 Butthis rate is arrived at by excluding all trun-cated complaints from the calculation. Ifthese complaints are considered, it becomesclear that the CCRB only infrequently pro-duces a finding on the merits. In 2005 theCCRB closed 19,041 allegations, but only6,541 of these allegations – just 34 per-cent – were resolved on the merits.50

● Discounting inconclusive investigations

The CCRB has further confused the issue ofinconclusive complaint investigations byremoving from its reported data the numberof complaints (as opposed to allegations)closed with a disposition of unsubstantiat-ed. A police-misconduct complaint mayinclude more than one allegation – forexample, a complainant may allege that apolice officer uttered a racial slur whileusing excessive force. The investigator maydetermine that there is evidence to proveone allegation, but that the evidence isinconclusive as to the other. The complaintis substantiated based upon the one allega-tion that is upheld. But if the investigation


43 Prior to 2003, for example, the CCRB’s status reports included a table that iden-tified the number of police officers who had been the subject of multiple mis-conduct complaints. Policing experts recommend that law-enforcement agen-cies employ “early warning systems” to identify problem officers, who are oftenthe subject of multiple complaints filed by civilians. (See National Institute ofJustice, Early Warning Systems: Responding to the Problem Police Officer (U.S.Department of Justice: July 2001).) As of 2003, however, the CCRB stoppedreporting on police officers with multiple complaints even as the incidence ofsuch complaints was rising dramatically. Between 2000 and 2002 the numberof police officers with two complaints increased by 62 percent; police officerswith three complaints increased by 219 percent; and those with four or morecomplaints increased 250 percent. (CCRB Status Report, January-December2002, p. 86)

The CCRB’s status reports often adopt public-relations rhetoric, based uponmisrepresentations of data, to promote the CCRB’s performance. In 2001, 2002and 2003, for example, the CCRB reported that the NYPD had been disciplininggreater numbers of police officers against whom complaints had been substan-tiated – and that this was due to the “improved quality and timeliness of CCRBinvestigations.” (CCRB Status Report, January-December 2003, p. 32) But this

assertion was inaccurate and misleading. Between 20 percent and 45 percentof complaints substantiated by the CCRB from 2000 to 2003 had been pendingfor one year or more from the date the complaints were filed. (CCRB StatusReport, January-December 2003, p. 94) In 1998 and 1999, however, only 15 to17 percent of substantiated complaints were pending for a year or more. (CCRBStatus Report, January-December 2002, p. 91) As to the suggestion the policedepartment was exhibiting a tougher disciplinary posture, the reality was quitedifferent. The NYPD’s disciplinary actions related to substantiated CCRB com-plaints had become significantly more lenient during this period. (See Figure 8.)

44 CCRB Status Report, January-December 2005, p. 23.45 Michael R. Bloomberg, Mayor of New York City, Mayor’s Management Report -

Fiscal 2005, September 2005, p. 191.46 CCRB Status Report, January-December 2005, p. 85.47 Ibid.48 Ibid.49 Ibid., p. 23.50 CCRB Status Report, January-December 2005, p. 86.

of a complaint with a single allegation ofexcessive force is found to be inconclusive,the complainant is told, in effect, that theCCRB found no wrongdoing. Case closed.

There are many factors that militateagainst the creation of an investigativerecord sufficient to support a finding onthe merits. It is important, however, bothto account for these complaints and toanalyze the factors that led to an incon-clusive investigation. As of 2003 theagency no longer reports the number ofcomplaints that are closed with a disposi-tion of “unsubstantiated,” but combinesin a single category all complaints closedwith a finding of exonerated, unfounded,or unsubstantiated.51

This is a peculiar conflation of data.Complaints that result in a disposition ofunfounded or exonerated are based on themerits. (A finding of unfounded meansthe alleged misconduct did not occur. Apolice officer is exonerated if the conductcomplained of did occur, but was deemedlawful and appropriate.) Unsubstantiatedcomplaints, on the other hand, lack arecord on which to make a finding as towhat happened. By conflating unsubstan-tiated complaints with complaints that areunfounded and exonerated, the CCRBconceals an important category of investi-gations, making it more difficult to assessthe rigor and thoroughness of the inves-tigative process.

● Inflating the substantiation rate

The CCRB also employs a formula forcalculating the substantiation rate – thepercentage of complaints that are upheld –that grossly exaggerates the actual num-ber of complaints substantiated. The

CCRB substantiates, on average, about 5percent of all complaints closed annually.52

The CCRB, however, calculates the sub-stantiation rate based not upon the num-bers of complaints disposed of in anygiven year, but rather based upon thenumber of complaints that are given a“full investigation.”

This formulation obscures more than halfthe picture. For example, in 2005 theCCRB reported that it closed 260 com-plaints with at least one substantiated alle-gation. The agency completed full investi-gations of 2,679 complaints. This ratio –260 substantiated complaints out of 2,679fully investigated complaints – yields asubstantiation rate of 9.7 percent. But theCCRB closed 6,522 complaints that year,and 3,650 of those closed complaints wereterminated without an investigation.53

These truncated complaints were notcounted in the CCRB’s calculation of thesubstantiation rate for 2005.

Placing the 260 substantiated complaints ina ratio with 6,522 complaints yields a sub-stantiation rate of 4 percent – less than halfthe rate reported by the CCRB, but a moreaccurate representation of the board’s dis-position of complaints. Only if all or nearlyall of the CCRB’s truncated complaints arecompletely without merit is the reportedsubstantiation rate meaningful.54

● Police brutality disappears

Police brutality complaints drop out of theoversight system – at the CCRB and at thepolice department – in great numbers. TheCCRB, however, has not attempted to ana-lyze this phenomenon; indeed the agency’spublic statements fail even to acknowledgethere is an issue to be addressed.


51 The CCRB reports complaint allegations that are unsubstantiated. But this doesnot permit an assessment of how many complaints are closed without a findingon the merits. Without this assessment it cannot be determined how manycomplainants have their complaints closed with an inconclusive finding.

52 CCRB Status Reports, January-December: 1997, p. 117; 1998, p. 115; 1999, p.126; 2000, p. 109; 2001, p. 118; 2002, p. 95; 2003, p. 97; 2004, p. 83; and 2005,p. 85.

53 CCRB Status Report, January-December 2005, p. 85.54 The CCRB has used alternative formulas to calculate the substantiation rate

when those formulas appear to reflect a more vigorous investigative perform-ance. The CCRB’s reported 2005 substantiation rate of 9.7 percent reflected asignificant drop from the 16.3 percent substantiation rate reported for 2004.(CCRB Status Report, January-December 2005, p. 85) But through cleveraccounting the Mayor’s Management Report put a sharp upward spin on the

For example, in December 2002 the CCRBissued a news release with a headline thatread, “Discourteous words and improperfrisks and searches by NYPD officers topthe list of misconduct allegations the CCRBmost frequently substantiated.”55 Buried inthe dense, page-long paragraph was a state-ment that “unnecessary physical forceaccounted for 13 percent of allegations sub-stantiated.” Technically speaking, these sta-tistics are accurate. Taken alone, the datawould seem to suggest that “unnecessaryphysical force,” or police brutality, is not asignificant problem in New York City.

When placed in context, however, it is clearthat a far more important story was left outof the news release. Since the establishmentof the all-civilian CCRB, approximately 50percent of all complaints filed annually haveincluded an allegation of excessive force.(See Appendix A, Table 4.) And the num-bers of complaints had risen almost 25 per-cent between 2000 and 200256 – the periodjust preceding the release of the CCRB’sDecember 2002 news release.

No news release announced that theCCRB substantiated fully investigatedforce allegations at one-fifth the rate theagency substantiated non-force allegationsin 2006. (See Figure 7.) Nor did theCCRB issue a public statement regardingthe fact that in 2006 the NYPD closednearly five times as many substantiatedCCRB force cases without imposing disci-pline as compared with non-force cases.

While the NYPD’s failure to adequately disci-pline police officers for acts of brutality hasreceived scant attention in CCRB status

reports, board members are not unaware ofthe issue. At a public forum on police vio-lence sponsored by Brooklyn Law School,William Kuntz, a veteran member of theagency’s board, participated in a discussionregarding the police department’s rejection ofthe CCRB’s findings and recommendations infavor of far more lenient (or no) disciplinaryaction.57 His views would have had greatereffect if further developed in an analysis,joined by his colleagues, that was made pub-lic in a letter or report to the mayor and thepolice commissioner; or at the very leastincluded in the chairman’s letter that intro-duces the CCRB’s semiannual reports.58

The coda to this story appeared in a newsaccount announcing a spike of 34 percent inexcessive force allegations filed in the firstthree months of 2006 compared with thesame period a year earlier.59 The CCRB’sspokesperson commented in the article that


agency’s performance stats – citing the CCRB’s 2005 substantiation rate at 14percent. (Michael Bloomberg, Mayor of the City of New York, Mayor’sManagement Report – Fiscal Year 2005, September 2005, p. 192) This wasaccomplished by calculating the substantiation rate based on allegations (asopposed to complaints) closed after full investigations. That this is a mislead-ing presentation of data is clear if truncated complaints (and allegations) arebrought back into the picture. Of the 19,041 allegations disposed of by theCCRB in 2005, only 709 allegations were substantiated. (CCRB Status Report,January-December 2005, p. 86) In other words the 2005 substantiation ratebased upon all allegations closed was 3.7 percent.

55 CCRB Press Release, “Discourteous Words and Improper Frisks and Searches byNYPD Officers Top the List of Misconduct Allegations the CCRB Most Frequently

Substantiated,” December 2, 2002.56 CCRB Status Reports, January-December: 2005, p. 43; and 2004, p. 41.57 See Hon. Milton Mollen, “Police Violence: Causes and Cures, Edward V. Sparer

Public Interest Law Fellowship Forum, Brooklyn Law School,” Journal of Lawand Policy, Vol. 7, p. 99 (1998).

58 When the CCRB does report on the police department’s disposition of CCRB com-plaints, the commentary is typically brief, lacks analysis, and is buried in a lengthystatus report. See, e.g., CCRB Status Report, January-December 2004, p. 36.

59 Philip Messing, “Complaints Vs. City Cops Soar,” New York Post, April 18, 2006.

FIGURE 7 – CCRB substantiation rates for fully investigated force allegations vs. other fully investigated allegations, 2003-2006

0%

2%

4%

6%

8%

10%

12%

14%

16%

2003 2004 2005 2006

4.8% 5.1%

2.8%

8.7%7.4%

1.4%

14.1%

11.9%

Substantiated Non-Force Allegations

Substantiated Force Allegations

Source: CCRB Executive Director's Report, January: 2004, 2005, 2006, 2007 (Disposition of Force, Abuse of Authority, Discourtesy, and Offensive Language Allegations).

54 Continued

“. . . the more rapid increase in force com-plaints is something new.”60 While the dra-matic spike in force allegations might havebeen new, the high frequency with whichcomplainants charge police officers withbrutality was not. Between 2000 and 2005,allegations involving a police officer’s use ofexcessive force had increased by 77 per-cent, with significant increases from yearto year.61 (See Figure 3.) The CCRBspokesperson suggested “further statisticalanalysis might be required” if the rise inforce allegations continued. He added,“This is something we haven’t done statisti-cal runs on, but we may, if it continues intothe future.”62

The need for better performance measures – and an Inspector General

The criteria used by the CCRB to assess itsperformance are too narrow. An audit of theCCRB conducted in 1998 by the New YorkCity Comptroller made a similar observation.63

The audit recommended that the CCRB “con-vene a panel of experts . . . to develop and rec-ommend a comprehensive set of relevant per-formance indicators.”64 In rejecting this pro-posal, the CCRB stated that “the single mosttelling measure of effectiveness does not lie in acomplicated statistical formula but in the qual-ity of investigations.”65

But this response begged the question; thecomptroller was not calling for more data sets,but for a more meaningful assessment of theagency’s operations.66 Based upon a readingof its published status report, it appears theCCRB undertakes no qualitative assessment ofits operations.67 This is a common limitationof oversight agencies. And it is for this veryreason that legal scholars have proposed anaudit procedure or the appointment of anInspector General. What is envisioned is aprocess mediated by an appointed official whowould conduct independent audits and analy-ses of the civilian oversight agency – and whowould also serve as an advocate for policeaccountability and reform of police practices.68

This type of scrutiny might have shed light onthe police department’s rejection of the CCRB’sinvestigative findings and on the increasingleniency of the NYPD’s disciplinary sanctions.The office of the Inspector General might alsohave pressed the CCRB to pursue importantpolicing reforms it had recommended but aban-doned, even as a pattern of misconduct persist-ed. (See herein, Section IV: “ExtraordinaryDeference to the NYPD.”) ■


60 Ibid.61 CCRB Status Reports, January-December: 2004, p. 41; and 2005, p. 43.62Philip Messing, “Complaints Vs. City Cops Soar,” New York Post, April 18, 2006.63 Alan G. Hevesi, Comptroller of the City of New York, Audit Report on the Case

Management Policies and Procedures of the Civilian Complaint Review Board,June 25, 1998.

64 Ibid., p. 71.65 Ibid., p. 72. 66 In 2002, New York City Comptroller William C. Thompson dropped the recom-

mendation that the CCRB develop more effective performance indicators. Thecomptroller did so on the grounds that the oversight boards in five major citieshad no “meaningful measures to evaluate . . . operational effectiveness.”(William C. Thompson, Comptroller of the City of New York, Follow-up AuditReport on the Case Management Policies and Procedures of the CivilianComplaint Review Board, May 21, 2002, p. 24) But the earlier Hevesi reportmade clear that just because meaningful performance measures were not in usedid not mean they were incapable of design. He stated that the CCRB had mis-understood his recommendation regarding the need for better performanceappraisal. The key point, according to Hevesi’s 1998 audit, was this: “[M]easur-ing the effectiveness of the CCRB is a complex issue and as such it requires a

sufficient framework of well-thought out performance indicators that are compre-hensive, clearly designed, and measurable.” (Alan G. Hevesi, Comptroller of theCity of New York, Audit Report on the Case Management Policies andProcedures of the Civilian Complaint Review Board, June 25, 1998, p. 72)

67 A meaningful assessment of the CCRB requires an examination of the substan-tiation rate in the context of other quantitative performance measures – forexample, the number of investigations that lead to a finding on the merits andthe types of allegations (e.g., force versus non-force) that are substantiated.Analysis of quantitative data alone, however, can lead to serious distortions andmisconceptions about the civilian oversight system. Qualitative analysis isrequired to ensure that interpretation of data takes into account the experiencesand insights of complainants, investigators, police officers and other who havehad direct experience with the civilian oversight system.

68 See, e.g., Samuel Walker, Police Accountability: The Role of Civilian Oversight(Belmont: Wadsworth, 2001), pp. 164-172; and Paul G. Chevigny, “PoliceViolence: Causes and Cures,” Journal of Law and Public Policy, Vol. 7, pp. 85-91(1998). (“More than an effective auditor, we need . . . [a]n Inspector General[who] acts as a conveyor belt, a vector, who will get on the Commissioner’s backand say, ‘You’ve got to do these things, you can’t just be talking about them,you have to do them. What are we going to report to the auditor that we havedone to carry out these reforms?’”)

II. NYPD Disposition ofSubstantiated Complaints:

Condoning Police Misconduct

19


The independent CCRB came into exis-tence in July of 1993. And within thenext year, following the election ofRudolph Giuliani as mayor, New York

City would adopt a new law enforcement strat-egy characterized by the aggressive policing ofminor crimes and violations – “quality-of-life”policing. This new policing strategy was basedupon a philosophy of law and order that hascome to be known as the “broken windows”theory, which posits that low-level “disorder”is a correlative or precursor of more seriouscriminal activity.69 Arrest the minor disorder,according to this theory, and prevent moreserious crime problems.

The NYPD’s implementation of this newpolicing philosophy has been facilitated byCompstat, a computer-driven policing toolthat collects, tracks and monitors crime sta-tistics in minute detail. Through the rigor-ous analysis of these data sets – a new jobresponsibility of every precinct commander –the NYPD would “ensure that . . . everyavailable police capacity is considered inorder to promptly address what has beenidentified as a significant crime problem.”70

New York City pioneered this new crime-fight-ing model in the 1990s. The NYPD’s aggres-sive zero-tolerance police tactics have subse-quently been adopted by police departmentsthroughout the United States and abroad.71

Mayor Bloomberg has ratified this philosophyof law and order. He has renewed andexpanded the Giuliani administration’s policyof aggressively prosecuting violations andminor offenses, such as loitering, panhandling,and turnstile jumping.72

The New York City policing paradigm hasbeen widely acclaimed, but it has also been thesubject of a critique by a growing number ofcriminal justice scholars.73 John Q. Wilson,one of the theory’s originators, has distancedhimself from the premise that serves as arationale for quality-of-life policing. In a NewYork Times article Mr. Wilson stated that lawenforcement professionals have drawn ques-tionable conclusions from what he consideredspeculative observations regarding the relation-ship between disorder and crime.74

New York City in particular has been harsh-ly criticized for promoting a philosophy of

69 James Q. Wilson and George L. Kelling, “The Police and Neighborhood Safety:Broken Windows,” Atlantic Monthly, Vol. 127, pp. 29-38, (1982).

70 Philip B. Heymann, “The New Policing,” Fordham Urban Law Journal, Vol. 28No. 2, p. 431 (December 2000).

71 Benjamin B. Tucker, “How Do We Reduce Crime and Preserve Human Decency?The Role of Leadership in Policing for a Democratic Society,” Fordham UrbanLaw Journal, Vol. 28, pp. 611-612 (December 2000).

72 See Jarrett Murphy, “Big Crackdown on Little Crime: Bloomberg Out-RudysRudy When it Comes to NYPD’s “Quality of Life” Enforcement,” Village Voice,April 25, 2006; William K. Rashbaum, “Mayor Extending Focus on Crime HotSpots,” New York Times, July 2, 2003; “Anti-Graffiti Initiative,” NYPD CARES(electronic mail newsletter of the NYPD), January 25, 2005.

73 See Bernard E Harcourt, Illusion of Order – The False Promise of BrokenWindows Policing (Cambridge: Harvard University Press, 2001); Robert J.Sampson and Stephen W. Raudenbush, “Systematic Social Observation ofPublic Spaces: A New Look at Disorder in Urban Neighborhoods,” AmericanJournal of Sociology, Vol. 105 No. 3, pp. 603-651 (November 1999); and Ralph B.Taylor, Breaking Away from Broken Windows: Baltimore Neighborhoods and theNationwide Fight Against Crime, Grime, Fear, and Decline (Boulder: WestviewPress, 2000).

74 Dan Hurley, “On Crime as Science (A Neighbor at a Time),” New York Times,Jan. 6, 2004, pp. F1, F2. In the article Professor Wilson is quoted as follows: “Istill to this day do not know if improving order will or will not reduce crime.People have not understood that this was a speculation.”

policing that conflates crime, race andpoverty.75 Critics of the “broken windows”paradigm have observed that police officersare more likely to perceive disorder in low-income communities, and that highly aggres-sive policing tactics have been used dispro-portionately in the city’s minority communi-ties.76 As a consequence, what was intendedas an approach to community policing hasbecome, as a practical matter, the raciallybiased “policing of poor people in poorplaces.”77 There is compelling evidence thatsubstantiates this charge. (See herein,Section IV: “Racial Profiling.”)

What is the relevance of quality-of-life polic-ing to an assessment of the CCRB? It is this:however sound its objectives, this law-enforcement strategy can lead to overzealouspolice tactics that actually provoke conflictbetween police and law-abiding persons.What’s more, the city’s policing model failsto account for police misconduct directed at

civilians. Seriousacts of police mis-conduct that havebeen substantiatedby the CCRB – useof excessive force,false arrest, stripsearch without justi-fication, unautho-rized entry andsearch of a residence– are not addressedwith anything even

approaching the rigor and aggressivenessdirected at low-level quality-of-life infrac-tions committed by civilians. Either policeofficials are not capturing critical informa-tion about police misconduct, or they arecapturing the data but are not paying atten-tion to it.

Optimal tolerance for police misconduct

The CCRB refers each substantiated CCRBcomplaint, along with a disciplinary recom-mendation, to the police commissioner. Incases that involve the more serious acts of


75 Jeffrey Fagan and Garth Davies, “Street Stops and Broken Windows: Terry,Race, and Disorder in New York City,” Fordham Urban Law Journal, Vol. 28 No.2, pp. 457-504 (December 2000) (Hereafter, “Street Stops and BrokenWindows”).

76 Ibid., p. 462. Recent research has also demonstrated that all persons, regard-less of their race, perceive higher levels of disorder and crime in neighborhoodswith greater concentrations of black residents even when actual disorder and

crime are held constant. See Lincoln Quillian and Devah Pager, “BlackNeighbors, Higher Crime? The Role of Racial Stereotypes in Evaluations ofNeighborhood Crime,” American Journal of Sociology, Vol. 107 No.3, pp. 717-767, (November 2001); and Robert J. Sampson and Stephen W. Raudenbush,“Seeing Disorder: Neighborhood Stigma and the Social Construction of ‘BrokenWindows,’” Social Psychology Quarterly, Vol. 67 No. 4, pp. 319-342, (2004).

77Street Stops and Broken Windows, p. 496.

However sound itsobjectives, “quality-of-life” policing can leadto overzealous policetactics that provokeconflict between policeand law-abiding persons.

The CCRB refers substantiated complaints ofpolice misconduct to the police commissioner fordisciplinary action, which may involve one of thefollowing sanctions.

CHARGES AND SPECIFICATIONS. The commis-sioner may order the filing of administrativecharges against the accused police officer, who isthen subject to prosecution in the police depart-ment’s trial room. If found guilty, the police officer“may face loss of vacation time, suspension or ter-mination from the department.”

COMMAND DISCIPLINE. Disciplinary action is del-egated to the precinct or unit commander, whomay issue an “oral warning and admonishment” ororder the “forfeiture of up to ten vacation days oraccrued time.”

INSTRUCTIONS. Alternatively, the police commis-sioner may order that the police officer who is thesubject of the complaint receive instructionsregarding the conduct that gave rise to the sub-stantiated misconduct.

Sources: CCRB Status Report, January-December 2002, p. 9; CCRBStatus Report, January-December 2003, pp. 8-9.

NYPD Disciplinary Actionagainst Police Officers with a Substantiated CCRB Complaint

misconduct – those, for example, thatinvolve excessive force, retaliatory arrest or unauthorized entry of premises – the commissioner may order the filing of chargesand specifications against the police officer,who as a result “may face loss of vacationtime, suspension, or termination from thepolice department.”78 Administrativecharges are adjudicated by the office of theNYPD’s Deputy Commissioner of Trials.

The police commissioner may elect to impose“command discipline,” a less severe discipli-nary sanction, in which case disciplinary actionis delegated to the precinct or unit commander,who has discretion to issue “an oral warningand admonishment” or to order the “forfeitureof up ten vacation days or accrued time.”79

Alternatively, the police commissioner mayorder that the police officer receive instructionsregarding the conduct that gave rise to the sub-stantiated misconduct.80

The NYPD’s disposition of substantiatedcomplaints demonstrates that the departmentdoes not take seriously the CCRB’s findings

or recommendations. The department takesno disciplinary action against nearly 30 per-cent of police officers named in those com-plaints.81 Between 2000 and 2005 theNYPD disposed of substantiated complaintsagainst 2,462 police officers: 725 receivedno discipline. When discipline was imposed,it was little more than a slap on the wrist.Of the 1,607 police officers who were disci-plined in this time period, 534 receivedinstructions.82

Another 717 police officers received com-mand discipline.83 The NYPD does notreport to the CCRB on the final dispositionof Command Discipline cases.84 As a practi-cal matter these cases disappear. There is noaccounting, no accountability.

In recent years it appears that the NYPD hasadopted a radically more lenient disciplinarystandard as regards acts of police misconductdirected at civilians. Between 2004 and 2005the percentage of substantiated cases thatresulted in the mildest sanction – instructions –almost doubled. In 2004 the police department


78 CCRB Status Report, January-December 2003, p. 9.79 Ibid.80 Ibid., p. 8.81 CCRB Status Report, January-December 2005, pp. 93-94.

82 Ibid., p. 94; and CCRB Status Report, January-December 2004, pp. 91-92.83 Ibid.84 CCRB Status Report, January-December 2005, p. 35.

0%

10%

20%

30%

40%

50%

60%

70%

2000 2001 2002 2003 2004 2005

Instructions

Command Discipline A

Command Discipline B

Suspension for or Loss ofVacation Time of 1 to 10 days

Suspension for or Loss of Vacation Time of 11 to 30 days

FIGURE 8 – Discipline imposed by the NYPD on officers with substantiated CCRB complaints, 2000-2005


ordered instructions in approximately 30 per-cent of all disciplinary actions related to asubstantiated CCRB complaint.85 In 2005instructions represented nearly 60 percent ofsuch disciplinary actions;86 and in 2006

instructions represented close to 72 percent of all disciplinaryactions related to police misconductdirected at civilians.87 Suspensionof a police officer has become anextraordinarily rare occurrence,even when egregious acts of mis-conduct are involved. (See Figures8, 9 and 10.)

The NYPD trial room: misconduct gets a pass

It is disciplinary action takenagainst police officers chargedwith the more serious forms ofmisconduct – those who are sub-ject to an administrative trial –that would seem to offer a mean-ingful measure of the standard ofaccountability to which police officers are held. The data on the police department’s final disposition of these cases indicatesthe standard is a low one. (SeeFigures 11 and 12.) (Note: ACCRB complaint may name more than one police officer. The police department reports as a “case” each police officeragainst whom a CCRB complainthas been substantiated.)

Of those police officers who werereferred to the trial room to facecharges between 1998 and 2004,approximately 63 percent resultedin no discipline.88 In most of thosecases, the administrative trial judgedismissed the charges or found the

police officer not guilty. During this timeperiod, cases were dismissed against 198police officers against whom the CCRB hadsubstantiated misconduct complaints. In


85 CCRB Status Report, January-December 2005, p. 94.86 Ibid.87 CCRB Executive Director’s Report, Police Department Disciplinary Penalties

Imposed by Year of NYPD Closure (February 2007).

88 Data were compiled from NYPD cases summaries for substantiated complaintsreported in CCRB Status Reports, January-December: 2002, Table 52; 2003,Table 49B; 2004, Table 48A; and 2005, Table 48A.

89 Ibid.

Jan. - June2005

July - Dec.2005

Jan. - June2006

July - Dec.2006

15%

25%

35%

45%

55%

65%

75%

85%

Instructions

Discipline other than Instructions

FIGURE 10 – Discipline imposed by the NYPD on officers with substantiated CCRB complaints: instructions vs. other discipline, 2005-2006

Source: CCRB Executive Director’s Reports, July 2005, p. 15; August 2006, p. 17. CCRB Status Report, January-December 2005, p. 93

2000 2001 2002 2003 2004 2005

FIGURE 9 – Discipline imposed by NYPD on officers with substantiated CCRB complaints: instructions vs. other discipline, 2000-2005

Discipline Other Than Instructions

Instructions


0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

another 363 cases administrative judgesissued non-guilty findings.89 (See Figure 11.)

These data raise troubling questions. Is theNYPD rejecting CCRB findings and recom-mendations without good cause?90 Are theadministrative trial judges who oversee thepolice department’s trial room fair andimpartial? Are the NYPD personnel whoprosecute CCRB misconduct complaints com-petent to do so?91 (See herein, Section III:“Incompetence in the NYPD trial room.”)

Is the excessive length of time that a case ispending at the NYPD before closure – 250days, on average, following referral by theCCRB92 – causing complainants and witness-es to withdraw from the process?

Neither the CCRB nor the police departmenthas been inclined to undertake a serious inquiryinto these matters. The silence provokes a larg-er question: is the police department, due tobias, incompetence, hostility to the CCRB – oras consequence of all these factors – nullifying


90 In testimony presented before the City Council on March 9, 2007, Chief CharlesCampisi stated that “in a significant number” of substantiated CCRB cases therewas “insufficient evidence to proceed with an administrative trial.” In addition,he added, “there are times we observe the investigation to be complete, but theevidence does not support the conclusion reached.” (Statement of ChiefCharles Campisi, Chief of Internal Affairs, NYPD, Before the New York CityCouncil Public Safety and Civil Rights Committees, pp. 9-10) The NYPD has

advanced no findings to support these conclusions. There is a considerablebody of evidence, however, that police personnel do not competently prepareCCRB cases that are adjudicated in the police department’s trial room. (Seeherein, Section III: “Incompetence in the NYPD trial room.”)

91 See The City of New York Commission to Combat Police, Follow-up to theProsecution Study of the Commission, March, 2004.

92 CCRB Status Report, January-December 2005, p. 95.

FIGURE 11: NYPD disposition of cases substantiated by the CCRB and referred to an admininstrative trial, 1998-2004* (based upon year of referral to NYPD)

1998 1999 2000 2001 2002 2003 2004

Cases Referred to Administrative Trial 228 185 98 92 175 157 141

Outcome of Cases Referred to Trial

Dismissed 43 16 12 14 39 38 36(18.9%) (8.6%) (12.2%) (15.2%) (22.3%) (24.2%) (25.5%)

Found or Pled Guilty 87 71 41 42 72 51 38(38.2%) (38.4%) (41.8%) (45.7%) (41.1%) (32.5%) (27.0%)

Not Guilty After Trial 68 91 30 25 57 52 40(29.8%) (49.2%) (30.6%) (27.2%) (32.6%) (33.1%) (28.4%)

No Discipline in Cases 111 107 42 39 96 90 76Administratively Tried (48.7%) (57.8%) (42.9%) (42.4%) (54.9%) (57.3%) (53.9%)

NYPD Unable to Prosecute 25 1 8 7 5 5 18

Statute of Limitations Expired 5 6 7 4 2 11 9

Total Cases Referred to Trial: 141 114 57 50 103 106 103No Discipline (61.8%) (61.6%) (58.2%) (54.3%) (58.9%) (67.5%) (73.0%)

Pending Cases 0 0 0 0 2 5 55

Other** 26 14 11 14 19 22 27

* Complaint dispositions were compiled from police department data as reported in CCRB Semi-Annual Reports, 2002-2005. The last year for which complete data are availableon disciplinary action based on the year substantiated complaints were referred to the NYPD is 2004.** Category refers to cases in which NYPD employee was unidentified and cases in which NYPD employee retired, resigned, or died prior to final case disposition.

Source: Data on trial outcomes were compiled from CCRB Status Reports (“Police Department Discipline and Punishment on CCRB Cases Substantiated in [2003-2005]”), January-December: 2002, Table 52; 2003, Table 49B; 2004, Table 48A; and 2005, Table 48A.

well-documented complaints of police miscon-duct? A closer analysis of the police depart-ment’s disposition of excessive force cases givescredence to this charge.

When assault is not a “quality of life”crime

The CCRB reports that about half of all com-plaints filed with the CCRB charge police offi-

cers with the unlawful use of force.93 The highnumber of force allegations has been a statisti-cal constant throughout the ten-year period1994-2005. In recent years, as the number ofpolice-misconduct complaints has increased, sohas the number of excessive force allegations.94

In 2002, complainants filed 4,439 excessive-force allegations.95 That number increased by41 percent, to 6,264 force allegations, in2005.96 (See Appendix A, Table 4.)



95 CCRB Status Report, January-December 2004, p. 41.96 Ibid.; CCRB Status Report, January-December 2005, p. 43.

Between 1998 and 2004 policecommissioners ordered the filingof charges and specificationsagainst 1,076 police officers foracts of misconduct that had beensubstantiated by the CCRB. As aconsequence the accused policeofficers faced prosecution in an

administrative trial, which couldresult in suspension or dismissal.

These cases included allegationsof the more serious acts of policemisconduct – such as use ofexcessive physical force, threat of arrest or threat of force, strip

search, pointed gun, unauthorizedentry and search of premises.

Of the 1,076 cases referred totrial, 63 percent resulted in no disciplinary action.

0%

10%

20%

30%

40%

50%

60%

1998 1999 2000 2001 2002 2003 2004

Lost ≥ 10 Vacation Days

Lost <10 Vacation Days

Command Discipline

InstructionsSuspension

FIGURE 12 – Discipline imposed on officers named in substantiated CCRB cases that were referred to NYPD administrative trial, 1998-2004 (based upon year of referral to NYPD)

Source: 2004 is the last year for which complete data are available on disciplinary action. Data were compiled from NYPD case summaries for substantiated CCRB complaints published in CCRB Status Reports, January- December: 2002, Table 52; 2003, Table 49B; 2004, Table 48A; 2005, Table 48A.

Six of ten police officers that the NYPD refers to an administrativetrial for acts of misconduct received no discipline at all

The 6,264 excessive force allegations filed in2005 included 4,442 allegations of unlawfuluse of “physical force,” which, according tothe CCRB, involves a charge that a policeofficer “dragged/pulled, pushed/shoved/threw,punched/kicked/kneed, slapped [or] bit” thecomplainant.97 Another 1,822 allegationscharged other types of excessive force,including “gun fired or pointed; nightstick orgun used as a club; police shield or vehicle[used] as club; other blunt instrument [used]as club; hit [complainant] against inanimateobject; chokehold; pepper spray; radio orflashlight [used] as club; [use of] non-lethalrestraining device.”98 (See Figure 13.)

These statistics suggest that the police depart-ment has a significant problem with policeofficers’ use of unlawful force. There is typi-cally little or no consequence, however, for

the police officerwho uses excessiveforce against a civil-ian – even if theCCRB substantiatesthe complaint. Aperverse rule ofaccountability seemsto apply. The policedepartment is farless likely to imposediscipline when asubstantiated com-

plaint involves a police officer’s use of exces-sive force.

Between 2002 and 2004, the departmentimposed no discipline on 59 percent of policeofficers against whom the CCRB had substanti-ated a complaint involving use of excessiveforce. But the department imposed no disciplineon just 18 percent of those police officers againstwhom the CCRB substantiated a complaint thatdid not include an allegation of excessive force.99

(See Figure 14.)

These data are instructive, and not only toanalysts of the police department. Policeofficers have certainly learned that the oddsof avoiding discipline are in their favor whenit comes to the use of excessive force.



99 Data were compiled from the NYPD cases summaries for substantiated CCRBcomplaints located in CCRB Status Reports, January-December: 2002, Table 52;2003, Table 49B; 2004, Table 48A; and 2005, Table 48A.

0500

100015002000250030003500400045005000

1998 1999 2000 2001 2002 2003 2004 2005

Physical Force

Other Force Allegations

Source: CCRB Status Reports, January-December: 2002, p. 42; 2003, p. 46; 2004, p. 42; 2005, p. 44.

FIGURE 13 – CCRB allegations charging that police officer used unlawful physical force or another form of force, 1998-2005

0%

10%

20%

30%

40%

50%

60%

70%

1998 1999 2000 2001 2002 2003 2004

Cases with One or More Force Allegation

Cases with No Force Allegation

FIGURE 14 – Rate at which NYPD imposes no discipline in substantiated force and non-force CCRB cases, 1998-2004 (based upon year of referral to NYPD)

Source: 2004 is the last year for which complete data are available on disciplinary action. Data were compiled from NYPD case summaries of substantiated CCRB complaints published in CCRB Status Reports, January-December: 2002, Table 52; 2003, Table 49B; 2004, Table 48A; and 2005, Table 48A.

A police officer’schance of facing discipline are reducedby almost 70 percentwhen excessive forceis involved, as compared with otherforms of misconduct.


When “zero tolerance” does not apply: NYPD discipline of police misconduct

The CCRB’s semi-annual reports include a summary of the police department’s disposition of substantiated misconduct

cases – including a terse but evocative narrative of the facts in each case. These case summaries offer persuasive evi-

dence that unlawful acts for which a civilian would be subject to serious criminal charges and, quite possibly, incarcera-

tion are a matter of the most minor consequence when committed by a police officer. Consider these examples from the

CCRB’s status reports for the years 2003-2005.

FIGURE 15: Examples of police department discipline in substantiated CCRB cases that involve serious misconduct*

NYPDSEQUENCE PRECINCT/ SUBSTANTIATED NYPD CLOSURE NUMBER COMMAND ALLEGATIONS DISPOSITION DATE

142 Excessive Physical Force, Threat of Command (2005) 75 Precinct Force, Refusal to Obtain Medical Treatment Discipline ‘B’ 11/28/05

137 Brooklyn Excessive Physical Force, (2005) Narcotics North Strip-Searched Instructions 10/28/05

125 Questioned and/or Stopped, Premises(2005) 113 Precinct Entered and/or Searched, Retaliatory Arrest Instructions 10/28/05

125 Pepper Spray, Premises Entered (2005) 113 Precinct and/or Searched Instructions 10/28/05

96 Questioned and/or Stopped, Frisked and/or Command (2005) 96 Precinct Searched, Threat of Force, Threat of Arrest Discipline ‘B’ 7/28/05

85 Strip Searched, Vehicle Stopped, (2005) 52 Precinct Vehicle Searched Instructions 10/28/05

75 Questioned and/or Stopped, Frisked and/or (2005) 101 Precinct Searched, Property Damaged, Retaliatory Summons Instructions 6/28/05

Patrol Borough Excessive Physical Force, Frisk and/or Search,21 Brooklyn North Vehicle Search, Threat of Arrest, Property Loss of 10 (2005) Anti-Crime Unit Damage, Discourteous Word Vacation Days 12/28/05

344 Frisk and/or Search, (2004) 47 Precinct Retaliatory Summons Instructions 10/28/05

294 Excessive Physical Force, Questioned and/or (2004) 44 Precinct Stopped, Refusal to Obtain Medical Treatment Instructions 1/28/05

290 Hit Against Inanimate Object, Command (2004) 34 Precinct Retaliatory Arrest Discipline ‘A’ 1/28/05

239 Pepper Spray, Refusal to (2004) 48 Precinct Obtain Medical Treatment Instructions 8/28/05

Excessive Physical Force, Questioned and/or Stopped,225 Frisked and/or Searched, Refusal to Give Name Loss of 10 (2004) 67 Precinct or Shield Number, Discourteous Word Vacation Days 9/28/05

31 Premises Entered and/or Searched; Threat of Arrest;(2003) 47 Precinct Threat of Force.Discourteous Word. Instructions 10/31/03

40 Excessive Physical Force, Questioned and/or Stopped, Command (2003) 77 Precinct Frisked and/or Searched, Retaliatory Summons. Discipline ‘A’ 1/31/04

68 Excessive Physical Force, Command (2003) 84 Precinct Discourteous Word. Discipline ‘B’ 12/31/03

* Command Discipline may involve the loss of up to five vacation days (Command Discipline A); up to ten vacation days (Command Discipline B); or a verbaladmonishment without the loss of any vacation time.

The disciplinary double standard is strik-ing: the chances of facing discipline arereduced by almost 70 percent when exces-sive force is involved, as compared withother forms of misconduct. The lesson isthis: the department is soft on the unjusti-fied use of force. In other words, “Don’tsweat the serious stuff.”

These findings only corroborate what hasbeen well documented elsewhere: that theNYPD infrequently disciplines serious mis-conduct, such as acts of brutality, directedat civilians. Virtually every analysis ofpolice misconduct in New York City hasconcurred in this finding. A study byHuman Rights Watch has documented“cycles of scandal” that have exposedwidespread corruption and brutalityamong members of the New York Citypolice force.100 The study also found thatthese police officers were rarely heldaccountable by the NYPD, even when ajury had awarded millions of dollars indamages to the victims of rogue cops.101

The Mollen Commission report found thattolerance of brutality existed deep withinthe culture of the NYPD and that supervi-sors exhibited a “willful blindness” topolice officers’ use of excessive force.102

A report published by the New York CityPublic Advocate’s Office in 2000 conclud-ed that police officers’ use of excessiveforce was no impediment to advancementwithin the NYPD.103 The report includedcase examples in which police officers with records of substantiated complaintsof excessive force had received promo-tions, or had been awarded medals andawards.104

The data compiled in this section demon-strate that serious forms of police miscon-


100 Human Rights Watch, Shielded from Justice – Police Brutality andAccountability in the United States (Human Rights Watch: New York, 1998),p. 271.

101 Ibid., pp. 304-307.102 Commission to Investigate Allegations of Police Corruption and the Anti-

Corruption Procedures of the Police Department, “Commission Report”(Hereafter, “Mollen Commission Report”), July 7, 1994, p. 49.

103 Office of the New York City Public Advocate and The Accountability Project,Disciplining Police: Solving the Problem of Police Misconduct, July 27, 2000,pp. 62-69.

104 Ibid.

The following is paraphrased from the CCRB’s 2002 status report.

A civilian driving a van set out to make a left turn —and accidentally collided with an unmarked police vehi-cle. Two officers jumped out of the police car. One, asergeant, approached the civilian driver, who remainedseated inside his van. The sergeant banged his policeradio on the van and cursed at the driver. “Get the fuckout of the van!” the sergeant yelled. “Are you fuckingcrazy? Did you want to kill me?”

The driver emerged from the van, and the sergeantsearched, handcuffed, and arrested him. Then, althoughthe man was already handcuffed and was neither resist-ing arrest nor refusing to comply with the officers’instructions, the sergeant repeatedly slammed the man’shead against the van.

Five eyewitnesses observed the event; three of thoseindividuals lodged separate complaints with the CCRB.The eyewitnesses gave consistent accounts of the offi-cers’ abuses. But when a CCRB investigator approachedthe officers, they told a different story. The man, theofficers said, had banged his own head against the vanin an attempt to incite a riot.

Based on the consistency of the reports given by the eye-witnesses and the civilian driver, the CCRB determined onDecember 27, 2000, that the sergeant had committed mis-conduct by cursing at the man and using unnecessaryforce against him. The sergeant’s punishment – part of anegotiated plea to which the sergeant agreed inSeptember 2002 – was the forfeiture of 20 vacation days.

Officer Forfeits Twenty Vacation Days for RepeatedlySlamming Handcuffed Man’sHead against Van

duct directed at civilians – including use ofexcessive physical force – drop out of the over-sight system in great numbers. The CCRBsubstantiates only about 5 of every 100 com-plaints filed. Of the 5 percent of complaintsthat are referred to the NYPD for disciplinaryaction, many involve dangerous and harmfulforms of police misconduct. Few result in seri-ous discipline. And even when police officersare found guilty following an administrativetrial, the punishment is often shockingly dis-proportionate in its leniency given the severityof the misconduct. (See Figure 12 and sidebar:“When ‘Zero Tolerance’ Does Not Apply”) ■


29


III. Gaming the System: How the NYPD Subverts

Civilian Oversight

In November 1992 members of the CityCouncil cast their votes to establish an inde-pendent CCRB. That legislative enactmentowes its existence to an extraordinary collec-

tive act of misconduct by thousands of policeofficers who had gathered at City Hall to rallyagainst the creation of an independent civilianagency charged with oversight of policing.

The police demonstration took place onSeptember 16, the day preceding a hearing onthe bill before the City Council’s Public SafetyCommittee. The “rally” quickly devolved intowhat more closely resembled a police riot.105

Thousands of off-duty police officers, manyclearly inebriated, stormed City Hall. Theyblocked traffic in the street, taunting driversand passengers. The New York Times report-ed that the police protesters “swarmed throughNYPD barricades . . . blocking traffic on theBrooklyn Bridge for nearly an hour.”106 Onthe bridge the police officers assaulted severalnews reporters.107 The officers’ shouts andchants, laced with racial invective, were direct-ed at Mayor David Dinkins, the city’s firstAfrican-American mayor and a supporter ofthe legislation creating the independent civilianoversight agency.108

On that day proponents of the CCRB legisla-tion estimated they were six votes shy of thetwenty-six needed to pass the bill and makethe oversight agency an independent entity.However the media accounts of the police offi-

cers’ conduct at City Hall dramatically alteredthe political calculus overnight. The policehad inadvertently provided the key legislativefinding – police officers engaged in brazen law-lessness – that made independent civilian over-sight of the NYPD politically tenable.

This history is instructive. It is not possible tounderstand the CCRB’s performance over thelast thirteen years without understanding thepolitical street fight precipitated by police offi-cers on September 16, 1992. On display thatday was defiant outrage at the very notioncivilians have a role in reviewing the manner inwhich police offices exercise their authority.That the police department in recent years hasbeen less overt in its opposition to civilianoversight does not mean that opposition hasdiminished.

This opposition is reflected in the policedepartment’s delay in producing (or in refus-ing to produce) records and documents to theCCRB; and in the department’s failure topresent police witnesses for CCRB inter-views. This unwritten policy of non-cooper-ation is also reflected in the police depart-ment’s refusal to adopt reforms in policepractices as recommended by the CCRB; inthe dilatory pace at which the departmentreviews and adjudicates substantiated com-plaints; in the dismissal or non-prosecutionof substantiated CCRB cases referred to anadministrative trial; and in the many trials

105 James McKinley, “Officers Rally and Dinkins is Their Target,” New York Times,September 17, 1992.

106 Ibid.

107 Ibid.108 Ibid.

that result in not-guilty findings at the handsof police department prosecutors and admin-istrative trial judges.

The record indicates a pattern and practice ofconduct on the part of police officials that haseffectively neutralized the CCRB’s role in hold-ing police officers and the police departmentaccountable for acts of misconduct directed atcivilians. This record is analyzed below, begin-ning with an account of the CCRB’s investiga-tive operations from the perspective of theagency’s investigators.

Investigators’ perspectives

The NYCLU has, since the creation of theindependent CCRB, issued eight reports andnumerous letters and articles that address theoperation of the city’s civilian oversight system.

In monitoring thecivilian reviewprocess, the NYCLUhas analyzed theexperiences and viewsof public officials,CCRB complainants,as well as investiga-tors and persons whohave served on the

agency’s board. For the purpose of this report,the NYCLU conducted more formal interviewsof former CCRB investigators.109

The investigator’s perspective is an importantone. Effective investigation is critical to the suc-cess of a civilian oversight system. Absent acompetent investigative unit that is capable ofconducting rigorous and timely investigations,

the system must fail. The observations ofinvestigators interviewed for this report beardirectly on the viability of the CCRB. And ona number of issues the investigators werenotably consistent. Following is a summary oftheir observations.

● Access to police department records

The key to efficient and thorough complaintinvestigation is timely access to policedepartment records: roll calls, 911 reports,police radio transmissions, criminal historyrecords, medical reports, photographs.CCRB administrators have repeatedly, overmany years, objected that lack of timelyaccess to police department records has seri-ously undermined complaint investigations.Two New York City comptrollers have doc-umented the problem110 – which, neverthe-less, persists.

Investigators report that requests for policedepartment records are routinely met withdelay. Such requests are passed through thepolice department’s Internal Affairs Bureau(IAB). It can take many weeks – and often,months – for the police department to pro-duce records. In the early stages of a com-plaint investigation – when records are need-ed to evaluate the complaint and identify thesubject officer and possible witnesses – delaycan be fatal. Delay occurs at each stage ofthe investigation.111

In 2002 the police department providedthe CCRB with direct access to certainpolice department databases. But protract-ed delay in obtaining access to police


109 Between November 2003 and December 2006, the NYCLU conducted in-depthinterviews with eleven CCRB investigators who were with the agency for aperiod of two to six years in the period 1996-2006. Each was asked toaddress the same set of issues related to the CCRB’s operations: overalleffectiveness, quality of investigations, access to NYPD records, interactionwith police department’s Internal Affairs Bureau, supervision and training.Most of the interviews were conducted in person, with follow-up telephoneinterviews for purposes of clarifying comments made during the in-personinterviews. The investigators came to the attention of NYCLU staff throughinformal introductions that occurred in the course of the organization’s work.There was no formal procedure undertaken to solicit interviews with CCRBinvestigators.

110 A 1998 audit of the CCRB conducted by the New York City Comptroller quotedthe CCRB’s Deputy Executive Director for Investigations saying that it “gener-ally takes 2-3 months minimum” for the police department to produce records

necessary to complete a CCRB investigation, adding that that this was “‘with-out a doubt’ the biggest obstacle that the CCRB faced” in completing timelyinvestigations.” (Alan G. Hevesi, Comptroller of the City of New York, AuditReport on Case Management Policies and Procedures of the CivilianComplaint Review Board, June 25, 1998, pp. 57-58) A follow-up audit, pub-lished in 2002, found that “limited access to police department information”was “a major factor” contributing to the delay in its timely completion ofCCRB investigations. (William C. Thompson, Comptroller of the City of NewYork, Follow-up Audit Report on Case Management Policies and Procedures ofthe Civilian Complaint Review Board, May 21, 2002, pp. 21-22)

111 In 1997 Mayor Rudolph Giuliani issued an executive order directing the policecommissioner and the CCRB to establish standards for the “timely processingand resolution of civilian complaints and the sharing of necessary informationbetween the agencies.” The directive, which is reprinted in every CCRB annualstatus report, has done little to address the CCRB’s lack of timely access to policedepartment records. See Appendix C: Executive Order No. 40, October 21, 1997.

Investigators reportthat requests for policedepartment records areroutinely met withdelays of many weeks– and often, months.


records is still the norm. Electronicrecords available to investigators must berequested from two police employees whooperate computer terminals at the CCRB’soffices. The CCRB’s nearly 150 investiga-tors must submit a written records requestto the gatekeepers, who then conduct acomputer search. This burdensome proce-dure undermines both the efficiency andrigor of investigations. (One investigatorinterviewed stated that the incrementalimprovement in efficiency may be out-weighed by the loss of quality control inthe execution of the records search.)

What’s more, most records that are relevantand necessary to CCRB investigations arenot computerized – approximately 80 per-cent, according to investigators. It isrequests for these records that are subject tothe NYPD’s delay-and-deny tactics, whichhobble the CCRB’s investigative operation.As a consequence witnesses disappear;memories fade. Complainants withdraw infrustration. The investigation of seriousmisconduct runs up against the eighteen-month statute of limitations, which resultsin the premature curtailment of the CCRBinvestigation.112 Delay, however, works tothe advantage of the police officer who isthe subject of a complaint. And, accordingto CCRB investigators, IAB employees aremasters at running the clock.

● Conflict with Internal Affairs investigations

The IAB undertakes investigations concur-rent with the CCRB’s investigation intocomplaints involving excessive force, andinto certain complaints that allege abuseof authority. CCRB investigators reportthat the IAB may withhold records duringthe pendency of the IAB investigation.(The CCRB, however, will not close aninvestigation until the IAB has completedits investigation and turned over its file.)This practice can, and often does, put the

CCRB’s investigation in jeopardy becauseof the time constraints created by thestatute of limitations. CCRB investigatorsview the inaccessibility of records underthese circumstances as an obstruction ofthe agency’s investigations. The CCRB’sinvestigators do not reciprocate. At anytime IAB investigators can subpoena thecomplete investigative file in a complaintpending before the CCRB; the agencycomplies.

The CCRB investigators also charge thatthere is often a correlation between theseriousness of the charges alleged and thepolice department’s level of resistance tothe production of records. The more seri-ous the complaint, the greater the resist-ance to releasing records. As to the quali-ty of the IAB investigations, the CCRBinvestigators interviewed were consistentin the view that the police department’sinvestigations are superficial and, in manyinstances, reflect a bias in favor of theaccused police officer. The investigatorscited IAB officials’ use of leading inter-view questions to elicit answers that justi-fied the alleged misconduct; failure to con-tact witnesses who could corroboratecomplainants’ allegations; and key recordsleft unexamined.

● Police department’s failure to cooperatewith CCRB investigations

The CCRB’s investigators interview policeofficers daily at the agency’s offices. Theinterrogation of police officers named in acomplaint, and of police officer witnesses, iscritical to an effective investigation. Andyet the CCRB’s investigators report that onany given day almost half of all police offi-cers scheduled for an interview fail toappear. The CCRB schedules many inter-views each day, based upon police officers’and investigators’ availability, and upon theavailability of interview rooms.

112 The New York Civil Service Law, Section 74(4) states that “ . . . no removal ordisciplinary proceedings shall be commenced more than eighteen months afterthe occurrence of the alleged incompetence or misconduct complained of . . . .”


A cancelled interview must be rescheduledfor the next available opening in the sched-ule; and it is not uncommon for a policeofficer to cancel and reschedule interviewsrepeatedly. The inability to interview policeofficers in a timely manner further compro-mises investigators’ ability to conduct athorough investigation within a time framethat permits subsequent review and discipli-nary action before the statute of limitationsexpires.

Investigators perceive police officers’ failureto appear as another manifestation of thedepartment’s contempt for the civilian over-sight agency and its staff. This contempt,investigators say, is manifest in other waysas well: open hostility to investigators con-ducting an interview and overly aggressiveand sometimes disruptive advocacy bymembers of the Patrolmen’s BenevolentAssociation, who are typically present whenpolice officers are interviewed by CCRBinvestigators.

● Standard of proof

The Rules of the CCRB state that in orderto substantiate a police-misconduct com-plaint, the CCRB’s investigative record mustdemonstrate that the alleged misconductoccurred based upon a preponderance ofthe evidence.113 Under this standard, theburden of proof requires a showing that thealleged misconduct occurred based on 51percent of the evidence. (Put another way:the weight of the evidence makes it morelikely than not that the misconductoccurred.) CCRB investigators assert thatcivilian complainants are held to a higherstandard, one that requires a showing, at aminimum, of clear and convincing evidencethat the alleged misconduct occurred.According to one investigator, “the burdenof proof is 80 percent, not 51 percent.”

The investigators contend that the policedepartment’s Deputy Commissioner ofTrials applies this heightened standard inadjudicating substantiated CCRB com-plaints. This standard, based on a burdenof proof that is greater than a preponder-ance of the evidence, has been adopted bythe CCRB, say the investigators. And, as aconsequence, the prosecution of police offi-cers accused of misconduct is subject to amore rigorous burden of proof than the lawprescribes.114

If these observations are accurate, an erro-neous legal standard has been incorporatedinto the procedures by which allegations ofpolice misconduct are investigated, reviewedand judged. And if so, the city’s civilianoversight system is critically compromised.An inquiry into this issue would require anindependent investigation of the policedepartment’s trial records, as well as thereasoning reflected in the rulings of thedepartment’s administrative trial judges.Absent this inquiry, the credibility of thecivilian oversight system remains suspect.

Operation Blue Wall

The police department has demonstratedrepeatedly that it has little tolerance for inde-pendent, objective investigation of alleged mis-conduct or corruption by police officers.When faced with a probing investigation by anexternal entity, the department simply pre-empts the inquiry.

In the late 1990s the police department began“reinvestigating” substantiated complaints ongrounds that CCRB investigations had notbeen conducted in a competent manner. Astudy by New York City Public AdvocateMark Green found that the police departmenthad been rejecting the CCRB’s findings with-out any “reinvestigation.”115

113 Rules of the Civilian Complaint Review Board, Title 38A, Ch. 1, Subchapter D,§1-33(b).

114 See below: “Incompetence in the NYPD trial room.” A CCRB status reportindicates that the Deputy Commissioner of Trials employs a heightened stan-dard of proof when ruling on CCRB cases and that this explains the CCRB’s

low rate of substantiating complaints that include allegations of excessiveforce. (CCRB Status Report, January-December 2004, p. 30)

115 Office of the New York City Public Advocate and The Accountability Project,Disciplining Police: Solving the Problem of Police Misconduct, July 27, 2000,p. 23.

In 1997, as the CCRB began to expand itsinvestigative staff, the police departmentannounced it would no longer refer to theCCRB persons who attempted to lodge a com-plaint with the police department. InsteadPolice Chief Charles Campisi, then-commanderof the Internal Affairs Bureau, issued a direc-tive that police employees would refer thecomplaint, not the complainant – in other,words, the police were instructed to take the

complaint informa-tion and send it on tothe CCRB. Theobjective of this poli-cy was to “allow[ ]senior officers to . . .decide which [com-plaints] are seriousenough to warrant a

police investigation.”116 There was no reasonto accept this rationale at face value. It hadbeen well documented that police officialsactively discouraged and interfered with thefiling of complaints by civilians at policeprecincts.117 There is good reason to believethat Chief Campisi’s directive facilitated thatinterference.

More recently the NYPD refused to cooperatewith the CCRB’s investigations into allega-tions of police misconduct on the occasion ofthe Republican National Convention, whichwas held at Madison Square Garden inAugust of 2004. The arrests of some 1,800political demonstrators became the subject ofcontroversy and heightened public attention.

The police department announced it wouldbypass the CCRB and, instead, set up internalpolice department procedures for investigat-ing these complaints.118 The CCRB proceed-ed with its investigations, but without thecooperation of the NYPD. Police officialsrefused to appear at the CCRB for interviewsrelated to the investigations.119

The police department’s defiance of inde-pendent oversight is not limited to the inves-tigation of matters that fall within the juris-diction of the CCRB. The department hasassumed the same posture toward investiga-tions undertaken by the New York CityCommission to Combat Police Corruption,which was established by Mayor RudolphGiuliani in 1995. At a City Council hearingin April 2005 the chair of the Commissiontestified that the NYPD was withholdingdocuments without which the Commission’sinvestigations could not proceed.120 Todeclare in a public forum that the NYPD isundermining the investigation of wrongdoingby police is to jeopardize one’s political via-bility. It appears that Mr. Pomerantz waswell aware of this. He resigned two weeksafter presenting his testimony before the CityCouncil’s Public Safety Committee.121

When police officials signal a policy of non-cooperation so clearly, there is no need for itto be entered in the NYPD’s Patrol Guide.There are CCRB data that indicate policeofficers understand and actively enforce thispolicy.


116 Michael Cooper, “New York Undercounted Civilian Complaints About Police,”New York Times, December 11, 1997, pp. B1, B2.

117 The 1994 Mollen Commission Report included testimony that told of what couldbe expected when filing a police misconduct complaint at a police precinct:

The [Desk Officer] would give [the complainant] the paperwork tofill out. Then [the complainant] would ask him for a pen. [TheDesk Officer] would tell [him], ‘Listen, there’s a bodega acrossthe street, go there and buy it. I’m not helping you. ’ […]

Then if the [complainant] went through all the aggravation to fillout the complaint report … they’d tell [him], ‘Listen, we have toget it typed now. There’s a waiting line for the typing. It’s goingto be about three hours, so sit right there and wait.’ Half thetime […] people would […] leave. As soon as they left, [theDesk Officer] would crumple [the complaint] up and throw it rightin the garbage.” (Mollen Commission Report, p. 59)

In August of 1998, not long after the police department’s new complaint-intake procedure was announced, the NBC Television news program Datelineaired a segment that depicted the very conduct described in the above testi-mony excerpted from the Mollen Commission Report. (NBC Dateline, Aug. 18,1998)

118 William K. Rashbaum, “Police Create Panel on Abuse Claims at Convention,”New York Times, November 5, 2004.

119 Michael Wilson, “Top Officers Are Said to Ignore Complaint Board’s Inquiry,”New York Times, September 15, 2005.

120 William K. Rashbaum, “Panel Wants to Obtain Police Data by Subpoena,”New York Times, April 19, 2005.

121 William K. Rashbaum, “Police Corruption Panel is Losing its Chairman,” NewYork Times, April 22, 2005. Neille Itel, “NYPD Anti-Corruption Chair Quits;Blames Lack of Subpoena Power,” Queens Chronicle, April 28, 2005.

When faced with a probing investigation byan external entity, thedepartment simply preempts the inquiry.

● Hiding behind the police badge

Between 2000 and 2002 there was an increaseof 80 percent in the numbers of civilians whoalleged a police officer refused to provide aname or shield number: 349 such allegationswere made in 2000; 468 in 2001; and 631 in2002.122 (See Figure 16.)

One of the first questions a CCRB investiga-tor asks of a complainant to the CCRB is theidentity of the police officer who is the sub-ject of the complaint. Failure to make thatidentification can seriously impede a subse-quent investigation. And this occurs fre-quently. In 2002 the CCRB issued a formalrecommendation that the department clarifyits requirement that police officers providename or shield number upon request from acivilian. The police commissioner subse-quently issued an interim order directingpolice officers to “clearly state name, rank,shield number and command, or otherwiseprovide them, to anyone who requests you todo so.”123

It appears that little attention was given to thepolice commissioner’s directive. Between 2003and 2005 the number of allegations chargingthat a police officer refused to identify himselfnearly doubled relative to the preceding threeyears: 821 such complaints were filed in 2003;937 in 2004; and 1,010 in 2005.124 The policedepartment has been silent regarding policeofficers’ non-compliance with the new rule.

● Covering up evidence of misconduct

Between 2000 and 2005, the CCRB substanti-ated 367 instances of police conduct thatmight have covered up possible wrongdoing,such as intentional false statements or failureto complete a “stop, question, and friskreport.”125 The CCRB categorizes these police actions as “other misconduct.” Thistype of misconduct was discovered through the investigation of related allegations broughtagainst the police officers named in the underlying complaint.

The CCRB’s data indicate that police frequently engage in conduct that may frustrate CCRB investigations. The agencyreports one instance of “other” misconductfor approximately every five police officersagainst whom a complaint has been substantiated.126

● Lying under oath

The CCRB is not the first to document policeofficers’ efforts to undermine investigationsof possible misconduct. In its 1994 reportthe Mollen Commission observed that per-jury is the most pervasive form of police misconduct.127 However, based upon itsresponse to the CCRB’s findings, the policedepartment appears not to take the issue seriously. In 1996, acting on a recommenda-tion of the Commission to Combat Police


122 See CCRB Status Reports, January-December: 2003, p. 47; 2004, p. 43; and2005, p. 45.

123 Interim Order of the NYPD Police Commissioner, Revision to Patrol GuideProcedures 203-09, “Public Contact – General,” June 27, 2003. The CCRB rec-commendation appeared in the January-December Status Report, pp. 34-35.

124 See CCRB Status Reports, January-December: 2004, p. 43; and 2005, p. 45.125 CCRB Status Reports, January-December: 2004, p. 94; and 2005, p. 47.126 Ibid.; and CCRB Status Reports, January-December: 2004, pp. 88, 94; and

2005, pp. 90, 96.127 Mollen Commission Report, p. 36.

FIGURE 16 – CCRB allegations charging that police officer refused to provide name or shield number, 1998-2005

0

200

400

600

800

1000

1200

1998 1999 2000 2001 2002 2003 2004 2005


Corruption,128 Police Commissioner HowardSafir issued an order directing that police offi-cers who make a false statement in the courseof a misconduct investigation would be termi-nated.129 The policy was rarely enforced.130

The CCRB subsequently substantiated falsestatements made by 134 police officersbetween 1999 and 2003.131 The CCRB hasmade no mention of a police officer being ter-

minated for makinga false statement.However, in its2003 annual statusreport the agencynotes that “thepolice commission-er has not notifiedthe CCRB of theaction it takes”with respect to will-ful false statements

unless the complaint has been substantiatedbased on an allegation other than the falsestatement.132 In other words, if a police offi-cer’s falsehood is successful in preventing thesubstantiation of a complaint, the departmentseems to ignore it.

Retaliation

Police also use direct threats to deter civil-ians from filing a complaint with the CCRB.The CCRB has not analyzed this issue; how-ever it appears, by way of reference, in theagency’s summary of substantiated allega-tions. When a civilian objects to a policeofficer’s conduct, or expresses an intentionto file a complaint against the police officer,

a retaliatory arrest or summons may follow.The CCRB reports that between 2001 and2005, civilians filed 1,171 allegations thatcharged police officers with this form ofretaliation. Allegations of this nature filedin 2004-2005 increased by 47 percent rela-tive to the preceding two-year period.133

A police threat of retaliation for filing a mis-conduct complaint is a more common occur-rence than indicated in the CCRB’s reporting.In 2000 the NYCLU conducted in-depth inter-views with eighty-nine individuals who hadfiled complaints with the CCRB. There weremany reports of intimidation by police officers;and several cases in which police threatened acomplainant to withdraw a complaint.

At public hearings held in New York City, theUnited States Civil Rights Commission heardabout an individual who entered a precinct tofile a complaint and was thrown down a flightof stairs by a police captain. Another testifiedthat after filing a police-misconduct complaint,a detective threatened him with arrest if hedidn’t withdraw the complaint. He refused,and a police detective arrested the complainantand his wife.134

The 2001 documentary film JustifiableHomicide depicts the police department’shostility to CCRB’s investigations.135 Thedocumentary examines the police shooting oftwo men in a Bronx apartment. The shoot-ings are the subject of a misconduct com-plaint that was filed with the CCRB. Thereis reason to believe the shooting victims hadstumbled upon a criminal scam that involvedpolice corruption. As CCRB investigators


128 New York City Commission to Combat Police Corruption, The New York CityPolice Department’s Disciplinary System: How the Department Disciplines itsMembers Who Make False Statements, December 12, 1996, pp. 2, 11-12.

129 New York Police Department Patrol Guide, Section 203-08. See Mark Green,New York City Public Advocate, Disciplining Police: Solving the Problem ofPolice Misconduct, July 2000, p. 32.

130 See Dan Barry, Deborah Sontag, “New York Dismisses Police, but Rarely forBrutality,” New York Times, October 6, 1997. (Police Commissioner Safirannounced the dismissal of eighteen officers for making false statements;police department documents showed that few were dismissed for thatoffense alone; those who were dismissed also faced other charges.)

131 CCRB Status Reports, January-December: 2003, p. 106; 2004, p. 94; and 2005,p. 96.

132 CCRB Status Report, January-December 2003, p. 34.133 CCRB Status Report, January-December 2005, p. 45.134 United States Commission on Civil Rights, Police Practices and Civil Rights in

New York City, August 2000. The Vera Institute relates an incident in whichan individual filed but subsequently withdrew a police-misconduct complaint.He was called at home by the police officer who was the subject of the com-plaint. “You’re a dead mother fucker,” he said to the complainant. MicheleSviridoff and Jerome E. McElroy, Processing Complaints against Police: TheComplainant’s Perspective (Vera Institute, 1989), p. 77.

135 Justifiable Homicide, directed by Jon Osman and Jonathan Stack, Reality Films, 2002.

When a civilian objects toa police officer’s conduct,or expresses an intentionto file a complaintagainst the police officer,a retaliatory arrest orsummons may follow.

conduct an investigation in the apartmentthat was the scene of the shooting, anextraordinary show of police force assemblesoutside the apartment building.

There, New York City police officers, includ-ing a detective, shout threats at CCRB investi-gators inside the apartment. The taunts of theNYPD officials can be heard by the investiga-tors who are literally uncovering forensic evi-dence (concealed by a hasty renovation of theapartment) that suggests the facts of thisshooting depart in important respects from theversion of events provided to a grand jury.The CCRB investigators turn a video cameraon the police officers, who, upon realizing theyare under surveillance, quickly turn their backsand exit the scene.

The scene is emblematic of New York City’scivilian oversight system. What is extraordi-nary is not the blatancy of the police offi-cials’ attempts to intimidate CCRB investiga-tors, but that the strong-arm tactics werecaught on film.

Incompetence in the NYPD trial room

The barriers a civilian faces in seeking to holda police officer accountable for misconductdo not disappear once the CCRB substanti-ates the complaint. It is then referred to thepolice department for disciplinary action.And, particularly if the complaint alleges amore serious form of misconduct, such asexcessive force or false arrest, the com-plainant’s ordeal has only begun.

In these cases the CCRB recommends that thepolice department file charges and specifica-tions against the police officer who is the sub-ject of the complaint. If the police departmentaccepts the CCRB’s recommendation, the caseis referred to the Department Advocate’s Office

(DAO) for prosecution. Departmental trialsare administered by the office of the DeputyCommissioner of Trials. A report published in2000 by the Commission to Combat PoliceCorruption determined that the NYPD’s prose-cution of disciplinary cases failed to meet mini-mum standards of professionalism and compe-tence.136 The Commission concluded thatDAO personnel did little or nothing to preparecases for trial.137

In 2004 the Commission published an updateof its earlier study.138 Little had changed.Advocates were failing to subpoena recordsnecessary to prove a case at trial; to contactwitnesses; to develop evidence beyond that pre-

sented in the initial investigation.139 Thereport also found that training and supervisionwere inadequate and that the police depart-ment’s prosecutors lacked legal qualificationsand basic trial skills.140 What’s more, theCommission found extensive delays in theadjudication of CCRB cases, 50 percent ofwhich were open at the police department formore than sixteen months.141

These findings are reflected in the policedepartment’s disposition of CCRB cases thatwere referred to trial between 1997 and 1999.(Since 2001 nearly all police officers subject tocharges for CCRB complaints have had theircases adjudicated by the police department.142)


136 See generally, New York City Commission to Combat Police Corruption, NewYork Police Department’s Prosecution of Disciplinary Cases (July 2000).

137 Ibid., pp. 46-89.138 New York City Commission to Combat Police Corruption, Follow-up to the

Prosecution Study of the Commission, March 2004, p. 60. 139 Ibid., p. 15.

140 Ibid., pp. 11-12, 14, 32, 33.141 Ibid., p. 64.142 This is a consequence of litigation that resulted in an order prohibiting the

Office of Administrative Trials and Hearings from conducting hearings in allpolice misconduct cases. (Lynch v. Giuliani, 301 A.D.2d 351 (1st Dept. 2003))

A report published in 2000 by theCommission to Combat Police Corruptiondetermined that the NYPD’s prosecution ofdisciplinary cases failed to meet minimumstandards of professionalism and compe-tence. A 2004 update of the study foundthat little had changed.

In this period police department hearing offi-cers dismissed 43.8 percent of CCRB cases andissued guilty findings in 24 percent of CCRBcases. In the same time period the New YorkCity Office of Administrative Trials andHearings dismissed only 9.4 percent of CCRBcases, and issued guilty findings in 61.5 percentCCRB cases.143 (See Appendix C, Table 6.)

This analysis completes the picture of thecity’s oversight of policing: the CCRB con-ducts thorough investigations that lead to a

finding on the merits in relatively few com-plaints involving serious misconduct; thosethat are substantiated are prosecuted by apolice department unit that is less than compe-tent. The Commission’s findings constitute aserious indictment of the police department’sprosecution unit.

The failings of the department’s adjudicationof CCRB cases, however, may be even greaterthan they appear. The CCRB has suggestedin a 2004 status report that the office of the


143 The Commission to Combat Police Corruption has also published data thatappear to support the view that bias, incompetence, or both, enter into the adju-dication of CCRB complaints in the police department’s trial room. In its 2004report the Commission found that the police department’s prosecution of non-

CCRB cases resulted in a guilty finding in 63.9 percent of cases; whereas thedepartment’s prosecution of CCRB cases led to a guilty finding in 36.9 percentof those cases. (New York City Commission to Combat Police Corruption,Follow-up to the Prosecution Study of the Commission, March 2004, pp. 11-12)

The following is paraphrased from theCCRB’s 2004 status report.

On an October night in 2000, an anony-mous caller reported to 911 that he hadseen a man in a red jacket with a gun. Theman, the caller said, had entered a barber-shop in the Bronx where drugs are sold.

The police responded quickly. Soon after thecall, a man standing near the barbershopwas approached by a uniformed officer andhis partner. The officer frisked the man andsearched his pockets. Upon finding no gun,the officer demanded that the man get offthe block, threatening to issue him a sum-mons if he did not leave immediately.

Three nights later, 911 received anotherreport from an anonymous caller. The callersaid that while driving in that same area ofthe Bronx he had seen a black man flash agun. Within a few minutes, the same uni-formed officer responded to the call bystopping, frisking, and searching the sameindividual the police officer had stoppedthree days earlier.

The uniformed officer had not filed astop-and-frisk report about the first stop.But he did file a report about the secondstop, stating that he had stopped, frisked,and searched the man in response to the911 call.

Within an hour of the second incident, theman who had been twice stopped, frisked,and searched called the Internal AffairsBureau to complain. The IAB referred thecomplaint to the CCRB. An investigatorinterviewed the man and then the officerwho had stopped him. The officer told theCCRB that the complainant was a drugdealer stationed on the block where thebarber shop was located, and that he hadstopped him only in response to 911 calls.

The investigator sought records of both911 calls. Upon listening to the recordingof the second call, the investigator recog-nized the caller’s voice. The anonymouscaller had been the responding officer him-self. In fact – according to records that theinvestigator then obtained by subpoenafrom cellular phone providers and building

managers – the officer had been calling911 frequently from two cell phones regis-tered in his wife’s name. The officer hadplaced sixteen calls to 911 between April2000 and May 2001 – including both callsabout the man he had stopped on the blockwith the barbershop.

Falsely reporting a crime is a criminaloffense. The CCRB referred the case to theBronx District Attorney’s office, which investi-gated the case but declined to prosecute.The CCRB concluded that the officer hadunlawfully stopped, frisked, and searched thecomplainant; had made a false 911 call; hadfalsified police records; and had made a falseofficial statement to the CCRB.

In Fall 2003 the officer pleaded guilty to dis-ciplinary charges that he made false 911calls, falsified a stop and frisk report, andwithout proper legal justification stopped,frisked, and searched the complainant onboth dates. As punishment he received aforty-five-day suspension without pay andwas placed on probation for one year.

Officer Falsifies 911 Calls to Justify Illegal Stops, Frisks, and Searches

Deputy of Commissioner of Trials employs aheightened standard of proof when ruling inCCRB cases, particularly in cases involving apolice officer’s use of force.144 The statusreport states that, “administrative tribunalshave continually set a stringent standardwhen considering whether force by a policeofficer constitutes misconduct.”145 TheCCRB report adds that the agency appliesthis “stringent” standard in the investigationand review of complaints – and that thisexplains, in part, the low rate at which exces-sive force complaints are substantiated.146

In publishing these comments, the CCRBindicates that hearing officers in the policedepartment’s trial room require more than apreponderance of the evidence, the appropri-ate legal standard, to prove an allegation ofpolice misconduct. The published commentsalso make clear that the CCRB has adoptedthis heightened standard of proof in conduct-ing its investigation and review of police mis-conduct complaints.

In its 2004 report on the police department’strial room, the Commission to Combat PoliceCorruption seems to confirm that the NYPDrequires a greater showing of proof to find apolice officer guilty of misconduct than wouldbe the case in a CCRB investigation. In criti-cizing police prosecutors’ failure to developevidence beyond what had been provided byCCRB investigators, the Commission’s reportexpressed concern that the failure to develop astrong evidentiary record would undermineprosecutions “because evidence which is suffi-cient for [a CCRB] investigator to close aninvestigation may, at times, be insufficient tolegally sustain charges due to the higher bur-den of proof in the Trial Room.”147

Even if CCRB investigations and policedepartment prosecutions were executedexpertly – which is clearly not the case – the entire undertaking would be fatally

compromised if predicated upon an improp-erly heightened evidentiary standard that issubject to selective application. If that is thecase, the city’s oversight system is not merelyfundamentally flawed; the system is inherent-ly irrational. ■


144 CCRB Status Report, January-December 2004, p. 30. 145 Ibid.146 Ibid.

147 New York City Commission to Combat Police Corruption, Follow-up to theProsecution Study of the Commission, March 2004, p. 60.

IV. Extraordinary Deferenceto the NYPD

39


In 1993 the NYCLU conducted a study ofpolice oversight agencies in seven UnitedStates cities.148 The published report, whichanalyzed the implementation of local legisla-

tion mandating civilian oversight of policing,was informed by interviews with agencyadministrators, law enforcement officials, civilrights lawyers and police professionals. Of theinsights offered in these interviews, one wasparticularly prescient in anticipating the futureof an independent all-civilian police oversightboard in New York City. Speaking of the myr-

iad obstacles to effective implementation of acivilian review system, Alfreda Davis Porter,director at the time of San Francisco’s Office ofCitizen Complaints, observed that it wouldtake a decade for such an agency to achieveoperational competence.149

Ms. Porter’s forecast was corroborated by theNYCLU’s report, which related a strikinglyfamiliar narrative about the effort to create acivilian review agency. In each city studied anunder-funded and under-resourced reviewboard was caught in a political power playthat shaped up as a mismatch. The policeunions opposed every effort of the oversightentity to exercise its statutory authority. Policeofficials refused to cooperate with civilianinvestigators; delayed the production of docu-

ments and records; and challenged the validityof police misconduct complaints that had beensubstantiated by the civilian agency.

In the face of overwhelming resistance frompolice officials and elected officials allied withthe police, the administrators of the civilianoversight agency deferred. In the words of oneauthority on police accountability, “Civilianofficials are sometimes reluctant to becomeadvocates for the oversight process.”150 Thisreluctance is sometimes cloaked in the rhetoric

of cooperation. But there is no mis-taking what is going on: capitula-tion, within the universe of municipalgovernance, to a superior force.

This is what has transpired betweenthe CCRB and the police departmentin New York City. Alfreda Davis

Porter was essentially correct as regards theobstacles to establishing a competent oversightagency. Her prediction underestimated, how-ever, the extent to which those negative influ-ences have compromised the civilian oversightmission in New York City.

Condoning flawed and dangerouspolice practices

In the opening pages of its biannual statusreports the CCRB publishes a statement of its“mission and values.” The statement pledgesthe agency to report to the police commissionerregarding patterns of police misconduct as wellas policy matters related to the investigation andreview of misconduct complaints. ProfessorSamuel Walker writes that “policy review is the

148 New York Civil Liberties Union Foundation, Civilian Review of Policing: A CaseStudy Report, January 1993.

149 Ibid., p. 63.

150 Ibid., p. 64. The comment was made by John Crew, who was the director ofthe Police Practices Project of the ACLU of Northern California at the time theNYCLU published its 1993 case study report.

CCRB deference to the NYPD is often cloaked in the rhetoricof cooperation. But there is no mistaking what is going on:capitulation, within the universe of municipal governance,to a superior force.

one [oversight activity] most likely to produceorganizational change and thereby achieve long-term improvement in policing.”151

The CCRB has not demonstrated much convic-tion in pursuit of this aspect of its mission. Atits worst, the agency has actively ignored orchosen not to report patterns of police miscon-duct. In more than one instance the CCRBdocumented a pattern of misconduct allega-tions and forwarded a policy recommendationto the police commissioner – but then did littleto hold the commissioner accountable for notacting on the recommendation. The conse-quences of this nonfeasance can be grim.

In his letter to the public that introduced theCCRB’s 2004 status report, board chairmanHector Gonzalez stated that in May of thatyear the agency asked the police department to“enhance its training of officers regarding . . .strip search procedures.”152 (In 2002 NewYork City paid $50 million in damages to set-tle a lawsuit related to police officers’ execu-tion of unlawful strip searches.153) “The PoliceCommissioner,” Mr. Gonzalez adds, “has acted

on the recommendation.”154 Later in thereport the CCRB explains what the policecommissioner’s action consisted of. The policedepartment had “issued a statement that it wasdeveloping a police training videotape . . . onproper strip search procedures.”155

Five months later, in October of 2004, thedepartment issued “a directive” on these pro-cedures. As of February 2005, however, thedepartment had not yet completed the trainingvideo.156 And in its 2005 annual status reportthe CCRB reported that the police departmenthad “not completed the training video oraltered its training procedures” regarding stripsearches.157 This same report included newdata on strip-search complaints – 248 individu-als charged they had been subjected to anunlawful strip search in 2005, an increase of77 percent as compared with the number ofsuch complaints filed in 2003.158 As ofDecember 2006 the NYPD had not producedthe training video.159

Following are three case examples in whichpatterns of misconduct indicate the need for


151 Samuel Walker, Police Accountability: The Role of Civilian Oversight (Belmont:Wadsworth, 2001), p. 93.

152 CCRB Status Report, January-December 2004, p. xv.153 Tyson v. City of New York, No. 97 Civ. 3762 (S.D.N.Y. Dec. 2000). See William

C. Thompson, Comptroller of the City of New York, Claims Report: Fiscal Year2001-2002, p. 27, July 2003.

154 CCRB Status Report, January-December 2004, p. xv.155 Ibid., p. 2.

156 Ibid.157 CCRB Status Report, January-December 2005, p. 2.158 CCRB Status Report, January-December 2005, p. 45.159 On April 10, 2007, Police Commissioner Kelly announced that the training

video on proper strip-search procedure had been produced. (Letter from PoliceCommissioner Raymond Kelly to Franklin H. Stone, Chairperson, CivilianComplaint Review Board, April 10, 2007)

FIGURE 17 – Allegations of question and/or stop; frisk and/or search; and threat of arrest, 1998-2005

0

500

1000

1500

2000

2500

1998 1999 2000 2001 2002 2003 2004 2005

Question and/or Stopped

Frisk and/or Search

Threat of Arrest


reform of policing practices. In these examplesthe CCRB is silent, or it is silenced. Patternsof misconduct are ignored. When this occurs,the danger to individual liberty and publicsafety can be especially great.

● Racial profiling

In a televised debate among the candidatesseeking the Democratic Party’s nominationfor mayor in 2005, Manhattan BoroughPresident C. Virginia Fields decried the“number of young people who are roundedup every night, taken into central bookingfor things that they might not have evenbeen involved with. . . . Young people outthere in those communities – I cannot go toone community, especially black or Latinocommunities, without those complaintsbeing made.”160

The complaints made to the borough presi-dent on the campaign trail are consistentwith those filed with the CCRB. The pat-tern is longstanding. Over the last decadenearly 80 percent of complaints to theCCRB have been filed by persons of color.African Americans have filed approximately50 percent of all police misconduct com-plaints; Latinos filed approximately 24 per-cent of CCRB complaints during this peri-od.161 (In this timeframe, AfricanAmericans and Latinos represented approxi-mately 25 percent and 23 percent, respec-tively, of the New York City population.)

That race and ethnicity are factors thatenter inappropriately and unlawfully intoNew York City police practices isirrefutable. A 1999 study by the Officeof New York State’s Attorney Generaloffered compelling evidence that as com-

pared with whites, African Americans andLatinos were disproportionately stoppedand frisked by the police – and that thedisparity existed even when statistics wereadjusted for race-specific crime rates andthe racial make-up of communities.162

The CCRB has contributed to an under-standing of the phenomenon of racial pro-filing. In a 2001 report the CCRB foundthat African Americans filed nearly sixtimes the number of street-stop complaintsfiled by whites.163 The report also foundthat, as compared with whites, AfricanAmericans were approximately twelve timesmore likely to have been stopped by an offi-cer using physical force, and approximatelyforty times more likely to have beenstopped by an officer using a gun.164 TheCCRB was almost twice as likely to sub-stantiate complaints related to street stops

as it was tosubstantiateother types ofcomplaints;165

and streetstop com-plaints filedby AfricanAmericansand Latinoswere morelikely to be

substantiated, and less likely to be exonerat-ed or unfounded, than street stop com-plaints filed by whites.166

But since publishing that report, the CCRBhas been virtually silent on the issue of race,ethnicity and police practices – even as thenumber of complaints alleging an unlawfulstop and frisk, or search has spiked sharply.


160 Patrick D. Healy, “Debate Clock Clips Answers, and Drama,” New York Times,Sept. 8, 2005, p. B5.

161 CCRB Status Reports, January-December: 1997, p. 76; 2000, Table 33; and2005, p. 49.

162 Eliot Spitzer, Attorney General of the State of New York, The New York CityPolice Department’s ‘Stop & Frisk’ Practices: A Report to the People of theState of New York from the Office of the Attorney General, December 1, 1999.The study, which involved the analysis of 175,000 UF-250 forms – police arerequired to fill out this form after various “stop” encounters – found thatacross all crime categories blacks were stopped 23 percent more often than

whites, and that Latinos were stopped 39 percent more often than whites (p.x). In precincts in which blacks and Hispanics each represented less than 10percent of the total population, individuals identified as belonging to theseracial groups accounted for more than half of all police stops (p. viii).

163 CCRB, Street Stop Encounter Report: An Analysis of CCRB ComplaintsResulting from the New York Police Department’s “Stop & Frisk” Practices,June 2001, p. 4.

164 Ibid., pp. 37-38.165 Ibid., p. 22.166 Ibid., p. 23.

Street stop complaints filedby African Americans andLatinos were more likely tobe substantiated, and lesslikely to be exonerated orunfounded, than street stopcomplaints filed by whites.

(See Figure 17.) When the City Councilintroduced legislation to address the prob-lem of racial profiling by the New YorkCity Police Department, the CCRB’s admin-istrators and its board members were no-shows. At the hearing City CouncilMember Phil Reed asked aloud, in a rhetor-ical aside, about the CCRB’s absence. Inresponding to his own question Mr. Reedstated that the CCRB’s absence was due toopposition by the police department.167

The demographics of police misconduct tell astory of complainants who are typicallyblack and Latino alleging misconduct againstpolice officers, more than 60 percent ofwhom are white.168 The CCRB cannotadopt a practice of willful blindness to theways in which race and ethnicity enter intopolice practices. To do so is to abandon themission of civilian oversight.

● No-knock warrants

At 6:15 in the morning of May 16, 2003,members of the 25th Precinct’s StreetNarcotics Unit executed a “no knock” war-rant at the Harlem apartment of AlbertaSpruill, fifty-seven years old. The NYPD’sstandard procedure in executing such war-rants was to detonate a concussion grenadeupon breaking into the premises identifiedin the warrant. The warrant to break intoMs. Spruill’s apartment had been issued,and executed, solely upon information pro-vided by a confidential informant, a con-

victed drug dealer who had been arresteddays before the raid.169

It turned out that the informant’s informationwas erroneous. Alberta Spruill, whom thepolice had handcuffed after breaking into herapartment, died as she was being taken to thehospital. The medical examiner attributed herdeath to fear and stress. The circumstancesthat led to the police raid of Alberta Spruill’sapartment were not unusual. She became thefifth victim of a botched “no-knock” raid inlittle more than six months.170

The police department had been executing no-knock raids routinely in drug-crime investiga-tions. Police Commissioner Raymond Kellytestified before the City Council that ofapproximately 13,000 no-knock warrantsexecuted in the two years preceding theAlberta Spruill incident, 10 percent may havebeen “bad.”171 The department’s own analy-sis established a riot of police errors in theSpruill incident, each mistake precipitatedby a breach of basic police protocol – andin a number of instances, common sense.172

CCRB administrators and investigators werewell aware of the problem. Investigators hadbrought to the attention of the director andsupervisors evidence of gross negligence in theprocedures by which no-knock warrants wereobtained and executed.173 The CCRBreceived 150 complaints in 2002 that chargedthe police had abused their authority in exe-cuting search warrants.174


167 Robert A. Perry, an author of this report, was present at the City Council hear-ing, which was held on February 23, 2004. In a telephone interview Mr. Perryconducted with Mr. Reed on February 12, 2007, he said that the remarksattributed to him accurately reflected his thoughts regarding the CCRB and thepolice department, although he could not recall the specific comments he hadmade at the hearing.

168 CCRB Status Report, January-December 2005, p. 50.169 William K. Rashbaum, “Report by Police Outlines Mistakes in Ill-Fated Raid,”

New York Times, May 31, 2003.170 Sean Gardiner and Daryl Kahn, “Raid Goes Bad,” Newsday, May 17, 2003.171 “Statement of Police Commissioner Raymond W. Kelly before the New York

City Council Public Safety Committee,” June 4, 2003. See also, SeanGardiner, “Kelly Defends Warrant Policy, Denies Allegations of RacialTargeting,” Newsday, June 5, 2003, p. A16.

172 NYPD, “Police Department’s Examination of the Circumstances Surroundingthe Death of Ms. Alberta Spruill Following the Enforcement of a Search

Warrant on May 16, 2003,” May 30, 2003. Rocco Parascandola, “NYPD SaysMistakes, Lapses Led to Death in Harlem Raid,” Newsday, May 31, 2003;William K. Rashbaum, “Report by Police Outlines Mistakes in Ill-Fated Raid,”New York Times, May 31, 2003, p. A1.

173 Graham Rayman, “Cops in the Clear: Ex-investigators: Board Policy AbsolvesPolice in Bad Raids,” Newsday, June 9, 2003. See also, “Testimony ofWilliam Aquino before the New York City Council Public Safety Committee,”June 4, 2003 (on file with the NYCLU). William Aquino was an investigatorwith the Civilian Complaint Review Board from September 1998 to June 2002.Commissioner Kelly was also well aware of the problem with the execution ofno-knock warrants long before the Spruill incident. See Leonard Levitt,“Kelly’s Take on the Truth,” Newsday, June 2, 2003, p. A2.

174 Graham Rayman, “Cops in the Clear: Ex-investigators: Board Policy AbsolvesPolice in Bad Raids,” Newsday, June 9, 2003, pp. A3, A13. The CCRB was notpublicly reporting allegations related to search warrant executions at the timethe article was written.

In January of 2003, some four months priorto Alberta Spruill’s death, the CCRB issueda letter to the police commissioner recom-mending that the department develop adatabase to “track . . . search warrant exe-cutions.”175 The letter was not made pub-lic; its subject matter did not appear on theagenda of the CCRB’s monthly public meet-ings. Had the matter become public oneither occasion, the attention might have ledto a change in the police practices thatcaused the demise of Alberta Spruill. ACCRB board member conceded as much,commenting anonymously to a newsreporter: “[w]here we may have droppedthe ball is that we were so concerned aboutindividual cases that we haven’t been on topof issues where we perceived a trend . . . .There was a problem and it existed for awhile.”176

In light of what was known regarding thedepartment’s execution of no-knock war-rants, Florence Finkle, the CCRB’s executivedirector, offered a legalistic defense of its fail-ure to act in a more timely manner, or tomake public what it knew about the policedepartment’s execution of search warrants.The agency, she demurred, could not andshould not question the validity of a court-ordered warrant.177 The CCRB, sheexplained, did not publicly disclose its letterto the police commissioner because theagency’s recommendations were “more likelyto be implemented if we [worked] coopera-tively with the police department.”178

The implication is clear: for the CCRB tostate publicly that police department prac-tices may constitute an undue risk to publicsafety would be to engage in conduct that isuncooperative – and therefore may welllead to the police department’s dismissingthe public safety concerns.

As framed by Ms. Finkle, this situation cre-ated a conundrum for an oversight agency.But she misstated the problem. Misguideddeference to the NYPD, rationalized ascooperation, undermines aggressive investi-gation of alleged misconduct and promotesthe bureaucratic cover-up of bad policing.

● Policing public demonstrations

Policing of public demonstrations has beena source of recurring conflict and litigationin New York City. In recent years the polic-ing of political protest activity has led manyhundreds to the CCRB with complaints ofpolice misconduct. Nevertheless, CCRBmonitors have been nowhere to be seen atthese events, and the oversight agency hasbeen reluctant to address the NYPD’s polic-ing of protected First Amendment activity.

Familiar andpredictable ten-sions flared at themassive peacedemonstration onthe eve of the IraqWar. On that day,February 15,2003, police tac-tics were particu-larly heavy hand-ed: unjustifieduse of physicalforce againstpeaceful demon-

strators; reckless use of horses as a crowd-control tactic; unwarranted use of pepperspray.179 Many were falsely arrested and,subsequent to arrest, were denied access tolegal counsel as the police queried arresteesabout their past political activities. Conflictbetween police and demonstrators led tohundreds of CCRB complaints and hun-


175 CCRB Status Report, January-December 2003, p. xviii. Letter from CCRBExecutive Director Florence Finkle to Police Commissioner Raymond Kelly,January 2003, (on file with the NYCLU).

176 Graham Rayman, “Cops in the Clear: Ex-investigators: Board Policy AbsolvesPolice in Bad Raids,” Newsday, June 9, 2003, pp. A3, A13.

177 Ibid.

178 Ibid.179 See New York Civil Liberties Union Foundation, Arresting Protest: A Special

Report of the New York Civil Liberties Union on New York City’s ProtestPolicies at the February 15, 2003 Antiwar Demonstration in New York City,April, 2003. See also, Robert D. McFadden, “Threat and Responses:Overview; From New York to Melbourne, Cries for Peace,” New York Times,Feb. 16, 2003.

In recent years thepolicing of politicalprotest activity has ledmany hundreds to theCCRB with complaintsof police misconduct.Nevertheless, CCRBmonitors have beennowhere to be seen atpublic demonstrations.

dreds more lawsuits – still, no examinationof policing practices by the CCRB.

It was not surprising then that, some eighteenmonths later, during the Republican NationalConvention, nearly 1,500 persons were arrest-ed for minor violations and detained withoutcharges for up to three days in squalid condi-tions at an abandoned industrial facility.Ninety-one percent of these arrests were dis-missed or terminated with a not-guilty verdictafter trial.180

In 2006, following its investigation of com-plaints related to mass arrests of demonstra-tors, the CCRB substantiated complaintsagainst two deputy chiefs, the commandingofficers at the Fulton Street and Herald Squaredemonstration sites. The agency also recom-mended that the police department review itstraining of officers charged with policing pub-lic demonstrations. (See Appendix B: Letterfrom Civilian Complaint Review Board toNew York City Police Department, May 9,2006.)

What is perhaps most instructive about theCCRB’s findngs is Police CommissionerRaymond Kelly’s response. He fired off aletter harshly rebuking the CCRB. The let-ter charged the CCRB with soliciting mediaattention and the approval of “special inter-ests.” (See Appendix B: Letter from NewYork City Police Department to CivilianComplaint Review Board, May 10, 2006.)The commissioner provided his ownaccount of the arrests (which were executedin violation of department guidelines),notwithstanding extensive videotape evi-dence that contradicted his version ofevents.181 He characterized the Board’s

carefully reasoned findings as “unbal-anced,” and closed by stating that heexpects a “more straightforward and pro-ductive relationship with the Board.”

In this relationship the CCRB is clearly theinferior party whose exercise of its oversightfunction, pursuant to statutory authority, issubject to unilateral override by the policecommissioner. The CCRB’s attempt to inves-tigate complaints related to the policing of theRNC illustrates how this relationship func-tions. It is well documented that police offi-cers engaged in highly questionable, if notunlawful, conduct in the policing of the RNC.Court records demonstrate that police provid-ed false statements in criminal complaints andwithheld exculpatory evidence.182

Complaints related to the policing of theRNC involved a number of senior policeofficials, who had supervised hundreds ofarrests during the convention. The NYPD,however, refused to produce senior offi-cials for interviews.183 The departmentresisted the CCRB’s investigation for near-ly a year.184 The stonewall tactics worked.The CCRB could not complete investiga-tions in at least seven RNC cases untilafter the statute of limitations hadexpired.185 Nevertheless, the CCRB adopt-ed a position of collegial capitulation as tothis outcome. “I don’t feel thwarted,” saidthe Board’s chairman. “I think we have avery good relationship with the [police]department.”186 ■


180 Jim Dwyer, “Videos Challenge Hundreds of Convention Arrests,” New YorkTimes, April 12, 2005.

181 See Robert Polner, “Cuffed Bystanders: We’re Not Criminals,” Newsday,September 4, 2004; Sabrina Tavernise, “Student’s Arrest at G.O.P. ConventionPuts His Life in Limbo,” New York Times, April 15, 2005; Jim Dwyer, “VideosChallenge Hundreds of Convention Arrests,” New York Times, April 12, 2005;Jim Dwyer, “Bicyclist’s Convention Arrest is Undercut by a Videotape,” NewYork Times, May 3, 2005; Al Baker, “F.B.I. Is Seeking to Interview JailedActivists,” New York Times, May 17, 2006; and Al Baker, “City Settles SomeSuits Over Arrests During ’04 Convention,” New York Times, July 21, 2006.

182 Jim Dwyer, “Videos Challenge Hundreds of Convention Arrests,” New YorkTimes, April 12, 2005; and Jim Dwyer, “Bicyclist’s Convention Arrest isUndercut by a Videotape,” New York Times, May 3, 2005.

183 Michael Wilson, “Top Officers are Said to Ignore Complaint Board’s Inquiry,”New York Times, September 15, 2005.

184 Jim Dwyer, “Charges, but No Penalty, for a Chief’s Role in a ConventionArrest,” New York Times, March 9, 2006.

185 Ibid.186 Jim Dwyer, “Charges, but No Penalty, for a Chief’s Role in a Convention

Arrest,” New York Times, March 9, 2006.

V. When Civilian Review Fails

45


The City Charter provisions that estab-lished the CCRB as an independent entityspeak to certain principles of civilian over-sight: transparency of process, fairness

and objectivity, accountability.187 The recordcompiled in this report demonstrates that NewYork City’s oversight system does not reflectthese principles. The reasons for this are funda-mental – lack of support from public officials,obstructionism by the police department, inade-quate human and financial resources.

The chairperson of the City Council’s PublicSafety Committee has acknowledged that theCCRB is “a stepchild of the [Bloomberg] admin-istration.”188 It is not only the executive branchthat has neglected the CCRB. No public officialhas been an advocate of the agency’s mission.And there is considerable skepticism among thecity’s residents that the CCRB is doing its job.

Residents living in communities that are mostvulnerable to acts of police misconduct havelong expressed cynicism regarding the CCRB.The United States Commission on Civil Rightsheard from members of those communities atpublic hearings in May of 1999.189 A parade ofwitnesses from neighborhoods populated by peo-ple of color described the CCRB as irrelevant.They spoke of a police culture that was hostileto the civilian oversight system. A number ofwitnesses testified that police officers wereimmune to discipline or accountability, evenwhen extreme brutality was involved.190

A 2004 study, which elicited the views of stu-dents on policing and the CCRB, produced find-ings similar to those published by the Civil

Rights Commission. The study involved inter-views at five large high schools in Brooklyn andManhattan with ethnically and racially diversestudent populations.191 Only 20 percent of thestudents surveyed had even heard of the CCRB,and an even smaller number of the studentsunderstood the agency’s purpose or its opera-tions.192 The students expressed anger overwhat they perceived to be racial bias and con-tempt on the part of the police, particularly as

related to stop-and-frisk activi-ty.193

A communityactivist with theLower East SideCall for Justicesaid she encour-aged studentswho believedthey had beenthe victims ofpolice miscon-duct to file a

CCRB complaint. The students, she said, “justlaugh because from what they have heard [theCCRB is] totally ineffective and it’s not goingto change anything. Their feeling is that aslong as you have the kind of police departmentthat we have, nothing’s going to change.They’re very cynical and they’re very hostile.They’re also very vulnerable.”194

Notwithstanding their negative views of policingand the civilian oversight agency, the studentsoffered this recommendation: to be effective, the

187 New York City Charter, Chapter 18-A, §440(a). 188 Al Baker, “Police Shooting Led Mayor to Bolster Review Board, New York

Times, January 19, 2007189 United States Commission on Civil Rights, Police Practices and Civil Rights in

New York City, August 2000.190 Ibid., pp. 70-72. 191 Rachel Lippman, Jadhira Rivera, Sylvia Shweder, Policing the Police: A Report

on Community Perceptions of the Civilian Complaint Review Board and PoliceMisconduct, April 28, 2004. Surveys on which the report is based were con-ducted by Fordham University Law School students who were involved in theCommunity Oversight of Policing Project, under the auspices of the New YorkLawyers for the Public Interest.

192 Ibid., pp. 56-62 193 Ibid., pp. 51-53194 Ibid., p. 30.

The City Charter speaks tocertain principles of civil-ian oversight: transparen-cy of process, fairness andobjectivity, accountability.The record demonstratesthat New York City’s over-sight system does notreflect these principles.

CCRB must establish greater credibility in thecommunities it serves.195

Taking Public Education Seriously

The CCRB reports that it conducts regularpublic education sessions on the agency’s oper-

ations and procedures. These education initia-tives, however, are not responsive to theknown weaknesses in the CCRB’s operations.More than half of all CCRB complaints areclosed without an investigation, and half ofthose complaints are terminated because,according to the CCRB, the complainant iseither uncooperative or unavailable.196 Fewerthan one-third of all investigations undertakenlead to a conclusive finding on the merits.197

These data suggest that the CCRB cannot com-ply with its mandate under the City Charterwithout instituting a more rigorous public edu-cation program. Such a program would helpcivilians determine when police conduct is law-ful, and when it is not. This program wouldalso engage civilians in the oversight process.Civilians who believe they have been victims ofpolice misconduct need to know how tobecome advocates in their own behalf. That is,they need clear, step-by-step instructions inhow to file a complaint; how to document andprove complaint allegations; and how toensure a complaint is pursued.

The cost of a failed oversight system

A weak civilian review agency emboldens policeofficers with a propensity to abuse their powerand gives false assurance to civilians who file acomplaint with the expectation that police willbe held to account for misconduct. By anymeasure, New York City’s civilian oversight sys-tem is failing to deter such misconduct. This isnot merely an issue of failure to discipline indi-vidual police officers. Patterns of misconductare missed or ignored. Dangerous practices areperpetuated without comment or review. As aconsequence there is a failure to adopt systemicreforms – in police training, tactics, policies andprocedures – that could prevent foreseeable risksof future harm.

When the CCRB fails, there is effectively no legalconstraint upon police officers who commit evenviolent acts of misconduct against civilians. It is


195 Ibid., pp. 62-64.196 CCRB Status Report, January-December 2005, p. 85.

197 See “Unsubstantiated Complaints” in Section 1 herein: “New York City’sCivilian Oversight System.”

The CCRB must establish its credibility in the communities itserves. The agency is all but invisible in the neighborhoods inwhich it is most needed.

Following is an outline of a public education program that could pro-duce a more complete accounting of the alleged misuses of policeauthority – and engage community members as agents of reform.

● Urge civilians who believe they have been the victim of policemisconduct to file a complaint with the CCRB – and explain theimportance of doing so. A complaint is entered into a police offi-cer’s record. It may help to reveal a pattern of misconduct – andthe need for corrective action.

● Offer specific steps civilians can take to corroborate a miscon-duct complaint: establish police officers’ identity; obtain contactinformation from eye witnesses; seek medical treatment whenappropriate; and obtain related medical records.

● Pledge at every public-education event that the CCRB willnotify complainants regarding the disposition of a complaint,including disciplinary action taken, or not taken, by the policecommissioner. Fulfill this pledge.

● Invite representatives of community organizations to appear atthe CCRB’s monthly public meetings. Such invitations should beextended, in particular, to groups representing communities thatgenerate many police-misconduct complaints.

● Conduct more community meetings that afford residents theopportunity to educate CCRB staff regarding problems with policemisconduct. As important as it is to inform the public, it is equal-ly important that the agency’s board members are willing to beinformed by the public.

Public Education: Improving PolicingPractices and Police-Community Relations

an extraordinary occurrence for a district attor-ney to bring criminal charges against a policeofficer for an act of misconduct against a civilian.The CCRB in the last five years has reported onlytwo instances in which it referred a police brutali-ty case to a district attorney for criminal prosecu-tion, and in each instance the district attorneydeclined to prosecute.198

What’s more, the tort system operates in a man-ner that places a police officer above accountabil-ity even when a jury has found the officer guiltyof brutality and civil rights violations in a civillawsuit. Taxpayers pay the damages to the vic-tims; the city indemnifies the police officer for theliability attributable to his wrongdoing. There isno subsequent review of the underlying conductthat gave rise to a judgement against the officer.And there are typically no adverse employmentconsequences for the cop who has seriouslyharmed a civilian. The laws, rules and proce-dures designed to deter police from committingacts of misconduct against civilians have beenutterly subverted.

Over the last fifteen years the city’s fiscal watch-dogs have called for monitoring police-miscon-duct complaints – both CCRB complaints andcivil lawsuits – in order to hold individual policeofficers and the police department accountablefor acts of misconduct against civilians. In 1992,Comptroller Elizabeth Holtzman recommendedthat the NYPD analyze legal claims, lawsuits andCCRB complaints for purposes of imposing disci-pline and identifying and correcting problemswith police department policies and practices.199

The city failed to act on her recommendations.200

Five years later, in 1997, Comptroller AlanHevesi restated the problem and made the samerecommendations, “remark[ing] that ‘there is atotal disconnect’ between the settlements of civil

claims and police department [disciplinary]action.”201 Such matters are ordinarily not evennoted in an officer’s personnel file.202 As a conse-quence the NYPD cannot effectively monitorpolice-officer misconduct, and therefore is unableto identify patterns of wrongdoing that mightdemonstrate the need for reform.203

This absence of accountability gives tacitapproval to dangerous police practices. A reportissued in 2000 by a committee of the Associationof the Bar of the City of New York concludedthat “the city consistently misses opportunities toincrease the protection of the rights of persons inthe city and to reduce injuries that poison therelations between police and citizen, and indoing so saving millions of dollars.”204

It is not surprising, then, that complainantscontinue to file excessive-force allegations inhalf of all complaints filed with the CCRB orthat thousands of lawsuits are filed against thecity every year charging police brutality. Noris it surprising that the city continues to payout tens of millions of dollars every year to thevictims of police misconduct.

Between 2000 and 2004 New York City taxpay-ers paid out $224 million in damages pursuant tojudgments or settlements in police-brutality law-suits. The legal costs incurred by the city indefending these lawsuits amounted to approxi-mately $45 million. Over the five-year period thecity has expended more than a quarter of a bil-lion dollars to resolve the terrible human damagethat lay in the wake of police officers who engagein egregious misconduct. (See Figure 18.)

The abject failure to establish accountability forpolice misconduct exposes the city to evergreater financial liability. Federal courts havearticulated minimum standards for assessing the


198 CCRB Status Report, January-December 2004, pp. 10, 32.199 Association of the Bar of the City of New York, Committee on New York City

Affairs, “The Failure of Civil Damages Claims to Modify Police Practices, andRecommendations for Change,” The Record, Vol. 55, No. 4, July/August 2000, p.535 (Hereafter, “Report of the Association of the Bar of the City of New York”).

200 Ibid., p. 536. 201 Ibid. The internal quotation appears in a news account by Deborah Sontag

and Dan Barry, “The Price of Brutality: A Special Report,” New York Times,September 17, 1997.

202 Debora Sontag and Dan Barry, “The Price of Brutality: A Special Report,” NewYork Times, September 17, 1997.

203 Former New York City Public Advocate Mark Green documented serious flawsin the NYPD’s program for monitoring “problem officers,” including a lack ofstandards by which to evaluate the monitoring program. (Office of the NewYork City Public Advocate & The Accountability Project, Disciplining Police;Solving the Problem of Police Misconduct, July 27, 2000, pp. 130-134)

204 Report of the Association of the Bar of the City of New York, p. 536.

systems and procedures used to review police-misconduct complaints. “[C]ourts expect inde-pendent and thorough investigations within asystem which functions efficiently and results inprompt corrective action.”205 The failure ofNew York City to create an oversight systemthat provides for the adequate investigation andreview of civilians’ complaints of police miscon-duct may demonstrate “deliberate indifference”to the foreseeable violation of constitutionalrights.206 Municipalities have been held account-able, and liable, when such deliberate indiffer-ence has been demonstrated.207

Judge Milton Mollen has observed a deep and insidious harm to public safety posed by thecity’s failure to constrain abuses of policeauthority: jury nullification.208 In a publicforum on policing, Judge Mollen made the fol-lowing observations.

In the last few years . . . there has been caseafter case where there is strong testimony, butit is a police officer’s testimony. The jurors areskeptical, and they don’t trust the police.

That is a very unfortunate impact arising fromthe fact that, at times, police officers do usebrutality or are corrupt. It causes cynicismabout the criminal justice system, and oursociety suffers as a result . . . .

It is so important that the police respectthe members of the community, and mem-bers of the community respect the police.A great deal of effective law enforcementresults from information provided bymembers of the community, and, to theextent that there is a lack of confidence inthe police department, the result is lesseffective law enforcement. 209 ■


205 Hazel Glenn Beh, “Municipal Liability for Failure to Investigate CitizenComplaints Against the Police,” Fordham Urban Law Journal, Vol. 25, pp. 249(1988).

206 Ibid. p. 210. See Canton v. Harris, 489 U.S. 378 (1989); Board of the CountyCommissioners of Bryan County, Oklahoma v. Brown, et al., 520 U.S. 397(1997). See also, Vann v. City of New York, 72 F.3d 1040, 1045 (2d Cir. 1995)(“with respect to police officers who had a known history of abusive conductand had been reinstated to full duty, none of the [monitoring] units on whoseexistence [the city] relied [to prevent future misconduct] made any meaningfuleffort to take heed of new civilian complaints filed against those officers”).

207 Ibid.208 A similar concern was expressed by Lorna Bade Goodman, a senior attorney

with the city’s Law Department. Ms. Goodman said that ‘’In a climate wherethere is so much publicity about police cases, we are more reluctant to takecases to juries.’’ See Kevin Flynn, “Record Payout in Settlements Against thePolice,” New York Times, Oct. 1, 1999.

209 Hon. Milton Mollen, “Police Violence: Causes and Cures, Edward V. SparerPublic Interest Law Fellowship Forum, April 15, 1998,” Journal of Law andPublic Policy, Vol. 93, pp. 100-101 (1998).

FIGURE 18: Liability incurred by New York City for police misconduct directed at civilians, 2000-2004

* Claims paid in fiscal year 2001 include a $50 million settlement of a class action civil rights claim against the police department for damages related to illegal strip searches(Tyson v. City of New York, No. 97 Civ. 3762 (S.D.N.Y. Dec. 2000)). This is the type of claim that is typically included in the Comptroller’s Claims Report as a police action; thereforeit is included as such in this table.

† Estimate of legal costs is based upon the ratio of legal costs to claims payouts for all claims against the NYPD in 2005. For each dollar spent on claims the city paid twentycents in legal costs. (Mayor of the City of New York, Michael Bloomberg, Executive Budget Fiscal Year 2007: Message of the Mayor, May 4, 2006, p. 135) It is assumed that thisratio, which applies to total claims, also holds for tort claims.

Source: William C. Thompson, Comptroller of the City of New York, Claims Report: Fiscal Year 2004, November 2005, Table 3.

2000 2001* 2002 2003 2004 TOTAL

Number of Settlements/Judgments 835 788 563 613 693 3492

Claims Paid (in millions) $38.0 $89.0 $21.7 $32.9 $42.6 $224.2

Estimated Legal Costs† (in millions) $7.6 $17.8 $4.3 $6.6 $8.5 $44.8

Total Liabiltity (in millions) $45.6 $106.8 $26.0 $39.5 $51.1 $269.0

Recommendations

49


New York City’s civilian oversight sys-tem is failing to fulfill its mission asmandated by the City Charter. TheCCRB’s performance falls far short of

the prescribed standards: thoroughness andimpartiality, fairness and independence. As aconsequence, there is little accountability forindividual acts of police misconduct, forinadequate training, or for flawed policepolicies or practices.

The failure of the CCRB constitutes an imme-diate risk to public safety. It is thereforeincumbent upon the mayor and legislativeleaders to address this crisis with the serious-ness it deserves.

The NYCLU recommends the following meas-ures to ensure that the city provides independ-ent civilian oversight of policing as mandatedby the City Charter.

Create greater accountability for policing in the office of the mayor and in the City Council.

● Establish the Office of the InspectorGeneral for Law Enforcement Integrity.Charge the Inspector General with responsi-bility to monitor and audit police policiesand practices, as well as all city departmentsand agencies that are involved in the investi-gation and review of police misconductcomplaints, and in the related adjudicativeand disciplinary procedures.

Lack of cooperation by the police depart-ment has been an important factor in theCCRB’s ineffectiveness. The departmenthas also stymied the work of the city’sCommission to Combat Police Corruption.The Inspector General, reporting directly to

the mayor, would provide independentanalysis of civilian oversight; mediate con-flict between the NYPD and oversight enti-ties; and advocate for reform of policingpolicies and practices.

● Institute meaningful City Council over-sight of the CCRB and the police depart-ment. The City Council has done little toassure that the CCRB is fulfilling its mis-sion, even as complaints have been risingsharply between 2002 and 2006. Oversightcommittees of the Council have beensilent in the face of the police depart-ment’s refusal to cooperate with theCCRB and in the face of the department’srejection of CCRB disciplinary findingsand recommended policing reforms. TheCity Council must institute regular police-misconduct oversight hearings.

● Promote leadership among the mayoralappointees to the CCRB. The mayoralappointees to the CCRB are intended toprovide a strong public voice for accounta-bility and reform. Board members have notfulfilled this role. The CCRB’s leaders mustact as advocates for rigorous investigationof misconduct complaints and for thoroughreview of policing policies and practices. Itis incumbent upon the mayor and the CityCouncil to hold CCRB appointees to thisstandard of performance.

Evaluate and assess the CCRB’s structure and operations.

● The city must conduct a comprehensiveevaluation of the financial and humanresources that are required to staff andadminister an effective civilian oversightsystem. In 1993 the CCRB was made anindependent agency, with a broadened


mission; the CCRB’s budget, however, wasreduced relative to the budget of its prede-cessor agency within the police depart-ment. The CCRB’s budget has beenincreased incrementally (and, on occasion,decreased), but it has been calculated inrelation to a baseline for which there is nosound rationale.

● A critical first task in evaluating theCCRB’s operations is a comprehensiveanalysis of the CCRB’s investigative oper-ation. This analysis must address hiring,promoting and retaining investigators;training and supervising; establishing per-formance standards and measures. Thisevaluation must be undertaken with theobjective of identifying managementstrategies that will give the CCRB thecapability to conduct rigorous, thoroughand timely investigations of police-mis-conduct complaints.

Allocate the human and financialresources needed to make the CCRBproductive and effective.

● If the civilian oversight system is to accom-plish its objective, it must be allocated sufficient resources. The agency has ademonstrably weak investigative function.This is due, at least in part, to inadequateresources – including investigators, supportstaff, office facilities, training profession-als, public education materials.

● Establish CCRB units in every borough,staffed by in-take personnel and investiga-tors who are available after business hoursand on weekends. An agency whoselower-Manhattan office is open duringbusiness hours cannot well serve the city’sresidents, most of whom will require rea-sonably convenient access to the CCRB’sstaff after business hours in order to file a

complaint. (Police officers are paid fortheir time spent responding to a CCRBinvestigation. A complainant may lose aday’s pay and jeopardize his or heremployment by taking time to meet withinvestigators at the CCRB’s offices.)Satellite offices in each borough wouldhelp establish the credibility and effective-ness of civilian oversight.

● Establish procedures for independentreview of complaints brought againstschool safety agents. Since September of 1998 the NYPD has had responsibilityfor safety in the city’s public schools.Students citywide have complained ofinappropriate and unlawful conduct byschool safety agents and police officers.210

The City Council should establish reviewprocedures for addressing complaintsrelated to the alleged misconduct of schoolsafety agents. With expanded jurisdictionthe CCRB could undertake the investiga-tion of such complaints.

The CCRB must create a unit dedicated to analyzing patterns of police misconduct – and to recommending reforms in policingpolicies and practices that can ameliorate tension and conflictbetween civilians and the police.

● Create a CCRB unit responsible for recommending reforms in policing policiesand practices. Recognizing that the validityof CCRB policy recommendations isdependent upon rigorous investigation, theanalysis of police practices represents thecivilian review board’s highest purpose.One well-thought-out reform in policingmethodology can prevent conflict from aris-ing in hundreds of interactions betweenpolice officers and civilians.

210 See Elora Mukherjee, Criminalizing the Classroom, The Over-Policing of NewYork City Schools, (New York Civil Liberties Union, American Civil LibertiesUnion, March 2007).

The CCRB leadership has objected that theagency lacks the resources to perform thisfunction. This objection is shortsighted.Within the New York City metropolitanarea there is a wealth of expertise on thefull range of policing issues that arise in thecourse of reviewing misconduct complaints.The CCRB would be well advised to recruitexperts from this community of scholars,police professionals and legal practitionerswho would assist, pro bono, in analyzingpolicing policies and practices.

Develop a public education and outreach program that involves thepublic in improving police practicesand police-community relations.

● The CCRB must create and implement amore ambitious and effective public educa-tion program – one that is more responsiveto the needs of New York City residents.The CCRB reports that a significant causeof the high truncation rate is the unavail-ability or uncooperativeness of complainants.Civilians who believe they have been thevictims of police misconduct need to becomeadvocates in their own behalf – to do so,they need instruction and guidance in docu-menting and filing complaints. The CCRB’sdata on truncated and inconclusive investi-gations make apparent the need for theCCRB to undertake a more rigorous publiceducation program.

● The CCRB must conduct outreach in com-munities citywide. Civilian oversight ofpolicing is based on the principle that com-munity members are entitled to have a voicein establishing the standards by which theyare policed. By engaging the residents ofthe city in a discussion about policing, theCCRB can bring important insight andinformation to the review and analysis ofpolice policies and practices.

Provide for independent, competentadjudication of charges against policeofficers who are the subject of sub-stantiated CCRB complaints.● Transfer authority to prosecute substantiat-

ed police misconduct from the NYPD to theCCRB. Mayor Bloomberg must fulfill thecommitment made by his predecessor,Mayor Rudolph Giuliani, to establish andfund a CCRB litigation unit that prosecutespolice officers against whom administrativecharges are recommended by the CCRB.211

Mayor Giuliani’s directive authorizing theCCRB to prosecute substantiated cases wasissued following the horrific police shootingof Amadou Diallo. Failure to implementthat reform is emblematic of the city’s com-placency regarding the problem of policemisconduct.

● Remove from the police department theauthority to conduct administrative trials ofpolice officers accused of misconduct. As documented by the New York CityCommission to Combat PoliceCorruption, the prosecution of policewrongdoing by the DepartmentAdvocate’s Office is little more than acharade of justice. (See herein, SectionIII: “Incompetence in the NYPD trialroom.”) The adjudication of CCRB com-plaints should be transferred to the Officeof Administrative Trials and Hearings or toanother administrative tribunal that isindependent of the NYPD. ■


211 See William Rashbaum and Kevin Flynn, “Giuliani to Shift Police Discipline toCivilian Board,” New York Times, January 27, 2001, p. A1.

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TABLE 2: Substantiated Complaints, 1994 – 2005

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 TOTALSubstantiated Complaints 111 269 256 449 299 274 189 175 224 294 399 260 3,088Total Complaints Closed 2,152 7,858 5,713 5,580 5,293 4,287 4,948 3,683 4,831 4,883 5,818 6,522 59,416Percentage of Complaints Substantiated 5.2% 3.4% 4.5% 8.0% 5.6% 6.4% 3.8% 4.8% 4.6% 6.0% 6.9% 4.0% 5.2%

Source: CCRB Status Reports, January-December: 1998, p. 115; 1999, p. 126; 2000, p. 109; 2001, p. 118; 2002, p. 95; 2003, p. 97; 2004, p. 83; 2005, p. 85.

TABLE 1: CCRB Disposition of Complaints, 1994 – 2005

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 TOTALComplaints Received 4,877 5,618 5,361 4,768 4,931 4,812 4,116 4,251 4,612 5,556 6,196 6,796 61,894

1994† 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 TOTAL†Complaints Disposed of by the CCRB 2,152 7,858 5,713 5,580 5,293 4,287 4,948 3,683 4,831 4,883 5,818 6,522 59,416

Complaints Truncated 1,229 4,661 3,075 2,127 2,391 2,120 2,468 1,849 2,446 2,691 3,164 3,655 30,647Percentage of Complaints Truncated 57.1% 59.3% 53.8% 38.1% 45.2% 49.5% 49.9% 50.2% 50.6% 55.1% 54.4% 56.0% 51.6%Complaints Fully Investigated 557 2,492 1,893 3,142 2,577 2,038 2,416 1,783 2,213 2,042 2,444 2,679 25,719Percentage of Complaints Fully Investigated 25.9% 31.7% 33.1% 56.3% 48.7% 47.5% 48.8% 48.4% 45.8% 41.8% 42.0% 41.1% 43.3%

Complaints Substantiated 111 269 256 449 299 274 189 175 224 294 399 260 3,088ComplaintsUnsubstantiated* 255 1,567 1,176 1,557 1,080 780 780 603 828 n/a n/a n/a n/aUnfounded* 59 151 158 400 513 506 732 509 555 n/a n/a n/a n/aExonerated* 46 126 96 346 304 251 489 355 410 n/a n/a n/a n/aComplaints Referred for Mediation 65 705 745 311 325 129 64 51 172 150 210 188 3,050Percentage of Complaints Referredfor Mediation 3.0% 9.0% 13.0% 5.6% 6.1% 3.0% 1.3% 1.4% 3.7% 3.1% 3.6% 2.9% 5.1%

† The numbers of Complaints disposed of reported by the CCRB for 1994 (2,152) is greater than the total cases fully investigated (557) and truncated (1,229). Therefore, these numbersare assumed to be unreliable and they have been excluded from the Total column.*CCRB status reports published after 2002 conflate in a single category complaints closed with a disposition of unsubstantiated, exonerated, and unfounded.Source: All disposition data - CCRB Status Reports, January-December: 1998, p. 115; 1999, p. 126; 2000, p. 109; 2001, p. 118; 2002, p. 95; 2003, p. 97; 2004, p. 83; 2005, p. 85.Complaints received - CCRB Status Reports, January-December: 2001, p. 45; 2002, p. 41; 2003, p. 45; 2004, p. 41; 2005, p. 43.

Appendix A: Tables


TABLE 3: Unsubstantiated Complaints, 1994 – 2002

1994† 1995 1996 1997 1998 1999 2000 2001 2002 TOTAL†Complaints Fully Investigated 557 2,492 1,893 3,142 2,577 2,038 2,416 1,783 2,213 18,554ComplaintsUnsubstantiated 255 1,567 1,176 1,557 1,080 780 780 603 828 8,371Percentage of ComplaintsUnsubstantiated 45.8% 62.9% 62.1% 49.6% 42.1% 38.3% 32.3% 33.8% 37.4% 45.1%

† The numbers of Complaints disposed of reported by the CCRB for 1994 (2,152) is greater than the total cases fully investigated (557) and truncated (1,229). Therefore, these numbersare assumed to be unreliable and they have been excluded from the Total column.The CCRB last reported the unsubstantiation rate in 2002. After then it only reported the aggregate number of complaints that were unsubstantiated, unfounded, and exonerated. It isno longer possible to determine the number of complaints in any of these three categories from the CCRB’s reported data.Source: CCRB Status Reports, January-December: 1998, p. 115; 1999, p. 126; 2000, p. 109; 2001, p. 118; 2002, p. 95.

TABLE 4: Complaints with One or More Excessive Force Allegations, 1998 – 2005

1998 1999 2000 2001 2002 2003 2004 2005 TOTALComplaints with an Excessive Force Allegation 2,439 2,065 2,086 2,154 2,336 2,767 3,006 3,373 20,226Total Complaints Received 4,931 4,812 4,116 4,251 4,612 5,556 6,196 6,796 41,270Excessive Force Allegations Received 4,731 3,726 3,546 3,875 4,439 4,796 5,256 6,264 36,633Percentage of Complaints with an Excessive Force Allegation 49.5% 42.9% 50.1% 50.7% 50.7% 49.8% 48.5% 49.6% 49.0%


TABLE 5: NYPD Dispositions of Substantiated Complaints that Result in No Discipline: Force Versus Non-Force, 1998 – 2004 (based upon year of referral to NYPD)

1998 1999 2000 2001 2002 2003 2004Total Substantiated Cases 408 365 244 233 296 394 554Total Cases with Force Allegation(s) 171 118 54 58 91 92 104

NYPD Resolution of Force Cases: 79 65 21 27 52 56 60No Discipline (46.2%) (55.1%) (38.9%) (46.6%) (57.1%) (60.9%) (57.7%)

Total Cases without Force Allegation(s) 211 233 180 161 187 280 368NYPD Resolution of Non-Force Cases: 60 49 39 23 54 51 43No Discipline (28.4%) (21.0%) (21.7%) (14.3%) (28.9%) (18.2%) (11.7%)

Source: Data was compiled from the NYPD cases summaries for substantiated CCRB complaints located in CCRB Status Reports, January-December: 2002, Table 52; 2003, Table 49B;2004, Table 48A; & 2005, Table 48A.

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54

Appendix B: Letters

61


Appendix C: Other Documents


TABLE 6: Disposition of Substantiated CCRB Cases at Administrative Trial, 1997-1999*

Cases Tried at NYPD Office of Deputy Commissioner of Trials (DCT) vs.

Cases Tried at NYC Office of Administrative Trials and Hearings (OATH)

1997 1998 1999 TotalCharges Dismissed

DCT 129 62.0% 38 36.5% 17 15.7% 184 43.8%OATH 26 17.2% 3 3.4% 0 0.0% 29 9.4%

Plead GuiltyDCT 14 6.7% 7 6.7% 10 9.3% 31 7.4%OATH 66 43.7% 27 31.0% 15 21.1% 108 35.0%

Guilty After TrialDCT 27 13.0% 21 20.2% 22 20.4% 70 16.7%OATH 31 20.5% 27 31.0% 24 33.8% 82 26.5%

Guilty TotalDCT 41 19.7% 28 26.9% 32 29.6% 101 24.0%OATH 97 64.2% 54 62.1% 39 54.9% 190 61.5%

Not-Guilty After TrialDCT 38 18.3% 38 36.5% 59 54.6% 135 32.1%OATH 28 18.5% 30 34.5% 32 45.1% 90 29.1%

Total CasesDCT 208 100% 104 100% 108 100% 420 100%OATH 151 100% 87 100% 71 100% 309 100%

Conviction RateDCT 41.5% 42.4% 35.2% 42.8%OATH 77.6% 64.3% 54.3% 67.9%

*The number of CCRB cases referred for adjudication to the Office of Administrative Trials and Hearings (OATH) dropped significantly beginning in 2000. Thiswas due to pending litigation that challenged the authority of OATH to conduct trials in cases that could lead to termination of the accused police officers. (See Lynch v. Giuliani, 301 A.D.2d 351 (1st Dept. 2003) (prohibiting OATH from conducting hearings in all police misconduct cases).Source: Data were compiled from the NYPD cases summaries for substantiated CCRB complaints as reported in CCRB Status Reports, January-December: 2002,Table 52; 2003, Table 49B; 2004, Table 48A; and 2005, Table 48A.

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Mission Failure:Civilian Review of Policing in New York City1994-2006