Is NYPD Oversight Just Spinning Its Wheels?

The chorus that claims the Civilian Complaint Review Board doesn't have enough impact grows louder.

By: Ali Winston

For decades, civil rights activists and community leaders have fought for independent oversight of the New York Police Department, the largest municipal police force in the world. Fourteen years ago, the Civilian Complaint Review Board was formed as an independent agency to review NYPD actions that citizens called into question. The CCRB is widely considered better than what came before – but dramatic recent incidents and a new report have sharpened some observers’ perception that the current system is still not strong enough to protect people against abuses of police power.

The case of Michael and Evelyn Warren, a married Brooklyn couple who are both lawyers, appears to provide support for the New York Civil Liberties Union’s critical analysis released this month, “Mission Failure: Civilian Review of Policing in New York City, 1994 – 2006." The Warrens allege that one day this June they observed officers of Brooklyn’s 77th Precinct run down, subdue and beat a black man, and they expressed their concern. (The NYPD says officers were pursuing a suspect in a drug case who was fleeing arrest.) In response, the Warrens – who often represent plaintiffs in police misconduct cases – say they were beaten, dragged from their car, and arrested by a Sgt. James Talvey. Yet the couple find themselves the accused in this case: The police filed charges against them of obstructing justice, disorderly conduct and resisting arrest.

Sgt. Talvey remains on active duty, while the Warrens are calling for him to be charged for his conduct during the incident. But the aggrieved couple is specifically not looking to the oversight board for justice. "The CCRB is not an effective vehicle of resolving complaints against the police by citizens," says Michael Warren. He’s dealt with the agency for years and refuses to cooperate with the CCRB's investigation of the incident, saying the board provides only an "illusion" of oversight. He takes issue with the board’s practice of turning such cases over to the police Department Advocate's Office (DAO) for trial, rather than independently prosecuting its own substantiated investigations.

The Warrens' case was but one incident in what CCRB spokesman Andrew Case called "a significantly active year for the CCRB." Complaints to the board have been on the rise. In 2006 it received a record 7,669 complaints, up 66 percent from 2002, a trend that tracks NYPD’s more aggressive stop-and-frisk practice, Case notes. Following a clutch of high-profile cases of alleged police misconduct (the Sean Bell shooting; mass arrests of black and Latino youths one spring day in Bushwick, and during the Puerto Rican Day Parade; and the Warren incident), numerous complaints over stop-and-frisks and trespassing arrests, and the NYCLU report accusing the CCRB of "failing to fulfill its mission," civilian oversight of the 37,000-strong NYPD is receiving its own scrutiny. Although police officials show no interest in changing the status quo, others are stepping up with recommendations for how the CCRB can better deter and punish police misconduct.

Tensions from the start

The CCRB's predecessor was the Civilian Complaint Investigation Board, an internal unit of the police department. Created in the mid-1950s, it was the product of a compromise between citizens’ groups and reform-minded officials who took issue with the NYPD's policing tactics, particularly in black and Puerto Rican communities. The board, which was staffed by police officers and reported to the police commissioner, did little to deter police corruption or brutality and was criticized for ineffectiveness and a lack of transparency.

"It was pretty useless in ferreting out abuse because it was staffed entirely by police," said Marilynn Johnson, a history professor at Boston University and the author of "Street Justice: A History of Police Violence in New York City."

After brutality and corruption scandals in the late 1980s and 1990s prompted sweeping reform of police oversight, in 1993 the CCRB was made an independent agency staffed by civilians, with the mission to "receive, investigate, hear, make findings, and recommend action on complaints against New York City police officers." Though CCRB stats show and observers note that the CCRB has made strides since its inception, handling ever-increasing numbers of complaints and improving the quality of its investigations, the NYCLU report claims its operational existence is compromised by inadequate funding, insufficient staff and high personnel turnover, a lack of support from politicians, overt NYPD hostility and a limited range of authority.

Despite Mayor Bloomberg's vow this January to add $1.5 million to the CCRB’s current budget of $10.9 million, the board struggles annually to secure adequate funding for its existing operations, and to hire new investigators to cope with more complaints. The CCRB is a 13-member board with a paid staff of 147 civilian investigators, who are broken up into eight teams. Aside from investigating allegations of police misconduct, the CCRB is also expected to make policy recommendations to the NYPD, conduct mediation between aggrieved civilians and police officers, and broaden the public’s knowledge of its existence and mission through community outreach programs. Many investigators are recent college graduates who often leave after their two-year commitment is through. "Resources are tight – we've had budgetary issues over the years and our head count has not increased commensurate with our workload," says spokesman Case.

A widespread perception exists that the CCRB is treated badly by New York politicians, rather than respected as a necessary deterrent to abuses of authority. "The CCRB is being left out in the wind," claims Eugene O'Donnell, a former police officer and current professor of police studies at John Jay College. Maintaining that elected officials provide the best independent oversight of police departments, O'Donnell considers CCRB a convenient buffer for politicians who don’t want the work of oversight, but also don’t want to appear soft on crime.

City Councilman Peter Vallone, Jr. disagrees with O'Donnell's criticism, saying, "the City Council is the CCRB's biggest supporter in government." However, as chair of the Public Safety Committee, Vallone stated that Mayor Bloomberg has slashed the CCRB's budget in every fiscal year save 2008. Each year, the Council restored the money and added additional funding, but Vallone admitted the board is hampered by "limited resources" and is only "quasi-independent" of the NYPD.

Rather than address specific questions about police oversight, a Bloomberg spokeswoman provided a statement saying, “The Bloomberg administration has appointed strong and credible New Yorkers to serve on the CCRB. The independence and experience of the Board’s Chair, Franklin Stone, a former federal prosecutor, has been widely recognized. This year, the Administration increased the resources and staffing of the CCRB to ensure that all complaints continue to be dealt with swiftly and seriously. Through the City’s 311 call center, we continue to empower more individuals to step forward in our efforts to build stronger trust and cooperation between the public and the police. The board works diligently to make sure that complaints of police misconduct are investigated fairly and impartially.”

Former Newsday reporter Leonard Levitt, who writes the well-known blog NYPD Confidential is one who characterizes Bloomberg as an "enabler" of NYPD misconduct, notably absent on issues of policing and poor police behavior. Michael Warren, referring to his own arrest and the lack of mayoral action on what many minority citizens see as a double standard of policing, was particularly harsh. "The mayor sits back like Nero and fiddles away while this illicit, improper and sometimes criminal activity is occurring," he said. Paul Chevigny, a law professor at New York University and an expert on police oversight, described Bloomberg's law enforcement policy as "rubber-stamping whatever [Commissioner Ray] Kelly wants."

Furthermore, the NYPD is widely perceived as being hostile to independent oversight, which complicates the relationship between the two bodies. "Since the changeover to civilian oversight, police commissioners have treated the CCRB with contempt," Chevigny said. When city politicians were debating how to establish civilian oversight in 1992, a raucous crowd of inebriated police officers rallied with then-mayoral candidate Rudolph Giuliani outside City Hall in opposition to the measure, an incident the press labeled a "police riot."

That antagonism has not dissipated with time: CCRB officials have complained about difficulty obtaining documents from the department and securing the cooperation of officers during investigations, citing the refusal of top NYPD brass to testify about mass arrests during the 2004 Republican National Convention. On NYPD Rant, an online message board popular with police employees, CCRB investigators have been subjected to insult and have had their photos, addresses, and names published (the posts were removed a week later).

An agency constrained

Limits on the CCRB's powers have attracted the greatest criticism. The CCRB can only recommend punishment for allegations of misconduct that the board itself has substantiated. When such cases are put to trial, they are turned over to the NYPD's Department Advocate's Office – an internal unit that handles disciplinary cases against members of service – for prosecution. Final decisions on discipline are in the hands of the police commissioner, as is the decision to adopt any policy recommendations made by the CCRB. "We don't have the power to compel the NYPD to adopt our recommendations," said Case. "You fight your battles and move on."

In a Sept. 6th interview on WNYC radio, CCRB executive director Franklin Stone accused the NYPD of declining to prosecute an increasing percentage of substantiated misconduct cases: "[The DAO] is completely crediting the testimony of the police officer, discounting the testimony of the complainant and other witnesses, and deciding that there's no reason to send the case on to a trial of fact."

Former NYPD Assistant Chief Aaron Rosenthal, who retired in 1993 after more than three decades in the force, believes the DAO will not risk upsetting the police commissioner, and considers turning over CCRB investigations to the police department for prosecution a waste of resources: “Why refer misconduct back to the people in charge of it?” Rosenthal, who dealt extensively with the CCRB and its predecessor, the CCIB, says the current structure makes police oversight dependent on the inclinations of the commissioner and wastes the good investigative work put in by CCRB staff. He maintains the agency serves as a safety valve, allowing the police to prosecute “headliner” cases of misconduct, while letting more numerous and less publicized cases fall by the wayside.

Despite findings in 2002 and 2004 by the mayor’s Commission to Combat Police Corruption, created in 1995, that the NYPD's prosecution of misconduct cases was below minimal standards of professionalism, the department claims it has an "expert staff" that does "outstanding work in pursuing prosecutions that merit it," according to its top spokesman, Deputy Commissioner for Public Information Paul Browne.

CCRB statistics indicate the DAO has become less willing over time to take substantiated cases to trial, and is finding fewer officers guilty of misconduct:
• In 2006, 594 complaints were substantiated by the CCRB. A total of 7,669 complaints were filed during that year. (But some of those substantiated may have been carry-overs from 2005, as CCRB cases have an 18-month statute of limitations.)
• Of the 594 complaints that were substantiated, only 13 percent (76 cases) were handled in an administrative trial, down from 24 percent in 2002.
• A guilty verdict was handed down in nine of those trials, down from 16 in 2002.
• Of 267 disciplinary penalties imposed by Commissioner Kelly, "instructions" composed 72 percent (197 instances) of all disciplinary actions for misconduct toward civilians, up from 30 percent (107 instances) in 2004.
• The NYPD took no action against 327 officers (almost 30 percent) named in substantiated CCRB complaints in 2006.

According to the NYPD, one officer received the harshest punishment meted out in 2006 for CCRB-substantiated misconduct: A loss of 45 vacation days for the improper use of pepper spray. Two others were suspended for more than 30 days for unspecified offenses. CCRB cases involving improper use of force, narcotics or other serious offenses are often concurrently investigated by the department’s own Internal Affairs Bureau. Spokesman Browne said officers are dismissed each year following IAB investigations, but would not say how many. Browne claims officers are given appropriate discipline when found guilty of misconduct: "Not all actions require a heavy hand. Instructions are appropriate when officers make good-faith mistakes and not willful misconduct." Instructions have proven useful in addressing misconduct allegations, because officers who receive such discipline "rarely receive the same type of complaint again," he said.

This disciplinary approach continues at a time when complaints of improper force and abuse of authority are at an all-time high. For improper force, 4,159 complaints were filed in 2006, up 78 percent from 2,336 in 2002. For abuse of authority, 5,265 complaints were filed in 2006, up 82 percent from 2,895 in 2002. Force allegations are substantiated at a notoriously low rate, however: In 2006, only 1 percent were substantiated. Even then the NYPD often balks at prosecuting substantiated cases. Disagreements between the NYPD and the CCRB over such situations, and much more, suggest to many outside the department that the system needs repair.

Seeking solutions

The NYCLU report put forward a set of recommendations for reforming civilian oversight. In addition to urging greater involvement by elected officials, allocating increased human and financial resources to the CCRB, and broadening existing outreach programs, the civil liberties organization pressed for two key structural changes:
• Creating an Inspector General for Law Enforcement Integrity, charged with monitoring and auditing NYPD policies and practice, as well as agencies involved in investigating misconduct cases and disciplinary procedures.
• Transferring authority to prosecute substantiated police misconduct from the NYPD's DAO to the CCRB, and moving authority to conduct administrative trials of officers accused of misconduct away from the NYPD.

The NYCLU claims these reforms would give the CCRB more teeth and move police oversight gradually away from the NYPD. Creating an inspector general for the NYPD – the only city agency currently without one – would bring civilian oversight into line with other municipalities around the country that do have such a post, and foster greater cooperation between the NYPD and the oversight board.

"Nothing currently pulls the CCRB and the police department together," said Chevigny of NYU. "An inspector general would do that, and provide greater incentive to follow through with the implementation of CCRB policy recommendations."

Councilman Vallone, while maintaining the NYPD has more oversight than "any other police department in the world," said creating an inspector general deserved consideration.

The NYPD, which dismissed the NYCLU's report categorically, believes such a measure is unnecessary. "Do we need to appoint a reviewer to review the reviewers?" asked Browne. "I don't think so." He also maintained that such an office would challenge the executive power of the police commissioner, who is currently the final arbiter of discipline for misconduct cases.

The CCRB neither supports nor rejects the proposition, maintaining that its board of directors needs further information about the proposed inspector general, and is trying to work within existing channels of communication. Regarding dialogue on policy recommendations, however, spokesman Case said the CCRB is in favor of greater transparency, citing as a good model the Chicago Police Department’s obligation to explain in writing any rejection of its oversight agency’s policy recommendations.

As far as changing misconduct trial procedures, the recommendation for CCRB to prosecute misconduct cases has legal basis. A 2001 Memorandum of Understanding between the NYPD and the CCRB authorized the latter to undertake administrative prosecution of police officers accused of substantiated misconduct allegations, and moved the trials out of police trial rooms to the NYC Office of Administrative Trials and Hearing.

Police unions challenged the agreement in court, and won a partial victory by preventing misconduct trials from being heard in Office of Administrative Trials and Hearings courtrooms, because it would require a change to state law. However, the final ruling (Lynch v. Giuliani, 2003) upheld the right of the CCRB to prosecute misconduct cases in a police trial room, the same venue as the NYPD’s Internal Affairs Bureau uses.

"All it would take is the decision of Kelly and City Hall to follow up on [Lynch v. Giuliani] to give the CCRB prosecutorial power," said CCRB's Case. The CCRB has yet to officially request the right to prosecute cases because the board has concerns about prosecuting misconduct cases in police trial rooms, rather than an open court. Even Councilman Vallone, who has long sparred with the NYCLU, agrees that there is a "legitimate case" and "legal basis" for CCRB prosecution of misconduct cases. Neither the NYPD nor City Hall would comment on this issue.

Amid differing opinions on whether New York City's police oversight needs fixing, two facts stand out: the marked rise in complaints, and the $160 million paid out by the city over the past five years to settle cases of alleged police misconduct. Though some maintain the rising number of complaints indicates a renewed confidence in the CCRB, the numbers show that whatever the cause, there are more confrontations with police, more allegations of misconduct, and a sizable financial impact.

Without reform, it appears the status quo will continue: many substantiated CCRB cases will be dismissed, a fraction will be prosecuted, an even smaller fraction of officers will be reprimanded, taxpayers will foot the bill for settlements, and policing will affect minority citizens differently than whites. Politicans, says Eugene O'Donnell, must lead the way: "Elected officials are absent on this issue. Who is standing up and saying, ‘Oversight review and the CCRB are my pet project?’”

- Ali Winston

Two percentage figures in this story have been corrected. 9/19/07