By James Yates

  Background In 2013, after a lengthy trial, United States District Court Judge Shira Scheindlin found that the New York City Police Department (“NYPD”), violated City residents’ Fourth and Fourteenth Amendment rights and that the City did so with deliberate indifference to NYPD officers’ “practice of making unconstitutional stops and conducting unconstitutional frisks.” In addition, the Court found that the City had a “policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data . . . [that] resulted in the disproportionate and discriminatory stopping of Blacks and Hispanics in violation of the Equal Protection Clause.” In a “Remedies Opinion,” a Monitor was appointed by the Court with authority to implement reforms related to training, documentation, supervision and discipline. Subsequently, the Court (Hon. Analisa Torres, D.J.) requested the preparation of an indepth, critical examination of the efficacy, fairness, and integrity of the City’s policies, practices and procedures with respect to police misconduct during stops. This Report is intended to meet the Court’s directive for a study of the NYPD disciplinary process as it relates to Fourth and Fourteenth Amendment compliance in investigative encounters. Summary Description of NYPD Discipline Any recount of NYPD’s disciplinary process will aim at a moving target. Modifications in the disciplinary process utilized by or imposed upon NYPD are in constant flux. In the last five years alone, there has been a blizzard of reforms, outlined in the Report, to New York City and State laws governing discipline, not to mention a variety of changes in rules and regulations within the Department and related agencies, many of which have been, and continue to be, the subject of active litigation and modification. While it is useful, in the Report, to cite data describing or summarizing disciplinary results at various moments in time and to highlight individual disciplinary cases of note, the main thrust of the Report is not transitory data or individual case studies, but rather, as directed by the Court, a look at policies, practices and procedures. At the outset, the Report reviews processes within the police department itself. While the Civilian Complaint Review Board (“CCRB”) may be the most recognized venue for reviewing claims of police misconduct, the Board handles a small minority of examinations of police conduct. CCRB investigates fewer than 5,000 complaints each year. As many as 50,000 misconduct reviews are performed by other divisions or personnel within the Department. They include the Internal Affairs Bureau (“IAB”), a Force Investigation Division (“FID”), the Office of the Chief of Department (“OCD”), Borough Adjutants, Borough Investigating Units (“BIU”) and local Command Officers (“CO”). [Please note: a dictionary of acronyms used throughout the Report is attached as Appendix 2.] Police activity is also scrutinized by a variety of audits conducted by or overseen by the Quality Assurance Division (“QAD”), a unit within the Department, including audits of radio dispatch communications, arrests, and police self-inspection examinations. Separate from the Department’s disciplinary process, an Early Intervention Committee (“EIC”) reviews officer history when certain signals of potential misconduct are  triggered. Other outside agencies regularly monitor potential misconduct, including the Commission to Combat Police Corruption (“CCPC”), the Office of the Inspector General for the NYPD (“OIG-NYPD”), the NYC Commission on Human Rights (“CCHR”) and a state agency, the Attorney General’s Law Enforcement Misconduct Investigative Office (“LEMIO”). Finally, thousands of complaints undergo scrutiny by way of claims lodged with the New York City Comptroller’s office and lawsuits filed in state and federal court. There is no cognizable attempt to coordinate the various reviews of police misconduct. Without full coordination, cooperation and sharing of information, the mere fact of split or concurrent investigations of any given encounter can lead to confusion or delay. Civilian Complaint Review Board The CCRB is comprised of fifteen members. Five members are appointed by the City Council; five members are appointed by the Mayor; one member is appointed by the Public Advocate; a Chair is appointed jointly by the Mayor and the City Council Speaker; and three members, with law enforcement experience, are designated by the Police Commissioner. Within CCRB, panels of three of the fifteen members are assembled to review closing reports and recommendations prepared by the investigative staff. Members are assigned to panels on a rotational basis. The Board has adopted a rule, not required by law, that each decisional panel shall have one of the police designees as a member. This leads to police designees hearing a greater volume of cases than other appointees. As an adjustment, more recently, CCRB sends some cases to panels without a police designee, but, if the panel substantiates misconduct, the matter is then sent for a second review attended by a police designee. In essence, misconduct may not be substantiated unless approved by a panel with a police designee. The Report discusses the impact of that decision. Disciplinary Recommendations to the Police Commissioner Findings of officer misconduct arrive at the Police Commissioner’s desk by dint of two highways: a substantiated finding referred from a CCRB panel to the Police Commissioner or one sent after an internal police department investigation. For minor or technical infractions within the Department, local commands/precinct commanders are authorized to impose discipline directly. All other recommendations for discipline are referred to, and left to, the discretion of the Police Commissioner, who may accept or reject a finding and who will then decide whether to impose a penalty, guidance, or neither. Disciplinary proceedings are either formal or informal. Formal discipline is administered through a trial process where Charges and Specifications are served detailing the allegations of misconduct. A deputy within the Department, sitting as a trial commissioner, receives evidence and makes a recommendation of guilty or not guilty along with a recommendation for a penalty or guidance or neither. The hearing is open to the public and the officer is entitled to representation. There may be several hundred such hearings in a given year. New York State Law requires that the trial commissioner be a deputy of the Police Commissioner if the subject officer faces possible termination. An Appellate Division ruling, barring hearings before an independent administrative hearing officer, has extended that provision of law to require that all trials come before a departmental deputy as the hearing officer, even in the more usual case where termination is not sought by the prosecuting authority. Informal discipline, which is much more common, occurs at the precinct or in the Department outside the trial process, when an officer “accepts” a “command discipline” along with the recommended or negotiated outcome. Absent extraordinary circumstances, stop and frisk misconduct is addressed by informal discipline. At the conclusion of an investigation or trial, CCRB or a trial commissioner (a departmental deputy), as the case may be, will determine if an allegation is substantiated by a preponderance of the evidence. Investigations and trials are not bound by strict rules of evidence. Hearsay is admissible and may form the basis for a finding. In formal proceedings at Departmental trials a verdict of Guilty or Not Guilty is rendered by the Trial Commissioner along with a recommendation for discipline or guidance if Guilty. Whether an allegation of misconduct is substantiated by CCRB or found by a Trial Commissioner, the Police Commissioner is not constrained to follow the recommendations and may vary the finding, alter a penalty, or decide upon no disciplinary action (NDA). The variance may be based upon the Commissioner’s: (i) disagreement with the factual findings; (ii) a different understanding of the applicable law or rules; (iii) a desire to exercise lenity—imposing a lesser penalty or no penalty; or (iv) any combination thereof. While various provisions of law require an explanation by the Police Commissioner in certain cases of disagreement with the findings of CCRB or a trial commissioner, the explanatory letters are often unclear as to whether the modification is based upon disagreements with factual findings, legal conclusions, or a simple desire to modify a penalty. The unfettered reach of the Commissioner’s authority is a point of frequent public debate.   

September 19, 2024. 503p.