Floyd et al v. The City of New York et al
Filing
936
ORDER. The Court invites public comment on the Report, which is attached as Exhibit A. By December 25, 2024, the parties, the City, and interested members of the public may submit written comments to the Monitor by visiting https://www.nypdmonitor.org/resources-reports/. Because submissions will be posted on the public docket, commentors should omit or redact any sensitive identifying information. SO ORDERED. (Signed by Judge Analisa Torres on 9/23/24) (yv)
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regarding compliance with the Fourth and Fourteenth Amendments.” Id. at 7. In particular, the
Report concludes:
Discipline for illegal stops and frisks, even when substantiated by [the Civilian
Complaint Review Board], is not pursued with the same vigor and resolve as for
other misconduct. Penalties for wrongdoing involving stops, questions, frisks, or
searches of persons . . . even when repeated, are rare. Investigations and potentially
useful data are not shared between agencies or departments as well as could be.
And, various Police Commissioners, over time, have demonstrated an inordinate
willingness to excuse illegal stops, frisks, and searches in the name of “good faith”
or “lack of mal-intention,” relegating Constitutional adherence to a lesser rung of
discipline.
Id. The Report provides fifty-one recommendations aimed at addressing the issues it identifies.
Id. at 470–79.
The Court invites public comment on the Report, which is attached as Exhibit A. By
December 25, 2024, the parties, the City, and interested members of the public may submit
written comments to the Monitor by visiting https://www.nypdmonitor.org/resources-reports/.
Because submissions will be posted on the public docket, commentors should omit or redact any
sensitive identifying information.
SO ORDERED.
Dated: September 23, 2024
New York, New York
EXHIBIT A
REPORT TO THE COURT ON POLICE MISCONDUCT AND
DISCIPLINE
James Yates
September 19, 2024
Floyd, et al. v. City of New York
Ligon, et al. v. City of New York, et al.
Davis, et al. v. City of New York, et al.
TABLE OF CONTENTS
I.
EXECUTIVE SUMMARY............................................................................................ 1
II.
BACKGROUND ............................................................................................................ 7
III.
COURT’S DIRECTION ............................................................................................. 13
A.
History of Civilian Oversight in New York City ................................................. 19
B.
Statutory Framework ............................................................................................ 24
i.
Unconsolidated Law § 891, CSL § 75 and NYC Admin. Code § 14-115 .......... 24
IV.
INVESTIGATING POLICE MISCONDUCT – A PRELIMINARY
OVERVIEW ................................................................................................................ 28
A.
What is “Misconduct”? ......................................................................................... 32
B.
Describing Findings ............................................................................................... 36
i.
Split Determinations ............................................................................................. 47
C.
Formal Discipline ................................................................................................... 49
D.
Informal Discipline ................................................................................................ 53
E.
Guidance in Lieu of Discipline .............................................................................. 54
F.
Discipline Defined .................................................................................................. 56
i.
Discipline Recommended by CCRB .................................................................... 59
ii.
Discipline for SQF Misconduct Examined at the Precinct................................... 61
G.
“CD Accepted” ....................................................................................................... 62
H.
A-CDs Not Recorded in the Central Personnel Index ........................................ 65
I.
Penalty Imposed for Floyd Violations? ................................................................ 71
V.
OVERVIEW OF THE NYPD ORGANIZATION - BACKGROUND ...................... 75
VI.
MISCONDUCT INVESTIGATIONS WITHIN NYPD ............................................ 78
A.
NYPD Internal Investigations of Civilian Complaints – Preliminary .............. 80
B.
NYPD Disciplinary System ................................................................................... 82
C.
Complaint Intake at NYPD ................................................................................... 84
D.
Internal Affairs Bureau ......................................................................................... 88
i.
Officer Interviews Within the Department During Investigations ....................... 91
E.
NYPD Internal Investigations – Categories of Misconduct ............................... 94
i.
Outside Guidelines Cases ..................................................................................... 95
ii.
Force ..................................................................................................................... 97
iii.
“M” Cases........................................................................................................... 104
iv.
“C” Cases ........................................................................................................... 108
F.
G.
H.
Bias-Based Policing and Racial Profiling Investigations at NYPD ................. 110
i.
Biased Policing and Profiling Defined ............................................................... 112
ii.
Comparing Language in Sections of Law to Sections of the NYPD
Administrative Guide ......................................................................................... 115
iii.
Burden of Proof, Class by Class ......................................................................... 117
iv.
Consolidating Bias Investigations and Allegations ............................................ 118
v.
Discourtesy, Slurs, Offensive Language, and Proof of Bias .............................. 119
vi.
A Look into Prior Wrongs and Patterns in Bias Cases....................................... 122
SQF Investigations Within the Department ...................................................... 124
i.
Supervisory Review ........................................................................................... 124
ii.
Disciplining Supervisors Within a Command .................................................... 131
iii.
A Move Away from CCRB Review of Supervisory Failures ............................ 134
iv.
Investigations Within a Local Command - Process ........................................... 134
v.
Internal NYPD Investigations of Stop and Frisk Misconduct ............................ 140
vi.
Concurrent, Split Investigations - Results Might Not Be Combined ................. 143
Adjudication and Processing of Substantiated Complaints within NYPD ..... 150
i.
Department Advocate’s Office ........................................................................... 150
ii.
Departmental Investigations - Charges and Specifications Presented by DAO . 154
iii.
Disciplinary Trials .............................................................................................. 155
iv.
Cases in the Trial Room ..................................................................................... 157
v.
Stop and Frisk in the Trial Room ....................................................................... 159
vi.
A Case Study of a Negotiated Plea Reduced by the Police Commissioner ....... 161
vii. Case Study Where the Police Commissioner Raised a Penalty Recommended
by DCT (But one day less than that requested by CCRB) ................................. 163
viii. Records in the Trial Room ................................................................................. 168
ix.
Police Commissioner Review After Trial .......................................................... 169
x.
Level C Command Discipline in Lieu of Charges and Specifications ............... 171
xi.
Police Commissioner’s Duty to Explain Departures from Recommendations .. 172
xii. Unfettered Discretion of the Police Commissioner ............................................ 173
xiii. Efforts to Remove the Police Commissioner’s Final Authority on Discipline .. 174
xiv. Previous Efforts to Limit the Authority of the Police Commissioner ................ 176
xv.
VII.
A.
Deference to the Trial Commissioner’s Factual Findings .................................. 181
THE CIVILIAN COMPLAINT REVIEW BOARD ................................................ 184
Board Structure ................................................................................................... 184
iii
i.
Panel Assignment ............................................................................................... 186
ii.
Police Commissioner Designees on All Panels .................................................. 187
B.
CCRB Budget ....................................................................................................... 193
C.
CCRB ACTIVITY - Generally ........................................................................... 199
i.
Processing Complaints at CCRB ........................................................................ 200
D.
CCRB Investigations - Generally ....................................................................... 205
i.
Split and Concurrent Investigations and Cross-Referrals .................................. 206
E.
ii.
CCRB Staff and Training ................................................................................... 208
iii.
Civilian Interviews ............................................................................................. 212
iv.
Officer Interviews at CCRB ............................................................................... 212
v.
Case Study - Force, False Statement, and FADO Investigations Interwoven .... 213
Jurisdiction - Personal ......................................................................................... 216
i.
Who May be Investigated? ................................................................................. 216
ii.
F.
Who May Complain? ......................................................................................... 218
Subject Matter Jurisdiction ................................................................................ 222
i.
Defining FADO .................................................................................................. 229
ii.
Abuse of Authority Defined for the First Time .................................................. 232
iii.
Processing False Statements Under the New Rules in The Administrative
Guide .................................................................................................................. 234
iv.
Use of Force - Display of a Firearm ................................................................... 236
v.
Failure to Supervise - Outside CCRB Jurisdiction? ........................................... 239
vi.
Sexual Misconduct ............................................................................................. 241
G.
Discourtesy and Offensive Language (Slurs) During a Stop ........................... 242
H.
Do We Need FADO? ............................................................................................ 244
I.
Timeliness ............................................................................................................. 245
i.
Case Study: NDA Due to Statute of Limitations .............................................. 249
ii.
Processing Time ................................................................................................. 251
iii.
Commencement .................................................................................................. 253
J.
Subpoenas - Enforcement ................................................................................... 258
i.
NYPD Administrative Subpoenas ...................................................................... 260
K.
NYPD Duty to Cooperate with CCRB Investigations ...................................... 261
L.
CCRB Access to Employment and Disciplinary History ................................. 266
i.
A Case Study Where Access to a Personnel File Would Be of Value to
CCRB ................................................................................................................. 268
iv
M.
Access to Files Sealed by CPL 160.50 ................................................................ 270
N.
Access to Sealed or Expunged Substantiated Disciplinary Cases ................... 277
O.
Unsubstantiated Findings - the “Sole Basis” Rule ............................................ 282
i.
Two Case Studies - Case History with Little or No Substantiations.................. 287
P.
CCRB Complaints and Allegations - All FADO ............................................... 289
i.
Complaints of Stop, Question, Frisk Misconduct .............................................. 291
ii.
Q.
SQF Misconduct by Allegation .......................................................................... 291
CCRB Findings .................................................................................................... 292
i.
UMOS With Substantiated Complaints ............................................................. 293
ii.
CCRB Findings – All FADO Complaints .......................................................... 294
iii.
CCRB Findings – All FADO Allegations .......................................................... 296
iv.
CCRB Findings – Stop/Frisk/Search Complaints .............................................. 298
v.
CCRB Findings – Stop/Frisk/Search Allegations .............................................. 299
vi.
Substantiation
........................... 300
R.
CCRB Recommendations to the Police Commissioner .................................... 303
S.
A Larger Perspective - the “Funnel” for Civilian Complaints ........................ 310
VIII. NYPD DISPOSITION OF CCRB SUBSTANTIATED MISCONDUCT - FADO 311
A.
IX.
A.
B.
NYPD Disposition of CCRB Substantiated SQF Misconduct ......................... 312
i.
Case Study: A Recommended B-CD for an SOF Violation Reduced to
Training by DAO................................................................................................ 317
THE ADMINISTRATIVE PROSECUTION UNIT ................................................ 318
APU - Process ....................................................................................................... 322
i.
Amendments to Charges .................................................................................... 323
ii.
Pleas and Final Approval of Pleas by the Police Commissioner ....................... 325
iii.
APU Prosecutions - Numbers............................................................................. 329
iv.
Comparing DAO and APU Results in Cases of Formal Prosecution................. 331
v.
Trial Decisions – APU Cases ............................................................................. 332
vi.
Stop and Frisk Misconduct – APU in the Trial Room ....................................... 332
Provision Two – Retention by the Police Commissioner.................................. 333
i.
Memo Exchanges Justifying a Retention to Avoid APU Prosecution ............... 336
ii.
Case Study #1 - Sergeant
................................................. 338
iii.
Case Study #2 - PO
iv.
Case Study #3 - PO
- Wrongful Frisk Leads to Repeated
“Training” ........................................................................................................... 341
: “No Prior Disciplinary History”?......... 340
v
C.
X.
Charges, Non-APU Cases, Profiling Investigations, and Lawsuits
Intertwined ........................................................................................................... 342
i.
An Unusual Case: Charges, a Trial, and Penalty Days for an Unlawful Stop?. 342
DISCIPLINARY SYSTEM PENALTY GUIDELINES (MATRIX) ....................... 348
A.
CCRB’s Framework for Charges and Specification Cases ............................. 350
B.
Disciplinary System Penalty Guidelines ............................................................ 351
C.
Explanation of the Guidelines as Adopted January 15, 2021 .......................... 354
D.
Is the Matrix Consistent with the Court-Approved Patrol Guide? ................ 358
E.
Mitigation and Aggravation................................................................................ 358
i.
Mitigation Factors .............................................................................................. 361
ii.
Personal History in Mitigation ........................................................................... 361
iii.
Legal Issues Related to SQF Mitigation............................................................. 362
iv.
Mistake of Law ................................................................................................... 364
F.
Concurrent and Consecutive Penalties .............................................................. 369
G.
Multiple Allegations – Penalty ............................................................................ 371
H.
Progressive Discipline, Mitigation, Aggravation .............................................. 374
I.
Other Violations in the Matrix ........................................................................... 376
J.
Stop/Question/Frisk Under the Disciplinary Guidelines .................................. 378
i.
Board Recommendation by Allegation – Presumptive, Mitigated or
Aggravated ......................................................................................................... 380
ii.
Board Recommendation - Level of Discipline for Each Allegation .................. 381
iii.
SQF Allegations - Board Recommendation ....................................................... 382
iv.
CCRB Recommendations by Case ..................................................................... 384
v.
NYPD Response to CCRB Panel Recommendations ........................................ 386
vi.
Penalty Disposition of SQF Misconduct by NYPD ........................................... 387
vii. Consecutive/Concurrent Penalties in the Sample ............................................... 389
viii. Case Study - A Case Where NYPD Produced a Post-Matrix File ..................... 390
XI.
TRANSPARENCY .................................................................................................... 390
A.
Investigative Files - Public Access ...................................................................... 398
B.
Access to CCRB Records Under FOIL .............................................................. 399
C.
Published Reports ................................................................................................ 402
D.
Explanation of Findings, Variance, Deviation, Departure............................... 402
i.
Memos and Correspondence - APU cases (formal discipline): ......................... 408
ii.
Memos and Correspondence - DAO/DCT Cases (formal discipline): ............... 410
vi
iii.
Memos and Correspondence - CCRB FADO Cases Without Charges (Most
SQF; Informal Discipline): ................................................................................. 410
iv.
Memos and Correspondence When Internally Investigated by IAB, OCD,
BIU, and FID ...................................................................................................... 411
v.
Departure Letters Posted by CCRB as of June 2022.......................................... 411
vi.
Departure Letters in SQF Cases ......................................................................... 413
vii. Deviation Letters Posted by NYPD.................................................................... 414
viii. Deviations From Trial Decisions ....................................................................... 416
XII.
FALSE STATEMENTS – RECENT PATROL GUIDE AMENDMENTS AND
THE DISCIPLINARY GUIDELINES..................................................................... 418
A.
False Statement - Jurisdiction ............................................................................ 424
B.
CCRB Examination of Untruthful Statement Allegations ............................... 427
i.
False Statements Under the Disciplinary Guidelines ......................................... 428
ii.
False Statements in SQF Cases Investigated by CCRB ..................................... 430
XIII. LAWSUITS AND CIVIL CLAIMS AGAINST OFFICERS ................................... 431
A.
Potential Use of Civil Case Information in Disciplinary Proceedings ............ 436
B.
Identifying Civil Claims of Police Misconduct .................................................. 441
i.
Posting Individual Officer Liability Online ....................................................... 443
ii.
Integrated Reporting of Civil Claims and Citizen Complaints .......................... 445
iii.
Case Study - Multiple Contemporaneous Actions—The Need for an Accurate
Integrated Database ............................................................................................ 446
C.
Early Settlement Program: Pre-Litigation Settlements for Police
Misconduct ........................................................................................................... 447
D.
Qualified Immunity and Indemnification.......................................................... 451
E.
Adverse Credibility Determinations .................................................................. 457
XIV.
EXTERNAL OVERSIGHT BY COMPANION AGENCIES ................................. 459
A.
Commission to Combat Police Corruption (CCPC) ......................................... 461
B.
New York Police Department Office of the Inspector General ....................... 463
C.
Commission on Human Rights - Bias-based Profiling ..................................... 466
D.
The Law Enforcement Misconduct Investigative Office – Deputy Attorney
General ................................................................................................................. 467
XV.
RECOMMENDATIONS .......................................................................................... 470
APPENDIX 1: EXAMINATION OF SQF CASES WHERE A PENALTY WAS
IMPOSED ................................................................................................................. 480
APPENDIX 2: GLOSSARY................................................................................................. 494
vii
I.
EXECUTIVE SUMMARY
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.
2
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.
Defining “Misconduct” and “Discipline”
“Misconduct” which can lead to discipline is generally defined by the Department
Manual—much, but not all, of which is posted online and publicly available. The Manual
incorporates the Patrol Guide and the Administrative Guide, both of which are written by
Department staff at the direction of the Police Commissioner without public participation or
comment. Large segments of the Department Manual proscribe misconducts which do not focus
on job-related interactions with civilians. Rather, they address rules and regulations for on and
off-duty conduct, such as dress codes, handling of equipment, domestic disputes or documentation
of activities, and so on.
Although the NYC Administrative Code requires publication of the Patrol Guide, many
segments of the Patrol Guide relating to discipline were moved in 2021 to the Administrative
Guide, only portions of which are posted or publicly available.
CCRB has a mandate to investigate FADO, which is an acronym for authority to
investigate complaints of Force, Abuse of Authority, Discourtesy, Offensive Language
(commonly referred to as “slurs”). Its jurisdiction was recently broadened to include Untruthful
Statements. The term “Abuse of Authority” as defined by CCRB encompasses a wide range of
misconduct, not necessarily detailed in the Department Manual. Among other wrongs, “Abuse”
includes racial profiling, bias-based policing and sexual harassment.
3
“Discipline” itself is detailed in NYS Civil Service Law and NYC Administrative Code.
It includes loss of credit for days or hours of service, termination, suspension, reprimand or
disciplinary probation. As an alternative to imposition of penalties, the Police Commissioner or
local command may direct guidance, such as training, instructions, monitoring or warnings with
admonishment. Guidance is not discipline; it is corrective and remedial.
Command discipline (CD) imposed at the local level by a commanding officer after
investigation can consist of an “A-CD,” or a “B-CD.” The Police Commissioner may also direct
imposition of a “C-CD.” Command discipline may be accepted by the subject officer, or rejected,
in which case formal Charges are served. When ordered by a Commanding Officer or the Police
Commissioner, with acceptance by the subject officer, command discipline does not necessarily
require an accompanying penalty. Guidance or no action may follow. If a penalty is to be imposed,
the maximum available penalty is a loss of up to five penalty days for an A-CD, up to ten penalty
days for a B-CD, and up to twenty penalty days for a C-CD. Penalty days may be deducted from
accrued vacation time owed the officer or a loss of pay and associated benefits for the prescribed
period. Some cases resolve by resignation, not infrequently with the officer retaining pension
credits approved by the Police Commissioner.
The Department has published Disciplinary System Penalty Guidelines (“Matrix”)
outlining presumptive, mitigated, and aggravated penalties for a variety of offenses. CCRB and
the Police Commissioner have agreed to follow the Matrix, with the understanding that the Police
Commissioner may depart from CCRB recommendations or deviate from the Matrix with a written
letter of explanation. Unfortunately, in practice, the letters do not sharply delineate whether a
departure or deviation are based upon a different view of the facts, the law, or the appropriate
penalty. The letters are, more often than not, perfunctory and conclusory, bereft of details. It is
not uncommon for the Police Commissioner to view video evidence and arrive at his own findings,
independent of CCRB’s determination. Many departures rely upon the Commissioner’s
conclusion that the officer acted in “good faith” despite no such finding by CCRB.
A significant, and yet unsettled, issue related to the Matrix is the decision whether to
impose consecutive or concurrent penalties for multiple acts of misconduct within an encounter.
This is important to any measure of discipline for stop/question/frisk misconduct. When several
acts, such as an improper stop, frisk, search and use of force are found, separate penalties may
aggregate, calling for formal proceedings rather than guidance or command discipline. The
ensuing calculation then calls for penalties in a higher range than would be typically imposed in
the past. However, a sizeable number of cases where CCRB has recommended formal discipline
as a consequence of consecutive calculation are currently “pending,” without formal discipline, as
negotiation and analysis takes place.
Discipline for Stop/Frisk Misconduct
While the Matrix propounds a presumptive three-day penalty for an illegal stop, frisk, or
search of person, imposition of that level of discipline is a rarity. Further, the Patrol Guide section
on investigative encounters, approved by the Court, permits guidance rather than penalties in
“isolated cases of erroneous but good-faith stops or frisks.” Over the years, CCRB and the
Department have recommended or imposed Training or Instructions routinely for stop/frisk
misconduct without limitation or a predicate finding that a bad stop, frisk, or search was indeed an
4
isolated case of an erroneous, good faith mistake. There are many cases where Training is
repeatedly ordered, notwithstanding the fact that the officer had undergone the same training on
multiple previous occasions.
There are some cases where penalties for stop/frisk misconduct is ordered, but almost
always for an encounter where other misconduct was found as well—commonly excessive force,
discourtesy, offensive language, disregard of the Right to Know Act, or failure to file required
documentation. In that event, the officer may then receive discipline by way of penalty days for
the entirety of the misconduct. Penalties for Fourth Amendment violations alone are the exception.
If CCRB does substantiate stop/frisk misconduct with a recommendation for an A-CD, and
if the Police Commissioner agrees with the finding, the Police Commissioner may direct
imposition of a penalty or guidance. More commonly, however, the matter is then passed on to
the precinct commanding officer to decide upon the discipline or guidance to be imposed. In those
cases, imposition of penalty days at the precinct is even more rare.
Also, within the Remedies Opinion, the Court required filing of stop reports when a civilian
is temporarily detained or frisked based on reasonable suspicion. Improper or missing stop reports
are frequently captured by a variety of audits or inspections. However, stop report failures may
not lead to a finding that the stop was illegal unless independently and fully examined, which does
not regularly occur. If a bad stop/frisk or search is uncovered at the precinct level, experience
shows that discipline is unlikely to follow.
Another problem of note in enforcement of discipline for stop/frisk misconduct is the lack
of discipline imposed when supervisors fail to monitor or compel proper activity. Within the
precinct, be it sergeants or higher ranked officers, a failure to supervise or tolerance of
inappropriate stops, frisks, or searches by officers is a breakdown of significance in achieving
constitutional compliance. Yet discipline for such failures is close to non-existent.
Investigations and Adjudication
Aside from the Department’s reluctance to impose discipline for stop and frisk misconduct,
there are other problems and areas of concern.
There will be, on occasion, multiple investigations of the same encounter whereby, for
example, the use of force may be examined independently by both the CCRB and the IAB. In
those cases, there is no formal requirement that information, interviews, or recommendations be
shared or reconciled. Important information, especially with regard to prior disciplinary
proceedings and personnel actions within the Department are not shared with CCRB investigators.
While cases prosecuted formally by CCRB’s Administrative Prosecution Unit (APU) may receive
a more detailed, but not complete, set of background materials, that is not true of cases where
Charges are not filed, and recommendations are made by the Board without formal prosecution—
which includes virtually all stop and frisk violations.
The Department Advocate’s Office (DAO) has its own database (Disciplinary
Administrative Database System or “DADS”), not available to CCRB. DADS is a complete
history of all prior misconduct evaluations for a given officer. Recommendations by CCRB or
IAB are reviewed by DAO, which will write a Case Analysis and Recommendation (CAR) report
5
to the Police Commissioner. That CAR report is not shared with the officer, the complainant,
CCRB, or the public, and yet it is essential to an understanding of the final result. Without the
CAR report, the Police Commissioner’s decision to vary from CCRB may appear inexplicable.
Neither CCRB, Trial Commissioners, nor the Police Commissioner take prior misconduct
allegations into account unless the allegations have been substantiated. The Charter itself says that
an unsubstantiated allegation may not be the basis for a finding of misconduct by CCRB. While
it makes sense to follow the common-law understanding that prior allegations, by themselves,
should not be used to infer guilt or predisposition, the rule as broadly applied in matters of police
discipline also sweeps aside evidence needed to prove identification, patterns of misconduct, bad
faith, schemes, motives, or to demonstrate the falsity of claims of innocent mistake. A large
number of cases go unfounded or unsubstantiated based on claims of mistake, good faith error,
lack of intent, or due to a failure to identify. Under common evidentiary principles in both State
and Federal courts, meaningful evidence of prior wrongs, even when not resulting in a conviction,
is permitted to rebut such claims. When CCRB attempted to use that kind of evidence as long as
it was not the “sole” basis for substantiation, the rule was stricken by a court. As is often done,
the Police Commissioner is free to absolve, citing good faith error, without looking at past evidence
to the contrary.
Despite multiple calls in the past to match court filings with disciplinary complaints, there
is a want of coordination and consideration of civil claims, either litigated in court or presented to
the Comptroller, with disciplinary proceedings in CCRB or before DAO. A large number of cases
are settled or reach judgment every year, including allegations of false arrest, malicious
prosecution, excessive force, racial profiling, or unconstitutional seizures. The evidence in such
cases should be examined and, if appropriate, used in deciding upon proper discipline before the
Police Commissioner. Unfortunately, it appears that quite the opposite occurs. Disciplinary
complaints are often “closed pending litigation” only to wither on the vine notwithstanding
documented evidence of misconduct.
Another frequent and well-founded criticism of the disciplinary process is the length of
time it takes to reach final disposition. Finger pointing commonly ensues. Delay may be due to a
slew of factors, running from delays in interviews (of both civilian witnesses and officers),
difficulty in gathering reports and videos, delays in application of the Matrix or Board review, and
time for DAO or the Police Commissioner to finalize a decision, to name a few. Delay negatively
impacts officers and the public alike. There is a Statute of Limitations, requiring a final decision
within 18 months of commencement of formal proceedings. Until recently, few cases were
dismissed due to the statutory limit. Then, in 2022-2023, there were an inordinate number of cases
dropped by the Police Commissioner ascribed to an impending statutory deadline. Whether delay
was due to the COVID pandemic, restricted access to Body Worn Camera footage, complexity of
applying the newly adopted Matrix, or budgetary shortfalls has not been definitively assessed. It
could be a combination of such factors. In the end, it is unfortunate that those cases were dropped
without further corrective action when they could have proceeded to a finding and mandated
guidance such as re-training or instructions, neither of which is barred by the Statute of
Limitations.
Currently, CCRB investigators face another roadblock. It is not uncommon for police
misconduct to arise in cases where there was an arrest, but the case was “favorably terminated” as
6
defined by Section 160.50 of the Criminal Procedure Law. The termination by dismissal, acquittal,
or declination to prosecute may or may not have been caused by the very police misconduct which
is the subject of a civilian complaint. However, as a result of litigation, at this point in time, the
records of the arrest are “sealed” and not available to CCRB. The sealing statute was meant to
protect the wrongly arrested civilian, not a misbehaving officer. Ironically, the statute, as
interpreted by a trial-level court, protects the officer’s misconduct, notwithstanding a complaint
by the innocent civilian. This issue is on appeal and has yet to be resolved.
Conclusion
In sum, a significant effort is made, and significant resources are expended, by the NYPD
to investigate misconduct claims in general. However, the same cannot be said of disciplinary
efforts regarding compliance with the Fourth and Fourteenth Amendments. Discipline for illegal
stops and frisks, even when substantiated by CCRB, is not pursued with the same vigor and resolve
as for other misconduct. Penalties for wrongdoing involving stops, questions, frisks, or searches
of persons (“SQFS”) even when repeated, are rare. Investigations and potentially useful data are
not shared between agencies or departments as well as could be. And, various Police
Commissioners, over time, have demonstrated an inordinate willingness to excuse illegal stops,
frisks, and searches in the name of “good faith” or “lack of mal-intention,” relegating
Constitutional adherence to a lesser rung of discipline. It is with that understanding that the
recommendations attached to this Report are offered for consideration as potential avenues for
improvement.
II.
BACKGROUND
On August 12, 2013, following a nine-week trial, United States District Court Judge Shira
Scheindlin found that New York City, through 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.”1 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 [B]lacks and
Hispanics in violation of the Equal Protection Clause.”2
In the time since the trial, the number of stops, as self-reported by police officers in “stop
reports,”3 has dropped from a peak of 685,274 in 2011, to 11,008 in 2018, 13,459 in 2019, 9,544
1
Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (hereinafter “Floyd Liability Opinion”). The
plaintiff class, certified by the Court 2012, consists of “[a]ll persons who since January 31, 2005 have been, or in the
future will be, subjected to the New York Police Department’s policies and/or widespread customs or practices of
stopping, or stopping and frisking, persons in the absence of a reasonable, articulable suspicion that criminal activity
has taken, is taking, or is about to take place in violation of the Fourth Amendment, including persons stopped or
stopped and frisked on the basis of being Black or Latino in violation of the Equal Protection Clause of the Fourteenth
Amendment.” Floyd v. City of New York, 283 F.R.D. 153, 160 (S.D.N.Y. 2012).
2
Floyd Liability Opinion at 562.
3
NYPD, Department Manual, available at https://www.nyc.gov/site/nypd/about/about-nypd/manual.page. The
NYPD Patrol Guide requires an officer to prepare a stop report for “all Terry Stops/Level 3 encounters.” Patrol Guide
7
in 2020, and 8,948 in 2021. 4 The number of reported stops rose dramatically to 15,102 in 2022,
and 16971 in 2023.5 The question remains whether, and to what extent, the core findings in the
Court’s decision persist and whether remedies that were ordered by the Court6 have been
implemented.
At the trial, the Court found, for the period between January 2004 and June 2012, that:
52% of all stops (out of 4.4 million) were followed by a protective frisk for a weapon,
but in 98.5% of those frisks, no weapon was found;
o By comparison, in 2022, 60% of stops were followed by a protective frisk;
in 79% of those frisks no weapon was found.
88% of stops resulted in no law enforcement action, i.e., the person stopped was neither
issued a summons nor arrested;
o In 2022, 64.5% of reported stops resulted in no law enforcement action.
52% of those stopped were Black, although only 23% of the resident population was
Black;
o In 2022, 59% of those stopped were described as Black, while 24% of the
resident population is categorized as Black or African American.
For the period spanning 2004 through 2009, “[W]hen any law enforcement action was
taken following a stop, [B]lacks were 30% more likely to be arrested (as opposed to
receiving a summons) than whites, for the same suspected crime.”7
o Although not a direct comparison, a recent study done by the Monitor Team
found when adjustments were made to account for undocumented stops, it
appears that Black subjects were more likely to be frisked relative to White
§ 212-11, ¶ 47, available at https://www nyc.gov/assets/nypd/downloads/pdf/public_information/public-pguide2.pdf.
Failure to prepare and file a stop report is treated as a violation of Department rules and regulations and, thus,
misconduct. NYPD “Disciplinary System Penalty Guidelines” at 44. Temporary detention based on reasonable
suspicion that the subject has committed, is committing or is about to commit a felony or Penal Law misdemeanor,
falling short of full-custodial seizures based on probable cause, is referred to as a “Terry stop,” after Terry v. Ohio,
392 U.S. 1 (1968). “Level 3 encounter” refers to the New York state law equivalent of a Terry stop. See People v.
De Bour, 40 N.Y.2d 210, 223 (1976). Stop reports are accessible under New York’s Freedom of Information Law
(“FOIL”), subject to the exceptions provided within N.Y. Pub. Off. Law § 87. See Patrolmen’s Benevolent Ass’n v.
de Blasio, 171 A.D.3d 636, 638 (2019) (applicable to Body Worn Camera videos). “Within 10 business days of receipt
of your request, the NYPD will send out a copy of your stop report or a response indicating that there was no record
found
or
insufficient
information
to
find
the
stop
report.”
Police
Encounters,
https://www.nyc.gov/site/nypd/stats/reports-analysis/stopfrisk.page.
4
The NYPD’s stop, question, and frisk data records are available at https://www1 nyc.gov/site/nypd/stats/reportsanalysis/stopfrisk.page.
5
NYPD, Stop, Question and Frisk Data, at https://www nyc.gov/site/nypd/stats/reports-analysis/stopfrisk.page.
6
See, generally, Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (hereinafter “Floyd Remedies
Opinion”).
7
Floyd Liability Opinion at 560.
8
subjects in 2021 and 2022, with a difference on the order of eight percentage
points.8
In conjunction with the Liability Opinion, the Court issued a separate Remedies Opinion
which appointed a Monitor with specified authority,9 and required “immediate reforms” relating
to training, documentation, supervision, monitoring and a pilot project for use of body-worn
cameras (BWC).10 The Court also ordered engagement by all parties in a “Joint Remedial Process”
(JRP) guided by a Facilitator.11 At the end of the JRP, the Remedies Opinion required the
Facilitator to submit to the Court recommendations for “[s]upplemental [r]eforms,”12 which could
be ordered by the Court.
In particular, with regard to disciplinary procedures related to misconduct by officers in
civilian encounters, the Court wrote in the Liability Opinion, “when officers were found to have
made ‘bad’ stops, little or no discipline was imposed. The evidence showed that the NYPD turned
a blind eye to its duty to monitor and supervise the constitutionality of the stops and frisks
conducted by its officers.”13 Further, “[d]eficiencies were also shown in the training of officers
with respect to stop and frisk and in the disciplining of officers when they were found to have
made a bad stop or frisk. Despite the mounting evidence that many bad stops were made, that
officers failed to make adequate records of stops, and that discipline was spotty or non-existent,
little has been done to improve the situation.”14 The Court bemoaned the fact that, “when
confronted with evidence of unconstitutional stops, the NYPD routinely denies the accuracy of the
evidence, refuses to impose meaningful discipline, and fails to effectively monitor the responsible
officers for future misconduct.”15 The Court went on in the Remedies Opinion to require “Changes
to Supervision, Monitoring, and Discipline,” declaring:
An essential aspect of the Joint Process Reforms will be the development of an
improved system for monitoring, supervision, and discipline. . . . In light of the
complexity of the supervision, monitoring, and disciplinary reforms that will be
required to bring the NYPD’s use of stop and frisk into compliance with the Fourth
and Fourteenth Amendments, it may be appropriate to incorporate these reforms
into the Joint Remedial Process negotiations described below. However, to the
extent that the Monitor can work with the parties to develop reforms that can be
8
See Twentieth Report of the Independent Monitor, Racial Disparities in NYPD Stop, Question, and Frisk at 5 and
Appendix C. (pending).
9
Floyd Remedies Opinion at 676–78.
10
Id. at 678–86.
11
Id. at 686–88. Retired Judge Ariel Belen was appointed as Facilitator.
12
Id. at 686.
13
Floyd Liability Opinion at 590.
14
Id. at 561.
15
Id. at 617.
9
implemented immediately, the Monitor is encouraged to include those reforms in
the proposed Immediate Reforms.16
The Court’s two opinions make it clear that the disciplinary process within the Department
needed reform and that reform of the disciplinary process was integral to effectuating compliance
with the Fourth and Fourteenth Amendments during police-initiated civilian encounters. One set
of reforms specified in the Remedies Opinion was:
The Department Advocate’s Office [(DAO)17] must improve its procedures for
imposing discipline in response to the Civilian Complaint Review Board’s
(‘CCRB’) findings of substantiated misconduct during stops. This improvement
must include increased deference to credibility determinations by the CCRB, an
evidentiary standard that is neutral between the claims of complainants and officers,
and no general requirement of corroborating physical evidence. Finally, the Office
of the Chief of Department [(OCD)] must begin tracking and investigating
complaints it receives related to racial profiling.18
The issue of discipline for police misconduct surrounding the use of stop and frisk was
raised regularly during the JRP.
Members of both the Floyd and Davis focus groups consistently voiced
disappointment that officers were not held accountable for misconduct. The focus
groups also believed supervisors in officers’ chains of command should be held
accountable for the actions of their staff. Accountability should include progressive
discipline in order to appropriately target disciplinary actions to individual officer
behavior over time.19
Section 434(a) of the New York City Charter vests final authority for discipline with the
Police Commissioner. 20
The Floyd focus group expressed a need for an independent, third-party entity with
which they could file misconduct complaints and which had the authority to take
action based on the results of the complaints . . . . The focus group also felt the
16
Floyd Remedies Opinion at 683–84.
17
The “Department Advocate” (and their deputies) are attorneys designated by the Police Commissioner to prosecute
disciplinary proceedings. See 38 RCNY §15-01. The DAO exercises considerable discretion in reviewing
investigations conducted by CCRB, as well as Departmental units such as the Internal Affairs Bureau (IAB), the Force
Investigation Division (FID) and Borough/Bureau Investigations Units (BIU).
18
Floyd Remedies Opinion. at 684.
19
New York City Joint Remedial Process: Final Report and Recommendations at 117–18, Floyd v. City of New York,
No. 08-cv-1034 (S.D.N.Y. May 15, 2018), ECF No. 597. Unless otherwise specified, all ECF numbers herein refer
to entries where documents can be located on the docket for Floyd v. City of New York, No. 08-cv-1034 (S.D.N.Y.).
20
“The Commissioner shall have cognizance and control of the government, administration, disposition and discipline
of the department, and of the police force of the department.” N.Y. City Charter § 434 (a).
10
complaint investigation and determination processes should be more transparent,
providing regular updates on the status of individual cases.21
In its submission to the JRP, Citizens Union had argued,
[I]n administering justice in cases of alleged police misconduct, too much authority
currently resides in the Police Department to prosecute, hear, adjudicate, and decide
penalties. Investing so much authority in a single entity to handle essentially four
different, major parts of the police disciplinary process—the same entrusted with
the right to use force to provide public safety and enforce the law—does not provide
for an appropriate level of public oversight or separation of powers in a democratic
society.22
Current efforts to limit the Police Commissioner’s unrestrained authority in disciplinary
matters are discussed later. The Facilitator did not adopt that specific recommendation, but noted:
During all of the community forums, participants stated that there needs to be
greater accountability. Participants felt that the current disciplinary system was
obscure, flawed and arbitrary, and needed both reform and greater transparency.
Community members called for meaningful and timely consequences that escalated
for repeat misconduct. Attendees at the forums requested greater accountability at
the officer, precinct, and departmental level.23
Interviews with leaders of community groups led to the suggestion that:
[P]eople need a better way to make complaints about police misconduct because
the Civilian Complaint Review Board . . . and the Office of the NYPD Inspector
General are not trusted by community members. . . . For example, participants
stated . . . the CCRB has a bad reputation in certain communities; information from
the courts and the CCRB is not shared with complainants; there is a lack of
independence and transparency at the CCRB; the CCRB does not adequately pursue
complaints and . . . constituents fear that officers would retaliate when a complaint
has been filed.24
Two important suggestions made during the JRP were that, in addition to loss of pay,
vacation days or demotion, “command discipline should go on an officer’s record” and “[i]f officer
misconduct is ignored in the precinct, supervisors, managers, and the commanding officer should
21
New York City Joint Remedial Process: Final Report and Recommendations at 118, Floyd, No. 08-cv-1034
(S.D.N.Y. May 15, 2018).
22
New York City Joint Remedial Process: Final Report and Recommendations, Appendix A at 44, Floyd, No. 08-cv1034 (S.D.N.Y. May 15, 2018), ECF. No. 598-1.
23
New York City Joint Remedial Process: Final Report and Recommendations at 224, Floyd, No. 08-cv-1034
(S.D.N.Y. May 15, 2018), Doc. No. 598-1 at 119.
24
Id. at 185.
11
be penalized.”25 As discussed later in this Report, substantiated stop and frisk misconduct
commonly is not entered into important personnel or disciplinary records maintained by NYPD
and penalties for failures to supervise are insufficiently disciplined.
As summed up by the Facilitator:
Throughout the forums, accountability was a frequently cited area for reform.
Community members called for meaningful and timely consequences for abusive
policing practices, often highlighting the public perception of an obscure, flawed,
and arbitrary disciplinary system. Attendees at the forums suggested that the
implementation of stricter discipline for officers with repeated violations and
greater accountability for the Department overall in addressing rights violations
were critical elements of meaningful police reform.26
With regard to transparency and accountability, the Facilitator recommended that:
[T]he Court order the NYPD to prepare and publish a monthly report—without
disclosing personal identifying information—chronicling findings of misconduct
and the resultant disciplinary outcomes as they relate to unlawful stops and trespass
arrests. This monthly report should include all unlawful stop and trespass arrest
incidents that are reported as substantiated by the Civilian Complaint Review Board
and referred to the NYPD Department Advocate’s Office for disciplinary action.
These monthly reports should be disaggregated by geographic and precinct
locations and collated into an Annual Report. . . .
This recommendation is consistent with the NYPD’s recent decision to publish
anonymized summaries of allegations against officers and the disciplinary actions
taken in response by the Department. The NYPD’s decision to publish this
information is consistent with the need for greater transparency and accountability
stressed in this Report.27
25
Id. at 186 nn 236–37. “Command discipline” refers to an informal process for adjudicating misconduct whereby
Commanding Officers (COs) in precincts and at the local level are vested with the authority to investigate, determine,
and penalize misconduct, e.g., violations of the Patrol Guide. Command discipline or “CDs” carry different levels of
potential penalty, discussed later, and can be either an “A-CD,” “B-CD,” or “C-CD.”
26
Id. at 217.
27
Id. at 222–23. In March 2018, NYPD proposed to publish an online Compendium of non-identifiable summaries
of the outcomes of disciplinary trials, while omitting information that would tend to identify individual police officers.
This proposal falls far short of full transparency but was considered by some to be a helpful step. One year later, in
March 2019, Justice Arthur Engoron, New York County Supreme Court, enjoined publication of the Compendium,
citing N.Y. Civ. Rights Law § 50-a (hereinafter § 50-a). See Patrolmen’s Benevolent Ass’n. v. de Blasio, No.
15231/2018, 2019 WL 1224787 (Sup. Ct. N.Y. Cnty. Mar. 11, 2019. Subsequently, with the repeal of §50-a. L. 2020,
ch. 96, § 1, effective June 12, 2020, the relief sought in the petition and injunction became moot, and the decision was
reversed on November 19, 2020, see Patrolmen’s Benevolent Ass’n v. de Blasio, 188 A.D.3d 577 (1st Dep’t 2020).
After that, the Department began to post an “Officer Profile” online at https://nypdonline.org/link/2. In that space, an
officer’s “Disciplinary History” can be accessed. This posting is extremely limited, however, in that it only lists
“formal” charges which have been sustained and where a penalty was imposed by the Police Commissioner. So, for
12
The Facilitator went on to recommend that the NYPD be ordered to:
Develop and publish progressive disciplinary standards to be used in cases arising from
unconstitutional stops and trespass enforcement regarding excessive force, abuse of authority,
discourtesy or offensive language, and racial profiling allegations.
Consider making revisions to its current discipline paradigm that ensure that disciplinary
processes are fair and timely.
Develop and publish disciplinary recommendations to ensure external accountability and
public understanding.28
In sum, the Liability Opinion, the Remedies Opinion, and the Joint Reform Process
highlighted the necessity for re-examination and reform of the Department’s disciplinary processes
as requisite to any effort to bring the City into compliance with the mandates of the Fourth and
Fourteenth Amendments when citizens are stopped, questioned, frisked, and searched in a street
encounter. The Department, working with the Monitor and the Plaintiffs, has made advances in
the areas of training, written guidelines, audits, documentation, and preventive measures.
Discipline, especially for repeat or serious instances of misconduct, is a necessary adjunct to those
measures, as is transparency and community involvement. It is this aspect of Floyd
implementation that this Report will attempt to address.
III.
COURT’S DIRECTION
Recognizing the need to supplement ongoing efforts by the parties to achieve compliance,
and the complexity of the issues surrounding discipline, the Court directed a study and an
assessment of the disciplinary process. Specifically, the Court directed:
[T]he preparation of an in-depth, critical examination of the efficacy, fairness, and
integrity of the City’s policies, practices and procedures with respect to police
misconduct during stops, including a granular, step-by-step analysis of (1) police
discipline, including disciplinary processes and outcomes, (2) the civilian
complaint process (both at the CCRB and the NYPD), and (3) the prosecution and
adjudication of such complaints. The report shall address the issues of
accountability, transparency, speed, and due process for officers and other
participants, and it shall provide both a quantitative and qualitative analysis,
including a detailed narrative of cases which exemplify the manner in which the
CCRB and NYPD have addressed police misconduct during stops and
discipline . . . Following the report’s critical assessment of existing policies,
practices and procedures, the report shall set forth, in detail, recommendations as
example, cases that were “filed,” reversed, resulted in Command Discipline, or cases in which the penalty was reduced
to guidance such as training are not listed despite substantiation by CCRB or recommended substantiation by IAB.
28
New York City Joint Remedial Process: Final Report and Recommendations at 224, Floyd, No. 08-cv-1034
(S.D.N.Y. May 15, 2018)
13
to the specific ways in which such policies, practices, and procedures can be
improved, in order to promote constitutional policing.29
The NYPD disciplinary process is rapidly changing on an almost daily basis. This Report
will attempt to describe a moving target, which has undergone significant changes since the
Court’s opinions in Floyd, mostly in the last three years. For that reason, statistics and even case
studies referred to in this Report that might be as little as one or two years old should be viewed
with caution. Adoption and implementation of the NYPD Disciplinary System Penalty Guidelines
(sometimes referred to as the “Matrix”)30 after 2021 may alter some outcomes. There is a partial
analysis of post-Matrix data in this Report as well.31 At the same time, core problems —in
particular dealing with lack of accountability, community participation, recognition of the
seriousness of stop, question, frisk (“SQF”) violations, transparency and issues surrounding
profiling and discrimination—remain.32
It is an understatement to say that police misconduct has become a central topic in today’s
public discourse. Litigation, legislative changes, and regulatory adjustments regarding reporting,
investigating, and adjudicating misconduct abound. Each has a substantial impact on the manner
by which misconduct is addressed. Some recent changes of significance, many of which are
described in this Report, include:
29
Changes in NY state law governing disclosure of personnel and disciplinary records;33
Changes in NY state law governing when, during a street encounter, a person may be
arrested or, in the alternative, must be given an appearance ticket for minor offenses;34
Changes in NY state Law creating an investigative unit within the Attorney General’s
Office to examine and report upon police misconduct;35
Changes in NY state law requiring public descriptive reporting of use of force
incidents;36
Correspondence from Judge Analisa Torres to Peter Zimroth (May 30, 2018).
30
Throughout, the NYPD Disciplinary System Penalty Guidelines may be referred to as either the “Guidelines” or the
“Matrix.” Available at https://www1 nyc.gov/assets/nypd/downloads/pdf/public_information/nypd-disciplinarypenalty-guidelines-effective-2-15-2022-final.pdf.
31
Context around any particular action by the Police Commissioner is best understood by review of DAO’s Case
Analysis and Recommendation (CAR) report. Unfortunately, the Department asserted privilege and CAR reports
were not available for this Report.
32
Some reports cited herein enumerate stop/question/frisk conduct and will be referred to as “SQF.” Some reports
include, as well, “search of person.” For this Report, the term SQF will include searches of persons as well as stop,
question, and frisk conduct.
33
L. 2020, ch. 96, § 1, effective June 12, 2020 (repealing N.Y. Civ. Rights Law § 50-a and amending N.Y. Pub. Off.
Law § 87).
34
L. 2019, ch. 59, effective January 1, 2020 (amending Article 150 of the New York Criminal Procedure Law).
35
L. 2020, ch. 104, effective April 1, 2021.
36
L. 2019, ch. 55, effective July 11, 2019 (adding N.Y. Exec. Law § 837-t).
14
Changes in NY state law creating a “Right to Record Law Enforcement Related
Activities;”37
Changes in NYC local law creating a private right of action for search, seizure and use
of force misconduct, and barring “good faith” and “qualified immunity” as defenses in
such civil actions;38
Changes in NYC local law regarding the definition of “bias-based policing;”39
Changes in NYC local law requiring public reports on use of summonses and desk
appearance tickets;40
Changes in NYC local law requiring public reporting on use of force incidents and use
of force encounters;41
Changes in NYC local law requiring public reporting of “officer deployment,” which
requires public posting, by precinct, of statistics regarding substantiated misconduct;42
Changes in NYC local law requiring assessment of adverse credibility determinations
and civil lawsuits arising from police misconduct, along with a public posting of
lawsuits pending against the City, and a report to the City Council Speaker;43
Changes in NYC local laws limiting arrests and returns to Criminal Court for qualityof-life and other low-level offenses;44
Changes in NYC local law directing use of civil summonses returnable to the Office of
Administrative Trials and Hearings (OATH) in lieu of returns to Criminal Court for
quality of life offenses, along with a public report;45
Changes in NYC local law requiring officers to identify themselves during certain
citizen encounters;46
Changes in NYC local law requiring disaggregated information, by precinct of requests
for consent to search and whether the subject was with limited English proficiency; 47
37
L. 2020, ch. 100, effective July 14, 2020 (adding N.Y. Civ. Rights Law § 79-p).
38
Local Law 48 (2021) (adding a new chapter 8 to Title 8 of the NYC Admin. Code).
39
Local Law No. 71 (2013) (amending NYC Admin. Code § 14-151).
40
Local Law No. 69 (2016) (adding NYC Admin. Code § 14-156); Local Law No. 68 (2016) (adding NYC Admin.
Code § 14-157).
41
Local Law No. 85 (2016) (adding NYC Admin. Code § 14-158); Local Law No. 86 (2016) (adding NYC Admin.
Code § 14-159).
42
Local Law No. 88 (2016) (adding NYC Admin. Code §14-160). Full implementation of this law was delayed, prior
to the repeal of N.Y. Civ. Rights Law § 50-a, by a restraining order issued in Patrolmen’s Benevolent Ass’n. v. de
Blasio, No. 153231/2018 (Sup. Ct. N.Y. Cnty.). On appeal the order was reversed, and the petition dismissed as moot
in light of the repeal of § 50-a. Since then, NYPD has posted reports covering the years 2016–2020. The “Deployment
Report” lists, in one total number, the number of officers who have crossed certain disciplinary thresholds. Without
a breakdown by category and identification of officers, the list is, for all practical purposes, of little use. With the
repeal of §50-a, the law needs to be, and should be, amended to include a broader array of misconduct findings.
43
Local Law No. 166 (2017) (adding NYC Admin. Code § 7-114 and N.Y. City Charter §808).
44
Local Law No. 71 (2016), part of the Criminal Justice Reform Act (CJRA).
45
Local Law No. 73 (2016), part of CJRA; see also N.Y. City Charter § 1049.
46
Local Law No. 54 (2018) (adding NYC Admin. Code § 14-174 (Right to Know Law)).
47
Local Law No. 20 (2024) (amending NYC Admin. Code § 14-173.
15
Changes in NYC local law, the “How Many Stops Act,” requiring a public quarterly
report of the reasons and basis for all “investigative encounters” including Level 1,
Level 2, and Level 3 encounters, along with: a description of the apparent
race/ethnicity, gender, and age of the member of the public involved; whether force
was used; whether a summons or arrest ensued; and whether a Level 3 encounter began
as a Level 1 or Level 2 encounter.48
A series of amendments to the City Charter, adopted by referendum on November 5,
2019,49 strengthening and expanding the powers of the CCRB, including that:
o CCRB may now investigate matters within the Board’s jurisdiction, without
the necessity of waiting for a complaint;
o CCRB may now investigate and make findings regarding false statements
made by a subject officer during a CCRB investigation;
o CCRB may now enforce subpoenas for materials and witnesses necessary
for an investigation;
o Requiring the Police Commissioner to explain in detail when he intends to
impose a penalty at variance from that recommended by CCRB;
o Altering the composition of the Board to increase, proportionately,
representation by members independent of the Mayor and Police
Commissioner;
o Guaranteeing and strengthening the budget of CCRB;
An amendment to the City Charter and the Administrative Code directing CCRB to
replace NYPD in investigations of bias-based policing;50
Changes in NYC local law regarding when an officer may seek consent to search an
individual and requiring reports of such searches;51
Changes in NYC local law requiring the Police Commissioner to publish a disciplinary
penalty grid along with an annual report on results, as well as:52
o Promulgation and adoption of a Disciplinary Guidelines matrix by NYPD;
o Implementation of a new Memorandum of Understanding (MOU) between
NYPD and CCRB agreeing to adhere to the matrix;
Changes in NYC local law requiring establishment of an Early Intervention System
(EIS) with specified parameters;53
48
Local Law No. 43 (2024) (adding NYC Admin. Code § 14-196).
49
Local Law No. 215 (2019) (enacting Charter Amendments approved in a November 2019 referendum).
50
Local Law No. 47 (2021).
51
Local Law No. 56 (2018) (adding NYC Admin. Code §14-173).
52
Local Law No. 69 (2020) (adding NYC Admin. Code §14-186).
53
Local Law No. 68 (2020) (adding NYC Admin. Code §14-190).
16
Changes in NYC local law requiring officers, while on duty and in uniform, to display
shield numbers or face civil liability;54
Changes in NYC local law prohibiting police interference with videotaping police
activity;55
CCRB Rule changes,56 approved by the Appellate Division following litigation,57
expanding CCRB’s investigative capacity:
o Permitting witnesses, who are not victims, of police misconduct to file a
complaint;
o Permitting “non-witnesses,” i.e., citizens without personal knowledge of an
event to bring a complaint;
o Authorizing investigation of complaints after the expiration of the 18-month
statute of limitations period designated in N.Y. Civ. Serv. Law §75-4;
o Permitting review panels which do not include a Police Commissioner
designee in certain situations;
o Permitting CCRB to note misconduct outside CCRB’s jurisdictional
parameters of “Force, Abuse, Discourtesy and Offensive Language”
(otherwise known as FADO)58 and the evidence to support those
allegation(s);
But rejecting other changes in CCRB Rules:
Consideration of prior unsubstantiated complaints is prohibited;
The Administrative Prosecution Unit (APU) of CCRB may not ask a panel to
reconsider or add Charges after it has made its recommendation and findings to the
Police Commissioner;
Expanded authority to investigate sexual harassment complaints required compliance
with the rule-making requirements of the City Administrative Procedure Act,59 and was
thereby restricted pending such compliance;60
54
Local Law No. 70 (2020) (adding NYC Admin. Code §14-187).
55
Local Law No. 67 (2020) (adding NYC Admin. Code §14-189).
56
Rules of the Civilian Complaint Review Board, RCNY, tit. 38-A.
57
See Lynch v. NYC Civilian Complaint Rev. Bd., 183 A.D.3d 512 (1st Dep’t 2020).
58
“The board shall have the power to receive, investigate, hear, make findings and recommend action upon complaints
by members of the public . . . against members of the police department that allege misconduct involving excessive
use of force, abuse of authority. . . , discourtesy, or use of offensive language, including, but not limited to, slurs
relating to race, ethnicity, religion, gender, sexual orientation and disability.” N.Y. City Charter § 440(c)(1).
59
See id. at § 1043.
60
The proper rule-making authority ultimately took place, and “sexual misconduct” was included in the definition of
“Abuse of Authority” in 38-A RCNY § 1-01 effective March 26, 2021. The sexual misconduct rules were
subsequently approved by the Appellate Division. Matter of Lynch v. NYC CCRB, 206 A.D.3d 558 (1st Dep’t 2022).
17
Case law developments making it more difficult for CCRB to get, and for IAB to
access, full records of illegal arrests of witnesses to misconduct, which were dismissed
by a court and sealed pursuant to N.Y. Crim. Proc. Law § 160.50;61
Significant limitations in the definition of, and the penalty to be imposed for, false
official statements, written and adopted by the Police Commissioner the day after
CCRB became empowered to investigate such statements;62
Changes in procedures to be followed by the Department when investigating a bias
complaint.63
In addition, in 2020, municipalities throughout New York, including the City, were
directed by former Governor Andrew Cuomo to “develop a plan to improve . . . deployments,
strategies, policies, procedures, and practices, for the purposes of addressing the particular needs
of the communities served by such police agency and promote community engagement to foster
trust, fairness, and legitimacy, and to address any racial bias and disproportionate policing of
communities of color.”64
The City responded with a Plan which, among other things, recognized the importance of,
and need for, reforms in the disciplinary process. After collaborative review, “[t]here was nearuniversal support for building on the success of the CCRB and strengthening and clarifying its role
in the disciplinary process.”65 The City’s Plan concluded that:
“The disciplinary system should be based on five values:
1.
2.
3.
4.
Holding officers accountable for misconduct and harm to the public;
Keeping a record and recognizing disciplinary actions as vital sources of
information about an officer, supervisors, and the department as a whole;
Identifying patterns and problems related to policies, training, supervision, and
institutional performance rather than mere individual misconduct;
Building public trust and community cohesion through timely decision making; and
61
See R.C. v. City of New York, 100 N.Y.S.3d 824 (Sup. Ct. N.Y. Cnty. 2019). The parties are currently (as of October
24, 2022) engaged in negotiations concerning implementation of a permanent injunction. Plaintiffs have proposed a
“plan” which would permit record access for records which are “De-identified” and used for “purposes of assessing
the lawfulness of officer conduct or investigating officer misconduct.” R.C. v. City of New York, Index No.
153739/2018, NY County Supreme Court, NYSCEF Doc. No. 261 (Oct. 20, 2022). The “plan” has not yet been
adopted. The proposal, while referencing access by NYPD, does not mention access or use of the information by
CCRB. Legislation has been introduced in the NYS Assembly to grant access to sealed records by CCRB. NY
Assembly Bill 370/ 2023. On appeal, the Appellate Division, First Department, remitted the matter to the lower court
for “detailed fact-finding” and cautioned that it was not necessary to de-identify information of arrestees. However,
access by CCRB, as opposed to IAB, was not ordered. R.C. v. City of New York, 213 NYS 3d 19 (1st Dep’t June 4,
2024).
62
Patrol Guide § 203-08, amended effective April 1, 2020, moved to Admin. Guide § 304-10 in 2021.
63
IAB Guide 620-58. Notably, IAB Guide 620-58 has been approved by the Court. See Memo Endorsement, Floyd,
No. 08-cv-1034 (S.D.N.Y. Jan. 3, 2019), ECF No. 677. Whether and how this will be implemented with the
subsequent assignment of profiling allegations to CCRB remains to be seen. IAB will still have cases to investigate.
64
Exec. Order No. 203 (June 12, 2020).
65
NYC Police Reform and Reinvention Collaborative Draft Plan at 8, adopted by the City Council on Mar. 25, 2021,
Intro. Res. 1584/2021.
18
5.
Holding the Police Commissioner accountable for the conduct of those whose [sic]
serve in the department.”66
Adherence to the aspirational goals cited in the Plan will be important going forward.
However, as a backdrop to any survey in the future or any description of current policies and
practices utilized to investigate and discipline Stop/Frisk misconduct, a preliminary review of the
statutes regulating wrongful actions by officers is necessary.
A.
History of Civilian Oversight in New York City
Under Section 434(a) of the New York City Charter, the Police Commissioner has
unbridled final say in disciplinary matters. Civilian oversight of police misconduct is limited to
precatory entreaty. Reform proposals to enhance external review and resistance to those reforms
are in constant and continued contention. To understand the restraints placed upon citizen review
of misconduct investigations, it is necessary to begin with a look at the history and evolution of
efforts to open police discipline to public and external review.
While the CCRB is the City’s most recognizable avenue for resolution of civilian
complaints regarding police misconduct, it exists within a complex framework of state and city
laws, and city regulations that both support and check its efforts—reflecting a balance of political
reality, due process protections for police officers, procedural justice for citizen complainants and
transparency in policing. The CCRB was created in response to repeated calls for civilian
oversight of police misconduct. However, the CCRB has always been limited in what conduct it
may investigate, how the investigations are to be conducted, the reach of information available to
its investigators and, most importantly, the consequences that may follow findings of misconduct
or recommendations for discipline.
By the terms of the New York City Charter, the CCRB is an independent agency
responsible for receiving complaints from members of the public against NYPD officers. As the
Charter declares:
It is in the interest of the people of the city of New York and the New York City
police department that the investigation of complaints concerning misconduct by
officers of the department towards members of the public be complete, thorough
and impartial. These inquiries must be conducted fairly and independently, and in
a manner in which the public and the police department have confidence. An
independent civilian complaint review board is hereby established as a body
comprised solely of members of the public with the authority to investigate
allegations of police misconduct as provided in this section.67
The movement to provide independent citizen oversight of police misconduct originated nearly
100 years ago with the creation of a Committee on Constitutional Rights by the Los Angeles Bar
66
Id. at 13–14.
67
N.Y. City Charter, ch. 18-A, § 440(a).
19
Association in 1928.68 The reform movement grew and, today, there are more than one hundred
oversight agencies throughout the United States.
The first version of the CCRB was established in 1953.69 By the CCRB’s own account, it
was originally formed after a coalition of 18 organizations—the Permanent Coordination
Committee on Police and Minority Groups—lobbied to take action against police misconduct,
specifically against racial minorities.70 The NYPD responded by forming its own internal review
board. In its early form, civilians would file complaints against officers at the Department. An
Investigating Board consisting of three Deputy Police Commissioners, assisted by a staff of police
department employees, would respond.71 This format endured for more than eleven years.
Following street protests in Harlem and Bedford-Stuyvesant in the summer of 1964, the
call for a more independent civilian review board became a part of everyday political discourse in
New York City leading into the mayoral election campaign of 1965. Candidate John Lindsay
supported reform, promising that “he would seek a board dominated by civilians appointed by the
Mayor.” During the campaign, as later recounted by Justice Francis Murphy, Jr., in an opinion
reviewing challenges to the Board’s powers, “[t]he effectiveness of the civilian complaint
procedure . . . [became] the subject of numerous studies by Bar associations, vigorous editorials in
newspapers, feature articles in periodicals, critical examinations in legal journals, lengthy
discussions on radio and television, as well as street corner debate.”72
Justice Murphy provides a useful summary of the opposing positions as follows:
The arguments espoused by those who favor at least partial non-police participation
on a Review Board are, in brief: that various groups, most particularly minority
groups, distrust a police-oriented board, on the ground that its members will be
inner directed and overly protective towards their cohorts— “the me[n] on the
beat”; that it should be emphasized, once and for all, that the police are the servants
of the people; that policemen who properly perform their duties have nothing to
fear; that unfounded charges against the police would be exposed; and that a
civilian controlled review board will serve to lessen strained community relations.
On the other hand, various individuals and groups, led by law enforcement officials,
argue that membership on review boards should be limited to Police Department
personnel for the following reasons; police morale will be adversely affected if the
board is composed of civilians; a degree of expertise and familiarity with police
68
See Samuel Walker, Police Accountability: The Role of Citizen Oversight (2001) see Wadsworth Professionalism
in Policing Series available at https://www.amazon.com/Police-Accountability-Oversight-WadsworthProfessionalism/dp/0534581587?ie=UTF8&s=books&qid=1277046556&sr=1-1.
69
CCRB, History, available at https://www1.nyc.gov/site/ccrb/about/history.page (last visited Apr. 13, 2022)
[hereinafter CCRB History].
70
Id.
71
CCRB, New York City Civilian Complaint Review Board Status Report January – December 2001 5–6 (May 2002),
available at http://www nyc.gov/html/ccrb/downloads/pdf/ccrbann2001.pdf [hereinafter 2001 Status Report].
72
Cassese v. Lindsay, 272 N.Y.S.2d 324, 327 (Sup. Ct. N.Y. Cnty. 1966) (Murphy, Jr., J).
20
problems is required of those serving on a review board; the existence of a board
dominated by civilians may deter an officer from exercising the necessary and
proper authority at a critical moment for fear that his actions may not only be
subject to criticism, but that he may be exposed to unwarranted civilian complaints;
and, because the Police Department is a para-military organization, discipline
should remain entirely within the domain of Police Department personnel.73
Once elected, Mayor John Lindsay appointed former federal judge Lawrence Walsh to
investigate the operations of the police department generally.74 In his final report, Judge Walsh
advocated for civil representation on the Board “in order to instill public confidence that
investigations of civilian complaints would be handled fairly.”75 And following the report, Mayor
Lindsay formed a search committee, chaired by former U.S. Attorney General Herbert Brownell,
to find civilians to serve on the Board.76
In May 1966, Police Commissioner Howard R. Leary, by administrative order,77
established a seven-person review board, which included four civilians recommended by the
Mayor to the Police Commissioner and three members of the Department named directly by the
Police Commissioner. However, this effort met with strong opposition from police unions.78
Declaratory judgment and a permanent injunction were sought barring implementation of the
Order on the ground that only employees of the Department could investigate civilian complaints,
citing the New York City Charter79 and New York State Unconsolidated Law.80 The union petition
was dismissed on the grounds that the administrative order had been promulgated by the Police
Commissioner himself, who retained ultimate disciplinary decision-making power and, therefore,
the review board was merely advisory to the Police Commissioner.81
When the court challenge failed, the unions successfully petitioned to amend the City
Charter by a public initiative,82 which was approved in November 1966. The approved amendment
73
Id. at 327–28.
74
CCRB History, supra note 66.
75
Id.
76
Id.
77
NYPD, General Order 14 (May 17, 1966).
78
See Cassese, 272 N.Y.S.2d at 328.
79
N.Y. City Charter § 434(b).
80
McKinney’s Unconsol. Laws of N.Y. ch. 834, § 891 (1940).
81
Cassese, 272 N.Y.S.2d at 334–36.
82
This public initiative is occasionally—and incorrectly—cited as a “referendum.” See Caruso v. City of New York,
517 N.Y.S.2d 897, 898 n.1 (Sup. Ct. N.Y. Cnty. 1987) (explaining the distinction), aff’d 143 A.D.2d 601 (1st Dep’t
1988), aff’d 74 N.Y.2d 854 (1989).
21
added a new Section 440 to Chapter 18 of the New York City Charter that required all members
of the Review Board be employees of the Department and explicitly barred civilian oversight.83
Twenty years later, in 1986, the New York City Council amended the Charter by Local
Law to, once again, permit a “mixed board” structure with private citizens serving alongside nonuniformed police officers.84 The CCRB was increased to twelve members—with the Mayor and
City Council appointing six private citizens (one from each borough and one at large) and the
Police Commissioner appointing the other six members. At this point, the Board remained a unit
housed within the NYPD.85 The Department supported the Board by assigning personnel to a
Civilian Complaint Investigative Bureau (“CCIB”). By 1991, sixty-one investigators, employed
by NYPD, conducted most of the investigations—twenty-eight of whom were civilians and thirtythree of whom were uniformed members.86 The Board’s jurisdiction was limited, at that time, to
Force, Abuse of Authority, Discourtesy and Offensive Language (FADO) issues. 87
The 1986 amendment came by way of a City Council sponsored local law. The power of
the City Council to amend a provision of the Charter (section 440) that had previously been
approved by initiative, was unsuccessfully challenged by the Police Benevolent Association of the
City of New York (PBA).88
In 1993, once again after extensive debate and public comment,89 Mayor David Dinkins
and the City Council amended the City Charter to create an independent police oversight agency
83
Local Law No. 40 (1966) (“[C]ivilian complaints against members of the police department of the city of New York
shall be investigated and dealt with fully and fairly by the appropriate official regularly charged with the governance
and discipline of the police department without interference by any person or group of persons not regularly in police
service. . . . Neither the mayor, the commissioner, nor any other administrator or officer of the city of New York shall
have power to authorize any person, agency, board or group to receive, to investigate, to hear, or to require or
recommend action upon, civil complaints against members of the police department as provided in this section.”).
84
Local Law No. 13-A (1986) (amending Chapter 18, Section 440 of the N.Y. City Charter).
85
Id.
86
Report of the Legal Division of the NYC Council to Intro. No. 549 of 1992, p.4.
87
As noted above, FADO is an acronym for Force, Abuse of Authority, Discourtesy and Offensive Language. CCRB
jurisdiction, until 2020, was limited by N.Y. City Charter § 440(c)(1) to civilian complaints that fell into these four
categories. In 2020, the Charter was amended to permit investigation by CCRB of false statements made by officers
in the course of a CCRB investigation. Beginning in 2022 CCRB is further directed to investigate racial profiling
complaints, a form of Abuse of Authority of which CCRB had abnegated responsibility to investigate in the past.
“FADO,” as a result of expanded authority to investigate untruthful statements, may be found listed as “FADOU” or
“FADO-U” in later CCRB reports. Throughout this Report, for convenience, the term FADO will be used to include
FADOU allegations arising after 2022.
88
See Caruso v. New York, 136 Misc. 2d 892, 893 n.1 (distinguishing local law amendments from initiatives and
referenda).
89
Six NYPD officers were arrested in Suffolk County in 1992 for selling cocaine. “New York City Officers Charged
with Running L.I. Cocaine Ring,” NY Times (May 8, 1992), p.1. Mayor David Dinkins, shortly thereafter, created
the Mollen Commission and proposed a civilian oversight agency. Union response was a rally with an estimated
10,000 off-duty officers marching on City Hall in protest. McKinley Jr., James C. “Officers Rally and Dinkins is Their
Target,” NY Times (Sept. 17, 1992).
22
with an all-civilian membership.90 As acknowledged last year in the draft plan for reform
submitted to the Governor by New York City, “[a] true CCRB had been an idea for decades before
Mayor David Dinkins made it a reality in 1993. The David Dinkins Plan is the single largest
expansion and strengthening of the CCRB since it was established.”91 The new Board was
authorized to hire and employ civilian investigators to replace the 156 civilian and uniformed
employees of NYPD previously assigned to review civilian complaints.92 These changes were
prompted, in part, by increased public support for civilian oversight of the police, which arose out
of the response by some officers to protesters demonstrating against a 1:00 a.m. curfew in
Tompkins Square Park in 1988.93 According to a CCRB report, video footage at the time “showed
police officers striking people with nightsticks, kicking people who were on the ground, and
covering their shields to hide their identity.” The CCRB’s report on the incident concluded that
“[f]orce was used for its own sake.”94 Among other changes made in 1993, the CCRB’s was
granted the power to issue subpoenas and recommend discipline in cases the Board was able to
substantiate.95
The 1993 version of Section 440, supplemented by a Memorandum of Understanding
(MOU),96 remained in place without substantial modification until 2019. In 2018 the City Council,
by Local Law created a Charter Revision Commission.97 After hearings and public meetings, the
Commission proposed five substantive revisions to Section 440, discussed infra, placed on the
November 3, 2019, ballot. The ballot question was approved, and the Charter amendments are
now law.98
In brief, and as discussed later, the 2019 changes:
Altered the composition of the Board by permitting direct appointment of Members by
the City Council;
Added an appointee of the Public Advocate to the Board
Guaranteed a budget based on the size of the police force; and
Required the Police Commissioner to explain departures from CCRB
recommendations.
90
Local Law No. 1 (1993) (repealing NY City Chapter 18, Section 440 and creating a new Chapter 18-A, Section
440)].
91
NYC Police Reform and Reinvention Collaborative Draft Plan at 14, at 14 (Mar. 5, 2021).
92
Report of the Committee on Public Safety, New York City Legislative Annual, Dec. 17, 1992. The Police
Commissioner was to assign NYPD personnel to assist the CCRB. This NYPD assistance would come from the
Civilian Complaint Investigative Bureau, which assigned 129 investigators to the CCRB.
93
See CCRB History, supra note 3.
94
Id.
95
Id.
96
See Memorandum of Understanding Between the Civilian Complaint Review Board (CCRB) and the Police
Department (NYPD) of the City of New York Concerning the Processing of Substantiated Complaints, April 2, 2012,
available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/about_pdf/apu_mou.pdf.
97
Local Law No. 91 (2018).
98
Local Law No. 215 (2019).
23
Authorized investigations by CCRB into false statements made by an officer who is
the subject of a complaint in relation to the Board’s resolution of the complaint.
Proposed, but not included in the Charter proposition drafted by the Commission, was a shift of
final authority over discipline from the Police Commissioner to the CCRB.
Discussed later in this Report were two Charter amendments adopted subsequently by
Local Law rather than initiative or referendum. Section 440 was amended in 2021 to specify that
complaints of bias-based policing and racial profiling fall within CCRB’s abuse of authority
jurisdiction.99 The section was amended again in 2022 to implement a CCRB request to give the
Board the capacity to initiate an investigation prior to the filing of a civilian complaint.100
B.
Statutory Framework
New York State legislation sets broad parameters for law enforcement oversight and
discipline, which is otherwise left to each locality.101 It provides due process protections for police
officers, prescribes a statute of limitations for investigating and disciplining police misconduct,
and regulates the types of records and information that can be disclosed during and after an
investigation.
i.
Unconsolidated Law § 891, CSL § 75 and NYC Admin. Code § 14-115
New York State’s Unconsolidated Law § 891, enacted in 1940, provides generic due
process protections for police officers throughout the State.102 The law states that a police officer
cannot be removed from his or her position “except for incompetency or misconduct,” which must
be demonstrated by a hearing, upon due notice and charges.103 Any hearing against an officer
pursuant to this law is to be “held by the officer or body having the power to remove the person
charged with incompetency or misconduct” or, in the alternative, “by a deputy or other employee
of such officer or body designated in writing.”104 Police officers have a right to be represented by
counsel and may seek judicial review, in accordance with Article 78 of the Civil Practice Law and
Rules of any disciplinary action imposed.105
Civil Service Law § 75, enacted in 1958,106 also establishes baseline procedural rules for
disciplinary action, but it differs from § 891 in several important respects. For one, it attaches due
process requirements before imposition of “any disciplinary penalty provided in . . . section [75],”
99
Local Law No. 47 (2021).
100
Local Law No. 24 (2022).
101
A recent reform creates an oversight unit within the Attorney General’s Office as well. See N.Y. Exec. Law § 75
(2020).
102
McKinney’s Unconsol. Laws of N.Y. ch. 834, § 891 (1940).
103
Id.
104
Id.
105
Id.
106
L 1958, ch. 790.
24
not just termination.107 Disciplinary penalties specified in that section are: reprimand, a fine not to
exceed one hundred dollars (deducted from wages), suspension without pay, demotion in grade or
title, or dismissal.108
Under Civil Service Law § 75, any “potential subject of disciplinary action” has a right to
union representation, which may include counsel.109 The subject must receive advance notice in
writing and be afforded a reasonable period of time to obtain representation. The subject must be
furnished a copy of the charges preferred and allotted at least eight days before being required to
answer. A hearing must be held “by the officer or body having the power to remove the person
against whom such charges are preferred, or by a deputy or other person designated by such officer
or body in writing for that purpose.”110 At the hearing, the subject, with counsel or union
representative, has the right to summon witnesses. The burden of proof is upon the entity alleging
misconduct. Technical rules of evidence need not be followed; the case may rest on hearsay. At
the conclusion of the hearing, the recommendations of the hearing officer are referred to the Police
Commissioner for review and decision. These rights must be afforded whenever the officer faces
one of the listed disciplinary actions.
In 1990, subdivision 3-a was added to Section 75, delegating broader powers to the Police
Commissioner with respect to punishment, but not procedure. The amendment, applicable only to
NYPD, authorizes the Police Commissioner to punish an officer guilty of charges “pursuant to the
provisions of section 14-115 . . . of the administrative code of the city of New York.”111
New York City Admin. Code § 14-115(a)112 assigns the Police Commissioner:
[The] power, in his or her discretion, on conviction by the commissioner . . . of a
member of the force of any . . . neglect of duty, violation of rules, or neglect or
disobedience of orders . . . or immoral conduct or conduct unbecoming an officer,
or any breach of discipline, to punish the offending party by reprimand, forfeiting
and withholding pay for a specified time, suspension, without pay during such
suspension, or by dismissal from the force[.]
It further provides that officers,
[S]hall be fined, reprimanded, removed, suspended or dismissed from the force
only on written charges made or preferred against them, after such charges have
been examined, heard and investigated by the commissioner or one of his or her
deputies upon such reasonable notice to the member or members charged, and in
107
N.Y. Civ. Serv. Law § 75(1) (emphasis added).
108
Id. § 75(3).
109
Id. § 75(2).
110
Id.§ 75(2).
111
L. 1990, ch. 753.
112
LL 907/1985.
25
such manner or procedure, practice, examination and investigation as such
commissioner may, by rules and regulations, from time to time prescribe.113
While the three statutes overlap to some extent, there are inconsistencies in language
(discussed later) which, from time to time, raise issues regarding procedure and scope of coverage.
The three statutes do not use precisely the same language in defining the range of disciplinary
action permitted and to whom the procedural protections are afforded.114
(1)
NY City Charter § 434 and the Taylor Law - Collective
Bargaining
NY City Charter § 434 (a) provides that the Police “[C]ommissioner shall have cognizance
and control of the government, administration, disposition and discipline of the department, and
of the police force of the department.” The Administrative Code says that the Police
Commissioner “shall have the power, in his or her discretion . . . to punish [an] offending party.”115
An issue arises whether that power can or should be the subject of collective bargaining with the
police unions.116 The “Taylor Law”117 requires public employers to negotiate with certified
employee organizations over, inter alia, “the terms and conditions of employment of the public
employees.”118 Throughout recent years, some or all of the collective bargaining agreements
between the City and one or more unions have expired only to be revived after prolonged
negotiations. In the interim, the “Triborough Amendment” requires the employer to honor the
expired agreement until a new agreement is negotiated.119
In 2003, an expired collective bargaining agreement with the PBA120 had contained
provisions: (1) requiring expungement of some disciplinary records; (2) prescribing certain rights
regarding the timing of charges and trials and reimbursement of pay under certain conditions; (3)
setting guidelines for interrogations of subject members; (4) granting a delay for consultation with
a lawyer before questioning; and (5) providing for independent hearings.121
113
Admin. Code § 14-115(b).
114
See, e.g., discussion infra regarding demotion and multiple penalties.
115
NYC Admin. Code § 14-115(a).
116
Herein, reference to “unions” generally means collectively: Police Benevolent Association of the City of New
York, Inc.; Sergeants Benevolent Association; Lieutenants Benevolent Association; Captains Endowment
Association; and Detectives’ Endowment Association.
117
N.Y. Civ. Serv. Law §§ 201, et seq.
118
Id. § 204(2).
119
Id. § 209-a(1)(e). An agreement executed for the 2010-2012 term was revived in 2016 and extended to 2018. That
agreement had expired and continued in effect under the Triborough Amendment.
120
Police Benevolent Association of the City of New York. From 1892 until a name change in 2019 the PBA was
known as the Patrolmen’s Benevolent Association.
121
See Patrolmen’s Benevolent Ass’n of City of N.Y. v. N.Y. State Pub. Emps. Rels. Bs., 6 N.Y.3d 563, 570 (2006).
Ironically, and perhaps inconsistently, in 2003 when the City sought to outsource disciplinary hearings to an
independent agency, the Office of Administrative Hearings and Trials (OATH), the PBA sued successfully to bar
26
During negotiations for renewal of the expired contracts, the City took the position that the
listed provisions were not to be continued since the Police Commissioner’s authority was not
properly a matter subject to mandatory collective bargaining under the Taylor Law. The matter
reached the New York Court of Appeals, which held that the declared legislative policy in the
Charter and the Code “favoring the authority of [the Police Commissioner] over the police” was a
“strong one.”122 Accordingly, “the public interest in preserving official authority over the police
remains powerful. . . . The issue is whether these enactments express a policy so important that the
policy favoring collective bargaining should give way, and we conclude that they do.”123 The
Court of Appeals held that “police discipline may not be a subject of collective bargaining under
the Taylor Law when the Legislature has expressly committed disciplinary authority over a police
department to local officials.”124
The current Agreement, in continued effect by virtue of the Triborough Amendment,
stipulates those grievances “shall not include disciplinary matters.”125 In the same vein, in recent
federal litigation balancing the Department’s statutory Freedom of Information Law (FOIL)
responsibilities with contract obligations, when unions asserted an agreement to bar disclosure of
disciplinary records, the Second Circuit ruled that “the NYPD cannot bargain away its disclosure
obligations” under FOIL.126
There is a discussion, below, of attempts, past and present, to create mechanisms for
adjudication of disciplinary matters by bodies independent of the Police Commissioner, including
the Office of Administrative Trials and Hearings or the CCRB. While this may be done by
amendment of local law, state law, or regulation (in the case of SQF misconduct where termination
is not a consequence of a finding of misconduct), any such effort might require collective
bargaining. The Court of Appeals has made it clear that discipline in New York City is not subject
to collective bargaining due to the continuation of grandfathered laws which pre-dated the Taylor
Law. An amendment of state or local law, not being grandfathered, will open the matter to
bargaining absent a new restriction in state law. Recently, Rochester police organizations have
successfully challenged efforts to create an independent review panel in that city with the power
to control a final decision. The Appellate Division, Fourth Department, setting aside the provision,
held that shifts in disciplinary proceedings, post-Taylor Law, fall within the general provision in
consideration of discipline by a body outside of the Department. Matter of Lynch v. Giuliani (“Giuliani”), 301 A.D.2d
351, 359 (1st Dep’t 2003).
122
Id. at 575–76.
123
Id. at 576. A secondary issue in the case was whether the city provisions had been supplanted by N.Y. Civ. Serv.
Law § 75, but the Court pointed to a grandfathering provision in § 76(4), which preserved the City provisions that had
been derived from earlier state statutes (L 1897, ch. 378; L 1873, ch. 335), thus permitting them to survive.
124
Patrolmen’s Benevolent Ass’n of City of N.Y., 6 N.Y.3d at 570.
125
Patrolmen’s Benevolent Association 2010-2012 Agreement, (CBA), art. XXI, § 1(a)(2), 1 year extension signed
by Patrick Lynch, President PBA and Police Commissioner William Bratton, February 10, 2016.
https://www.nyc.gov/assets/olr/downloads/pdf/collectivebargaining/cbu79-police-patrolmens-benevolentassociation-080106-to-073110.pdf. On April 5, 2023, a new agreement was announced (only the third time in 30
years that an agreement was reached). It was ratified on April 24, 2023. The new contract is retroactive to 2017 and
expires in 2025. The general terms of the predecessor agreement were continued. (Section two, Memorandum of
Understanding Between the City of NY and the PBA.)
126
Uniformed Fire Officers Ass’n v. De Blasio, 846 F. App’x 25, 30 (2d Cir. 2021).
27
that law that “terms and conditions” of employment are subject to collective bargaining. That
decision was affirmed in November 2023 by the Court of Appeals.127
The Collective Bargaining Agreement also creates a “joint subcommittee” tasked with
developing procedures to ensure that “[a]ll disciplinary charges shall be brought in a timely fashion
pursuant to the current departmental regulations . . . [and] Departmental trials shall be held as
promptly as possible, utilizing additional hearing personnel.”128 In response to inquiry about
whether and when the subcommittee currently meets, the Monitor was advised that the First
Deputy Commissioner “oversees the internal disciplinary procedures of all Police Department
Employees” and “[i]n that capacity he meets with union representatives from time to time to
discuss inter-alia issues of the timeliness of the disciplinary process.” The response continues that,
“[t]hese meetings have satisfied the Department’s/City obligation under the contractual
provision.”129
IV.
INVESTIGATING POLICE MISCONDUCT – A PRELIMINARY OVERVIEW
In order to escape the mantle of “deliberate indifference” placed upon it by the Court,
NYPD will need to demonstrate that it is actively identifying, noting, and responding to
unconstitutional stop, question and frisk (SQF) activity and biased policing. That should include
fair-minded investigation of misconduct complaints and discipline when needed. At present, there
are multiple ways in which misconduct is identified and addressed. There is no unitary
systematized method for tracking misconduct or invoking responsive measures. Instead, an
assortment of official bodies, described below, receive complaints and report—invariably by way
of recommendation—to the Police Commissioner who may then be required to respond but is not
required to act as recommended. While various investigations, databases and responses co-exist
and some data may be interchanged, each system is independent of the other. Complete sharing
of information between agencies is not required in any of the authorizing statutes or regulations.
In addition to the CCRB and the Department itself, there are at least four entities, state and
local—internal and external to the Department—which are charged with investigating police
misconduct.130 In some cases, there are jurisdictional overlaps. Some entities are limited to generic
recommendations without suggesting individualized disciplinary responses. Other investigating
entities are authorized to make findings and comment on discipline, which may have consequences
for the Member of Service (MOS) involved if the Police Commissioner concurs. In the end, absent
127
Matter of Rochester Police Locust Club, Inc. v. City of Rochester, 196 A.D.3d 74 (4th Dep’t 2021), aff’d 2023 NY
LEXIS 1901 (Nov. 20, 2023). (Taylor law prohibition on bargaining matters of discipline is only applicable to
grandfathered restrictions, pre-existing enactment of the Taylor law.)
128
CBA, Article XVI, § 9, supra.
129
Letter from Jeff Schlanger, former Deputy Commissioner, Risk Management Bureau to the Monitor Team (Jan.
22, 2021).
130
The New York City Inspector General for the NYPD (OIG-NYPD), the Commission on Human Rights in New
York City (CCHR), the Citizens Commission to Combat Police Corruption (CCPC), and the Law Enforcement
Misconduct Investigative Office (LEMIO) within the New York State Office of the Attorney General. This does not
include the work of prosecutorial agencies pursuing criminal liability.
28
a criminal conviction or civil liability assessed against an officer, the final word on misconduct
and all disciplinary recommendations rests with the Police Commissioner alone.131
The Police Commissioner is appointed by the Mayor and holds office for a term of five
years. The Police Commissioner may be removed from office by either the Mayor or the Governor,
if in the judgment of either, the “public interest shall so require[.]”132 There have been thirteen
different Commissioner terms—and eleven different individual Commissioners—in the last forty
years.133
Not only does the Police Commissioner have complete discretion in deciding upon a
penalty, but it is also the City’s legal posture that “no law mandates how or when [the
Commissioner] must impose discipline.”134 Recommendations for discipline by CCRB may be
adopted or modified by the Police Commissioner, or may result in No Disciplinary Action
(NDA).135 This Report will attempt to walk the reader through the maze of decision-making which
may flow from allegations of misconduct.
Misconduct comes to the attention of the Department in multiple ways. Some complaints
are lodged directly with the Department. The most visible outside entity is the Civilian Complaint
Review Board (CCRB).136 Aside from CCRB, three other municipal agencies receive complaints:
The Commission on Human Rights (CHR); The Commission to Combat Police Corruption
(CCPC),137 and the Office of the Inspector General for the NYPD (OIG-NYPD).138
131
N.Y. City Charter, ch. 18, § 434(a) (“The Commissioner shall have cognizance and control of the government,
administration, disposition and discipline of the department, and of the police force of the department.”) Of course,
various prosecutorial agencies may pursue issues of criminal liability. Their work is outside the scope of this Report.
132
Id. §431(b).
133
Benjamin Ward (1984-1989); Richard Condon (1989-1990); Lee Brown (1990-1992); Raymond Kelly (19921994); William Bratton (1994-1996); Howard Safir (1996-2000); Bernard Kerik (2000-2001); Raymond Kelly (20022013); William Bratton (2014-2016); James P. O’Neil (2016-2019); Dermot Shea (2020-2021); Keechant Sewell
(2022-2023); Edward A. Caban (Present, Commencing July 1, 2023).
134
Respondent’s Reply Memorandum of Law in Further Support of Their Motion to Dismiss the Petition at 5, Carr v.
de Blasio, 101332/2019 (Sup. Ct. N.Y. Cnty. July 10, 2020), NYSCEF No. 13. Petitioners had sought a summary
judicial inquiry, pursuant to NYC Charter § 1109, into the stop and arrest of Eric Garner, claiming a need for
transparency beyond that available under FOIL. The petition did not seek to compel any particular disciplinary
outcome. The Court ruled that, “[a] failure to conduct . . . an investigation” in the case before the Court “would
constitute a neglect of duty.” Carr v. de Blasio, 70 Misc. 3d 737 (Sup.Ct. NY Cty. 2020), aff’d 197 A.D.3d 124 (1st
Dep’t 2021).
135
Of 498 closed cases, in 2016 through 2019, where an allegation of Stop/Frisk/Question misconduct was
substantiated after investigation by CCRB, 39 had a final decision by the Police Commissioner of “NDA.” This does
not include another 26 cases which were “administratively closed” for a variety of reasons. NYPD “Final Federal
Monitor – SQFSTA – 2023 Q1, Q2.”
136
N.Y. City Charter, ch. 18-A, § 440.
137
Exec. Order No. 18 (Feb. 27, 1995) (signed by Mayor Rudolph W. Giuliani).
138
N.Y. City Charter, ch. 34, § 808.
29
Beginning April 1, 2021, a Law Enforcement Misconduct Investigative Office run by a
New York State deputy attorney general is to receive and investigate complaints of corruption,
abuse, excessive force, and fraud, and to make recommendations thereupon.139
Each of the four municipal agencies will be described below. Each agency may review
individual complaints, but they have distinct and circumscribed roles. In the end, CCRB is the
only outside agency that may prosecute and recommend individualized discipline for a particular
officer.
In addition to the four city and state entities, the Department learns of officer misconduct
through:
Civilian complaints to the Department, processed within NYPD through the Internal
Affairs Bureau (IAB), and reviewed by the Office of the Chief of Department (OCD),
and/or the Department Advocate’s Office (DAO);140
Force Investigations by the Force Investigation Division (FID) of force incidents
usually triggered by a Threat, Resistance, Injury Report (TRI), which members are
required to file;141
Reports by fellow police officers to the appropriate local command or IAB;142
Observation, monitoring, and corrective action by supervisors within a squad, precinct,
or command, which may or may not result in “Command Discipline.”143
Audits within the NYPD through the Department’s Quality Assurance Division
(QAD), such as stop report audits, RAND audits,144 and Police-Initiated Enforcement
(PIE) audits;145
Lawsuits brought in federal or state court;
139
L 2020, ch. 104. In one of her first public actions, the Attorney General issued a “Preliminary Report on the New
York City Police Department’s Response to Demonstrations Following the Death of George Floyd” in which it found
a pattern or practice of excessive force and false arrests by officers. See New York State Office of the Attorney
General, Preliminary Report on the New York City Police Department’s Response to Demonstrations Following the
Death of George Floyd (July 2020), available at https://ag.ny.gov/sites/default/files/2020-nypd-report.pdf.
140
Patrol Guide §§ 207-30, 31.
141
Patrol Guide § 221.-03.
142
Patrol Guide § 207-21 (“All members of the service have an absolute duty to report any corruption or other
misconduct, or allegation of corruption or other misconduct, of which they become aware.”)
143
See generally Patrol Guide § 202, et seq.
144
RAND audits are reviews of radio dispatches (ICADS – “Improved Computer Aided Dispatch System”), following
an encounter, screened for use of certain key words (“stopped” “holding” “under” “warrant check,” etc.), to ascertain
if a Terry Stop has occurred and has been properly reported.
145
PIE audits are reviews by Departmental auditors of the paperwork when a self-initiated enforcement action (i.e.,
not in response to a call or directive) has resulted in an arrest. Under an Audit Plan approved by the Court, see Memo
Endorsement, Floyd, 959 F. Supp. 2d 540 (No. 08-cv-1034), ECF No. 791, there will be a review of one encounter
(where an arrest occurred) per week in each of 133 commands, yielding a total of 6916 encounters reviewed. In
addition, RAND and QAD reviews will yield data on roughly 7,980 additional encounters. Integrity Control Officers
within each precinct review the audit response for corrective action.
30
Claims filed and settled with the City Comptroller prior to commencement of a
lawsuit;146
Alerts by court decisions or by prosecutors’ advice when illegal activity or testimony
thought not to be credible triggers an adverse credibility referral to the Department.
Although lawsuits and civil claims may expose misconduct, court judgments and
settlements—even where personal liability is assessed—do not necessarily lead to disciplinary
proceedings against an officer. If the claimant does not file a complaint with IAB or CCRB, it
would be unusual for a disciplinary investigation to be commenced solely on account of a civil
claim—even one with merit. To the contrary, pending court proceedings will sometimes cause a
halt to an ongoing disciplinary investigation. As will be demonstrated later in this Report, where
the history of complaints against a sample of officers is catalogued, it is not uncommon for officers
to have legal proceedings pending in court for one set of misconduct claims, while other unrelated
allegations of misconduct against the officer are simultaneously being investigated at CCRB or
IAB. The extent to which the Law Department (handling litigation) and DAO (handling
disciplinary proceedings) interact, harmonize, or seek to consolidate multiple complaints or
lawsuits is unknown. Case histories tend to indicate that pending litigation can result in a
settlement or administrative closure of parallel disciplinary proceedings. Failure to pursue
misconduct by internal or CCRB investigation tends to inure to the benefit of an officer facing a
lawsuit, since a misconduct finding might otherwise jeopardize the officer’s right to
indemnification or representation by the City and, as well, might imperil a defense of qualified
immunity asserted by the City.
Overall, there are three principal tranches by which disciplinary proceedings may be
commenced and Departmental discipline imposed:
(1) CCRB may substantiate a civilian complaint and recommend formal or informal
discipline to the Police Commissioner by way of referral through DAO or by
prosecution before a Deputy Commissioner for Trials (“DCT”);
(2) Departmental investigative entities (IAB, BIU, FID, or OCD) may investigate and
recommend formal or informal discipline to DAO or to a Commanding Officer;
(3) Local Commanding Officers or Executive Officers (“XO”s) may pursue matters
within their command based upon recommendation of an Integrity Control Officer
(“ICO”), a supervising officer, or an audit.
Not all misconduct involving public interaction is subject to investigation by CCRB. The
Board has a limited and circumscribed role in addressing misconduct. For one, prior to 2022,
146
N.Y. City Charter, ch. 5, § 93(i). In FY 2019 there were 5,848 tort claims against NYPD, which include civil rights
violations. Tort claims settled at the pre-litigation stage for $220.1 million. There were 2,315 “police action” claims
settled in court for $95.2 million. Police action claims result from alleged improper police action, such as false arrest
or imprisonment, excessive force or assault, or failure to provide police protection. Separately, civil rights claims for
wrongful convictions, which may or may not include police misconduct, settled for $30.9 million. Office of the New
York City Comptroller, Claims Report: Fiscal Year 2019 (June 2020), available at https://comptroller.nyc.gov/wpcontent/uploads/documents/Claims-Report-FY-2019.pdf. In FY 2022 the “payout” for cases commenced in state and
federal court against NYPD rose to $208,702,000. Mayor’s Management Report, FY 2022, at 61.
31
CCRB needed a civilian complaint.147 Without a civilian complaint, wrongful police action falling
within the CCRB’s jurisdiction (Force, Abuse of Authority, Discourtesy and Offensive Language
– FADO), including an illegal stop or frisk, would go unexamined unless the Department or CCRB
investigated the FADO violation on their own initiative without a complaint. Use of Force is
tracked and assessed independently by NYPD and discipline may follow without a civilian
complaint. Stops are audited, but disciplinary proceedings, or even investigations, for stop and
frisk misbehavior absent a civilian complainant are very rare.
CCRB has subject matter jurisdictional limitations and personal jurisdictional limitations
which are discussed in more detail later. These limitations often result in separate investigations
for the same encounter, with CCRB looking at one aspect of a complaint (e.g., a FADO allegation),
while the Department will weigh another. A common example of CCRB’s jurisdictional
limitation, for purposes of this Report, is the dichotomy between complaints regarding stop and
frisk misbehavior, which CCRB does investigate, and an officer’s failure to file a stop report for
the encounter, failure to activate a body worn camera,148 or a wrongful traffic stop, all of which
may be outside CCRB’s jurisdiction.
This Report will address NYPD investigations before examining the more limited role
CCRB may play when it receives a citizen complaint. But before walking through the advantages
and disadvantages of each tranche as a mechanism for identifying SQF misconduct and invoking
discipline, an explanation of what is meant by “misconduct” and “discipline,” along with a brief
description of the difference between “formal discipline” and “informal discipline,” is in order.
A.
What is “Misconduct”?
The term “misconduct” covers a broad range of prohibited behavior. Officers may act
inappropriately in dealing with the public, be it through direct violation of Floyd’s mandate or in
other ways including corruption, discourtesy, wrongful use of force, improper or retaliatory arrests,
offensive language (slurs), improper search or seizure of a vehicle, property, or premises, false
testimony, sexual harassment, theft, interference with recordings, destruction of recordings—to
name a few. But not all allegations of misconduct derive from interactions with the public. A vast
number of investigations are for lack of compliance with NYPD rules, relating to missed
assignments, wrongful use of Departmental property, improper dress, failure to complete
necessary reports, and the like. Additionally, officers commonly face discipline for off-duty
personal misbehavior involving, for example, driving while impaired, drug or alcohol abuse, and
domestic disputes.
In the end, the contours of what can be pursued as misconduct are not outlined with
precision but are shaped by reference to a North Star—the Department Manual which includes the
147
The Charter was amended, effective January 20, 2022, to permit initiation of investigations by the Board. NYC
Charter § 440, LL 24/2022. Unfortunately, this is confined to some extent because, on June 8, 2023, CCRB and
NYPD included a clause in a “Data Sharing Agreement” which limits pursuit of a bias-based or racial profiling
investigation, “If the Complainant is uncooperative or otherwise does not wish to pursue the allegation, the CCRB
will not make a request for Data. . . .” Article II, para. B.
148
CCRB proposed an amendment to its Rules permitting review of improper use of body worn cameras. (Proposed
38-A § 1-01 at https://rules.cityofnewyork.us/wp-content/uploads/2022/06/CCRB-Rules-FINAL-5-31-22-withCertifications.pdf.) The amendment was adopted, effective Oct. 22, 2022.
32
Patrol Guide and the Administrative Guide.149 These Guides generally spell out the rules officers
must follow.150 The rules contained in the Guides are not drafted externally; they are written and
amended by the Police Commissioner at the Commissioner’s sole discretion.151
The origins of the Patrol Guide lay in “Rules and Regulations for Constables” adopted by
Mayor De Witt Clinton in 1812, some thirty-three years before the NYPD as we know it was
formed. But it was not until January 2017 that the Patrol Guide was readily available to the public.
NYC Admin. Code § 14-164 required, for the first time, that the Guide be published on the
Department’s website.152 The Patrol Guide is constantly evolving. Section 14-164 requires
monthly updates to be posted for public access as well.
Commencing June 2021, the Police Commissioner moved large sections of the Patrol
Guide (all of Sections 203 and 204 dealing with common misconduct issues) from the Patrol Guide
to a separate document known as the Administrative Guide.153 Thus far, transfer from the Patrol
Guide to the Administrative Guide has not resulted in many substantive changes.154 However,
unlike the Patrol Guide, the entirety of the Administrative Guide need not be made public and is
not required by local law to be published. On August 4, 2021, portions, but not all, of the
149
The Court has ordered or approved a few provisions pertaining to the issues in Floyd. Any such changes would
require Court approval prior to amendment or revision. Salient provisions of the Patrol Guide were stripped and
moved to the NYPD Administrative Guide in July 2021. The Patrol Guide and the Administrative Guide, together,
are now denominated the “Department Manual.” Misconduct allegations, in NYPD’s Disciplinary Guidelines refers
to violations of the Department Manual. The Manual may be found at https://www1 nyc.gov/site/nypd/about/aboutnypd/manual.page. Misconduct also includes criminal conduct, such as violations of NYS Penal Law, an analogous
statute of another state, or federal law. NYPD “Disciplinary System Penalty Guidelines” n.36, at 18. Depending upon
the salient date, this Report will occasionally cite a Patrol Guide section which was subsequently moved to the
Administrative Guide. For convenience, a conversion table is appended to this Report, correlating old sections with
new sections.
150
See NYPD Disciplinary System Penalty Guidelines, at 45: “Department rules and regulations are codified in the
Patrol Guide, Administrative Guide, Detective Guide, DAS Bulletins, Finest Messages, Reference Guides and other
publications available to members on the Department’s electronic portal under the “Directives & Manuals” section.”
(citing https://portal nypd.org/pages/DirectivesAndManuals.aspx). Unfortunately, other than the Patrol Guide and
some sections of the Administrative Guide, these are not publicly available, making it difficult to know whether some
rules or regulations have been violated and, if so, how.
151
As an example, a recent notable re-write by the Police Commissioner is in the definition of “Making False
Statements,” Patrol Guide § 203-08. (Now Admin. Guide § 304-10.) The Department had, for decades, promised to
punish intentionally false official statements with presumptive termination, which, in practice, rarely occurred. After
years of criticism by the Commission to Combat Police Corruption for lack of enforcement and in the Department’s
handling of false statement allegations, Section 440(3) of the City Charter was amended, over objection by the
Department, to permit some false statement investigations by CCRB. On the day that the amendment took effect,
March 31, 2020, the Patrol Guide was amended, allowing the Police Commissioner greater flexibility in disciplining
findings of false or misleading statements by codifying exceptions to a finding of a false official statement. It will be
worth watching to see how closely CCRB follows the Police Commissioner’s formulation.
152
Local Law No. 129 (2016), effective Jan. 29, 2017.
153
A spreadsheet documenting the re-numbering or re-naming of sections is appended to this Report.
154
The prohibition on Biased-Based Policing has added new sections in conformance with Federal Law, discussed
later. Also, Patrol Guide § 203-10(7) previously placed an outright ban on “[s]oliciting, collecting, or receiving money
for any political fund, club, association, society, or committee.” With the move to the Administrative Guide, such
political activity is acceptable if “approved by Internal Affairs Bureau.” Admin. Guide § 304-06(16).
33
Administrative Guide were posted online.155 Whether the shift will have impact on public access
or ease of amendment remains to be seen. The change was made without advance public notice
and the rationale for the shift has not been publicly explained. A concern would be if it becomes
more difficult for complainants to identify, or for CCRB to allege, misconduct with specificity.
Will it be more difficult, after findings are made, for reviewers to understand or to account for
cases which are unfounded or exonerated?156 Included in the removed sections are regulations
prohibiting an array of public-contact misconduct, from bias-based policing and making false
statements, to refusals to identify oneself or to comply with the Right to Know Act.157
The move to the Administrative Guide followed shortly after the Department and the City
were required, by Executive Order, to submit a plan going forward for improvement of police
practices following the murder of George Floyd.158 A draft plan was prepared March 5, 2021 and,
with some modifications adopted by the City Council on March 25, 2021.159 The Draft Plan
promised that NYPD and CCRB would “[e]stablish the Patrol Guide Review Committee,” which
would “allow for reform by identifying policies and practices outlined in the Patrol Guide that
need to be changed.”160 This, if adopted, would have accomplished three reforms: (1) it would
constrain the Police Commissioner’s unilateral power to define misconduct; (2) it would lend
transparency and community involvement to the portions of the Guide; and (3) it would
synchronize definitions employed by CCRB and NYPD. The final plan adopted 20 days later,
omitted the recommendation. Nonetheless, moving large sections of the Patrol Guide to the
Administrative Guide insulates, for now, the Police Commissioner’s exclusive authority to define
misconduct from the City Council proposal.
CCRB generally abides by, and applies, the Commissioner’s definitions in the Patrol Guide
and Administrative Guide (referred to collectively as the “Department Manual”) when drawing
charges and specifying allegations of misconduct. However, CCRB is not necessarily confined to
the express elements of an offense as written in the Manual.161 CCRB can, by regulation, if
necessary, adjust its own finding as to what constitutes a FADO violation. This is especially true
155
NYPD, Department Manual, available at https://www1.nyc.gov/site/nypd/about/about-nypd/manual.page.
156
One prominent example is the omission of Admin. Guide § 322-11, referenced later in this report. While that
section defines disciplinary outcomes, it is not publicly available.
157
See, e.g., Local Law No. 54 (2018) (adding NYC Admin. Code § 14-174 (“Identification of police officers”)) and
Local Law No. 56 (2018) (adding NYC Admin. Code § 14-173 (“Guidance regarding consent searches”)).
158
Exec. Order No. 203 (June 12, 2020). The emergency executive order, issued during the COVID pandemic, was
discontinued by the Legislature in April 2021.
159
See NYC Police Reform and Reinvention Collaborative Draft Plan (Mar. 5, 2021), available at
https://www1.nyc.gov/assets/home/downloads/pdf/reports/2021/Final-Policing-Report.pdf, adopted by the N.Y. City
Council, Intro. Res. 1584/2021 (Mar. 25. 2021).
160
Id. at 15.
161
Tension between CCRB’s finding that a FADO violation has occurred and the Police Commissioner’s decision on
whether a Patrol Guide violation will be acknowledged, can, and does, arise. The contours of misconduct in the areas
of false testimony, sexual harassment, and racial profiling—all discussed later—are particular areas of potential
disagreement.
34
in the definition of “Abuse of Authority,” which is malleable.162 There is a lengthier discussion of
the scope of Abuse findings later in this Report.
Neither “Discourtesy” nor “Offensive Language” are sharply defined in the Patrol Guide
or the Administrative Guide. Findings by CCRB of Discourtesy will usually refer either to Patrol
Guide § 200-02, which states that one of the “Values” of the Department is to “render [their]
services with courtesy and civility” or Patrol Guide § 203-09 (now Admin. Guide § 304-11), which
states that a “Purpose” of the section is to “ensure uniformed members of the service interact with
members of the public in a professional manner.” “Offensive Language” (commonly referred to
as a “Slur”) is captured by a general prohibition against “[u]sing discourteous or disrespectful
remarks regarding another person’s age, ethnicity, race, religion, gender, gender
identity/expression, sexual orientation, or disability” in the Administrative Guide.163 CCRB is left
with a range of discretion in finding discourtesy or offensive language violations. There is no
guarantee, however, that the Police Commissioner will agree with the findings. In the end,
notwithstanding a finding by CCRB, the Police Commissioner decides whether to discipline a
member for a remark that CCRB deemed offensive, or a gesture found by CCRB to be
discourteous. The Police Commissioner may simply disagree with the finding and then deny
imposition of discipline.164
There is considerable flexibility for the Police Commissioner to find misconduct in the
interstices of the Patrol Guide. Patrol Guide § 203-10 (5)165 prohibits “[e]ngaging in conduct
prejudicial to good order, efficiency or discipline of the Department.” This open-ended canon is
often used in conjunction with, or as an alternative to, other well-defined rule violations when the
evidence may not clearly prove a violation of the better-defined rule.166 In the words of the
Department, “[t]his is a catch-all. A lot of conduct is considered prejudicial to the good order and
162
See, e.g., Lynch v. NYC Civilian Complaint Rev. Bd., 206 A.D.3d 558 (1st Dep’t 2022) (allowing the Board to add
sexual harassment as misconduct under abuse of authority); DiGiacomo v. NYC Civilian Complaint Rev. Bd., 214
A.D.3d 531, 532 (1st Dep’t 2023) (“CCRB had a rational basis for defining abuse of authority to include NYPD
members’ ‘refusals to provide identifying information. . .’”).
163
Admin Guide § 304-06(2), formerly Patrol Guide § 203-10. When the provision was moved from the Patrol Guide
to the Administrative Guide, “age” was added. Neither Guide speaks to gestures, but gestures can form the basis of a
finding by CCRB.
164
In a recently filed Departure Letter, the Police Commissioner disagreed with a CCRB finding that a “sexually
suggestive remark [should] be penalized as an offensive language statement” in a case where an officer, standing
“mere inches” from the complainant, stated, “Do you want to kiss me?” The Police Commissioner decided that the
officer did not intend to make any reference to the individual’s sexual orientation when he made the statement.” The
findings were reduced to discourtesy, citing a Board recommendation “that the penalty itself should be mitigated due
to the novelty and complexity of the policy regarding offensive language statements.” Police Commissioner’s Penalty
Departure, Detective
, August 25, 2022. https://www.nyc.gov/assets/ccrb/downloads/pdf/complaints/c
omplaint-outcomes/redacted-departure-letters/
_RedactedDepartureLetter.pdf.
165
Now Admin. Guide § 304-06(1).
166
See Commission to Combat Police Corruption, Sixteenth Annual Report of the Commission at 86 (Oct. 2014),
available at https://www1 nyc.gov/assets/ccpc/downloads/pdf/Sixteen-Annual.pdf. (“The ‘conduct prejudicial’
section is often used when misconduct falls short of ‘making false official statements’ as defined” in the Patrol Guide.)
35
efficiency of the Department. Some of this conduct is corruption, other is misconduct, and other
is administrative violation.”167
B.
Describing Findings
Whether conducted internally at NYPD or independently at CCRB, investigations can
conclude with a finding for each allegation. After a finding, penalty recommendations by CCRB
are made for each substantiated allegation while NYPD has assessed one penalty for an entire
case.168 An “allegation” is one distinct violation of a provision of the Patrol Guide or
Administrative Guide for one act of improper conduct by one officer. Often, there are multiple
allegations within a complaint against an officer. A “complaint” usually includes all the
allegations arising from one encounter and investigated by one entity. (One encounter may result
in two complaints being pursued separately in CCRB and in NYPD for jurisdictional reasons.)
Within one entity with jurisdiction (CCRB or NYPD), if there are multiple complainants (victims,
witnesses, or supervisors) arising from one encounter or incident, the allegations are usually kept
together in one complaint. A “case” refers to the investigation and disposition of one individual
officer’s conduct within a complaint. There will be several “cases” within a complaint when there
are multiple officers charged in connection with one incident.
Generally speaking, findings are denominated by NYPD as either: Substantiated,
Unsubstantiated, Unfounded, or Exonerated.
In 2022, CCRB proposed to replace
“Unsubstantiated” with “Unable to Determine” and to replace “Exonerated” with “Within
guidelines.” The new terminology for CCRB case dispositions took effect October 22, 2022.169
There are supplemental outcomes under both CCRB Rules and NYPD guidelines beyond these
categories.
There are slight variations in the formulations used for each of the principal dispositions,
which can lead to confusion as to the significance of a particular finding. The definitions and the
differences in nomenclature often require a judgment call that is not easy to make. Differences in
the definition of “unsubstantiated,” “exonerated,” or “unfounded,” while subtle, will have
consequences in how they are noted and kept in personnel files, whether sealing or expungement
will follow, and in the available files for consideration in investigations that may arise anew at a
later time.170
167
Risk Management Bureau, Federal Monitor Team Request Form (Apr. 16, 2020), on file with the Monitor Team.
168
With the adoption of a “grid” or “matrix,” NYPD has begun to assign a penalty for each substantiated allegation,
but "[i]f the same underlying act(s) of misconduct support multiple definitions of proscribed conduct or support
alternative theories of prosecution, then a single penalty will be applied." NYPD, Disciplinary System Penalty
Guidelines at 12 (Jan. 15, 2021). Penalties for a given case may be the aggregated sum of penalties for individual
allegations. “Both the NYPD and CCRB determine a finding for each allegation and penalties are based on the totality
of substantiated allegations.” City 09.01.23 Feedback to Yates Discipline Report, Item 30.
169
The dispositions analyzed in this Report occurred prior to October 22, 2022. Accordingly, earlier terminology is
used throughout the discussion of those dispositions.
170
Police Benevolent Association of the City of New York (‘PBA”), Sergeants Benevolent Association (“SBA”),
Lieutenants Benevolent Association (“LBA”) Collective Bargaining Agreements (“CBAs”), art. XVL, § 7(c) requires
removal of unfounded and exonerated findings in the Central Personnel Index (CPI), but not of unsubstantiated
36
CCRB Rules, prior to October 22, 2022, provided for nineteen different possible
dispositions,171 the majority of which explain the outcome of an investigation that may have been
side-tracked before completion—Complainant Unavailable, Complainant Uncooperative, and
Officer Unidentified are a few examples. As to the principal findings after a completed
investigation, the CCRB Rules172 gave the following definitions:
Substantiated: There was a preponderance of evidence that the acts alleged occurred
and constituted misconduct.
Unsubstantiated: There was insufficient evidence to establish whether or not there
was an act of misconduct.
Unfounded: There was a preponderance of the evidence that the acts alleged did not
occur.
Exonerated: There was a preponderance of the evidence that the acts alleged occurred
but did not constitute misconduct.
Other Misconduct Noted (OMN): Evidence of misconduct is indicated, but the
allegation falls outside of CCRB’s FADO jurisdiction and is being referred to NYPD
for investigation or disposition.
Until recently on its website,173 CCRB described the outcomes slightly differently, as:
Substantiated: means there is sufficient credible evidence to believe that the subject
officer committed the alleged act without legal justification.
Unsubstantiated: means the available evidence is insufficient to determine whether
the officer did or did not commit misconduct.
Unfounded: means there is sufficient credible evidence to believe that the subject
officer did not commit the alleged act.
Exonerated: means the subject officer was found to have committed the act alleged,
but the officer’s actions were determined to be lawful.
findings. [U]pon written request to the Chief of Personnel by the individual employee, remove from the Personnel
Folder investigative reports which upon completion of the investigation are classified ‘exonerated’ and/or
‘unfounded.’” Uniformed Fire Officers Ass’n v. de Blasio, No. 20-cv-05441 (S.D.N.Y. Sept. 4, 2020), ECF No. 226
at 16.
171
Prior to 2022, there were nineteen defined “Case Dispositions” including: complaint withdrawn, complainant
unavailable, victim unavailable, complainant uncooperative, victim uncooperative, victim unidentified, officer
unidentified, referral to another agency, lack of jurisdiction, mediated agreement, failed mediation when complainant
fails to participate, officer no longer with NYPD, and administrative closure when an agency, not a member of the
public, refers a case but CCRB is unable to proceed. 38-A RCNY § 1-33. Much of the data in this Report applies to
cases decided under this formulation. As discussed below, the Rules were amended, September 22, 2022. As of that
amendment, there were fifteen case dispositions. The most significant changes were: (1) "Unsubstantiated” became
“Unable to Determine”; and “Exonerated” became “Within NYPD Guidelines.” Id.
172
Id.
173
CCRB, Case Outcomes, available at https://www1 nyc.gov/site/ccrb/investigations/case-outcomes.page (last
accessed Apr. 18, 2022). These are the same definitions of “unfounded” and “exonerated” advanced by Corporation
Counsel in a recent federal court filing. See Defendants’ Memorandum of Law in Support of Their Motion to Dismiss
at 11, Uniformed Fire Officers Ass’n v. De Blasio, No. 20-cv-05441 (S.D.N.Y. Sept. 4, 2020), ECF No. 220, n.3 at 5.
37
As of October 22, 2022, CCRB has amended Section 1-33 ("Case Dispositions”):174
Unable to Determine replaces Unsubstantiated.
Within NYPD Guidelines replaces Exonerated.
The Detectives’ Endowment Association and the Lieutenant’s Benevolent Association
(representing more than 7000 members) have objected to the change in nomenclature. They
contend that the change “would unnecessarily create confusion . . . to the detriment of officers and
the public.” They ask that the reason for lack of substantiation (withdrawal, non-cooperation,
failure of proof) should be itemized and that the term “exonerated” is needed as “the clearest
indication that [the officer] did nothing wrong.”175
Similarly, the PBA and the Sergeants Benevolent Association (on behalf of 30,000
members) predict that inconsistencies in terminology used by CCRB with those traditionally used
by NYPD and other agencies, such as District Attorneys and the courts will be confusing, make
compliance with confidentiality, disclosure, and evidentiary rules more difficult and “promote the
serious risk of improper disclosure.” 176
In pending litigation against the revised definitions by CCRB, the NYC PBA has argued
that:
CCRB’s changes to the long-standing case disposition categories are arbitrary and
capricious for numerous reasons, including because they: (i) create inconsistency
with the NYPD and other bodies that use and rely on the same disposition
categories; (ii) create obvious prejudice to officers by labeling them with seemingly
blameworthy disposition terms even when they have not been found to have
committed any wrong doing; and (iii) impair the accuracy and completeness of
CCRB data necessary to hold CCRB accountable.177
The PBA contends that “CCRB’s new disposition . . . ‘unable to determine’ – is inaccurate
and unfairly carries a stigma for the subject officer. It suggests that the investigation was somehow
174
CCRB,
Implementation
of
Charter
Changes
and
Other
Amendments,
available
at
https://rules.cityofnewyork.us/rule/implementation-of-charter-changes-and-other-amendments/. Along with changes
to the definition of “unsubstantiated” and “exonerated,” the Board also proposes to combine “complainant
unavailable,” “alleged victim unavailable,” “alleged victim unidentified,” “alleged victim uncooperative,” and
“complainant uncooperative” into one category—“unable to investigate.” This reduces the list of outcomes from 19
to 15.
175
Letter, Karasyk & Moschella to Heather Cook, Assistant General Counsel, CCRB (July 11, 2022), at 5.
176
Letter, Patrick J. Lynch and Vincent J. Vallelong to Heather Cook (July 11, 2022), at 15.
177
NYC PBA v. City of New York, Index No. 150441/2023, Doc. No. 22 at 19. (Sup. Ct. N.Y. Cnty, 2023). The court
denied much of the petition on January 2, 2024, but did reinstate categories previously listed in Rule 1-33(e)(6),
including “Complainant Unavailable,” “Alleged Victim Unavailable,” “Complainant Uncooperative,” “Alleged
Victim Uncooperative,” and “Alleged Victim Unidentified.” NYSCEF DOC. No. 71.
38
incomplete, rather than projecting the fact that no misconduct was proven after full presentation
of evidence.”178
A vast number of CCRB cases are “truncated.” As discussed later, the number can be
anywhere from 50 to 70% of CCRB case closings. The new definition, “unable to determine,”
creates an overlap between cases that are fully investigated but wanting in persuasion and those
cases where the record was not fully developed for lack of a witness.
By comparison to CCRB, NYPD uses the following “standardized terminology . . . when
preparing reports concerning internal investigations”:179
Substantiated: Accused employee has committed ALL of the alleged acts of
misconduct.
Partially Substantiated: Employee has committed PART of alleged act(s) of
misconduct. (This describes a case outcome, not an allegation determination.)
Unsubstantiated: Insufficient evidence to clearly prove OR disprove allegations
made.
Unfounded: Act(s) complained of DID NOT OCCUR or were NOT COMMITTED
BY MEMBERS OF THIS DEPARTMENT.
Exonerated:
Subject employee(s) clearly NOT INVOLVED in ANY
MISCONDUCT. Incident occurred but was lawful and proper.
Misconduct Noted: Act(s) of misconduct OTHER THAN those alleged complaints
[sic] were committed by the concerned employee. (This classification can be used with
any of the aforementioned dispositions as a case outcome.)
In addition, NYPD will close cases with categories not utilized by CCRB, including:
Information and Intelligence: Although the evidence did not substantiate a
misconduct allegation, the matter is referred back to the officer’s command for tracking
purposes. This classification may be used as well for Minor Procedural Violations
(MPV) which did not rise to the level of misconduct.
IAB uses still another set180 when investigating discriminatory activity:
178
Substantiated: Credible evidence exists that the accused MOS committed the alleged
act of misconduct, and such credible evidence outweighs the evidence that the accused
MOS did not commit the alleged misconduct.
Unsubstantiated: There is insufficient credible evidence to prove or disprove the
allegation.
NYC PBA v. City of New York, Index No. 150441/2023, Doc. No. 22 at 22. (Sup. Ct. N.Y. Cnty, 2023).
179
NYPD Admin. Guide § 322-11 (effective June 23, 2020). Unfortunately, IAB Guide 620-58 (dealing with profiling
investigations) uses yet another set of definitions. Adding to the mystery, Administrative Guide § 322-11 is not
available to the public online.
180
IAB Guide 620-58.
39
Unfounded: Credible evidence exists that the alleged act of misconduct did not occur
or that the accused MOS did not commit the alleged act of misconduct and such
credible evidence outweighs the evidence that the accused MOS did commit the alleged
misconduct.
Exonerated: Credible evidence exists that the alleged conduct occurred, but it was
lawful and proper.
The inconsistencies in definitions, at first blush, appear minor. They are not. With the lack
of uniformity, cases can fall into different slots not because of the evidence or lack of evidence,
but merely due to ambiguity in interpretation.181 As a simple matter of logic and fairness to officers,
complainants, and the public, it would seem that one set of definitions should be uniformly and
consistently applied. As put by the PBA in recent litigation, “[I]t is vital that . . . disposition
categories be fair, accurate, and consistent across agencies.”182 As one example, the Charter
prohibits use of an “unsubstantiated” complaint as a basis for a CCRB recommendation.183 The
PBA fears, with some justification, that renaming an “unsubstantiated” case as an ‘unable to
determine” case may become a vehicle for bypassing the Charter’s prohibition.184
Fundamentally, as in any adjudicatory process, the definitions require understanding the
difference between findings of fact and conclusions of law.185 Findings of fact can be based upon
a weighing and balancing of all the evidence—extrinsic, testimonial (including assessments of
credibility), and inferences that may be drawn from the totality of the accepted facts. Conclusions
of law require a determination of whether the facts, once found, constitute a violation of the
Constitution, other laws, or the Patrol Guide and the Administrative Guide.
NYPD’s rules regarding adjudication in the Trial Rooms recognize this principle.186 In
outlining the procedure at the end of a trial for hearing officers’ reports to the Police
181
In another context, discovery in criminal proceedings, a court refused to be bound by CCRB denominations due to
the lack of a uniform standard. People v. Taveras (Bx Crim. Ct. Feb. 10, 2023), NYLJ p.17, col 3 (“Unless specifically
restricted by statute, city and state agencies are free to modify their administrative regulations, altering applicable
definitions and standards so long as such modifications do not run afoul of the law. Unlike defined standards of proof
in formal criminal and civil law proceedings, there is no universal standard which governs the administrative
proceedings or internal investigations of different city, county and state law enforcement or ombudsman agencies.
Thus, an unsubstantiated finding in Albany County might be an exonerated finding in New York City and vice versa.
The CCRB may use the term unsubstantiated today but, later, may substitute that term for another. Limiting discovery
to categories which are not governed by standards that are universal across New York State and/or are subject to
change when the individual agency deems appropriate could result in potentially arbitrary rulings.”). Subsequently,
upon application by the People to re-argue the invalidation of a certificate of compliance, the decision was vacated on
other grounds. People v. Taveras, CR-004492-22BX, NYLJ p.17, col. 1 (Apr. 14, 2023). Nonetheless, the Court’s
observations regarding a lack of uniformity in definitions remains undisturbed.
182
NYC PBA v. City of New York, Index No. 150441/2023, Doc. No. 22 at 25 (Sup. Ct. NY Cty, 2023).
183
NYC Charter § 440(c)(1).
184
NYC PBA v. City of New York, Index No. 150441/2023, Doc. No. 22 at 25 (Sup. Ct. NY Cty, 2023).
185
See generally, e.g., Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N.Y. 209 (1892); People v. Brown,
33 N.Y.3d 983 (2019) (requiring a finding of fact before deciding a question of law in the context of CPL 440
proceedings).
186
See 38 RCNY § 15-06. Rules of the Police Department: Adjudications.
40
Commissioner, the Rules provide, “[t]he Draft Report and Recommendation shall consist of a
summary and analysis of the testimony, recommended findings of fact and conclusions of law, and
recommendations for the disposition of the Charges and Specifications.”187 However, the CCRB
Rules do not specifically ask a panel to do the same. There, an investigator writes up a summary
of the facts and the panel makes a “finding” for each allegation. If deference is to be given to
factual determinations, as required by the Remedies Opinion, it would be cleaner for panels to
follow the practice used by Trial Commissioners, i.e., to specifically make findings of fact and,
separately, state conclusions of law. At that point, it would be appropriate for DAO and the Police
Commissioner to give deference to the findings of fact, which is the practice, generally speaking,
for hearings by administrative judges and panels.188
On occasion, reviewers will mistakenly intermix the term “credibility” with “factual
findings.” “Credibility” is an assessment of the believability of an individual witness or the
witness’ statements. Assessing credibility of a witness or a statement does not end the inquiry.
That assessment is a component within a factual finding. The ultimate conclusion should be based
on a weighing of all the credited “evidence”—the totality of circumstances—beyond a mere
assessment of the credibility of a single witness. Factual findings should include credited
testimony, but also may include other evidence such as videos, documents, and reasonable
inferences. In the absence of extrinsic evidence, a finding by the factfinder may be based upon
credited testimony without extrinsic evidence but is not limited to credited testimony when other
evidence is available.189 A finding should not be based, even in part, on discredited testimony.
Unfortunately, in the various definitions:
The terms “misconduct” and “acts” are used interchangeably when there is an
important distinction between a finding that an “act” occurred as opposed to a finding
that “misconduct” occurred (and thus drawing a legal conclusion as to whether the act
was a violation).
The CCRB online definition of “unsubstantiated" (endorsed by Corporation Counsel in
federal court190) speaks of the insufficiency of “available” evidence, while the definition
in the CCRB Rules, prior to the proposed amendments, and in the NYPD
Administrative Guide do not.
The Administrative Guide, 322-11, states that a case is unsubstantiated when there is
insufficient evidence to “clearly prove or disprove” allegations.
A misidentification of an offending officer could result in exoneration under the NYPD
definitions but only a finding of unfounded in CCRB’s formulation.
CCRB will categorize a case as unfounded when there is “sufficient credible evidence
to believe the subject officer did not commit the alleged act” under one formulation but
187
Id. § 15-06(a)(2).
188
See, e.g., Berenhaus v. Ward, 70 N.Y.2d 436, 443-45 (1987).
189
See discussion of fact-finding and deference to CCRB in the analysis of Departure Letters, below.
190
Defendants’ Memorandum of Law in Support of Their Motion to Dismiss at 5,11, Uniformed Fire Officers Ass’n
v. de Blasio, No. 20-cv-05441 (S.D.N.Y. Sept. 4, 2020), ECF No. 220. See also https://www.courtlistener.com/
recap/gov.uscourts.nysd.540297/gov.uscourts nysd.540297.220.0_1.pdf.
41
would require “a preponderance of the evidence that the acts alleged did not occur”
under another.
The three definitions of “unsubstantiated” or “unable to determine” listed above differ
slightly. Does an unsubstantiated result mean that: (1) there was insufficient proof that an act of
misconduct occurred at all; (2) there was proven misconduct but insufficient evidence that the
subject officer is the malefactor; or (3) there was some evidence that the officer engaged in
misconduct, but it was not proven by a preponderance of the evidence?191
In reviewing various exchanges between CCRB and DAO, it is not uncommon to find an
assertion that “misconduct was not proven” when the meaning of the assertion is unclear. As
pointed out by the Union plaintiffs in recent litigation, “technical terms such as ‘unsubstantiated’
and ‘unfounded,’ as defined by the City, do not provide the public with meaningful context for
assessing the truth or falsity of allegations.”192
The distinction between “unsubstantiated,” “unfounded,” and “exonerated,” is important.
The Collective Bargaining Agreement with the various police unions requires removal of
unfounded and exonerated, but not unsubstantiated, cases from an officer’s personnel file.”193 In
court, unsubstantiated cases may be used for cross-examination, while unfounded and exonerated
cases may not.194
The definitions used by NYPD in AG 322-11 when compared to definitions used by CCRB
pose a significant risk of confusion. Drawing a distinction between “Substantiated” and “Partially
Substantiated” depending upon whether ALL allegations are proven makes statistical comparisons
difficult and has the potential to mask misconduct when entities outside the Department seek to
learn of substantiated cases. Similarly, requiring evidence to “clearly prove” an allegation, as
described in the “Unsubstantiated” definition, skews findings against substantiation by a
preponderance of the evidence. Finally, the definition of “Exonerated” rightly lists findings where
191
After years of litigation, the U.S. Department of Justice and the Yonkers Police Department came to an agreement
regarding police encounters and disciplinary measures on November 14, 2016. The Agreement can be accessed at
https://www.justice.gov/crt/case-document/file/923196/download. Incorporated in the agreement at 15, paragraph 81,
are the following definitions: “Unfounded,” where the investigation determines, by a preponderance of the evidence,
that the alleged act did not occur; “Substantiated,” where the investigation determines, by a preponderance of the
evidence, that an accused person committed all or part of the alleged acts of misconduct; “Unsubstantiated,” where
the investigation determines by a preponderance of the evidence, that there is insufficient information to prove or
disprove the allegations; and “Exonerated,” where the investigation determines, by a preponderance of the evidence,
that the alleged act did occur but was justified, legal and did not violate Yonkers Police Department policies,
procedures, or Training.
192
Response and Reply Brief for Plaintiffs-Appellants-Cross-Appellees at 48, Uniformed Fire Officers Ass’n v. De
Blasio, No. 20-2789 (2d Cir. Nov. 19, 2020), ECF No. 357.
193
Specifically, Article XVI, Section 7(c) of the CBA requires, that “upon written request to the Chief of Personnel
by the individual employee, remove from the Personal Folder . . . reports . . . which are classified ‘exonerated’ and/or
‘unfounded.’” There is no provision for removing cases which are closed as “unsubstantiated.” Uniformed Fire
Officers Ass’n v. de Blasio, No. 20-cv-05441 (S.D.N.Y. Sept. 4, 2020), ECF No. 226 at 16.
194
Unsubstantiated cases provide a good faith basis for further inquiry. See, e.g., People v. Randolph, 132 N.Y.S.3d
726 (Sup. Ct. Suffolk Cnty. 2020); People v. Porter, 142 N.Y.S.3d 703 (Crim. Ct. Bronx Cnty. 2020); People v.
McKinney, 145 N.Y.S.3d 328 (Sup. Ct. Kings Cnty. 2021).
42
the “Incident occurred, but was lawful and proper” but then adds cases where the subject was
“clearly not involved in any misconduct” which invites exoneration based upon a balancing of the
evidence as opposed to a simple declaration that the conduct was lawful.
As to the lack of clarity in current practice, take three common scenarios:
Assume complainant C alleges an act of misconduct by officer O—a frisk by O done
without reasonable suspicion that C was “armed and dangerous.”195 Assume officer O denies the
allegation. Testimony is in conflict.
Construct (a): (Weight of the evidence): It could be that O’s identity is not in dispute.
It could be that there is some evidence of a frisk by O, but the evidence is not sufficient
(by a preponderance) to substantiate that the act (the frisk) occurred. At the same time,
there is no evidence that C was armed or dangerous, so a frisk, if it did occur, would
have been improper.
Construct b: (Identity): It could be that an act of misconduct (a frisk without cause)
is demonstrated, but O’s identity is not proven.
Construct c: (Question of Law): It could be that undisputed evidence shows that O
frisked C, but NYPD and CCRB disagree about the propriety of the frisk. (e.g., CCRB
finds that O did not have sufficient suspicion that C was armed and dangerous, while
DAO, accepting the factual findings, determines that the facts did provide reasonable
suspicion for a frisk.)
Construct (a)
In situation (a), CCRB, by its definitions, might determine, on balance, after listening to
competing versions of the event, that there is insufficient evidence to determine if the officer
committed the act of frisking. In other words, the act if done would have been improper, but, on
balance, the commission of the act was not proved. CCRB, by its rules, should say the case is
unsubstantiated or list it as “unable to determine” since the disposition is the product of a weighing
and balancing of competing evidence in a case where some evidence supports either conclusion.
However, in situation (a), NYPD or IAB might argue that the act complained of (the frisk)
was not proved to have occurred and thus the finding should be unfounded. The credible evidence
did not demonstrate that C was frisked. In the language of IAB Guide 620-58: “Credible evidence
exists that the alleged act of misconduct did not occur” (O’s denial) and “such credible evidence
outweighs the evidence that the accused MOS did commit the alleged misconduct.” This confuses
a finding that an act occurred or did not occur with a finding that misconduct occurred or did not
occur. If the only evidence is the testimony of O and C, is it necessary that NYPD or IAB find C
to be completely unworthy of belief, and give no credit to C, to say the matter is unfounded? Or
is it sufficient that NYPD or IAB believe O over C?
A knotty example of this dilemma (the choice between “unsubstantiated” and “unfounded”
arises with frequency in profiling and bias-based policing cases. C complains of an action (a
gesture, a slur, words, or deeds) and O denies the action. In the earlier years of profiling
195
Patrol Guide § 212-11 (“Definitions”).
43
investigations by IAB or BIU, more cases were unfounded than unsubstantiated. That has shifted
more recently with the number of unsubstantiated profiling complaints exceeding those that were
unfounded. The reason for the shift in recent years, which is sizeable, is unclear. For 2017-2019,
1,912 bias claims were unfounded, while 1,193 were unsubstantiated. By comparison, for 20202023, 496 were unfounded, while 537 were unsubstantiated.196
Did an “unfounded” finding in almost 2,500 profiling cases mean that there was no credible
evidence that the acts (slur, words, gesture) occurred? Or did it mean that the evidence that the act
did not occur outweighed some evidence that it did occur? Without a clear expression of the basis
for the finding, it is difficult to ascertain why a profiling complaint went unfounded instead of
unsubstantiated, unless the claimant was entirely unbelievable or there was clear extrinsic evidence
that the alleged acts never occurred.
Construct (b)
Similarly, in scenario (b) (a failure to identify the officer), “unsubstantiated,” “unfounded,”
or “exonerated” are all plausible findings under the various definitions. In its Rules, CCRB
proposes to carry a separate case disposition—“Officer Unidentified.”197 An unsubstantiated
finding should indicate that there is some evidence of misconduct by the subject officer, but not
by a preponderance of the evidence. Under the NYPD definition of “unfounded” the lack of
evidence of identity could lead to a finding of unfounded. Record evidence supporting a finding
of misidentification or lack of identification could, under NYPD guidelines, lead to a finding of
unfounded, but in the eyes of the Department also lead to a finding of exonerated if the evidence
was clear that officer O was not the officer who conducted the improper frisk. Again, the rules are
not clear.
“Unfounded” in this case should be reserved only for cases where the factfinder concludes
that the acts alleged did not occur, regardless of whether an officer could have been identified and
without a determination that the alleged facts if they had been proven would have constituted
misconduct. But if the determination that the conduct did not occur requires a balancing or
weighing of competing evidence, then the case should be unsubstantiated, not unfounded. A
paradigmatic parallel might be to look at the difference between criminal cases which are
overturned on appeal for legal insufficiency as opposed to reversal of a decision which is against
the weight of the evidence. If there is no credible evidence to support the charge, the charge is
unfounded. If there is credible evidence of misconduct but, on balance, the weight of the evidence
is against the allegation, then the charge is unsubstantiated.198
196
Internal Affairs Bureau, Assessment and Analysis Unit, Profiling Case Analysis Report, June 30, 2023. No
profiling allegation against a uniformed officer has been upheld by DAO as “substantiated.” As of October 22, 2022,
profiling allegations are sent to CCRB for investigation.
197
38-A RCNY § 1-33 (11).
198
See, e.g., N.Y. Crim. Proc. Law § 70.10(1). Legally sufficient evidence of a charge occurs when “competent
evidence which, if accepted as true, would establish every element of an offense.” Id. In the context of a misconduct
allegation, if the sworn testimony of a victim/witness establishes misconduct, a case cannot be “unfounded.” It might
be that counter evidence outweighs or balances against the claimed violation, in which case the matter is
“unsubstantiated” not “unfounded.”
44
Here, the distinction between the terms “acts” and “misconduct” is important.
“Misconduct” is a mixed finding of fact and law. “Unfounded” should be reserved for findings of
fact where the officer did not engage in the conduct (the “acts) alleged, regardless of whether it
was proper or improper.
On its website, CCRB propounds an example of an Unfounded case. It describes a situation
where the complainant alleged that an officer wrongfully threatened him. The officer and three
neutral witnesses contradicted the complainant, saying the threat was never made. In that case
“Unfounded” was an appropriate outcome since it is evident that the unsupported allegation was
clearly rejected.199
Construct (c)
Finally, in scenario (c), to eliminate confusion between “unfounded” and “exonerated,”
“exonerated” should be reserved for cases where the Police Commissioner accepts the findings of
fact but determines that the actions were lawful. The distinction is meaningful because
“exonerated” becomes a guidepost for future actions by other officers and a signal to the
community of conduct the Police Commissioner deems to be permissible notwithstanding CCRB’s
condemnation. An exoneration will be used as a precedent for how officers are to conduct
themselves going forward. Exoneration is a declaration of the status of the law. In the SQF area,
“exoneration” is especially consequential. An exoneration by the Police Commissioner denotes
approval of the officer’s actions and becomes guidance for other officers as to permissible
behavior. Here, tension between a reading of the Patrol Guide and an understanding of the law
may arise. CCRB is not necessarily confined, under the Charter, to the Patrol Guide when judging
Abuse of Authority, but when Charges and Specifications are drawn, APU does adhere to
provisions of the Guide. In order to convict, APU must demonstrate to a Deputy Trial
Commissioner that a provision of the Patrol Guide or Administrative Guide was violated. A Trial
Commissioner will not accept CCRB’s interpretation of the law or claim of “abuse” if it is counter
to the Department’s understanding of the law.
It is not uncommon, in a case where there are mixed findings of fact and law, to see CCRB
and DAO disagree about the outcome and the applicable state of the law. In 2018, IAB exonerated
fourteen profiling complaints. It is difficult to comprehend exactly what was implied by those
findings. Did NYPD accept all the allegations by the complainant but decide that the acts did not
transgress the law? Or was exoneration dispensed in a case of misidentification? Or did they
determine the alleged actions did not occur, in which case the finding should have been
“unfounded.” Remember that the IAB Guide 620-58 exonerates when “[c]redible evidence exists
that the alleged conduct occurred, but it was lawful and proper.”
In its “Case Profiles” posted on the CCRB website, the Board gives as an example of an
exonerated case a situation where a woman complained that an officer used unnecessary force
when he removed her from a bank by putting her in a “full Nelson.”200 CCRB reviewed the video
footage and found that the officer did not use a "full Nelson,” but had used only minimal and
necessary force. This is an unfortunate exemplar since the outcome was based on a factual finding
199
https://www nyc.gov/site/ccrb/investigations/investigation-unfounded.page.
200
https://www nyc.gov/site/ccrb/investigations/investigation-exonerated.page. (Last accessed Jan. 11, 2023).
45
the Police Commissioner concluded that the actions were “reasonable and appropriate.” No
disciplinary action was imposed. From the exchange it might appear that the Police Commissioner
exonerated the Detective. Impliedly, the Police Commissioner has determined that a stop and frisk
of any person exiting an apartment where an arrest warrant for a “shooter” is about to be executed
may be stopped and frisked despite a want of individualized suspicion. Without further
explication, it is hard to know if the determination was based upon a view of the facts or upon a
differing understanding of the law of investigative encounters.203
In cases of formal discipline, after trial, a Trial Commissioner’s finding is either “guilty”
or “not guilty,” rather than Substantiated, Unsubstantiated, Exonerated, or Unfounded. A guilty
verdict in a CCRB case may be reversed, not by a declaration of exoneration, but by the Police
Commissioner’s declaration that the subject officer is “Not Guilty.” The complainant, the officer,
and the public are then left to speculate whether there was a failure of proof or whether the Police
Commissioner condoned the actions of the officer.
i.
Split Determinations
Because some encounters may be separately and independently investigated by distinct
investigating units (commonly force, false testimony, profiling), inconsistent findings by various
investigators are inevitable. Differing results may, on occasion, be simply a matter of differing
views of the facts or the law. But, unless terminology is coordinated, some number of outcomes
will be in conflict merely because of a lack of uniformity in nomenclature.
Take as an example, Officer A sees two men drinking from a bottle wrapped in a paper
bag. One civilian is Black, the other is White. The officer approaches both men and says, “Wait
a second, before you go anywhere, what’s in that bag? Beer?” The men stop, turn around, and
the officer determines that the bottle contains beer. The officer issues a criminal court summons204
to the Black civilian only, who then files a complaint with CCRB, alleging that he was stopped
with insufficient cause and that he, not his White companion, was selectively given a ticket as
proof of bias-based policing and racial profiling.205 CCRB might substantiate the stop-misconduct
allegation, deciding that the initial approach was an unlawful Level 3 detention.206 The profiling
complaint is split off (prior to 2022) and passed from CCRB to IAB or BIU without investigation
by CCRB. BIU’s assessment is that the officer had probable cause to approach, ask the question,
and issue the summons; therefore, BIU might conclude that the “officer’s decision to initiate
enforcement action” was not “motivated even in part by [the] person’s . . . race [or] color,”207 but
was fully justified by the observed level of suspicion, notwithstanding CCRB’s decision.208
203
Departure Letter, Sept. 15, 2022, DADS No.
204
NYC Admin. Code § 10-125 (open container law).
205
Patrol Guide § 203-25 (Now Admin. Guide § 304.17); NYC Admin. Code § 14-151.
.
206
Terry stops for Administrative Code violations, such as NYC Admin. Code § 10-125 (open container law), are not
lawful. N.Y. Crim. Proc. Law § 140.50.
207
Patrol Guide § 203.25.
208
Floyd Liability Opinion at 666-67 (“The City and the NYPD’s highest officials also continue to endorse the
unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion. This
47
Beginning in 2022 CCRB will have the capacity to investigate the profiling complaint, but, as with
force investigations or false statement investigations, the Department may continue to conduct its
own investigation separately. In such cases, the Department may on occasion concur with CCRB’s
findings, but if history is a teacher there will be times when independent investigations arrive at
conflicting results.
With adoption of a disciplinary grid or matrix, if it continues to be used by both CCRB and
NYPD, which seems essential, it is imperative that the two agencies adopt a uniform and clearly
defined set of terms, with both agencies using the preponderance of the evidence standard. Title
38-A, RCNY § 1-33, Admin. Guide 322-11 and IAB Guide 620-58 should be amended to use
identical terminology. The proposed Rule changes by CCRB, may well, as argued by the Unions,
add to confusion. “Unable to Determine” may not be viewed by the Department as a precise
equivalent to its own “Unsubstantiated.” Without a complainant, NYPD might be justified in
calling the case unfounded, while CCRB places the matter within the ambit of unsubstantiated. As
well, in the not uncommon situation where multiple officers are present but proof of the identity
of an officer who searched, frisked, or committed the alleged wrongful act is insufficient, may be
disposed by CCRB with “Officer Unidentified” while NYPD may choose to consider the case
“Unfounded”, or the officer named to have been “Exonerated.”
The cleanest definitions would be:
Substantiated: Viewing all the evidence for and against the allegation, the evidence
supporting the allegation of misconduct outweighs the evidence against the
allegation.209
Unsubstantiated: Viewing all the evidence for and against the allegation, the evidence
supporting the allegation of misconduct does not outweigh the evidence against the
allegation.
position is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting
manifestation of indifference. . .. A police department that has a practice of targeting[B]lacks and Hispanics for
pedestrian stops cannot defend itself by showing that all the stopped pedestrians were displaying suspicious behavior.
Indeed, the targeting of certain races within the universe of suspicious individuals is especially insidious . . . . The
Equal Protection Clause’s prohibition on selective enforcement means that suspicious [B]lacks and Hispanics may not
be treated differently by the police than equally suspicious whites.”).”
209
This is a mixed finding of fact and law, indicating the factual findings on balance support substantiation and the
credited facts constitute misconduct.
48
C.
Unfounded: Viewing all the evidence, it is clearly210 demonstrated that the officer did
not perform the acts or engage in the conduct211 attributed to the officer, either because
the acts did not happen or because of misidentification.212
Exonerated: Viewing all the evidence it is demonstrated that the subject officer
engaged in the alleged conduct, but the officer’s actions were lawful and proper.213
Formal Discipline
Officer misconduct may be addressed formally or informally. The hearings and procedural
rights accorded N.Y. by Civil Service Law § 75 and NYC Admin. Code § 14-115 are part of the
“formal disciplinary process.”214 The formal process commences with service of Charges and
Specifications and may conclude with a negotiated plea, a trial, or a determination by the Police
Commissioner that Charges will not be pursued. A penalty may not be imposed without Charges,
Specifications, and an administrative trial, unless the subject officer agrees to accept a proposed
penalty through an informal process.
When formal discipline is pursued, Charges and Specifications may be prosecuted either
by the Department Advocates Office (DAO) or by the Administrative Prosecution Unit of CCRB
(APU-CCRB). After investigation, if misconduct is substantiated, DAO or APU-CCRB will
present Charges to a Deputy Commissioner for Trials, or, in the alternative, negotiate a plea to a
lesser penalty, recommend guidance (training or instructions) in place of a penalty, or agree to no
discipline at all (“NDA”—no disciplinary action).
Penalties available to the Police Commissioner after a substantiated finding, a verdict, or
upon a negotiated settlement, include:
Penalty days. This can take the form of suspension without pay for a period of up to
thirty days for an offense. An officer loses associated benefits (pension credit, vacation
210
It is fair to require “clear evidence” because “unfounded” should be reserved for cases where the factfinder had
reason, beyond a mere balancing of evidence or witness credibility, to conclude that the acts alleged (not the
misconduct) did not occur.
211
Here, the word “conduct” is used—meaning the acts attributed to the officer, not “misconduct”—which is a mixed
finding of fact and law. “Unfounded” should be reserved for cases where it is clear that the officer did not engage in
the conduct alleged, regardless of whether it was proper or improper.
212
See, Floyd Liability Opinion at 107, n 383. (“An officer is ‘exonerated’ if she committed the alleged acts, but the
acts “were determined to be lawful and proper,’ and an allegation is ‘unfounded’ if there is sufficient evidence that
the officer did not commit the alleged act.”)
213
IAB Guide 620-58 (“Processing and Investigating Complaints of Profiling and Bias-Based Policing”) uses
“[c]redible evidence exists that the alleged conduct occurred, but it was lawful and proper.” Introduction of the word
“credible” at this point confuses factual findings with questions of law. It would be better to use the CCRB definition
posted
online
prior
to
October
2022
at
CCRB,
Case
Outcomes,
available
at
https://www1 nyc.gov/site/ccrb/investigations/case-outcomes.page (last accessed Apr. 18, 2022). “The subject officer
was found to have committed the act alleged, but the officer’s actions were determined to be lawful.” Unfortunately,
with its revision of Rule 38-A RCNY 1-33 (e), replacing “exonerated” with “within NYPD Guidelines,” CCRB’s
language now declares that an action is within guidelines when there was a preponderance of the evidence that the
acts alleged occurred but did not constitute misconduct.” Id.
214
Patrol Guide § 206-06.
49
215
accrual, sick leave accrual) during suspension. The Police Commissioner may suspend
the officer without pay pending a disciplinary hearing and determination of the
charges.215 The Civil Service Law § 75(3-a) limits the suspension to a period not to
exceed thirty days.216 If penalty days are assessed after adjudication, pay and benefits
lost during suspension may be applied, going forward, to the assessed penalty.
Time deduction. A lesser suspension or deduction, where the officer loses credit (pay
and associated benefits) for some number of hours worked.
Vacation days. An officer, depending on length of service accrues vacation time as a
credit during the working year.217 That accumulated credit may be reduced as a penalty.
Officers who do not use their vacation time in the current year may accrue up to three
days per year to use as terminal paid leave when retiring after twenty years of service
or upon disability. An officer may “carry over a maximum of three weeks’ vacation
into following year.”218 An assessed penalty day will reduce available vacation time
permitted in the current year, the following year, or to be deducted from the end-ofservice accrual.
Fine. An amount not to exceed one hundred dollars per offense deducted from salary.219
Dismissal.220
NYC Admin. Code § 14-123.
216
Bullock v. Kelly, 847 N.Y.S.2d 384 (Sup. Ct. Kings Cty. 2007) (finding, where an officer was incarcerated and
unavailable for duty pending a criminal trial for a period in excess of thirty days—and the disciplinary proceedings
were delayed pending the criminal proceedings—upon a later not-guilty determination that the officer was entitled to
salary from the point in time the thirty-day suspension had expired, despite the fact that he was incarcerated and
unavailable for assignment during that period of time).
217
Members of the Service accrue one and two-thirds days of vacation time for each month of service, i.e., twenty
days per year, in their first five years on the job. After that, they earn two and a quarter days per month, or 27 days
per year. Patrol Guide § 203-19.
218
Id.
219
It is unclear if a fine is available to the Police Commissioner unless objection is waived as part of a settlement.
There are conflicting provisions in the law. New York Civil Service Law § 75(3) authorizes a fine “not to exceed one
hundred dollars.” However, New York Civil Service Law § 75(3-a) limits NYPD penalties to those listed in NYC
Admin. Code sections 14-115 and 14-123. Section 14-115(a) enumerates the Police Commissioner’s disciplinary
options but does not include a fine. It permits “forfeiting and withholding pay.” In a review of sanctions imposed
over the last five years, no instance of the imposition of a fine other than a suspension without pay, loss of credit for
time worked, or loss of accrued vacation days was found. See, e.g., Cepeda v. Koehler, 159 A.D.2d 290 (1st Dep’t
1990) (where hearing examiner recommended thirty-day suspension without pay for a Department of Correction
(DOC) officer, but DOC Commissioner imposed forfeiture of fifteen days and a $1,500 fine, penalty vacated as illegal
disposition without waiver).
220
Dismissal or Termination is rarely imposed by the Police Commissioner for civilian complaints brought by
CCRB—the
case being the exception in the last five years. More commonly, “forced separation” is
employed. When faced with termination, the officer elects to resign or retire, depending on length of service and
eligibility for retirement. If the officer has received permission from the Police Commissioner, he or she is allowed
to retain some or all post-employment benefits, including pension. See NYC Admin. Code § 14-126. When an officer
is separated from the Department during the pendency of an investigation, the case is “filed,” which preserves the
charges in the event he re-applies or is restored to service. Other dismissals may occur automatically, by operation of
law, outside the disciplinary process, upon conviction of certain crimes that violate the Oath of Office, including
Perjury, Bribery, Sex Abuse, Offering a False Instrument for Filing, Falsifying Business Records, among others. See
N.Y. Pub. Off. Law § 30(1)(e). There were eleven dismissals in 2018, but none, other than
, were for
50
Dismissal Probation. The officer is dismissed, but dismissal is stayed for a period not
to exceed one year while the officer is placed on probation and monitored. The officer
may be terminated at any time without further proceedings or necessity to adjudicate
new misconduct.221 At the conclusion of the year, the officer is either dismissed or
restored to service.222
Reprimand. A written or verbal admonishment by a supervisor which may be
documented in the officer’s personnel file. An informal warning or admonishment, not
kept in a personnel file, is not a reprimand.223
Other sanctions, ancillary to discipline, include:
Demotion of a probationary supervisor or an officer, who has received a discretionary
promotion.224
“Misconduct Involving Public Interaction.” See NYPD, Discipline in the NYPD 2018 at 10, available at
https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/discipline-in-the-nypd2018.pdf. There were ten dismissals in 2019, but none were for “Misconduct Involving Public Interaction.” NYPD,
Discipline in the NYPD 2019 at 10, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_pla
nning/discipline/discipline-in-the-nypd-2019a.pdf.
221
NYC Admin. Code § 14-115(d).
222
There are three types of probation: (1) Entry Level Probation—for the first two years of employment, a newlyhired MOS can be summarily terminated without formal proceedings; (2) Promotion Probation—upon a promotion
in rank, the officer must complete a probationary period before he or she is “tenured” in the greater rank; (3) Dismissal
Probation—occurs following a finding of misconduct or negotiation regarding a misconduct allegation. Throughout
this report “disciplinary probation” refers only to Dismissal Probation. NYPD, Disciplinary System Penalty
Guidelines at 13 (Jan. 15, 2021).
223
Warnings may be verbal or written and filed with the officer’s papers. AG-§318-01. For purposes of this Report,
a warning or admonishment that (i) is not recorded in a permanent personnel file as a discipline, and (ii) is not the
product of formal disciplinary process or waiver, is not a statutory “reprimand” and is not a penalty. Civil Service
Law § 75, which defines discipline, does not equate warnings or admonishment with reprimand. See Hoffman v.
Village of Sidney, 235 A.D.2d 698, 699–700 (3d Dep’t 1997) (“[A] ‘Letter of Reprimand’ placed in [an officer’s]
personnel file was nothing more than a critical admonition and not so formal as to trigger the hearing requirement of
Civil Service Law § 75 . . . [and] clearly ‘falls far short of the sort of formal reprimand contemplated by the statute.’”)
(quoting Holt v. Bd. of Educ., 52 N.Y.2d 625,633 (1981)). See also Matter of Soriano v. Elia, 155 A.D.3d 14996 (3d
Dep’t 2017). In 2019, of 339 officers formally charged with misconduct, none received a Reprimand as the final
penalty.
NYPD,
Discipline
in
the
NYPD
2019
at
10,
available
at
https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/discipline-in-the-nypd,
2019a.pdf. In 2016, three officers received a Letter of Reprimand for illegal entry into a residence.
and
. A Reprimand was recommended by DCT after trial for an illegal apartment entry for
three officers in 2020, but the Police Commissioner reversed the finding of guilty and found all three officers to be
not guilty.
. In another case, after finding a Lieutenant guilty of excessive force in 2019, the trial
commissioner recommended a Reprimand, but again the Police Commissioner reversed the finding and declared the
Lieutenant to be Not Guilty. In its quarterly report, August 2023, APU described three cases, one for an improper
frisk, where a plea, approved by the DCT, to a reprimand were all set-aside by the Police Commissioner who
determined that Training was an appropriate penalty.
224
Demotion of a tenured officer may be a negotiated alternative, but it is not one of the disciplinary penalties set forth
in Section 14-115 of the Administrative Code and is not available to the Police Commissioner as a disciplinary penalty
unless objection is waived in a negotiated settlement. See Wein v. City of New York, 56 N.Y.2d 758 (1982). Civil
Service Law § 75(3), on its face, does authorize “demotion in grade or title” as a disciplinary penalty but the
Administrative Code does not. Normally, the State statute would prevail. However, the Administrative Code section
51
Restitution in cases where the officer improperly received compensation. Restitution
of the over-payment is made to the NYC Commissioner of Finance. Restitution is
independent of formal discipline.
Revocation of Permission to engage in outside employment for up thirty days IF the
violation was related to outside employment.225
Restriction on out-of-command assignments for a fixed period not to exceed five
such assignments.226
Forced Retirement. As an alternative to discipline and in lieu of dismissal, “forced
separation” is commonly employed. When faced with termination, the officer elects to
resign or retire, depending on length of service and eligibility for retirement. If the
officer has received permission from the Police Commissioner, he or she is allowed to
retain some or all post-employment benefits, including pension.227 When an officer is
separated from the Department during the pendency of an investigation, the case is
“filed” which preserves the charges in the event he re-applies or is restored to service.228
Automatic Dismissal Without a Disciplinary Proceeding. Dismissal may occur
automatically, by operation of law, outside the disciplinary process, upon conviction of
certain crimes which violate the Oath of Office, including Perjury, Bribery, Sex Abuse,
Offering a False Instrument for Filing, Falsifying Business Records, among others.229
preceded enactment of § 75(3) and is grandfathered by the terms of Civil Service Law § 76(4). See Bailey v.
Susquehanna Valley Cent. School Bd. of Educ., 276 A.D.2d 963 (2d Dep’t 2000). In 1990, Civil Service Law § 75(3a) was enacted. L 1990, ch. 753. The 1990 amendment made it clear that the Administrative Code list of available
sanctions does not include demotion controls. It seems likely that, if challenged, the Code’s limitation (excluding
demotion of a tenured officer) would prevail.
225
Patrol Guide § 206-07 (now Admin. Guide § 318-05).
226
Id. Out-of-command assignments are lucrative in that officers receive pay and credit beyond the normal workweek assignment.
227
NYC Admin. Code § 14-126.
228
NYPD reports that 136 officers elected “forced separations” when charged with misconduct for CY 2018–2020.
NYPD, 2020 Discipline Report at 9, available at https://www1 nyc.gov/assets/nypd/downloads/pdf/analysis_and_pla
nning/discipline/discipline-in-the-nypd-2020.pdf. Five of those were officers who, facing an allegation of an illegal
stop/question/frisk amongst other charges, retired and had their cases “administratively filed.” Beginning in 2018, in
theory, those officers who resigned “in connection with allegations of misconduct” are to be listed in a public
“decertification” list whereby future employers, including law enforcement agencies, would be aware of the
misconduct cause for retirement. See N.Y. Exec. Law § 845; 9 NYCRR § 6056.2; NYS Division of Criminal Justice
Services, Police and Peace Officer Decertification, available at https://www.criminaljustice.ny.gov/Officer_Decertifi
cation.htm. A recent (Nov. 17. 2021) search of that database did not include any of the officers who separated while
facing SQF misconduct charges. It is unclear why NYPD did not post their names with DCJS. Absent listing, they
could be rehired by other agencies without knowledge of the SQF misconduct allegation. See also Arno Pedram and
Luca Powell, NY Regulations Allow Cops Stripped of Training Credentials to be Rehired, The Intercept, available at
https://theintercept.com/2021/07/08/new-york-police-decertification/.
229
See N.Y. Pub. Off. Law §30(1)(e). There were eleven such dismissals in 2018. None, other than
, were
for “Misconduct Involving Public Interaction.” NYPD, Discipline in the NYPD 2018 at , available at
https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/discipline-in-the-nypd2018.pdf. There were ten dismissals in 2019. None were for “Misconduct Involving Public Interaction.” NYPD,
Discipline in the NYPD 2019 at 10, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_pla
nning/discipline/discipline-in-the-nypd-2019a.pdf.
52
Throughout this Report, as in most NYPD and CCRB reports, a chart may simply say
that “x days” were imposed as a penalty. When so indicated, the days deducted could be penalty
days, lost accrued vacation time, or days on suspension which were applied to the penalty
imposed.
D.
Informal Discipline
Regardless of how a matter was investigated, or which entity investigated, for many
thousands of complaints of misconduct each year, informal measures are used in place of formal
proceedings. The lion’s share of discipline administered by the Department is through Command
Discipline (CD), which is defined as “non-judicial discipline that can be issued by a
commanding/executive officer for any minor violation . . . in order to correct” deficiencies and
maintain discipline within the command.230 The Department can eschew formal discipline and
offer a Command Discipline to the subject officer. The officer may then decide to accept a penalty
or even accept a CD without penalty and waive formalities.
When first instituted, Command Discipline was described as “an administrative procedure
designed to allow commanding officers to handle the less serious violation without resorting to the
filing of formal charges and a trial.” 231 Commissioner Bratton described it as one way of
“practicing community policing on the cops.”232 Prior to 1995, DAO would handle minor
infractions. Beginning on October 13, 1995, Commanding Officers were given expanded authority
to handle a range of misconduct at the local level and the Command Discipline system was
instituted.
With time, Command Discipline has become the predominant form of proceeding, invoked
for almost every kind of misbehavior. It can follow substantiation of a misconduct allegation after
an investigation by CCRB, DAO, IAB, FID, OCD, BIU,233 or even an investigation initiated at the
precinct level by local supervisors. Commanding/Executive Officers are authorized to impose
informal discipline directly for misconduct observed within the precinct.234
Command Disciplines (CDs) fall into three categories: Schedule A (A-CD), Schedule B
(B-CD) or Schedule C (C-CD).235 CDs, if punished, may be punishable by forfeiture of penalty
230
Admin. Guide § 318-01.
231
Police Commissioner William Bratton began the informal process on October 13, 1995. See First Annual Report,
Citizens Commission to Combat Corruption (CCCC) at 99 (Mar. 25, 1996).
232
Baker, Bratton Tries a Community Policing Approach, on the New York Police, N.Y. Times (Sept. 20, 2015).
233
Departmental internal investigating entities, discussed later, include: “IAB” (the Internal Affairs Bureau); “FID”
(the Force Investigation Division); “OCD” (the Office of the Chief of Department); “BIU” (Borough Inspections
Unit).
234
Admin. Guide § 318-02 (formerly Patrol Guide § 206-02).
235
C-CDs can carry a penalty up to twenty penalty days. C-CDs are rare and are not an available penalty to local
commanders. Admin. Guide § 318-01 (formerly Patrol Guide § 206-03). No C-CDs have been proposed by COs or
approved by DAO in recent years.
53
days or hours. For an A-CD, the subject officer may be assessed up to five vacation or penalty
days. B-CDs permits a forfeiture of up to ten days.236
Investigations when conducted at the Command level are, absent exigent circumstances,
required to be completed within sixty days of “issuance” (presumably the date a Supervisor’s
Complaint Report (PD468-123) is filed with the Commanding/Executive Officer).237 Thereafter,
within five working days of the adjudication, the ICO must enter required data in the Citywide
Command Discipline System, which entries must be finalized by the CO/XO within the next five
days. The Citywide Command Discipline System is merely a statistical compilation and is not
useful for identification of findings against a particular officer.
After investigation, the Police Commissioner may pass along a substantiated finding of
misconduct by CCRB or one of the Departmental investigating units to the local Command with
direction to impose Command Discipline. Unless specifically directed by the Police
Commissioner, there is no requirement that any penalty be imposed. The decision is left to the
Commanding Officer (CO). The CO may impose a penalty or direct that the officer receive
guidance in the form of Training, Instructions, or a warning. The CO may also decide to take no
further action.
E.
Guidance in Lieu of Discipline
Very often, findings of misconduct, especially for SQF misconduct, result in guidance,
such as “Training,” “Instructions,” “Warnings/admonition,” or CRAFT entries,238 without
imposition of an official penalty. Guidance by itself is not a penalty.
Remedial actions falling within guidance include:
Monitoring: This may entail increased supervision, change of assignment, limitation
on promotion or specialized assignments, restrictions on hours worked or permission
to engage in off-duty employment.239
236
Patrol Guide § 206-04. The Patrol Guide also authorizes “[r]evocation of permission to engage in outside
employment for a fixed period of time, not to exceed thirty days, if the violation is related to outside employment”
and restrictions on up to five out-of-command assignments.
237
Admin. Guide § 318-02. But see Covino v. Kane, 273 A.D.2d 380 (2d Dep’t 2000) (Violation of union contract
provision requiring a disciplinary decision be made with sixty days held harmless as contract did not provide for
recourse.)
238
Cop’s Rapid Assessment Feedback Tool (CRAFT). Formerly, precincts kept a “minor violation” log as a paper
local record in the precinct. The minor violations log was a logbook kept at each command that recorded minor
procedural violations of Department rules by members of the service. The information in these logs was not tracked
centrally, it did not become part of a member’s personnel record, and there were no penalties or additional
consequences for being listed in the log. The NYPD has replaced the minor violations log with a CRAFT Supervisor’s
Comment Form. CRAFT entries can be either positive or negative. CRAFT entries are not considered discipline by
the Department.
239
Monitoring comes at three levels. Level 1 and Level 2 are not disciplinary. They are part of supervision and
management. Monitoring may or may not follow as an additional consequence of a misconduct determination or as
part of any other performance review, but it is not a penalty dependent upon a finding of misconduct. Level 1 and
Level 2 last 12 months and 18 months respectively and can include mentoring, counseling, or restrictions on
54
Instructions: Which may be given by the Legal Bureau or within the Command by a
supervisor or Training Sergeant. Instructions are meant to be tailored to the particular
behavior leading to the need for remediation or guidance.240
Training: Which may be given at the NYPD Police Academy or by the Legal Bureau.
Training may be accomplished by attending classes or observing a video241 and
frequently consists of re-visiting a course previously given to the officer. There are
specialized courses in SQF and in Tactical Communication—learning how to
respectfully speak to civilians.
Warning/Admonishment: Verbal or written communication to the officer, usually
within the command, which is not entered in the Central Personnel Index (CPI) or
permanent personnel file.
Many, if not most, of the substantiated SQF or stop report failure cases provide for
guidance in the form of “Training” or “Instructions.” Training may occur by direct interaction
with one of the lawyers in the Legal Bureau or the Professional Standards Bureau or merely a
requirement that the officer attend a Police Academy class. The Police Academy class often is the
same class that officers were required to attend prior to the infraction. They repeat the course.
The requirement may also be met by viewing an instructional video (which may or may not have
been seen by the subject previously).
It is not uncommon for an officer to be directed to undergo “Training” more than once after
multiple findings of misconduct.
“Records of training are kept and maintained in several decentralized locations,
depending upon the type of training imposed. Training imposed as a result of formal
discipline is maintained in DADS. Training which results from informal discipline
is often recorded at a precinct level, in a personnel folder, and in the CRAFT
system. Training performed from the Training Unit, in accordance with tactics and
other directives, is generally reflected in an officer’s CPR.”242
assignments. Level 3 accompanies dismissal probation and can be considered discipline, but it also may be based
upon negative performance, without a finding of misconduct.
240
“With the adoption of the NYPD Disciplinary Matrix on March 15, 2021, the CCRB no longer issues Instructions
as a Board Discipline Recommendation.”
CCRB Monthly Statistical Report, January 2023 at 25,
https://www.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2023/01112023_monthlystats.pdf.
Notwithstanding, the Police Commissioner, DAO, and local Commanders may continue to do so.
241
When an officer is directed to take “Training” upon substantiation of misconduct, that may be completed by
viewing a video instead of personally attending a class. The Disciplinary System Penalty Guidelines provide that
“training will be delivered . . . in a suitable venue,” which can include delivery by the Training Sergeant in the precinct,
at the Legal Bureau, the Police Academy, or at the Professional Standards Bureau (formerly the Risk Management
Bureau).
NYPD,
Disciplinary
System
Penalty
Guidelines
at
3,
available
at
https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/disciplinary-system-penalty-guidelineseffective-01-15-2021-compete-.pdf.
242
December 22, 2023 “DAO Responses to Federal Monitor Inquiry – FM 68-2023.”
55
In 2017, 48 of 102 SQF misconduct cases substantiated by CCRB were sent for Training.
In 2018, 27 of 88 substantiated SQF misconduct cases were sent for Training. In 2019, 39 of 96
substantiated SQF misconduct cases were sent for Training.
Command Level Instructions, referred to as “Instructions,” is given at the command,
usually by a training sergeant assigned in each command. If the instruction was directed by DAO,
a communication is sent from DAO to the CO of the command regarding the issue to be covered.
However, DAO does not advise the CO under what circumstances, or how, to give the instruction.
DAO sends a communication regarding the subject of instruction but receives no specific
information on what follows.243 The CO signs an endorsement on the original directive merely
indicating that “Instructions” were given, without further specification.
The CCRB tells Board members that instruction is “less formal,”244 and has stated that
panels “usually recommend this type of discipline where the [officer] has committed a technical
violation of the law or Patrol Guide, but the Panel understands the reasoning behind the [officer’s]
actions.”245 Despite the fact that a Fourth Amendment violation is not, and should not be
considered, a “technical violation of the law,” in 2017-2019, the Board recommended instructions
in 25 cases of SQF misconduct. The Police Commissioner imposed instructions in 10 of those
cases. The remainder were either disposed of by No Disciplinary Action (NDA) or by training.
F.
Discipline Defined
The preceding paragraphs use the term “penalty” in place of “discipline” at various points.
Throughout this Report there will be many statistical measures and tables describing whether and
at what level discipline was imposed for officer misconduct. In quantifying whether “discipline”
was imposed, this Report will adopt the statutory definitions of discipline in the Civil Service Law
§ 75 and in Administrative Code § 14-115 (deducted time credit, suspension, termination, formal
reprimand).246 “Guidance” such as “Training,” “Instructions,” or “Warnings,” without a penalty
carries little or no adverse consequence or career stigma for the officer.247 When no adverse
consequence, punishment, or penalty described in the statute follows a misconduct finding, it
invites misunderstanding to say that “discipline was imposed.”248 Acceptance by the Department
243
See September 18, 2019, response to Monitor inquiry of DAO.
244
CCRB 101, included in a “Board Packet” provided new members, at 37 (“Disciplinary Recommendations”).
245
CCRB, Memorandum Accompanying August 8, 2018, Public Presentation of CCRB’s Disciplinary Framework, at
4, available at https://www nyc.gov/assets/ccrb/downloads/pdf/about_pdf/board/20180808_disciplinaryframework_
memo.pdf.
246
Lynch v. Civilian Complaint Rev. Bd., 183 A.D.3d 512, 515 (1st Dep’t 2020) (stating that Instructions and Training
are “short of removal and disciplinary proceedings” and do not implicate Section 75).
247
The Department, in its online explanation of penalties, lists Reprimand, Penalty Days, Dismissal Probation, and
Dismissal or Forced Separation, citing formal re-training, non-punitive counseling, or monitoring programs not as
penalties, but as “Additional Sanctions.” NYPD, Discipline in the NYPD 2019 at 7, available at
https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/discipline-in-the-nypd2019a.pdf.
248
CCRB annual and bi-annual reports, see CCRB, Reports, available at https://www1.nyc.gov/site/ccrb/policy/
56
of a finding of misconduct by CCRB, standing alone, may signify no more than that the
Department acknowledged the finding and then ordered some “corrective action,” caution, or
guidance in place of a penalty.249 In the words of the Department, an officer receives training “in
order to assist him in addressing future similar incidents,” not as a disciplinary penalty.250
In describing whether an officer was disciplined for improper behavior, this Report does
not count an officer as having been “disciplined” if the case was resolved without one of the
penalties listed in the statute as a discipline.251
The Department, when responding to public inquiries for disciplinary history, recognizes
the distinction between guidance and discipline and takes pains to omit cases where no penalty
was imposed: guidance outcomes are not listed as part of the “disciplinary history” of officers.
The Department’s online posting of “Officer Profiles” under “Disciplinary History” will not post
a case where the officer only received guidance, even when the guidance was the end result of a
formal proceeding. When CCRB substantiates a case and recommends Charges and
Specifications, if the final outcome, before or after trial, is Training, the NYPD officer profile does
not post the event because it is not, in the eyes of the Department, part of the officer’s disciplinary
history.
reports.page, will commonly say “discipline was imposed” after a case was sent to the Police Commissioner, when in
fact Training, Instructions or warnings were the only action directed by the Police Commissioner. For example, when
the Police Commissioner decides to block a CCRB-APU prosecution (Provision Two - retention, discussed later),
CCRB will frequently report that the case was “retained with discipline” when, in fact, only guidance, without penalty,
followed.
249
In a parallel proceeding, Nunez v. City of New York, No. 11-cv-5845 (S.D.N.Y.), regarding misconduct by staff of
the NYC Department of Correction, the federal monitor is careful to use the term “corrective action” when discussing
Training, counseling, modification of assignment and even suspension. See, e.g., Eleventh Report of the Nunez
Independent Monitor at 75, Nunez, No. 11-cv-5845 (S.D.N.Y. May 11, 2021), ECF No. 368. In other major cities,
where Guidelines have been adopted or court-ordered, Training, Instructions, and Warnings are corrective, nondisciplinary, actions. See, e.g., Los Angeles Police Department Admin. Order No. 15 (Sept 15, 2016); United State v.
City of Cleveland, No. 15-cv-1046 (N.D. Ohio, Jan 10, 2018); Denver Police Department Discipline Handbook:
Conduct Principles and Disciplinary Guidelines (May 3, 2018).
250
See, e.g., “Police Commissioner’s Penalty Departure” letter, CCRB #
, January 8, 2020.
251
This very distinction was made in Lynch, 183 A.D.3d at 512. In considering whether the Statute of Limitations
contained in Civil Service Law § 75(4), which bars late disciplinary proceedings, barred untimely imposition of
Instructions or Training, the majority ruled that Instructions and Training fall short of discipline and Section 75 was
inapplicable. Lynch, 183 A.D.3d at 515. The majority (3-1) rejected the argument made by the lone dissenting justice
that “behavior correction or Training” would still constitute discipline and the Department’s argument that the mere
presence of a complaint on record would “unduly stigmatize” an officer and impact future promotions and transfers.
Id. at 520-21. See also CCRB Memorandum Accompanying August 8, 2018, Public Presentation of CCRB’s
Disciplinary Framework, at 5. (“Formalized Training and Command Level Instructions are not considered formal
discipline by the NYPD and can be imposed even after the statute of limitations has run on a case.”)
57
If guidance is the only disposition after a finding of misconduct, that action is not recorded
in the officer’s Central Personnel Index (CPI).252 This omission is consequential because the CPI
is reviewed for decisions regarding assignment, promotion, or transfer.253
Since guidance does not qualify as discipline, it can be imposed even after the statute of
limitations has run on a case.254 The statutory limitation applies only to discipline, not to guidance,
including training, instructions, or admonitions.
In criminal court proceedings, when a report of prior discipline for misconduct is produced
for use as potential Giglio material, the Department provides the prosecutor and court with a
modified copy of the CPI which does not include findings resulting in guidance.255 The response
has repeatedly been deemed inadequate by courts which have found that “records underlying
substantiated and unsubstantiated disciplinary allegations of misconduct” are required to be
disclosed by statute. 256
The NYC Charter also distinguishes guidance from discipline in its text. Section 441 of
the Charter, mandates that a finding by the Board of acts of bias be detailed in a “written statement
252
An accepted B-CD with guidance which came through CCRB will be entered in the CPI. But guidance, without a
B-CD, is not included.
253
AG § 329-09.
254
Id.
255
See Giglio v. United States, 405 U.S. 150 (1972). The adequacy of a limited response in the face of a discovery
demand under the Criminal Procedure Law is a topic working its way through New York criminal courts. See, e.g.,
People v. Perez, 144 N.Y.S.3d 332(Crim. Ct. Bronx Cnty. Apr. 8, 2021). “Although decisional law on this issue is
still unsettled, and the Court acknowledges very little appellate authority on the issue, this Court stands by its prior
findings that all underlying documents relating to substantiated police misconduct allegations, and accompanying
disciplinary records must be disclosed . . . as well as unsubstantiated misconduct allegations . . . and not just a summary
of misconduct allegations.” People v. Sarcone, 79 Misc 3d 1222A, 2023 NY Misc LEXIS 3370 (Bx. Crim. Ct. July
6, 2023) (internal citations omitted). AG 329-09 provides, “Information contained in the Central Personnel Index is
highly personal and confidential. . . . Information will be disseminated on a need-to-know basis and authorized
personnel will not utilize the Index for mass checks. In no cases will any information be divulged relative to a current
investigation.” at p2.
256
CPL 245.20 (1)(k)(1v). People v. Darren, 2022 NY Misc. LEXIS 2156 (NY Cnty. Crim. Ct. 2022). (“Indeed, this
court has rejected them [listing arguments against disclosure of NYPD disciplinary records] on several occasions (see
People v. Soto, 72 Misc 3d 1153, 152 N.Y.S.3d 274 [Crim. Ct., NY Cnty. 2021]; People v. Williams, 72 Misc 3d
1214[A], 150 N.Y.S.3d 234 [Crim. Ct., NY Cnty. 2021]). Other judges in this courthouse have likewise rejected the
same arguments, holding that CPL 245.20 (1)(k)(iv) requires disclosure of records underlying substantiated and
unsubstantiated disciplinary allegations of misconduct before a valid COC [certificate of compliance] can be filed (see
People v. Edwards, 74 Misc 3d 433, 160 N.Y.S.3d 532 [Crim. Ct., NY Cnty. 2021]; People v. Barralaga, 73 Misc 3d
510, 153 N.Y.S.3d 808 [Crim. Ct., NY Cnty. 2021]; People v. Kelly, 71 Misc 3d 1202[A], 142 N.Y.S.3d 788 [Crim.
Ct., NY Cnty. 2021]); People v. Ahmed Mohammed, CR-026662-21NY [Crim. Ct., NY Cnty., Apr. 28, 2022]; People
v. Abdul Salaam, CR-019124-21NY [Crim. Ct., NY Cnty., Apr. 19, 2022]; People v. Eric Morton, CR-003860-21NY
[Crim. Ct., NY Cnty., Aug. 25, 2021]). Courts of other jurisdictions have handed down the same ruling (People v.
Perez, 71 Misc 3d 1214[A], 144 N.Y.S.3d 332 [Crim. Ct., Bronx Cnty. 2021]; People v. Herrera, 71 Misc 3d 1205[A],
142 N.Y.S.3d 791[Dist. Ct., Nassau Cnty. 2021]; People v. Cooper, 71 Misc 3d 559, 143 N.Y.S.3d 805 [Cnty. Ct.,
Erie Cnty. 2021]; People v. McKinney, 71 Misc 3d 1221[A], 145 N.Y.S.3d 328 [Crim. Ct., Kings Cnty. 2021]; People
v. Porter, 71 Misc 3d 187, 142 N.Y.S.3d 703 [Crim. Ct., Bronx Cnty. 2020]; People v. Randolph, 69 Misc 3d 770,
132 N.Y.S.3d 726 [Sup. Ct., Suffolk Cnty. 2020]; People v. Rosario, 70 Misc 3d 753, 139 N.Y.S.3d 498 [Cnty. Ct.,
Albany Cnty. 2020]).”
58
of final determination” which must include “recommendations of the board for remedial action,
including Training, discipline, where consistent with section 75 of the civil service law, or both.”257
By the language of the Charter, Training is a “remedial action,” distinct from section 75 discipline.
That is not to say that training or other forms of guidance are always inappropriate
resolutions where SQF misconduct is alleged. In fact, the United State Department of Justice
encourages training as an adjunct to discipline, but not as a substitute for discipline. DOJ
distinguishes remedial measures from discipline and recommends guidance simply upon an
allegation, not proof, of misconduct:
Regardless of whether a misconduct allegation is substantiated and regardless of
whether discipline is ordered, the agency should additionally consider whether to
require Training, counseling, or other remedial non-disciplinary measure for
officers who are the subject of a misconduct investigation[]. Where the
substantiated misconduct involves excessive force, false arrest, improper search or
seizure, discriminatory policing, or discriminatory behavior in the workplace,
discipline typically should be accompanied by appropriate remedial nondisciplinary measures.258
In the area of SQF violations, guidance may be appropriate and a proper outcome for, in
the words of Patrol Guide, “isolated cases of erroneous but good-faith stops or frisks,”259 but it
should not be confused with “discipline.”
i.
Discipline Recommended by CCRB
The distinction between discipline and guidance is important because CCRB frequently
recommends guidance in lieu of discipline after a substantiated FADO finding. In turn, the Police
Commissioner reduces to guidance a significant number of the cases where CCRB has
recommended discipline. If CCRB recommends guidance and DAO agrees, a form will be sent to
the CO indicating what Instructions or Training should be imposed. When completed, an
endorsement is sent to DAO simply indicating completion. This information does not go into any
centralized personnel folder unless specific Training was directed by the Police Commissioner.
For the years 2017 to 2019, CCRB substantiated FADO misconduct allegations against
1,217 officers.260 CCRB recommended Command Discipline or charges for 689 of the officers and
recommended Training or Instructions in 528 of those cases. The Police Commissioner then
imposed Command Discipline, not necessarily statutory discipline, for only 259261 and pursued
257
N.Y. City Charter § 441(d)(2)(iii) (added by Local Law 47 of 2021).
258
US Department of Justice, Principles for Promoting Police Integrity: Examples of Promising Police Practices and
Policies at 9 (Jan. 2001), available at https://www.ojp.gov/pdffiles1/ojp/186189.pdf. (Emphasis supplied.)
259
Patrol Guide § 212-11.
260
CCRB, Annual Report 2019 at 43, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annu
al_bi-annual/2019CCRB_AnnualReport.pdf.
261
As discussed later, many if not most of the CDs were “accepted” without imposition of any penalty.
59
charges for fourteen officers.262 The Police Commissioner ordered Training, Instructions, or no
discipline for the remaining 944 officers (77.6%).
In sum, CCRB recommended discipline for 56.6% of its substantiated complaints but the
Police Commissioner imposed a CD or accepted charges for fewer than 22.4% of CCRB’s
substantiated complaints. Even then, as explained in the following section, the fact that a CD was
accepted or charges were filed in the 22.4% of the substantiated cases, does not mean that any
penalty was actually imposed for those officers. Reports by CCRB or NYPD that “discipline was
imposed” when nothing more was done than to direct “Training,” “Instructions,” or “warnings”
lends to inflated “concurrence” estimates. It is not uncommon for CCRB to recommend CD with
Training and find the case resolved with “Training” alone. That result cannot accurately be
portrayed as “concurrence” and will need to be explained in a departure letter.263
Separating guidance from penalties is especially critical in assessing the level of discipline
applied to stop and frisk misconduct. As with all FADO cases, CCRB frequently recommends
guidance rather than discipline for SQF misconduct. For the years 2017 to 2019, CCRB
recommended no more than “Instructions” or “Training” in 82 of 286 cases where it had
substantiated an allegation of an illegal stop, question, frisk, or search. Thereafter, the Police
Commissioner reduced the penalty recommendations in most of the remaining cases. In the end,
just 27 of 266 officers (10.0%)264 were penalized by forfeiture of penalty days after CCRB had
substantiated an illegal stop, question, frisk, or search.265 The Police Commissioner directed
“Instructions” or “Training” for 135 cases. No penalty was imposed in those 135 cases. The
remaining 104 substantiated SQF cases were disposed of or diverted in other ways, short of
imposition of a penalty.266
The low rate of discipline for SQF misconduct (27 of 266) should be viewed in the broader
context of an equally low rate of substantiation. At the end of the process, the percentage of
civilian complaints alleging illegal SQF behavior that results in the imposition of a penalty is
minimal. The disciplinary “funnel” is extraordinarily narrow.
In the first place, for a multitude of reasons, including truncation, mediation, pending
litigation, and failure to identify the responsible officer, not all complaints of SQF misconduct are
fully investigated. From 2017 to 2019 there were 2,592 complaints to CCRB containing an
allegation of an improper stop, question, frisk, or search of person. Some complaints contained
262
The fact that Charges and Specifications were “pursued” for fourteen officers does not mean that they were found
guilty or that discipline was imposed. There was “Disciplinary Action” in 28% of the cases where charges were
pursued by APU and closed in 2019. The rest were “Not adjudicated” or “No Disciplinary Action.”
263
NYC Charter § 440 (7)(d)(3).
264
There were 286 cases with substantiated findings of SQF misconduct by CCRB sent to DAO in years the 2017 to
2019. Of those, 266 were closed as of the matrix supplied by NYPD. Federal Monitor – SQFSTA Report as of 1231-2021.
265
Sixteen cases were “closed administratively,” which could mean retirement, resignation, or simply a decision by
the Police Commissioner not to pursue the matter for a variety of reasons. Although numbers are incomplete for 2022,
of 254 stop/question/frisk substantiated misconduct findings by CCRB referred to the Department for discipline, 86
have been finalized and only 5 officers received discipline in the form of penalty days.
266
Federal Monitor - SQFSTA Report supplied by DAO to the Monitor.
60
multiple allegations.267 There were 2,176 allegations evaluated to conclusion by CCRB from 2017
to 2019.268 Of those, 559 allegations were substantiated by a panel. The rest went unfounded,
unsubstantiated, or exonerated.269
Putting the numbers for Stop, Frisk, Question, and Search of Person together, 2,592 SQF
complaints to CCRB led to 2,176 evaluations of allegations of SQF misconduct, which led to 559
substantiated allegations against officers, which ended with forfeiture of penalty days for 27
officers—a penalty for less than 1% of civilian complaints.
The years 2017 to 2019 were cited because many later cases substantiated by CCRB in
2020 and 2021 were not yet resolved by the Department. But for the three-year period, 2019
through 2021, of 183 closed and finalized cases where there was a substantiated SQF allegation
within a complaint, only 18 officers received a penalty of lost vacation or credited days.270. In the
few cases where a penalty was imposed, there were likely other factors, beyond SQF misconduct,
which contributed to a rare outcome—discipline for Fourth Amendment violations.
ii.
Discipline for SQF Misconduct Examined at the Precinct
Without a civilian complaint and examination by CCRB, for SQF violations uncovered in
the precinct guidance rather than discipline is also the norm. Improper SQF encounters may be
noticed by a supervisor at the precinct or uncovered in an audit of stop reports. During an audit,
the precinct may become aware of an illegal stop, question, frisk, or search as it screens for failures
to file a stop report. The failure to file a stop report is subject to separate discipline within the
Department as a misconduct case (an “M” case).
In cases where a stop report failure is identified, the underlying SQF violation would not
fall within CCRB’s Abuse of Authority jurisdiction without a civilian complaint. SQF misconduct
identified in the precinct is not forwarded to CCRB for investigation. The local CO then is
responsible to decide whether the illegal stop, frisk, or search should be disciplined. Of 86 reported
failures to file a stop report, some with identified SQF misconduct, uncovered by QAD audits
spanning the period from 4Q2016 to 1Q2020, 62 received a CRAFT report, 29 received
267
An encounter described in a complaint may involve several officers, several citizens, and multiple improper actions.
For example, a wrongful stop, question, frisk, and search by one officer against one civilian, would contain four
allegations of misconduct.
268
Because of the way CCRB reports findings, sometimes listing allegations and sometimes listing complaints, it is
not possible to convert the 2,176 allegations (which were fully investigated) to an identifiable number of complaints
(out of 2,592) that contained an SQF allegation that was fully investigated.
269
CCRB 2019 Annual Report, at 46
270
Subsequent to the drafting of this Report, a matrix submitted by DAO included stop/frisk substantiations up to
September 30, 2022. Of 46 cases where CCRB substantiated an SQF violation, 25 had been finalized by the Police
Commissioner who imposed penalty days on only two of the officers (
and
) whose cases are
discussed later in the report. Due to the Covid pandemic, the interview and investigation process was impaired
considerably in 2020-21. In 2022, as of the report date, 254 cases with a substantiated SQF violation were sent to
DAO from CCRB. In 86 cases, the matter was closed with five of the 86 receiving a penalty of lost vacation days (two
officers lost three days each and the officers lost one day each. Final Federal Monitor - S Q F S T A Report as of 0930-2022 (1).
61
Instruction/Training, 10 accepted a Command Discipline without penalty, and 11 received NDA.271
No penalty days were assessed by the local command for stop and frisk report failures.
The question that follows is whether an identified stop report failure is merely a
documentation failure or is an indicator of an illegal stop and, if so, whether, along with the finding
of a stop report failure, illegal stops are identified and disciplined in the precinct, absent a civilian
complaint to, and substantiation by, CCRB. According to the Department, in 2018 and 2019, 181
cases of “Improper Preparation of Stop Report” were identified through a combination of
inspections by QAD, Command, and CCRB referrals. Twenty-two of the 181 were further
classified by commands as “Improper Stop/Frisk/Search.”272 None of the report failures uncovered
by QAD or local commands and classified as “Improper Stop/Frisk/Search” received penalty days
as discipline.
With the information made available to the Monitor Team, it appears that SQF misconduct,
absent a CCRB investigation, even if identified in the precinct, is not penalized by loss of vacation
days.
G.
“CD Accepted”
As noted above, an officer can “accept” Command Discipline, waive the filing of Charges
and Specifications and forego a trial. A “CD accepted” concludes a proceeding and can be
imposed with or without a penalty. If the final outcome of a misconduct investigation is an “ACD accepted,” without further penalty, it should not be considered discipline. This occurs with
regularity for stop and frisk misconduct.273
After investigation, when a CCRB panel substantiates an allegation, it does not recommend
a specific penalty. If a CCRB panel believes that a penalty rather than guidance is needed, it will
simply recommend an A-CD, a B-CD, or Charges and Specifications, depending on what penalty
the panel believes should be available to the Police Commissioner (up to five penalty days, up to
ten penalty days, or more).274 This leaves the choice of penalty to the Police Commissioner.275 In
turn, the Police Commissioner may fix a penalty or send the command discipline (an A-CD or a
B-CD) to the command, in which case, the Commanding Officer determines whether and what
271
NYPD Spreadsheet: “QAD stop report failures,” (Dec. 8. 2020), on file with the Monitor Team.
272
NYPD Spreadsheet: “2-25-2019 Final Spreadsheet Without Color,” last modified Apr. 5, 2020.
273
“Disciplinary memoranda and evaluations are adverse employment actions only if they affect ultimate employment
decisions such as promotions, wages or termination.” Knight v. City of New York, 303 F. Supp. 2d 485, 497 (S.D.N.Y.
2004) (alteration method) (quoting Regis v. Metropolitan Jewish Geriatric Ctr., 2000 WL 264336, at *8 (E.D.N.Y.
Jan. 11, 2000)).
274
C-CDs (with a potential penalty of twenty days) are the exclusive province of the Police Commissioner. If a CCRB
panel believes a penalty greater than the ten days available in a B-CD should be imposed, it will not recommend a CCD. Instead, it asks APU to file Charges and Specifications. NYPD, Disciplinary System Penalty Guidelines at 13
(Jan. 15, 2021).
275
As discussed later, when calculating “progressive discipline” for Guidelines purposes, CCRB has asserted that it
will presume a penalty of five days was imposed when an A-CD was accepted, despite the reality that this almost
never occurs.
62
penalty should be imposed. In either case, the end result can be that no disciplinary penalty is
imposed. In both cases, “CD accepted” has no disciplinary consequence if it carries no penalty.276
In many instances, “Command Discipline” (CD) is accepted, but does not carry an
accompanying penalty and will not be considered discipline in this Report unless a penalty as
described in § 14-115 accompanies the determination. Mere acceptance of an A-CD without a
penalty (even if the result is Training, Instructions or a warning and admonishment) and without
entry into a centralized personnel record such as the CPI is not discipline. A formal, written,
reprimand citing a CD and recorded in the CPI is a penalty. If DAO assesses a penalty by way of
lost time or credit, it notifies the Leave Integrity Management System. Otherwise, there is no
permanent record other than DAO’s own internal database (DADS), which is not available outside
of DAO.
A disciplinary history may be looked at when promotions are under consideration.277
However, “[h]aving a disciplinary history cannot, standing alone, disqualify a candidate for
promotion.”278
Until 2022, Patrol Guide § 206-04 authorized, in addition to loss of vacation days or
accrued time, revocation of permission to engage in outside employment, but only if the
misconduct was related to the outside employment. As well, a Commanding Officer was
authorized to restrict up to five overtime assignments. The Patrol Guide went on to authorize other
actions which were not included as “penalties.” They included: (1) warning and admonishing
verbally; (2) warning and admonishing in writing with “a copy to be filed with the papers”;279 and
(3) changing assignments. These actions were not penalties linked to an adjudication or acceptance
of discipline.
More recently, with disciplinary matters being moved from the Patrol Guide to the
Administrative Guide, Admin. Guide § 318-01 has been amended280 to move the authorization to
change assignment, limit outside employment and restrict some overtime under a category labeled
“Penalties for Schedule A.”
Command discipline can result from a wide range of misconduct—from minor to more
serious. Patrol Guide § 206-03 listed offenses from illegal parking to neglect of care of firearms
or failure to submit reports in a timely manner. With an amendment to the Administrative Guide
276
Cf. Wohlrab v. Miles, 82 A.D.2d 836 (2d Dep’t 1981) (where a police Lieutenant in Newburgh was adjudicated
guilty of nine charges of misconduct, but no further penalty was imposed, the Court held the statute did not permit
judicial review of the findings, which is limited to cases where the officer believes “himself aggrieved by a penalty or
punishment of demotion in or dismissal from the service, or suspension without pay, or fine, imposed pursuant to the
provisions of section seventy-five” (internal quotation marks omitted)). Unless so aggrieved, the Civil Service Law
does not recognize the adjudication as a cognizable injury capable of judicial review.
277
The Career Advancement Review Board (CARB) is convened to determine whether members who have
disciplinary issues in their careers possess the character and judgment necessary to become a supervisor. Admin.
Guide § 329-15. Longe v. City of New York, 802 F. App’x 635 (2d Cir. 2020).
278
Thompson v. City of New York, 50 Misc. 3d 1202 (A) at *13 (Sup.Ct. N.Y. Cnty. 2015).
279
“Papers” is not defined, but presumably it is the written hardcopy kept at the precinct. Admin. Guide § 320.
280
Effective February 16, 2022.
63
in February 2022, the list of misconduct was eliminated, and Commanding Officers were directed
to refer to the Disciplinary System Penalty Guidelines (the Matrix) for offenses punishable by
command discipline. The listing identifies the same thirty-five violations that had been written
into Patrol Guide § 206. Unlike other misconduct in the Guidelines, there is no reference to a
presumptive penalty.
While the Payroll Management System will be advised if there is a forfeiture of time or
days, misconduct assessed within the command is not noted in any central repository for
disciplinary records. Patrol Guide § 206-02281 required the ICO to enter all relevant information
regarding command disciplines into the Citywide Command Discipline System—a statistical
compilation, not useful for examining an individual officer’s disciplinary history. If Command
Discipline is issued at the Command Level without coming through DAO, then DAO would not
have a record of the CD. The exception would be if the B-CD or recommendation for a C-CD was
presented to DAO, i.e., disciplinary matters other than Schedule A command disciplines, where
conferral or approval by DAO is required.282
For a significant number of cases where CCRB substantiated SQF misconduct, “CD
accepted” is the final disposition with no discipline attached. Only a small fraction of SQF cases,
where a CD is accepted, carry a penalty.283 Looking at closed SQF cases:284
In 2017, of 101 substantiated CCRB cases which included SQF misconduct, 22 cases
resulted in a final disposition of “CD accepted.” Only one of those cases carried
forfeiture of a penalty day; three carried a time deduction of two to four hours.285
In 2018, of 82 substantiated SQF cases, 15 cases resulted in a designation “CD
accepted.” Two of those cases carried a penalty of days forfeited, two cases had time
deducted.286
In 2019, of 96 substantiated SQF cases, 33 cases resulted in a designation “CD
accepted.” Two of those cases resulted in forfeiture of one penalty day for each, three
cases had hours deducted.287
281
Now Admin. Guide § 318-02.
282
Admin. Guide §§ 318-02, 03.
283
This practice may be impacted, but not eliminated, in the future to some extent, by application of the newly adopted
disciplinary matrix, discussed later. For example, in 2022 of the first 131 closed cases with a substantiated SQF
violation, 30 cases resulted in a “CD accepted”—14 of the 30 resulted in loss of one or more penalty days and five of
the cases resulted in a loss of credit for one or more hours. Eleven of the 30 cases ended in a “CD accepted” without
penalty. (NYPD Final Federal Monitor – SQFSTA Q1, Q2, as of Sept. 28, 2023 provided to the Monitor.)
284
Final Federal Monitor – SQFSTA -2023 Q1 Q2 final copy.
285
The one A-CD carried a forfeiture of one penalty day. Time deducted for three cases was two, two, and four hours
respectively. SQFSTA matrix
286
One A-CD carried a one-day, the other a five-day, penalty (the officer was found to have given false testimony);
two cases had four and five hours deducted, respectively.
287
Each of the two cases ended with one penalty day assessed; three cases had time deducted of one, one, and four
hours respectively.
64
Further analysis of the above is more revealing. Not one case could be found where an ACD was “accepted” in that three-year period and where a penalty was imposed for illegal SQF
behavior alone. Here, an explanation is in order.
Along with stop and frisk misconduct, if CCRB substantiates other FADO misconduct such
as wrongful force, discourtesy, slurs, strip searches, threatened firearm use, or vehicle searches,
for example, in the same complaint with the SQF misconduct, a common result will be to roll all
substantiated allegations together into one disposition—“CD accepted.”288 From 2017 to 2019, if
one analyzes the above 69 cases where a CD was “accepted,” 47 included other substantiated
misconduct allegations in addition to an improper stop, question, frisk, or search. They ranged
from force to illegal arrests, etc. Included in that 47 were all five cases (in the three-year period)
which received a penalty of a day(s) forfeited.
In sum, for 2017-2019, putting the “guidance” and “CD accepted” numbers together for
wrongful SQF behavior:
H.
Guidance instead of discipline was imposed in 135 of 266 closed cases.289
“CD accepted” was the final outcome for another 69 of 266 closed cases.
Only five cases where a CD was accepted resulted in penalty days being assessed and
in all five of those cases, the penalty covered other wrongful behavior in addition to an
illegal stop or frisk in the complaint.
Eight cases where a CD was accepted ended with an aggregate total of 23 hours of
credited time being forfeited.
A-CDs Not Recorded in the Central Personnel Index
Of the 69 SQF cases where a CD was accepted between 2017 and 2019, 55 were for an ACD. Seven of the 55 A-CDs carried a penalty.290 For those seven cases, it can be said discipline
was imposed. But, aside from the loss of a few days or hours of accrued vacation or credited time,
what was the long-term consequence? Does the subject officer face any after-effect beyond a
relatively minor loss of a few accrued vacation hours or days? Is there a permanent record of
misconduct, especially SQF misconduct, which can be seen by future investigators? By superiors
making personnel decisions? By the public?
The Central Personnel Index, or CPI, is used whenever a background inquiry is made,
including promotion and transfer requests. When CCRB substantiates misconduct, if an A-CD is
288
FADO misconduct could range from excessive force to discourtesy to slurs or any other conduct within FADO.
The disposition by the Police Commissioner is unitary; one disposition for the entire complaint.
289
Guidance and CD accepted account for 204 of the 266 closed cases. The majority of the remaining cases ended
without discipline as well for a variety of reasons (administratively closed, NDA, Not Guilty verdicts, retirement,
etc.). Only twenty-two of the 266 (not already counted in the “CD accepted column”) received penalty day
punishment. (Twenty-seven cases in all received penalty days. Five overlapped in the “CD accepted” column.)
(Federal Monitor – SQFSTA Report as of 12-31-2021.) Those cases will be explained in detail later in this Report.
None of them are cases where penalty days were forfeited in response to an SQF allegation alone. Each has a storied
history.
290
In 2017 and 2018, three officers lost a total of seven days and four officers lost a total of nine hours. In 2019, no
officer receiving an A-CD was penalized with a loss of time or vacation day.
65
records of other (non-CCRB) NYPD investigations, even if related to the substantiated
misconduct, such as Stop Report Failures or independent investigations by NYPD.
While the CCRB receives notification of the final category of discipline, the
Agency does not receive specifics on the penalty that the Police Commissioner
ultimately imposes. For instance, the NYPD reports to the CCRB whether an
officer was given a Command Discipline A, but not the number of vacation days
forfeited. Similarly, the Agency is made aware of the fact that Training was given
to an officer, but not the exact Training module.296
When an officer’s disciplinary history is examined by a CCRB investigator for prior or
related misconduct, or by a CCRB panel contemplating a penalty recommendation, a slimmeddown version of the CPI, a Summary Employment History (SEH), is provided to CCRB. The SEH
will not include NYPD investigations with misconduct findings that merely resulted in guidance,
an “accepted A-CD,” or even an A-CD where a penalty was imposed.297 NYPD takes the position
that CCRB need not know of, or consider, prior Departmental A-CDs because they are used “to
empower commanders and address low-level issues through non-judicial means . . . [and] ‘A’ CDs
are not relevant to CCRB cases with regard to content or penalty.”298
Within the precinct, the Commanding Officer may have on file a “Supervisor’s Complaint
Report” (PD 468-123). This record is kept within a “personal folder,” which is a written folder
(11” x 14”) kept at the precinct and not filed digitally or centrally maintained.299
If a case began with the Police Commissioner’s acceptance of substantiated Charges and
Specifications recommended by CCRB, but subsequently the Police Commissioner imposes an ACD as the final disposition, the CPI will continue to reflect the disposition of the action by the
Police Commissioner. Nonetheless, public reports by NYPD, in its online profile,300 will still claim
no disciplinary history.
DAO keeps its own records in a database, known as DADS,301 but that is kept by the
attorney advocates for internal use by DAO and is not accessible outside of DAO. DAO also has
the ability to request the CD history from the officer’s current command. Other entities, such as
NYPD Trial Commissioners, are not informed of misconduct findings ending in an A-CD. This
296
CCRB, Annual Report 2019 at 46 n.37, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/
annual_bi-annual/2019CCRB_AnnualReport.pdf.
297
“The CCRB is provided with the Summary of Employment information which contains: Pedigree information,
Current Command, Arrest history, medals, Discipline History of Closed Charges and Specification and B-CDs/CCDs. It does not contain A-CDs, cases that were dismissed, or those currently pending.” December 22, 2023 “DAO
Responses to Federal Monitor Inquiry – FM 68-22023.”
298
Email from Deputy Commissioner for Risk Management Matthew Pontillo to the Monitor Team (Mar. 18, 2021).
299
Admin. Guide § 320-03.
300
NYPD Officer Profile available at https://nypdonline.org/link/2.
301
Disciplinary Administrative Database System.
67
would seem to incentivize officers to accept an A-CD after a CCRB substantiation, even with a
minor time deduction, since it will have little or no effect on their record or career.
CCRB substantiations are discounted, when compared to the treatment afforded internal
IAB or OCD investigations ending with the same level of discipline. A CCRB substantiated SQF
violation ending in an A-CD is not accorded the same level of notation in personnel records as
other A-CDs for technical infractions found by IAB or OCD. Since, as a practical matter, A-CDs
for SQF only come through CCRB, the net effect is to minimize disciplinary history for SQF
misconduct. At the same time, the City has also maintained that A-CDs in general are “technical
violations” not to be included in disciplinary histories available to the public.302 In the end, the
CPI records technical violations referred by IAB for minor rules violations but omits stop and frisk
A-CDs coming from CCRB.
B-CDs recommended by CCRB and sustained by the Police Commissioner are entered into
the CPI system. However, officers may apply to have the record sealed on the third anniversary
of the disposition if the member has not accrued any new B-CDs or Charges in the interim. If the
officer has new misconduct findings resulting a B-CD or Charges and Specifications, sealing is
delayed until the officer has gone three years from their disposition. An officer may accrue one or
more subsequent A-CDs during the three-year waiting period, but that will not delay or forestall
sealing.303 As demonstrated, a significant number of SQF violations receive an A-CD.
Nonetheless, the Patrol Guide will permit sealing of a B-CD even if the officer has accrued one or
more subsequent SQF A-CDs during the three-year waiting period. Once sealed, the B-CD
misconduct finding is “suppressed . . . whenever background inquiry is made.” The record is only
available to IAB for “statistical evaluations and internal investigations.”304 The B-CD record is
not available to CCRB or Trial Commissioners for use in a new investigation.305
B-CDs for SQF misbehavior are infrequent. Only fourteen cases of 286 closed SQF cases
in the years 2017 to 2019 resulted in a B-CD.306 Six of those fourteen B-CDs received a penalty.
Eight were accepted without further penalty. It might be argued by some that an accepted B-CD
reflects discipline since the fact is noted in the CPI even without imposition of a penalty. But the
fact that the record may be sealed after three years tends to undercut that argument.
In more serious cases where formal charges are pursued, Trial Commissioners
contemplating a penalty recommendation after a guilty verdict or during plea negotiations are
denied a full disciplinary history. Often, when a case is presented to a DCT Trial Commissioner,
DAO will assert that there is “no prior disciplinary history,” unless there is a history of formal
discipline. Many DCT decisions are now available online. They are replete with writeups by trial
commissioners justifying a plea or recommendation to a lesser penalty than one sought by CCRBAPU on the ground that the officer has “no prior disciplinary history” notwithstanding numerous
302
Uniformed Fire Officers Ass’n v. de Blasio, 846 F. App’x 25, 33 (2d Cir. 2021).
303
Admin. Guide § 318-12 (formerly Patrol Guide § 206-14).
304
Id.
305
If the B-CD was adjudicated by CCRB, they will have their own record of the CCRB proceedings.
306
In 2022, as of Sept. 30, 2022, of 254 SQF substantiations by CCRB, the Board recommended a B-CD in 37 cases,
but the Police Commissioner imposed a B-CD in only four of the cases.
68
command disciplines that may have preceded the case. A history of NYPD command discipline,
with or without penalties, and prior “guidance” are simply not considered. Again, since SQF
violations standing alone seldom, if ever, receive formal discipline, current practice undermines a
Trial Commissioner’s ability to take prior SQF misconduct into proper account.307
In public documents, the Department does not report a case as “disciplined” unless Charges
were preferred, and a penalty was imposed. Command Discipline findings by CCRB are not listed.
After the repeal of Civil Rights Law § 50-a, there were frequent calls for a public listing of the
disciplinary history of officers. In its “Collaborative Plan” submitted to the Governor, the City
Council and the Mayor promised that the City will “[h]old police officers accountable for
misconduct through internal NYPD disciplinary decisions that are transparent, consistent, and
fair,” which included “[k]eeping a record and recognizing disciplinary actions as vital sources of
information about an officer, supervisors, and the department as a whole” and promising
“[t]ransparency [so] both [the] NYPD and community know what discipline to expect.”308
Unfortunately, the Disciplinary History posted in an Officer’s Profile309 removes all
guidance and all command disciplines, even where penalty days were imposed. Only Charges,
formally pursued and resulting in a penalty are listed. In serious cases, if Charges and
Specifications were pursued and substantiated but if the ultimate disposition by the Police
Commissioner was “Training,” the Officer Profile entry for Disciplinary History will remain blank
with a report that, “[t]his officer does not have any applicable entries.”310 There will be no mention
of the fact that Charges were preferred and reduced to Training. An officer can have a long record
of many substantiations and even discipline, but only formal discipline through Charges and
imposition of a penalty is posted.
In litigation following the repeal of Civil Rights Law § 50-a, the City has taken the position
that A-CDs, even when substantiated, are merely “technical infractions” that should be redacted
from FOIL responses for requests to see “law enforcement disciplinary records.”311 At the moment,
the issue remains unresolved. The Department at some future point may separate some A-CDs
from others for purposes of FOIL disclosure. If the Department continues to deny FOIL requests
for all A-CD findings on the ground that they are “technical infractions,” a court will need to decide
if they properly fall within an exemption in the Public Officers Law to FOIL release of
“disciplinary records.”312
307
In theory, Trial Commissioners will now utilize the Disciplinary System Penalty Guidelines. If they do so, they
are to consider progressive discipline for offenders who repeat a similar offense. This should require production by
DAO of more fulsome records for their review. It is unclear if DAO has committed to such production.
308
NYC Police Reform and Reinvention Collaborative Draft Plan at 13–14 (Mar. 5, 2021), available at
https://www1.nyc.gov/assets/home/downloads/pdf/reports/2021/Final-Policing-Report.pdf, adopted by the N.Y. City
Council, Intro. Res. 1584/2021 (Mar. 25, 2021).
309
See NYPD, Officer Profile, available at https://nypdonline.org/link/2.
310
See, e.g., officer profiles for Officers
,
, and
.
311
Uniformed Fire Officers Ass’n v. de Blasio, 846 F. App’x 25, 33 (2d Cir. 2021) (quoting N.Y. Pub. Off. Law
§ 89(2-c)).
312
Id.
69
Public Officers Law § 89(2-c) permits NYPD, as a matter of discretion, to withhold from
FOIL applications, a record of a “Technical infraction.” Public Officers Law § 86(6) defines a
“Technical infraction” as:
[A]minor rule violation by a person employed by a law enforcement agency as
defined in this section as a police officer, peace officer, or firefighter or
firefighter/paramedic, solely related to the enforcement of administrative
departmental rules that (a) do not involve interactions with members of the public,
(b) are not of public concern, and (c) are not otherwise connected to such person’s
investigative, enforcement, training, supervision, or reporting responsibilities.
Substantiated stop and frisk misconduct clearly does not fall within this exception and
should be available upon FOIL request. Regardless of the outcome of the litigation on the issue
of FOIL access, one thing seems certain: it is difficult to reconcile the City’s argument that A-CDs
are technical infractions unworthy of being included in FOIL responses to request for disciplinary
records while, at the same time, asserting that an “A-CD accepted” without penalty constitutes
“discipline.”
CCRB maintains its own records of past CCRB actions, so it will be aware of the Board’s
own prior misconduct recommendations for an A-CD and whether the Police Commissioner
approved or disapproved the A-CD. Up until now, CCRB was not advised of the specific penalty
imposed by the Department after substantiation and recommendation of an A-CD. CCRB would
only be told that the A-CD was accepted or rejected. If the misconduct is repeated, CCRB’s
knowledge of a prior penalty, or lack thereof, is limited. Without knowledge of prior disciplinary
results, progressive discipline for repeat offenders cannot be realized.313
This last concern may be in the process of being addressed to some extent. The 2020
amendments to the City Charter now require the Police Commissioner to provide the “level of
discipline and any penalty imposed, in all cases in which the board submitted a finding or
recommendation to the Police Commissioner with respect to a matter within its jurisdiction
pursuant to [Section 440 of the Charter].”314 The stated plan “going forward” is for penalties to be
noted in an NYPD closing memo.315 If accomplished, this will provide CCRB investigators and
panels with the disposition of allegations substantiated by CCRB. Much depends upon how NYPD
interprets the mandate to note a “penalty.” Will NYPD tell CCRB the precise penalty (or lack of
penalty) set by the CO? That has not been the practice heretofore.
The Collaborative Plan declares that “NYPD will make public ‘deviation letters’ that set
out the Police Commissioner’s specific rationale for exercising [her] discretion to deviate from the
313
CCRB has indicated informally that the Board may presume that a penalty was imposed, but that is an assumption
on CCRB’s part—an assumption that is not statistically defensible.
314
N.Y. City Charter § 440(d)(3).
315
Email from Deputy Division Chief, Tort, NYC Law Dep’t, Nancy B. Savasta to the Monitor Team (Mar. 15, 2021)
70
guidelines set by the new disciplinary matrix.”316 Will they specify the suggested and final
penalties imposed?
Depending on the terms of implementation of the new Charter mandate, there is a potential
for important informational gaps to persist:
If a case is sent to the CO for final disposition without direction from the Police
Commissioner, will the CO’s disposition be reported back to CCRB? Currently, when
a case is sent to the CO without specific mandate by the Police Commissioner, the final
penalty or non-penalty by the CO, kept at the precinct, is not logged in a central
database and is not easily retrieved without individualized manual effort. Proceeding
to recommend penalties for misconduct without knowledge of previous final
dispositions runs counter to the notion of “progressive discipline.”317
Outcomes of associated allegations within a complaint which were investigated by the
Department are not reported to CCRB. Many SQF complaints have additional
allegations of wrongdoing in the same encounter or investigation. Many of those, (nonFADO and force) are sent to the Department for investigation. For example, if
allegations of false testimony318 or profiling319 or failure to file a stop report were
included in an SQF complaint, the results of related Departmental investigations of
those matters would not be reported to CCRB.
Going beyond an analysis of consequences when an A-CD is “accepted,” the question to
be answered is whether the Police Commissioner actually imposes a penalty for CCRBsubstantiated stop and frisk allegations.
I.
Penalty Imposed for Floyd Violations?
Floyd concerns and the term “SQF misconduct” as used throughout this Report are not, in
every case, coextensive.320 A police encounter, along with an improper Stop, Question, Frisk, or
Search may also encompass allegations of racial profiling, wrongful use of force, retaliation,
316
NYC Police Reform and Reinvention Collaborative, Initiative Tracker, available at https://www1 nyc.gov/assets/
policereform/downloads/PUBLIC-NYPD-Reform-EO203-Tracker-3-29-22.pdf.
317
Aside from the need to know for purposes of progressive discipline, knowledge of other complaints is useful in
detecting patterns and examining motive. Two of the cases examined later in this report included misconduct claims
of retaliation, where earlier encounters with the same civilian(s) gave insight to later misconduct. (Generally speaking,
an officer receives qualified immunity from § 1983 liability if probable cause supports an arrest even one made with
a retaliatory motive. Whether §1983 immunity should insulate an officer from internal discipline is an open question.
Reichle v. Howards, 566 US 658 [2012]).
318
The 2020 Charter amendments permit CCRB to investigate the “truthfulness of any material official statement . . .
made during the course of and in relation to the board’s resolution of [a FADO] complaint.” N.Y. City Charter §
440(c](1). This leaves out false statements made in court, to district attorneys, to grand juries, in court, and in
paperwork. Experience shows that a false or misleading statement made in one context is often repeated in other
settings. Nothing in the Charter precludes concurrent investigations of false or misleading statement.
319
A 2021 amendment to the Charter directs CCRB to accept profiling complaints. That provision became effective
January 20, 2022.
320
In data analysis, throughout this Report, “SQF” refers to Stop, Question, Frisk, and also includes Search of Person.
71
intentional failure to file a stop report, refusal to identify or display shield, discourtesy, slurs and
offensive language, strip searches, sexual harassment, interference with recording, related vehicle
searches, seizure of property, destruction or copying of cellphone content, failure to activate a
body-worn camera (BWC), improper requests to search, failure to supervise, etc. Many, if not all,
of these offenses, may be associated with a questionable Terry stop.
Some of these violations fall within CCRB FADO jurisdiction and will be investigated
along with the stop or frisk by CCRB. Some do not fall within CCRB FADO jurisdiction and
may, or may not, be investigated concurrently by the Department. For CCRB investigations, it is
not uncommon to have some allegations within a complaint or encounter substantiated while others
are not. Complaints which include an allegation of an illegal stop, frisk, or search of a person that
was not substantiated will not be reflected in a statistical Matrix provided by the Department and
cited here when assessing SQF discipline, even though one or more of the other related allegations
were upheld.
Take as an example a case where an officer stops and questions a civilian in a discourteous
manner. CCRB may unsubstantiate the stop and question allegations because evidence of
“reasonable suspicion,” or the lack thereof, was equivocal. At the same time, CCRB may
substantiate the claim of discourtesy and that discourtesy finding may be penalized. That case will
not be included in any measure of discipline for SQF misconduct even though the misconduct
punished occurred during a stop encounter. To that extent, cited numbers of misconduct and
discipline for complaints associated with stop encounters may be under-inclusive. On the other
hand, the statistics provided by NYPD and CCRB will usually include cases where one penalty
was imposed for multiple allegations. Thus, for example, a file may say “15 vacation days” was
imposed as a penalty after an officer illegally stopped, punched, and strip-searched a civilian. In
such a case, it cannot fairly be said that a penalty of “15 days” forfeited was the penalty for an
illegal stop. As a measure of penalties imposed for improper stops, such a report risks being overinclusive.
As of a recent SQFSTA matrix provided to the Monitor team, in the years 2019 to 2021,
CCRB substantiated 210 cases against an officer where a wrongful stop/question/frisk/search
allegation was included within the complaint.321
The Police Commissioner has made a final decision in 186 of the 210 referrals. The rest
were still open and pending. A number of the closed cases involve multiple allegations of other
serious misbehavior including strip searches, uses of force, slurs, or similar wrongdoing. Many of
the cases substantiated by CCRB also include aggravating circumstances in the investigation or
processing of the complaint itself, i.e., false testimony, deactivated cameras, missing paperwork—
logs, memos and stop reports—which were ancillary to and outside the scope of CCRB’s
investigation.
321
Final Federal Monitor – SQFSTA Q1, Q2, as of Sept. 28, 2023, provided to the Monitor. The number of complaints,
not cases, is less than 210, since one wrongful complaint, describing an improper encounter, may include allegations
against multiple officers.
72
A penalty of lost days was imposed by the Police Commissioner in 22 of the 186 cases.322
It is worth looking at those cases in depth to see if any officer is penalized for Floyd violations
alone or if cases where a deduction of credited days did occur are the result of confluent
circumstances beyond a Fourth Amendment violation.323
Last year the Police Commissioner agreed to abide by the Disciplinary Guidelines
Matrix. In that document, the “presumptive” penalty for each allegation of an improper stop,
frisk, or search is three penalty days, absent aggravating circumstances, mitigating circumstances,
or invocation of progressive discipline. As of this writing, there is insufficient documentation or
data to fully assess the application of the Disciplinary Guidelines to stop and frisk misconduct.325
Nonetheless, we can look at final outcomes. It is useful to match discipline recently imposed for
each SQF allegation substantiated between 2019 to 2021 with the outcome of three penalty days
that is the presumptive penalty for SQF misconduct going forward.
324
The Police Commissioner has imposed no penalty in 157 of the 186 closed cases.326
7 of the 186 closed cases were penalized with a deduction of credited time in the range
of one to four credited hours.
322
Subsequent to the writing of this Report, in January 2023, an updated SQFSTA matrix was provided, dated Sept.
30, 2022. The Appendix reflects updated numbers. Unfortunately, underlying communications between CCRB and
DAO, necessary to a full understanding of the numbers and the basis for dispositions was not made available. At the
time the Appendix was written, 182 of the 210 CCRB substantiated SQF cases had been closed. Of the 182, penalty
days were imposed in 19 cases. They are discussed in an Appendix.
323
The Appendix analyzes a number of those cases.
324
“On February 4, 2021, the NYPD and Civilian Complaint Review Board signed a memorandum of understanding
to strengthen the disciplinary matrix and ensure greater transparency around the disciplinary process. Specifically, this
MOU: confirms that the NYPD and CCRB will use the matrix as a framework to guide penalties for officer
misconduct; requires the NYPD and CCRB to describe, in writing, the basis for any departures from the matrix and
make such document publicly available; reiterates the Police Commissioner’s obligation to notify the CCRB when he
intends to impose a penalty that is less than CCRB’s recommendation and make that determination publicly available;
and ensures CCRB’s access to officer employment history for any substantiated allegations. “Reforms to the NYPD
Disciplinary System,” available at https://www.nyc.gov/site/nypd/about/about-nypd/policy/nypd-disciplinarysystem-reforms.page.
325
The City has resisted production of Case Assessment Reports (CAR) by DAO or other correspondence between
DAO and CCRB, which are necessary to a full understanding as to why a recommendation by CCRB was downgraded.
Letter, Nancy Savasta Deputy Chief to the Monitor, February 10, 2022. The same issue is currently being litigated
before J. Colleen McMahon in the Southern District. In re: New York City Policing During Summer 2020
Demonstrations, 1:20-cv-8924 (S.D.N.Y), Doc No. 831 (Jan. 28, 2023). The claim that CAR memos are protected by
attorney-work product or deliberative process memos and therefore not available to the Court is dubious. See
discussion, Memorandum Order, Dkt. No. 271. More recently, in March 2022, the Department provided a spreadsheet
with the outcomes of thirty-eight cases decided under the Disciplinary System Penalty Guidelines, again, without
accompanying Departmental memos that had been requested. Those outcomes are discussed infra. CCRB has
recently begun to post “Departure Letters” (described infra) which describe cases where the Police Commissioner has
elected to impose a lower level of discipline than requested by CCRB, available at
https://www1.nyc.gov/site/ccrb/complaints/complaint-outcomes.page (visited June 8, 2022). Twelve of the 111 cases
included in that list included a finding of an improper stop, frisk or search of person. One case (PO
)
resulted in a one-day penalty. The remainder went with no discipline (NDA), training, or an A-CD accepted without
penalty.
326
As previously explained, “Penalty” means a loss of credited time, days, suspension, dismissal, or formal reprimand,
as discussed earlier “discipline” is described in Article 14 of the Administrative Code.
73
22 of the 186 closed cases were penalized with a loss of credit for one or more vacation
days.
o Within that number, 18 of the 186 closed cases received the “presumptive
penalty” of three or more penalty days.
From another point of view, one might look at complaints rather than cases. How many
incidents or encounters where a civilian complained of a bad stop, frisk, or search (along with
other misconduct) and where CCRB substantiated SQF misconduct by one or more of the
participating officers resulted in imposition of discipline for any of the officers named in the
complaint?
16 of 149 closed complaints (encounters) where CCRB had substantiated an SQF
violation, resulted in imposition of a penalty days for one or more of the officers.
o Within that number, 13 of 149 closed complaints (encounters), resulted in
imposition of the presumptive three or more penalty days for any one of the
officers.327
5 closed complaints resulted in a time deduction of a 1 to 4 hours.
The next question to be asked, in the cases where an officer was penalized by loss of
one or more vacation days, is whether the penalty was for stop and frisk misbehavior
or whether the penalty covered a cluster of discerned misbehavior?
“Pure” cases where SQF misconduct received a penalty absent false testimony, wrongful
arrest, strip search, use of force, or missing paperwork are extremely rare. Even in those rare cases,
typically, there were other aggravating circumstances such as a history of discipline, a likely
pattern, multiple lawsuits, or an internal disciplinary history distinct from CCRB investigations.
It is not unusual to see cases where an officer has multiple pending CCRB complaints or lawsuits
at the same time, resolved with only one of the complaints receiving a penalty.
Without an in-depth analysis of each case where a penalty was imposed, it cannot be
claimed that a penalty was imposed solely for a Floyd violation. For example, an illegal stop
which receives a penalty must be examined for other allegations, other complaints, other IAB
investigations, or other lawsuits pending at the time of the disposition. As well, discipline for one
case cannot be looked at in a silo, isolated from other pending cases.328 Otherwise, it would be
misleading to say that SQF misconduct was penalized without acknowledging the full spectrum of
327
Even then, one of the four complaints was the product of a downward departure by the Police Commissioner from
a recommended B-CD to an A-CD. In another case, where CCRB recommended charges, the Police Commissioner
allowed a negotiated plea, of five penalty days (the equivalent of an A-CD) to avoid a formal disciplinary proceeding.
328
A recent submission by CCRB (March 2022) of recommendations made since inception of the Disciplinary Penalty
Guidelines System (Matrix, discussed below), indicates that CCRB may make note of “[t]he adverse result of a
criminal, administrative or civil proceeding related to the underlying conduct” as a potential aggravating factor when
recommending a penalty.
74
misconduct issues presented and resolved. It is here that CAR memos329 would be useful since
DAO puts cases together where there are multiple concurrent investigations for the same encounter
or multiple misconduct claims pending contemporaneously. DAO also has exclusive access to a
complete disciplinary history. CAR memos present a full picture to the Police Commissioner
before they make a final decision.
It is a worthwhile exercise to examine more closely the twenty unusual cases,330 over the
last three-year period, 2019-2021, where penalty days were imposed in order to discern whether
the Police Commissioner has, in fact, disciplined any officers for Fourth Amendment violations.
The Appendix contains a description, using available data, of a number of cases where a penalty
was imposed and also a stop/frisk/search allegation may have been substantiated by CCRB.331 It
would be misleading, for example, to cite a case where excessive force or a false statement was
substantiated in conjunction with a wrongful stop to say that penalty days were assessed for the
stop. Any true assessment would look at all the charges and allegations pending at the time of the
allegation and at the time of disposition, including non-CCRB cases such as force, false statement
or profiling, prior case dispositions, civil actions pending and prior to the disposition, and
probationary periods that overlapped the allegation or disposition. This would require CCRB
investigative reports, IAB investigative reports, CAR332 memos, and an analysis of complaints filed
in court. The writeups in the Appendix attempts this analysis in a number of cases but access to
all the necessary information was, in some cases, not produced.
V.
Overview of the NYPD Organization - Background
Established in 1845, the NYPD is one of the oldest and largest municipal police forces in
the United States. Heading the Department is Police Commissioner Edward A. Caban. He was
appointed to a five-year term by Mayor Eric Adams in July 2023.
NYPD employs approximately 35,000 uniformed officers and 19,000 civilian
employees.333 The NYPD is principally divided into twenty-three bureaus and major offices that
perform enforcement, investigative, and administrative functions.334 The largest bureau is the
Patrol Services Bureau, which oversees the majority of uniformed officers on patrol and is headed
329
The City has asked that the Report not include references to two CAR memos which were produced.
330
Out of 111 closed cases. Fed. Monitor SQFSTA Report as of 09-30-2022.
331
In the Court’s correspondence commissioning this Report there was a directive to include a “detailed narrative of
cases which exemplify the manner in which the CCRB and NYPD have addressed police misconduct during stops and
discipline.” Correspondence from Judge Analisa Torres to Peter Zimroth (May 30, 2018).
332
Case Analysis and Recommendation made by DAO to the Police Commissioner.
333
NYPD, About NYPD, available at https://www1.nyc.gov/site/nypd/about/about-nypd/about-nypd-landing.page.
Members of the Service (MOS) include uniformed and approximately 19,000 civilian employees. Uniformed
Members of the Service (UMOS) are the roughly 35,000 sworn police officers.
334
NYPD, Bureaus, available at https://www1 nyc.gov/site/nypd/bureaus/bureaus.page.
75
by the Chief of Patrol.335 It is divided into eight borough commands,336 which are further divided
into seventy-seven police precincts.337 A typical police precinct covers an area with approximately
70,000 to 150,000 residents. There are nine Public Housing Police Service Areas (PSAs), which
overlap forty of the precincts.
Relevant to a discussion of discipline, other NYPD offices include the Office of the Chief
of Department (“OCD”), which oversees all Members of the Service (“MOS”), the Internal Affairs
Bureau (“IAB”), which is tasked with investigating police misconduct, the Professional Standards
Bureau (formerly labeled the Risk Management Bureau - “RMB”), which tracks police
performance, and the Trials Bureau, which is also referred to as the Office of the Deputy
Commissioner of Trials (“DCT”).338 The Trial Bureau is primarily responsible for conducting
disciplinary trials of NYPD employees when formal discipline is sought. The Force Investigation
Division (“FID”), established in 2015, investigates all firearms discharges and deaths in police
custody, and reports directly to the First Deputy Commissioner.339 The Department Advocate
(“DAO”) acts as principal prosecutor for matters of misconduct, which is distinct role from that of
the Deputy Commissioner for Legal Affairs.
Reporting to the Commissioner are several other key department officials, including First
Deputy Commissioner Tania Kinsella, a number of Deputy Commissioners,340 Chief of
Department Jeffrey B. Maddrey, and the various bureau chiefs.341 Michael Gerber is Deputy
Commissioner for Legal Affairs.
As a backdrop to the Department’s discipline process, a look at overall activity of the
Department is helpful. In 2018, there were, on average, 36,784 uniformed members of service.342
They responded to 6.1 million calls for service. There were 246,781 arrests.343 In that same year,
there were:
335
NYPD, Patrol, available at https://www1.nyc.gov/site/nypd/bureaus/patrol/patrol-landing.page.
336
These include Manhattan North, Manhattan South, The Bronx, Brooklyn North, Brooklyn South, Queens North,
Queens South, and Staten Island. NYPD, Detectives, available at https://www1 nyc.gov/site/nypd/bureaus/investiga
tive/detectives.page.
337
NYPD, Patrol, available at https://www1.nyc.gov/site/nypd/bureaus/patrol/patrol-landing.page.
338
Id.
339
NYPD, New NYPD Use of Force Guidelines Announced, available at http://nypdnews.com/2015/10/new-nypduse-of-force-guidelines-announced/;
NYPD,
Use
of
Force
Report
2017,
available
at
https://www1.nyc.gov/assets/nypd/downloads/pdf/use-of-force/use-of-force-2017.pdf.
340
Deputy Commissioners are appointed by the Police Commissioner, see N.Y. City Charter § 432, and include
Deputy Commissioners for Internal Affairs, Legal Matters, Trials, and Department Advocate, among others.
341
NYPD, Leadership, available at https://www1 nyc.gov/site/nypd/about/leadership/leadership-landing.page.
342
For many of the statistics cited, 2018 was chosen since the records are the most complete, facilitating comparisons.
In FY 2023 there were 33,797 uniform personnel and 15,117 civilian personnel.
343
NYPD, Use of Force Report at 13-14, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/use-offorce/use-of-force-2018.pdf. Of those arrests, 96,394 were for seven major index crimes (Murder, Rape, Robbery,
Felony Assault, Burglary, Grand Larceny, and Grand Larceny Auto). See also RMB Crime, Arrest, Summons, Stop
Reports Matrix (Mar. 2020), on file with the Monitor Team. Arrests dropped dramatically, to 214,617 in 2019.
76
56,657 Desk Appearance Tickets344 issued;
89,910 Criminal Court Summonses345 written;
54,413 Civil summonses, sending respondent to OATH for minor infractions.346
As of the beginning of 2021, the composition of the uniformed force, broken down by rank
and ethnicity is as follows347:
Rank
Chief
Asst/Dep Chief
Inspector
Dep. Inspector
Captain
Lieutenant
Sergeants
Detectives
Police officers
Total
Rank
Chief
Asst/Dep Chief
Inspector
Dep. Inspector
Captain
Lieutenant
Sergeants
Detectives
White
8
61
94
122
204
895
2,227
2,539
9,872
Black
4
11
15
17
35
210
622
774
3,571
Hispanic
2
7
15
21
56
336
1,093
1,326
7,272
16,022
5,259
White
57.1%
76.3%
74.6%
73.9%
60.5%
56.5%
51.5%
52.2%
Black
28.6%
13.8%
11.9%
10.3%
10.4%
13.3%
14.4%
15.9%
Asian
Other
Total
0
1
2
5
42
141
382
221
2,345
0
0
0
0
0
1
3
5
16
14
80
126
165
337
1,583
4,327
4,865
23,076
10,128
3,139
25
34,573
Hispanic
14.3%
8.8%
11.9%
12.7%
16.6%
21.2%
25.3%
27.3%
Asian
0.0%
1.3%
1.6%
3.0%
12.5%
8.9%
8.8%
4.5%
Other
0.0%
0.0%
0.0%
0.0%
0.0%
0.1%
0.1%
0.1%
Total
100.0%
100.0%
100.0%
100.0%
100.0%
100.0%
100.0%
100.0%
344
See N.Y. Crim Proc. Law § 150.10; RMB Crime, Arrest, Summons, Stop Reports Matrix (Mar. 2020), on file with
the Monitor Team. Desk Appearance Tickets or “DATs” involve removing the civilian to the precinct, running a
background check (including fingerprinting if authorized by Criminal Procedure Law Article 160) and releasing for
return to court at a later date.
345
See N.Y. Crim. Proc. Law § 130.10. This number does not include parking or vehicle traffic summonses. Criminal
Court Summonses are handed to the civilian at the scene and require a return to Criminal Court at a later date, without
fingerprinting. Some confusion in terminology may arise, since under Criminal Procedure Law Article 130
summonses are, by definition, court-ordered. However, in New York City, NYPD officers are authorized to write a
“C summons” without a court order.
346
Id. Not included in this number are 1,069,708 vehicle “moving summonses” and 386,704 “parking summonses.”
RMB Crime, Arrest, Summons, Stop Reports Matrix (Mar. 2020), on file with the Monitor.
347
NYC Police Reform and Reinvention Collaborative Draft Plan at 163–64 (Mar. 5, 2021), available at
https://www1.nyc.gov/assets/home/downloads/pdf/reports/2021/Final-Policing-Report.pdf, adopted by the N.Y. City
Council, Intro. Res. 1584/2021 (Mar. 25, 2021).
77
Police officers
42.8%
15.5%
31.5%
10.2%
0.1%
100.0%
Total
46.3%
15.2%
29.3%
9.1%
0.1%
100.0%
Formal Discipline (Charges and Specifications filed) by race and ethnicity of the subject
officer, Uniformed Members of the Service, 2020:
VI.
2020
N
% of those charged
White
Black
Hispanic
Asian
173
117
159
40
35.4%
23.9%
32.5%
8.2%
MISCONDUCT INVESTIGATIONS WITHIN NYPD
The NYPD Patrol Guide and the Administrative Guide contain the basic rules and
procedures that police officers must follow in carrying out their official duties.348 In addition, the
Internal Affairs Bureau Guide sets forth procedures for the intake, classification, and investigation
of complaints against members of the NYPD.349
If one totals the number of arrests, Terry stops, summonses and DATs,350 there are nearly
two million police-citizen enforcement encounters per year in New York City, and another one
million moving violation tickets written. Fewer than 5,000 complaints are accepted for review by
CCRB. The overwhelming majority of police-citizen encounters, whether properly or improperly
performed, unfold without CCRB review or citizen oversight. Unless a civilian complains to
CCRB or some other monitoring agency, or files a civil legal claim, and excluding the rare case
where the officer’s conduct is fully litigated in a criminal proceeding, evaluations of police
compliance with the law are entirely dependent on the Department’s own internal mechanisms for
detecting, investigating, and describing the propriety of officer interactions with the public.351
348
See, e.g., Patrol Guide § 203-06 (Now Admin. Guide § 304-06) (listing numerous rules governing police conduct);
§ 203-08 (Now Admin. Guide § 304-10) (prohibiting officers from intentionally making false statements); § 203-09
(describing rules around public contact); § 203-10 (Now Admin. Guide § 304-06) (outlining twenty-four prohibited
activities for uniformed officers). Effective June 2021 the entirety of section 203 was removed and placed in the
Administrative Guide. Some portions of the Administrative Guide are publicly available online. NYC Admin. Code
§ 14-164 requires online publication of the patrol guide, but not the Admin. Guide.
349
See, e.g., NYPD, Internal Affairs Bureau Guide 620-58, Processing and Investigating Complaints of Profiling and
Bias-Based Policing Control. The IAB Guide is not posted on the Departmental website, but a copy can be accessed
on the NYPD Monitor website under “Policies.” https://www.nypdmonitor.org/resources-reports/, last accessed
September 23, 2023.
350
Desk Appearance Tickets (Article 150 of the Criminal Procedure Law).
351
The Inspector General for NYPD and the Commission to Combat Police Corruption (CCPC) will, on a regular
basis, review the work done by the Department when it investigates, but they are neither mandated nor equipped to
conduct their own field investigations.
78
Independent of the role played by CCRB, NYPD’s willingness to audit, monitor, supervise and,
when appropriate, impose discipline for misconduct is essential to constitutional compliance.
Given the Floyd Court’s finding of deliberate indifference over the years prior to the trial,
a necessary focus becomes the manner and transparency by which the Department examines SQF
behavior and actively screens for misconduct. Whether the Department has improved compliance
with the Fourth and Fourteenth Amendments in recent years requires an evaluation beyond an
analysis of civilian complaints to CCRB alone. It cannot be assumed that all stops are
constitutionally valid absent a civilian complaint to CCRB. Looking at NYPD’s disposition of
CCRB substantiated complaints says little about overall stop and frisk activity or misconduct.
Waiting for a complaint to be made by a civilian, substantiated by CCRB, approved by DAO, and
ending in a disciplinary decision by the Police Commissioner, is an ineffective method of assuring
that discipline is imposed, when needed, for SQF misconduct.
Aside from litigation, illegal stop and frisk behavior may only be uncovered in one of three
ways: by civilian complaint, supervisory review, or audit. The extent of compliance with the
Constitution and the Floyd ruling is uncertain given the unknown number of unreported and
unreviewed stops that may occur each year. Complaints to CCRB and internal NYPD reviews are
indicators to some extent. It is a simple matter to look at CCRB substantiations of SQF misconduct
and then measure whether discipline is appropriately applied when a civilian has successfully
complained. But complaints to CCRB and CCRB substantiations are just the tip of the iceberg in
trying to assess all police-stop activity and whether discipline for misconduct is properly accorded.
There are many and varied reasons why a civilian would fail or refuse to file a CCRB complaint
(intimidation, lack of information, lack of ready access or means, pending criminal charges,
pending civil complaints, attorney advice, to name a few) that have nothing to do with the legality
of a stop or the level of misconduct. The level of misconduct reported through CCRB tells us only
a small part of the story about the overall amount or level of misconduct. Without community
surveys from which to draw inferences, it is difficult to conclude whether a small or a large
percentage of civilians who believe they have been wronged during a police encounter actually
follow through with a complaint to CCRB.
On average, about 60,000 complaints of police misconduct are received or logged each
year by NYPD and CCRB combined.352 Each agency reviews the complaint at intake and assigns
them for investigation or refers them to other agencies for want of appropriate jurisdiction. One
might presuppose that CCRB receives the bulk of the complaints, but that would be incorrect. On
average, CCRB receives about 10,000 complaints a year. Once screened, less than one-half of the
complaints coming to CCRB remain there for processing. Many fall outside CCRB’s jurisdiction.
If so, they are referred out by CCRB’s Case Management Unit to other agencies, including NYPD.
The Department, through IAB, logs about 50,000 complaints annually.353 Complaints
logged by IAB may come from civilians, other agencies, CCRB, or by way of internal reporting.
352
Due to cross-referrals, from NYPD to CCRB and vice-versa, there is some degree of overlap in these two sets of
numbers.
353
In reviewing this Report, the Department asserted that the average (overlapping COVID) had more recently (20202022) dropped to an average of 30,000 complaints, but it has not provided a citation or reference in support of that
number. Item 115, City 09.01.23 Feedback to Yates Discipline Report.
79
As with CCRB, around one-half of the complaints are screened out for reasons discussed below,
or because they represent multiple entries for one event. In the end, somewhere between 20,000
to 30,000 complaints are investigated within the Department.
A.
NYPD Internal Investigations of Civilian Complaints – Preliminary
One might think that most complaints to IAB originate from internal or inter-agency
referrals, while civilians would complain first to CCRB before going to NYPD. But the reality is,
in 2018, 52% of the complaints received by IAB came from civilians who reported the incident
directly to the Department, at the precinct or elsewhere. Fewer than one-third (30%) of complaints
received by NYPD originate within the Department by way of audits, supervisory review, internal
investigations, and complaints by other officers.354
In 2018 alone there were 51,106 complaints logged by IAB. In 2019, another 46,192
complaints were received by IAB.355 Once logged with IAB, an investigation may be conducted
by IAB or referred out for investigation to other bureaus or other units within the Department. As
with CCRB, not all NYPD-logged complaints lead to an NYPD investigation; many are referred
away to external agencies for jurisdictional reasons. In 2018, IAB referred 2,326 of the complaints
it received to CCRB and referred another 3,790 to other governmental agencies.
Many complaints are duplicative and will lead to just one investigation. There might, for
example, be multiple complainants regarding one encounter. After consolidation, screening, and
out-bound referrals, of the 51,106 complaints, IAB created 36,701 cases for investigation356 and
conducted 29,873 investigations in 2018. Of 46,192 complaints in 2019, NYPD created 34,028
cases for investigation and conducted 23,878 investigations. For a sense of proportion, this is five
to six times as many investigations as are done by CCRB and as much as twenty times the number
of full investigations conducted by CCRB.357
Investigations do not necessarily fall cleanly into one bucket or the other. An incident may
involve a FADO complaint but also include allegations of non-FADO misconduct. The IAB case
both NYPD and CCRB will parse the allegations and conduct parallel investigations. Also, some
matters overlap and may result in concurrent investigations. A complaint of excessive force will
be investigated by both CCRB and NYPD contemporaneously.358 A corruption investigation may
include wrongful actions that fall within FADO, generating two investigations.359 A wrongful stop
354
CCPC, Nineteenth Annual Report of the Commission at 17
https://www1.nyc.gov/assets/ccpc/downloads/pdf/Annual-Nineteen-Report.pdf.
(Dec.
2019),
available
at
355
Email from Sgt. Xochilt Chantel, NYPD RMB, Inspector General Coordination Unit, to the Monitor Team (Aug.
13, 2020).
356
Item 118, City 09.01.23 Feedback to Yates Discipline Report.
357
A large number of CCRB complaints are truncated or mediated and therefore are not processed for investigation.
358
Excessive force may be investigated by a CO, IAB or FID depending on the level of force used.
359
For example, a citizen may complain of an illegal search and complain that money in his wallet was wrongfully
kept by the officer.
80
and frisk complaint may also contain allegations of racial profiling or a failure to file a required
stop report, in which case the matter may be split for investigation by both CCRB and NYPD.
One of the consequences of shared investigative authority between NYPD and CCRB is
the large number of cases referred in a two-way exchange from one agency to the other before full
investigation.
Of the 2,951 complaints that IAB passed to CCRB in 2018, 2,088 were retained and
handled by CCRB as within its jurisdiction.
Meanwhile in that same year, CCRB received directly, and then referred out, 5,689
complaints to NYPD (4,802 to OCD and 887 to IAB).
Each agency (CCRB and NYPD) will also send complaints out to other agencies,
depending upon the nature of the complaint and the identity of the subject. This can include
referrals to Homeland Security, Department of Justice, or Postal Police and range as far as the
San Diego Police Department.
In 2018, 2,584 complaints were sent by CCRB to governmental agencies other than
NYPD.360
In 2018, 3,790 complaints were sent by NYPD to governmental agencies other than
CCRB.361
By way of comparison to the investigative workload of NYPD, after subtracting cases
that are truncated or sent to mediation, IAB averages a little over 1,300 full investigations per
year as measured against approximately 24,000 internal NYPD investigations.362
CCRB does not have open access to NYPD’s databases, so a CCRB investigator working
on a case does not know, unless advised by the IAB liaison, if an encounter that is the subject of a
CCRB complaint is also the subject of an NYPD investigation. By contrast, Integrity Control
Officers (ICO) throughout the Department have access to CCRB’s Complaint Tracking System
360
CCRB, Annual Report 2018, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_biannual/2018CCRB_AnnualReport.pdf.
361
Email from Sgt. Xochilt Chantel, NYPD RMB, Inspector General Coordination Unit, to the Monitor Team (Aug.
13, 2020). The most frequent recipients were DOJ and assorted Inspector Generals for various NYS agencies.
362
In 2017, CCRB closed 1,348 cases after full investigation. In 2018, that number was 1,208. CCRB Annual Report,
2018. A direct comparison is not possible for a variety of reasons: (1) NYPD misconduct jurisdiction is much broader
than FADO and may include internal personnel matters or any other violation of the Patrol Guide, which runs 2,101
pages in length (available online at https://www1.nyc.gov/site/nypd/about/about-nypd/patrol-guide.page); (2)
although internal investigations may, and often do lead to discipline, a limited number are based on civilian encounters;
and (3) a large number of CCRB cases end in efforts at mediation or are truncated—cut short for a variety of reasons
discussed below. In 2018, 58% of CCRB case resolutions were by truncation and 12% were by mediation or attempted
mediation.
81
(CTS), a database that organizes and holds together all the evidence in a complaint being
investigated by CCRB.363
B.
NYPD Disciplinary System
The International Association of Chiefs of Police and the Department of Justice have
worked together to identify four principles for an effective complaint process:
Comprehensive: All complaints are investigated, regardless of their source;
Accessible: Civilians should have easy access to the complaint process;
Fair and Thorough: Investigations must be in accordance with high standards; and
Transparent: The complainant should be kept apprised of the status of complaints and
the community is to be kept apprised through summary reports.364
As has been observed in other reports,365 NYPD’s current system for disciplining officers,
outlined in a labyrinthine set of administrative codes and regulations as well as internal NYPD
documents, is notoriously complex and opaque. The following section outlines and discusses the
current processes used by the NYPD to investigate misconduct and to discipline members.
Investigations conducted by IAB, OCD, BIU (Borough/Bureau Investigation Units) or FID
(Force Investigation Division) are all tracked through a variety of databases, not one integrated
database.366 All complaints received in the first instance at the Department are sent initially to
IAB, which assigns the complaint an IAB log number. After logging, depending on the nature of
the complaint and the identity of the subject of the complaint, the matter may be kept at IAB, sent
to another unit in the NYPD, such as BIU367 or the local Command, or sent to CCRB. Commonly,
a case will be “split” when the complaint contains multiple allegations, e.g., “[t]he officer punched
363
CCRB Response to Supplemental Question Number Six (June 3, 2018). ICOs are lieutenants assigned to each
precinct and borough command. They keep track of investigations within their command.
364
CCPC, Sixteenth Annual Report of the Commission at 8 (Oct. 2014), available at
https://www1.nyc.gov/assets/ccpc/downloads/pdf/Sixteen-Annual.pdf (citing Int’l Ass’n of Chiefs of Police,
Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement at 86-89).
365
Mary Jo White et al., The Report of the Independent Panel on the Disciplinary System of the New York City Police
Department at 7 (2019), available at https://www.independentpanelreportnypd net/assets/report.pdf (hereinafter,
“Independent Panel Report”).
366
ICMT, ICMS, CPI, and DADS, described infra. ICMS is the internal case management system used by NYPD to
track investigations, including those referred to CCRB. ICMT includes IAB investigations internal to the Department,
such as corruption (“C”) cases which is only available to IAB. FID conducts their cases utilizing another system, the
Enterprise Case Management System (“ECMS”) with case findings only being entered into ICMT when completed.
Item 125, City 09.02.23 Feedback to Yates Discipline Report.
367
“Borough and Bureau Investigation Units usually investigate cases that range from landlord-tenant disputes and
domestic violence complaints, when there is no serious physical injury, to allegations that officers have stolen
property, when that property does not consist of money, credit or debit cards, or valuable jewelry.” CCPC, Fourteenth
Annual
Report
of
the
Commission
at
11
n.21
(Feb.
2012),
available
at
https://www1.nyc.gov/assets/ccpc/downloads/pdf/14th_annual_report.pdf.
82
me and took the money I had in my pocket.”368 If a complaint is received by IAB that contains
allegations of misconduct falling both within and outside CCRB jurisdiction, IAB will separate
the allegations. In the example given here, the excessive force complaint might be sent to CCRB
and concurrently investigated by IAB, which will also investigate the stolen property claim. Once
IAB splits a case, IAB does not track the investigation at CCRB and does not “pair back” the IAB
investigation with the CCRB investigation. Compounding the problem, the Force Investigation
Division (FID) keeps a separate database, not shared with IAB.369 Parallel investigations may
occur. This is most common when the case has received media attention or the victim suffered
serious physical injury.370 If both investigations result, independently, in a substantiation, then the
Department Advocate’s Office (DAO) will be advised, but the investigations themselves are not
coordinated.
On occasion, the Administrative Prosecution Unit of CCRB (APU) and IAB will both
investigate the same event. At that point, CCRB may elect to “Administratively Close” the civilian
complaint and defer to DAO/IAB handling of the case even though CCRB had jurisdiction.
A number of investigations are conducted and result in discipline or guidance at the
command and precinct level. The command and precinct investigations are not systematically
captured or reported in any centralized database, so it is difficult to know how many misconduct
investigations are instituted or how they are resolved. The only way to accurately measure
discipline for misconduct would be to scour the records kept at each local command or kept by the
command’s Integrity Control Officer (ICO).371 Complicating the availability of this information
is the fact that, by the terms of the Patrol Guide, many of those records are sealed or destroyed not
long after they are created.372 In the end, all final dispositions of disciplinary complaints or
investigations, whether commenced by civilian complaint or otherwise, are made within the
Department by the Police Commissioner or his designees and shrouded in confidentiality or buried
by a failure to encompass them all in one centralized, integrated, database.
368
In an earlier study, the CCPC observed, “[u]sually, parallel investigations occur when there is a complaint of a
serious physical injury during an interaction with the NYPD, or when the case has received media attention.” CCPC,
Seventeenth
Annual
Report
of
the
Commission
at
99
(Nov.
2015),
available
at
https://www1.nyc.gov/assets/ccpc/downloads/pdf/Seventeenth-Annual.pdf. With false testimony added to CCRB’s
portfolio, there undoubtedly will be parallel investigations in that area.
369
370
Memo from Erin Pilnyak, Risk Management Bureau, NYPD, to the Monitor Team (Sept. 9. 2020).
CCPC, Seventeenth Annual Report of the Commission at
https://www1.nyc.gov/assets/ccpc/downloads/pdf/Seventeenth-Annual.pdf.
99
(Nov.
2015),
available
at
371
An ICO is assigned to each police precinct and holds the rank of Lieutenant. The position was created in 1973
after the Knapp Commission Report on Police Corruption. The primary responsibility of the ICO is to develop and
maintain an Integrity Control Program within the Command. “The concept underlying their creation [was to] act as
the ‘eyes and ears’ of the Department at the precinct level.” CCPC, Second Annual Report of the Commission, at 12
(Oct. 1997), available at https://www1.nyc.gov/assets/ccpc/downloads/pdf/Second-Annual-Report-of-theCommission.pdf. In connection with that function, ICOs are to “[p]rovide advice to commanding officers/unit
commanders concerning appropriate penalties for violations of Department regulations.” Patrol Guide § 202-15 (10).
In response to criticisms that ICOs were overburdened with administrative responsibilities, the Patrol Guide now
specifies that ICOs are not to be assigned any duties, other than those listed in the Patrol Guide, by command.
372
Sealing and destruction of Command Discipline records is discussed later in this Report.
83
C.
Complaint Intake at NYPD
A complaint against a police officer can be initiated either by a civilian complainant or by
a fellow officer or supervisor. The NYPD may also review an officer’s conduct based on its own
internal audits, monitoring, and reporting.
A civilian complaint against a police officer can be lodged at any patrol precinct, Housing
Bureau Police Service Area, transit district, traffic unit, or any other NYPD office.373 Civilians can
also submit complaints by mail, email, and telephone.374 Complaints against officers can also be
submitted directly to the Internal Affairs Bureau or the Civilian Complaint Review Board. Once
a complaint is lodged, a dizzying traffic circle of assignment and re-assignment follows.
Complaints eventually end up with either CCRB, IAB, OCD, BIU, FID or local commands.
Getting there may be a journey.
All complaints coming to the Department, regardless of the originating source, receive an
IAB identifying number and are reviewed by IAB’s Assessment Intake Unit for assignment to an
investigative unit. FADO complaints are logged by IAB but sent to CCRB. Corruption complaints
(“C”), some force complaints (“FI”), and the most serious misconduct complaints stay with IAB.
Other misconduct cases (“M”) are considered less serious and are usually sent to the Borough or
Bureau Investigation Units (BIU).
Approximately one half of the complaints received by the Department are classified as
“Outside Guidelines” (OG). OG cases involve an allegation of a violation of a Departmental rule
or guideline. It is a classification reserved for lesser offenses. Common intra-Departmental OG
complaints include Misuse of a Parking Plaque, Damage to Police Property, and Improper Parking
of a Department Vehicle. Common civilian complaints in the OG category are disputed traffic or
parking summonses or a failure to take or make a report when requested by a civilian. They can
be passed on from IAB to OCD. The Investigation Review Section of OCD will send less serious
complaints to the local command to be addressed through the Command Discipline process. All
investigations have a target date for completion within ninety days.375
Complaints received by NYPD involving excessive force, abuse of authority, discourtesy,
or offensive language (FADO) and made by a civilian, are assigned a CCRB serial number and,
according to the Patrol Guide, referred immediately by telephone to the CCRB’s Intake Unit,376
which is open to receive complaints twenty-four hours a day.377 Complaints against uniformed
members containing allegations of other acts of misconduct, such as failure to properly perform
duty, are also referred to the CCRB, and assigned a Chief of Department serial number as well.378
373
Patrol Guide § 207-27, 28.
374
Id.
375
Admin. Guide § 318-17.
376
Although the Patrol Guide requires the receiving officer to immediately refer the complaint to the CCRB, in practice
it can take up to a week for the receiving officer to do so.
377
Patrol Guide § 207-27, 28.
378
Id.
84
Complaints of corruption or other misconduct outside the CCRB’s jurisdiction are referred to the
IAB.
Upon receiving a civilian complaint in person, usually at the precinct, the NYPD officer
must interview the complainant and provide him or her with a Civilian Complaint Report,379 which
the complainant prepares in his or her own handwriting and signs.380 This is then converted to a
typed copy prepared by the desk officer or other officer receiving the complaint and signed by the
complainant. The complainant is given a copy to take with him or her. As well, for recordkeeping
purposes, the officer prepares a “Statistical Summary Sheet.”381 The officer is to note the physical
condition of the complainant and whether the complainant appears under the influence of drugs or
alcohol or otherwise in a state that could bear on his or her credibility.382 The officer is also
required to notify an Investigating Supervisor383 if doubt exists as to the identity of the service
member against whom the complaint is lodged.384 A Reviewing Supervisor385 then reviews the
Civilian Complaint Report and forwards the report to the Commanding Officer, who then
distributes it to either (i) the IAB’s CCRB Liaison if the complaint is within the CCRB’s
jurisdiction,386 or (ii) the Investigation Review Section of the Office of the Chief of Department if
it is a non-FADO complaint.387
If the referral is being passed on to CCRB, the officer is to obtain a CCRB serial number.
Otherwise, the process calls for assignment of a Chief of Department serial number and an IAB
log number.
The receiving member or investigating supervisor is to gather relevant Activity Logs
(PD112-145), Command Log entries, ICAD Event Information, Roll Call, etc., and forward them
to the IAB-CCRB Liaison Unit. If the complaint falls within OCD jurisdiction, then the documents
are forwarded to the Investigation Review Section of OCD.
At point of intake, decisions regarding referral and classification may call for an exercise
of discretion. The Patrol Guide lists as examples some matters that are sent to CCRB but should
also receive an OCD serial number since the matter might end up in either bailiwick. An example
379
Known as a PD 313-154. A failure to do this, if reported to CCRB, can form the basis for an Abuse of Authority
finding by CCRB. This, of course, is contingent upon the civilian having the persistence to report the entire episode
to CCRB. In 2019 there were 223 allegations of “Refusal to process a civilian complaint” made to CCRB, which
could include a refusal to receive a complaint of officer misconduct.
380
Patrol Guide § 207-31 (Now Patrol Guide § 207-28).
381
PD313-154B.
382
Patrol Guide § 207-28.
383
A Platoon Commander, Special Operations Lieutenant, or the Integrity Control Officer.
384
Patrol Guide § 207-28. When asked by the Monitor Team if a complainant would learn the name of a subject
officer who had not identified himself, DAO responded, “[t]his question is best answered by CCRB.” Letter from
DAO to Monitor Team (Sept. 3, 2019).
385
Id. (“The reviewer must be at least one rank higher than the member receiving the Civilian Complaint Report.”).
386
Department records, however, are not forwarded directly to the CCRB. See Patrol Guide § 207-28.
387
Patrol Guide §207-28.
85
would be “fail[ing] to properly perform [a] duty, unwarranted traffic summons, etc.”388 The
examples given, depending on the surrounding circumstances, could go either way. A failure to
provide medical treatment is clearly a FADO matter for CCRB. A failure to perform some minor
function called for by the rules might also be an OG matter. Similarly, a simple complaint about
a traffic summons is not normally considered to be within CCRB jurisdiction. But a retaliatory
summons following an illegal stop is clearly an abuse within FADO. The decision to send the case
to one place or the other before full investigation will be consequential since disputed summonses
at NYPD rarely result in findings of misconduct, while wrongful threats to summons or arrest, or
retaliatory summonses, receive a full investigation at CCRB.389
A large segment of IAB’s intake is of complaints first made to CCRB and then passed on
to NYPD. In 2019, CCRB referred 6,102 complaints to NYPD that were logged by IAB, which
then assessed each complaint by a “preliminary investigation . . . [that] may include calling the
complainant [and] searching databases.”390 After screening, 5,220 of the referred cases391
containing 10,757 allegations were processed by IAB. The referral may have been a “complete
referral” of the entire complaint or a “split referral,” whereby CCRB retained FADO allegations
within the complaint for further investigation. Most of the cases referred by CCRB to NYPD are
for minor violations. In 2019, 37 of the cases contained a “C-Corruption” allegation. And, closing
the circle, 50 cases were sent from CCRB to IAB for alleged retaliation by an officer after the
complainant filed a complaint with CCRB.392
Not all the cases received at IAB intake from CCRB stay with IAB. In 2019, 17 of the
cases were “FI-Force Investigations” and were picked up by FID. In addition, 271 of the cases
were classified as “M-Misconduct,” which were sent out to one of the Borough/Bureau commands.
And 4,229 cases were classified as “OG-Outside Guidelines”393 which were passed on to OCD.
CCRB can also send minor cases directly to OCD. IAB takes these complaints direct from
the CCRB complaint tracking system and then electronically assigns them to the responsible unit.
In 2018, for example, CCRB sent 1,486 cases to OCD where there was a “summons or arrest
dispute.” And another 977 complaints against an officer for improperly filling out or refusal to
prepare an accident or criminal complaint reports were passed on to OCD.
388
Patrol Guide § 207-28.
389
Looking at allegations fully investigated by CCRB in 2019, there were 48 threat of summons allegations (five were
substantiated); 557 threat of arrest allegations (29 were substantiated) and 14 retaliatory summons allegations (13
were substantiated).
Executive Director’s Monthly Report, January 2020 at 47, available at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2020/20200108_monthlystats.pdf.
390
Internal Affairs Bureau: Assessment and Analysis Unit Report, on file with the Monitor Team.
391
A “case” is a complaint against an identified officer.
392
Retaliatory arrest or summons of a civilian is investigated by CCRB as a potential abuse of authority. The CCRB
investigative manual lists action by a civilian which, if the cause for enforcement action, might be the basis for an
investigation of possible retaliation. This includes “the use of an obscenity, a challenge to the officer’s authority, a
request to obtain the officer’s name or shield number, or a threat to file a complaint.” CCRB Investigative Manual at
323. Retaliation for filing a CCRB complaint is not considered a FADO action and, instead, is sent to IAB.
393
The remainder were either referred out to another agency or filed for further information without investigation.
86
Regardless of which entity first received a civilian complaint, if the complaint alleges a
FADO violation, but the subject of the complaint is a civilian member of the service, including
traffic enforcement agents and school safety agents, then the matter is sent to IAB for assignment
to the appropriate body, not to CCRB. CCRB does not investigate complaints against nonuniformed members.
NYC Charter § 440(c)(1) empowers CCRB to investigate complaints against “members of
the police department.” However, in its Rules, CCRB has limited its acceptance of complaints to
those made against “uniformed members” of the NYPD and will not investigate complaints
against other Members of the Service.394 In 2018, CCRB demurred and referred 419 complaints
to NYPD where the complaint was by a civilian against a civilian member of the Department.
Under the Patrol Guide, there is no requirement that the complainant be notified which
office is responsible for investigating her or her complaint. Normally, if an NYPD investigator
can contact the complainant, the complainant is told that they will get the “overall disposition” of
a case after it is closed. “Overall disposition” merely tells the complainant whether the complaint
was substantiated by IAB or not. They will not know if a penalty was imposed or not. They will
not be told which allegations were substantiated and which ones were not.
The Patrol Guide mandates that uniformed members of the NYPD report misconduct
committed by a fellow officer—whether on or off duty—including corruption, excessive use of
force, or perjury.395 Such complaints can be made either by calling the IAB’s Command Center or
submitting a written report to the Chief of Internal Affairs.
If a Member of Service submits a civilian complaint to CCRB against another officer
(presumably while the complaining officer was off duty), the matter stays within the Department
and is referred to the Commanding Officer of the Investigation Review Section of OCD for
disposition. CCRB merely records the information without investigation even if the misconduct
falls within FADO. So, for example, an officer who witnesses, or is the victim of, an illegal stop
or frisk, whether once or repeatedly, would not alert CCRB. Aside from OCD, the officer could,
theoretically, complain to the CO where the offense occurred for investigation within that precinct.
There are no reports of SQF investigations commenced in this manner and ending with discipline
in the data supplied to the Monitor. The Monitor team was advised that an individualized query
to precincts would be required to learn if that information exists.396
394
Compare N.Y. City Charter § 440(c)(1) with 38-A RCNY §1-02 (a). There are approximately 36,000 uniformed
officers and another 19,000 civilian employees who are Members of the Service or members of the police department.
(With vacancies and retirements, the number of uniformed officers dropped to 33,797 in FY23 and the number of
civilian personnel fell to 15,117. Mayor’s Management Report, September 2023, at 62. Title 38-A RCNY § 1-02(a)
narrows this to “uniformed members” of the NYPD, which eliminates investigation of “members of the service—
Traffic Enforcement Agents and their supervisors; School Safety Agents and their supervisors; Police Cadets, and
School Crossing Guards, who are all, arguably, “members of the police department.” See Admin. Guide § 322-11.
395
See Patrol Guide § 207-21 (“All members of the service have an absolute duty to report any corruption or other
misconduct, or allegation of corruption or other misconduct, of which they become aware.”).
396
Patrol Guide § 207-28. One exception is the case where a MOS is the victim of a discriminatory slur by another
officer. In that case, the complaint is registered with CCRB, but then forwarded to the Equal Employment Opportunity
87
D.
Internal Affairs Bureau
IAB reports directly to the Police Commissioner397 and is responsible for investigating
allegations of corruption, certain force complaints, and non-FADO misconduct lodged against
NYPD officers.398 IAB can receive complaints in-person at its 24-hour command center, as well
as by email, mail, and telephone, including by means of a non-recorded anonymous tip-line.399
Complaints relating to officers that are submitted at another NYPD location or through 911 and
311 can also be referred to IAB if the complaint falls within IAB’s jurisdiction. “All corruption
and misconduct allegations received by the Department by mail, e-mail, or in-person are reported
to IAB’s Command Center and similarly assigned a log number.”400
The IAB is divided into twenty-three investigative groups. Some groups are assigned
geographically. Some are specialized and handle select categories of investigations.401 IAB
employs an investigative staff of approximately 350 sergeants and detectives charged with
reviewing complaints, interviewing witnesses, gathering evidence, and assessing allegations of
misconduct.402 In all, in the Mayor’s proposed budget FY 2023, there are 625 full time employees
at IAB with a budget of $71.9 million.403 One advantage IAB has over CCRB is the availability of
various investigative tools to carry out its mission, including surveillance, undercover officers,
drug tests, and confidential informants.404
Each morning, the IAB Assessment Committee meets to classify allegations received in
the preceding 24 hours. An initial callout team may interview and then transfer the case to an
appropriate group.
On June 17, 2020, Mayor de Blasio announced certain standards for IAB. The standards
required IAB “to complete its full investigation IAB immediate decisions about the disciplinary
Division of NYPD for investigation. A bias complaint may also be filed directly with the City Commission on Human
Rights (“CCHR”). NYC Admin. Code § 8-109.
397
NYPD. Use of Force Report 2017 at 8, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/use-offorce/use-of-force-2017.pdf.
398
IAB will investigate FADO misconduct when connected to other investigations such as corruption. IAB can
investigate FADO misconduct on its own initiative when there is no civilian complaint. If IAB recommends discipline
after an investigation, the recommendation is reviewed by DAO, which has the option to accept or modify the
disciplinary action.
399
NYPD, Internal Affairs, available at https://www1.nyc.gov/site/nypd/bureaus/investigative/internal-affairs.page.
400
CCPC Eighteenth Annual Report of the Commission, at
https://www1.nyc.gov/assets/ccpc/downloads/pdf/18th-Annual-Report.pdf.
163
(Aug.
2017),
available
at
401
Examples of internal groups formed in the past include police impersonation, integrity testing, surveillance,
financial investigations, court monitoring, and computer crimes.
402
Independent Panel Report at 9.
403
NYC Departmental Estimates FY 23, at 730, available at https://www1 nyc.gov/assets/omb/downloads/pdf/de222.pdf.
404
NYPD. Discipline in the NYPD: 2016-2017 at 2, available at
https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/discipline-in-the-nypd-20162017.pdf.
88
process within two weeks or less.” Under the reform, the Department must make available
information in all cases, such as the officers’ names, charges, hearing dates, and resolutions. The
Department has not, thus far, amended its Guides to conform with the former Mayor’s directive.
Today, the investigative period for DAO prosecuted cases averages over seven months.405
The categories of findings recorded by IAB at the conclusion of an investigation are
slightly different from findings made by CCRB (discussed infra). After an investigation is
concluded, IAB designates each complaint as “substantiated,” “partially substantiated,”
“unsubstantiated,” unfounded,” or “exonerated.”406 A sixth categor , “information/intelligence
only” (“I&I”), is used to, among other things, record complaints that are referred to other agencies,
outside the NYPD, or to describe complaints that are considered so clearly not credible that no
investigation is undertaken.407 It can also be used to characterize allegations which the
investigators deem to be vague or possessing “no investigative qualities” and then recorded for
possible future reference.408
IAB does not make penalty recommendations. If IAB substantiates a case, it may
recommend either Charges and Specifications or Command Discipline to DAO. The IAB
investigator presents the case to the assigned DAO attorney. DAO then determines what charge(s)
will be written up and what level of discipline, if any, will be sought. IAB/BIU/FID merely
investigate the case and determine whether to substantiate. DAO determines discipline.
When IAB investigates a matter, for example a Force or Corruption case, they have access
to the CPI, which lists earlier complaints previously substantiated by CCRB, but the CPI only
contains cases where DAO or IAB Police Commissioner agreed to a B-CD or filing of Charges.
They do not have access to previous substantiations within the Department which have been sealed
pursuant to either Patrol Guide §§ 206-14 or 206-15 (discussed elsewhere in this Report).409 IAB
or FID may look at prior Force complaints investigated within the Department which are kept
within the CPI. BIU, when investigating a profiling allegation,410 may look at prior unsubstantiated
(but not unfounded or exonerated) profiling allegations, including a look into the prior
investigative file.411 When OCD is investigating an OG matter, it may look at a prior file as well.
405
CCPC, Nineteenth Annual Report of the Commission at 49 (Dec. 2019), available at
https://www1 nyc.gov/assets/ccpc/downloads/pdf/Annual-Nineteen-Report.pdf.
406
See Admin. Guide § 322-11.
407
See Independent Panel Report at 9 n.18.
408
CCPC. First Annual Report of the Commission at 27 (Apr. 1996), available at
https://www1 nyc.gov/assets/ccpc/downloads/pdf/First-Report-of-the-Commission.pdf.
409
Now Admin. Guide § 318-12.
410
The Charter change authorizing CCRB to investigate profiling complaints does not preclude an investigation by
IAB/BIU. For one, CCRB is limited to investigation of civilian complaints, while NYPD may become aware of
profiling for which there is no civilian complaint. In addition, it is not unlikely that a profiling complaint substantiated
by CCRB will undergo a second investigation or a concurrent review by IAB. This is true of force complaints and,
given the seriousness of a profiling complaint is likely to occur with profiling complaints. The question was twice
(orally) put to representatives of the Law Department without a response.
411
IAB Guide 620-58 (Processing and Investigating Complaints of Profiling and Bias-Based Policing) at paragraph
11 instructs the investigator to “[r]eview subject officer’s CPI, including prior civilian complaints, as well as lawsuits
89
When a Commanding Officer, or the CO’s designee, is investigating a matter, the CPI is available
(subject to sealing), but no other case history. Only DAO, which keeps its own record database
(DADS), has full access to all prior complaints (whether substantiated or not), but DADS does not
include prior Command Disciplines which originated and were resolved within the precinct. And
while DAO may reconcile investigations and adjust disciplinary recommendations, it does not
investigate matters; it merely reviews recommendations from CCRB, BIU, IAB, OCD and, as well,
makes further recommendations to the Police Commissioner, which may come from DCT, FID,
or the Force Bureau.
DAO control over IAB investigative results was criticized in a recent report by the
Commission to Combat Police Corruption (CCPC). They cited cases where misconduct findings
by IAB were dismissed. The Commission recommended:
The Department should explore creating a separate disposition category for those
cases in which IAB (or any other investigative unit) believes that there is sufficient
evidence to bring a charge but no charge is brought and no discipline is
administered such as “Referred but not charged” or “Unsubstantiated due to
declination by DAO.” This disposition could be used when DAO declines to pursue
discipline because it disagrees with the investigators’ assessment that sufficient
evidence exists. Such a category would alert future investigators who review the
officer’s background that although the disposition was ultimately not substantiated,
investigators believed there was merit to the allegation. This information might
prompt investigators probing later allegations against the same officer to take the
later allegations more seriously. It might also cause them to re-examine the earlier
allegations in greater depth when reviewing the background of the subject officer
as the earlier allegations would have more credence than they ordinarily would be
given to prior allegations closed as “Unsubstantiated.”412
For lesser infractions, listed in Patrol Guide § 206-03413 and Administrative Guide 304-06,
including such items such as “Unnecessary conversation,” “Improper uniform,” etc., command
discipline or guidance can be administered by the Investigations Unit within IAB and consultation
with DAO is not required.
DAO may also pass a substantiated finding by IAB/BIU/FID on to the CO in the precinct
and recommend that Command Discipline be imposed. Once IAB or BIU make a finding after
investigation, the CO may not change that finding without conferral with the investigating entity.
The Patrol Guide merely requires “conferral,” not “approval.” On the other hand, if disciplinary
filed against him or her, and prior performance evaluations with an eye towards identifying patterns of bias/misconduct
on the part of the subject officer.” It is unclear whether this would require a look into prior unsubstantiated complaints.
412
CCPC, Nineteenth Annual Report of the Commission at 127
https://www1.nyc.gov/assets/ccpc/downloads/pdf/Annual-Nineteen-Report.pdf.
413
(Dec.
2019),
available
at
Now AG § 318-02.
90
action was recommended to the CO by DAO, that may not be changed without approval by the
Deputy Commissioner Department Advocate.414
i.
Officer Interviews Within the Department During Investigations
For more serious investigations, an IAB or BIU investigator may question an officer who
is the subject of, or a witness to, the matter under inquiry by invoking Patrol Guide § 206-13415
(now Administrative Guide 318-11, “Interrogation of Members of the Service”), that prescribes
detailed procedural requirements. Prior to any questioning, the interrogating officer must permit
the service member to obtain and confer with counsel. The interrogation is recorded, and the DAO
must provide the officer with a copy of a tape of the interrogation.416
Command disciplinary procedures will not customarily require time to obtain counsel as
the interview is informal. The Patrol Guide permits time to obtain counsel for “serious”
violations,417 presumably where formal proceedings are contemplated. Representatives of
department line organizations (unions) are present during the interrogation, although they do not,
in all instances, represent the officer.
If the officer is a potential subject of a disciplinary proceeding, the officer is provided, in
advance of the interview, a description of the nature of any accusation, information concerning the
allegation, and the identity of witnesses or complainants. An officer may be suspended and
terminated upon refusal to answer questions in an office interview. The officer is also given a tape
recording of the interrogation within five to twenty days depending on the status of the
investigation and before any subsequent CCRB interview.
The officer’s interview is considered confidential under Patrol Guide § 206-13 (now AG §
318-11). Questions and answers are not released or revealed outside of the Department without
approval of the Deputy Commissioner – Legal Matters. This position was sustained in court in
reliance upon former Civil Rights Law § 50-a on the claim that it was a personnel record.418 The
viability of continued confidentiality can, and probably will, be challenged going forward. Beyond
a claim of “unwarranted invasion of privacy,” or “interference with law enforcement
investigations,” the utility of secrecy in this regard may become diminished for several reasons.
The officer’s statements cannot be used against him or her in a subsequent criminal
proceeding.419 Since the immunity is based upon Fifth Amendment protections and not any explicit
statutory provision, the immunity that follows is “use plus fruits” and not “transactional.”420
414
Patrol Guide § 206-02. (Now Admin. Guide § 318-01).
415
Now Admin. Guide § 304-10.
416
Id.
417
After the assault on Abner Louima, in 1997 there was pressure to eliminate the “48-hour” rule which had been part
of the union contract. Finally, in 2002 after litigation, the automatic rule was eliminated.
418
Gonzalez v. United States, 2013 US Dist. LEXIS 75091, 2013 WL 2350434 (S.D.N.Y. May 23, 2013) (Cott,
Magistrate J.).
419
Garrity v. New Jersey, 385 U.S. 493, 500 (1967).
420
Caruso v. CCRB, 158 Misc. 2d 909 (N.Y. Cty. Sup. Ct. 1993).
91
During CCRB investigations, the officer has time to review the civilian statements before being
questioned. By contrast, the civilian witnesses do not have the right to see the officer’s statements.
As with IAB interviews:
[A]ll members of the Department who are questioned by the CCRB [are] to
cooperate in the CCRB investigation, to report all pertinent information to the
CCRB, and to answer all questions posed by a CCRB investigator or board member
fully and truthfully. Where a member of the Police Department refuses to answer
a question in a CCRB investigation, the CCRB investigator or Board member shall
inform the Police Department, and a designated supervisory officer the Police
Department shall advise the officer that the refusal to answer questions in a CCRB
investigation will result in immediate suspension and the preparation of disciplinary
charges, and the supervisory officer shall then direct the officer to answer the
questions posed.421
In the view of Corporation Counsel, “It is irrelevant that the new CCRB has no express
statutory authority to grant immunity. Where a public employee is compelled to testify about his
or her job over a claim of privilege against self-incrimination, use immunity ‘attaches
automatically by operation of law,’ and flows directly from the Constitution.”422 In other
circumstances, “[t]o prevent the privilege from shielding information not properly within its scope
. . . a witness who desires the protection of the privilege . . . must claim it at the time he relies on
it” and “a witness must assert the privilege to subsequently benefit from it.”423 However, in the
case of an IAB interrogation, since there is a “threat to withdraw . . . public employment . . . the
privilege . . . need not be affirmatively asserted.”424 Presumably this also applies to CCRB
interviews.425
While statements made by the officer during a disciplinary interview may not be used
against him in a criminal proceeding, the question arises as to whether an IAB interview or a CCRB
interview may be available in a subsequent civil suit. Federal courts in the Districts of New York
routinely permit discovery of CCRB investigations in cases involving the NYPD.426 That would
necessarily include statements made by the subject officer in the course of the investigations.
421
Opinion No. 4-93, 1993 NYC Corp Counsel LEXIS 14.
422
Id. (internal citations omitted).
423
Salina v. Texas, 570 U.S. 178, 183, 186 (2013) (sometimes referred to as “immunity by invocation”).
424
Corp. Counsel Opinion No. 4-93.
425
Compare CPL 190.50 which grants automatic immunity, without invocation, to witnesses in the Grand Jury.
426
Heller v. City of New York, 06 CV 2842 (NG), 2008 WL 2944663 (E.D.N.Y. July 31, 2008); 1 Move v. City of New
York, No. 05 CV 3180, 2005 U.S. Dist. LEXIS 42902, at *1-2 (E.D.N.Y. July 13, 2006); Bradley v. City of New York,
No. 04 CV 8411, 2005 WL 2508253, at *1-2 (S.D.N.Y. Oct. 3, 2005); Fountain v. City of New York, No. 03 CV 4526,
03 CV 4915, 03 CV 7790, 03 CV 8445, 03 CV 9188, 03 CV 9191, 04 CV 665, 04 CV 1145, 04 CV 1371, 04 CV
2713, 2004 WL 941242, at *3 (S.D.N.Y. May 3, 2004) (citing King v. Conde, 121 F.R.D. 180, 188 (E.D.N.Y. 1988)).
92
Any concern for the future personal liability of officers following an interview was
discounted by U.S. District Court Judge Jack Weinstein:
An officer’s financial responsibility for civil rights claims is likely to be slight
(because he is relatively judgment proof or indemnified by his employer), whereas
he (or his friends) may face termination or prosecution in internal affairs
investigations. In sum, disclosure to civil rights litigants is probably a minute
influence on officers’ candor. See Kelly, supra, 114 F.R.D. at 665 (“the possibility
of disclosure to a civil litigant probably adds almost nothing to the pressure to
dissemble that officers already would feel; those who are going to lie are going to
do so regardless of whether there is some chance of disclosure to a citizen
complainant.”).427
The confidentiality limitation placed on officer interviews has been extended in a fashion,
to CCRB, which can become a hindrance to CCRB investigations.
The CCRB requests entire case files from concurrent IAB investigations, which
includes transcripts and audio recordings of the interviews. The NYPD refuses to
release these documents until it has concluded its investigation. Often, the CCRB
has concluded its investigation prior to the NYPD closing and/or providing this
information.428
In effect, this can mean that the officer and his representative can review prior statements
made to IAB when being interviewed by CCRB investigators, but the CCRB investigator may
have to conduct the interview without access to a prior statement made to IAB. While this situation
would seem to be awkward in the ordinary course, now, with the added responsibility to investigate
false statements, denying access to CCRB of a prior interview will become more problematic. It
is awkward, if not untenable, to ask a CCRB panel to determine if a sworn statement is false
without providing access to the panel of sworn statements covering the same matter made in a
departmental interview.
The quality of IAB interviews has also been a subject of repeated criticism and concern by
outside reviewers.429 In the words of the Commission:
Especially in the context of official Department interviews, questioning at times
appeared perfunctory, with insufficient efforts made to obtain the details of what
actually occurred. While the Commission does not advocate unnecessarily
prolonging interviews, questioning that only seeks to obtain a denial, or that yields
answers that are vague or can be interpreted multiple ways, or that does not
challenge statements that seem incredible could result in failure to uncover
427
King, 121 F.R.D at 193 (E.D.N.Y. 1988) (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 655 (ND Cal. 1987).
This was written before the City put restrictions upon qualified immunity for police misconduct. (See discussion
infra.) Nonetheless, indemnification provisions still obtain.
428
Letter to Monitor Team, September 3, 2019, Matthew Kadushin, General Counsel, CCRB.
429
CCPC Nineteenth Annual Report, supra note 354 at 29 (citing 12 previous studies and reports lodging the same
criticism).
93
evidence of serious misconduct that would have been revealed through more
competent and persistent questioning. Also, this type of seemingly pro forma
questioning may send a message to the subject officer and the delegate present with
that officer that IAB places no credence in the allegations or does not view the
allegations as sufficiently serious to merit any genuine inquiry. In addition, the
Commission noted interview techniques that violated best practices for obtaining
the most reliable information. These included interviewing witnesses together,
using close-ended questions, using witnesses as interpreters, ceding control of the
interview to the subject officer’s representatives, and failing to describe non-verbal
responses and exhibits for the recording.430
This is a phenomenon observed and corroborated by the Monitor. Two of note were
interviews conducted by BIU investigators in connection with profiling allegations against an
officer who was the subject of eight separate profiling investigations (all of which were unfounded
or unsubstantiated). The interviews were criticized for their brevity, with one lasting just nine
minutes,431 and another was criticized for taking place six months after the incident and five months
after the complainant had been interviewed.432
E.
NYPD Internal Investigations – Categories of Misconduct
IAB oversees some of the non-FADO complaints against NYPD officers, but not all. IAB
investigations are typically classified into one of four categories depending on the nature of the
allegations.433
430
Id. at 30.
431
PO
432
433
Corruption (“C”) cases involve allegations of corruption or serious misconduct. They
are retained for investigation by IAB.
Misconduct (“M”) cases may be handled by IAB or investigative personnel within the
Borough/Bureau Investigative Units. M cases commonly involve non-appearance in
court, missing property, off-duty incidents, misuse of time, disputed stop of a vehicle.434
From 2015 through the beginning of 2022, allegations of racial profiling and bias-based
policing were also classified as M cases and investigated by Borough/Bureau
Investigative Units (BIU).
Outside Guidelines (“OG”) cases involve allegations of minor infractions or
violations of Department regulations that fall outside Patrol Guide prohibitions
involving public contact. They are often referred to command-level investigators as a
result.435
, IAB
.
.
IAB may also conduct Self-Initiated (SI) cases and Programmatic Review (PR) cases.
434
NYPD distinguishes vehicle stops (M cases) from street stops (CCRB abuse of authority). A complaint of a
wrongful vehicle traffic stop is not sent to CCRB, unless there is also a claim of an illegal frisk or search.
435
NYC Dep’t of Investigation, Addressing Inefficiencies in NYPD’s Handling of Complaints: An Investigation of
the “Outside Guidelines” Complaint Process at 1 (Feb. 2017), available at https://www1.nyc.gov/assets/oignypd/do
94
In more serious cases, IAB may retain an OG case for investigation. In 2018, IAB
investigated 328 OG cases and substantiated 38 of them. In 2019, IAB investigated 252 OG cases
and substantiated 59 of them.
The OG processing system is elaborate. The complaint usually gets passed from IAB to
OCD-IRS, which then forwards it to the appropriate command (Patrol Services Bureau, Housing
or Transit Bureau).439 Within the Patrol Services Bureau, which fields the majority of OG
complaints, the Office of the Chief of Patrol’s Investigation and Evaluation Unit receives the
complaint and, in turn, forwards it to one of the eight Patrol Borough Commands. The Patrol
Borough Command assigns the case to a supervisor in the precinct. There, an Operations
Lieutenant passes the complaint to a precinct supervisor, usually a sergeant for investigation. Once
the supervisor reaches a conclusion, the case is reviewed by a superior officer in the precinct,
forwarded to the Patrol Borough, and passed back to the Patrol Services Bureau. Investigating
officers at the Command level are directed to contact the civilian complainants, if there is one,
within five days and to conclude the investigation within ninety days. If the complaint originated
with a civilian, the investigator is to complete, and return to IRS, a “Disposition and Penalty Report
for Civilian Complaints Investigated by NYPD.”440 IRS may conduct a final review and enter the
information on a Disposition and Penalty Form for Outside Guidelines into a computerized case
management tracking system, called the ICMT.
In February 2017, the NYPD Office of Inspector General (NYPD-OIG441) issued a report
entitled “Addressing Inefficiencies in NYPD’s Handling of Complaints: An Investigation of the
‘Outside Guidelines’ Complaint Process” and concluded that there are “certain inefficiencies,
inconsistencies, and outdated technology that is incompatible with other NYPD systems.”442 By
letter dated May 8, 2017, the Police Commissioner responded to the Inspector General’s report.
The Commissioner noted that the NYPD “had focused on most, if not all, of the issues raised by”
the Inspector General before it issued its report and stated that “[b]ecause most of the [Inspector
General’s] present recommendations are consistent with the NYPD’s previously contemplated
plans for improvement, the NYPD concurs with nearly all of them.”443
Aside from the cumbersome system for complaint/case flow—passing through successive
units for assessment and review—the heart of the criticism by the OIG was with an inefficient case
tracking mechanism and the failure to give complainants access to information on the status of
complaints. According to OIG as of April 2021, the problems had not been completely addressed.
It noted that the switchover from a manual entry system for data collection and reporting to
implementation of ICMT was incomplete, there was no web-based procedure to communicate the
439
Admin. Guide § 318-01.
440
Known as PD468-152.
441
Throughout this Report, “NYPD OIG” may, from time to time be referred to in shorthand, for convenience, simply
as “OIG.”
442
NYC Dep’t of Investigation, Addressing Inefficiencies in NYPD’s Handling of Complaints: An Investigation of
the “Outside Guidelines” Complaint Process at 1 (Feb. 2017), available at https://www1.nyc.gov/assets/oignypd/do
wnloads/pdf/Reports/OGReport.pdf.
443
Letter from Police Commissioner to Mayor Bill de Blasio, et al., (May 8, 2017), available at https://www1 nyc.go
v/assets/doi/oignypd/response/NYPD_Response_OG_Report.pdf.
96
status of complaints to complainants and the Department is merely “considering” publishing
quarterly reports with the number of cases received, investigated, and closed annually.444
ii.
Force
Section 221-01 of the Patrol Guide sets forth the NYPD’s use of force guidelines.445 Under
the guidelines, force may be used when it is reasonable to ensure the safety of a member of the
service or a third person, to place a person in custody, or to prevent escape from custody. The use
of force must be reasonable under the circumstances; any unreasonable use of force is deemed
“excessive” and in violation of NYPD policy.446 An officer’s failure to intervene to prevent the
use of excessive force, report the use of excessive force, or request timely medical treatment for a
victim of excessive force is considered “serious misconduct” that may result in discipline,
including dismissal.447
The NYPD’s use-of-force guidelines recognize four levels of force.
Level 1 involves physical force (hand strikes, foot strikes, forcible take-downs,
wrestling), or the use of a “less lethal” device such as pepper spray or a mesh restraining
blanket. It also includes discharge or use of a conducted electrical weapon (“CEW”)
when limited to probe mode. It includes cases where there is physical injury to the
subject or officer.
Level 2 involves the intentional use of an object, like a baton, a canine bite, or the use
of a CEW in stun mode.448 Here, as well, where there is substantial physical injury (loss
of tooth/teeth, application of stitches/staples, unconsciousness, hospital treatment)
involved or a claim of excessive use of force, the case is processed as a Level 2.449
444
OIG-NYPD, Seventh Annual Report at 44 (Apr. 2021), available at https://www1.nyc.gov/assets/doi/reports/pdf/
2020/OIGNYPDAnnualRpt_4012021.pdf.
445
In enacting the budget for FY 2020, New York State mandated that all law enforcement agencies in the state have
a use-of-force policy, with mandatory reporting requirements, for all use-of-force incidents. Governor Cuomo
Announces Highlights of FY 2020 Budget (Apr. 1, 2019), Executive Law 837-t., available at
https://www.budget.ny.gov/pubs/press/2019/pr-enactfy20 html. NYPD’s first employment of a Use of Force policy
was in 2016 and, as discussed below, has since been updated and revised.
446
Patrol Guide § 221-01. Excessive Use of Force is defined as “[u]se of force deemed by the investigating supervisor
as greater than that which a reasonable officer, in the same situation, would use under the circumstances that existed
and were known to the MOS at the time force was used.” Id.
447
Id.
448
In drive stun mode a probe can incapacitate a muscle mass and therefore the individual. This is used to coerce
compliance by the infliction of localized pain. Item 161, City 09.01.23 Feedback to Yates Discipline Report.
449
“In June 2017, after evaluation of the revised use of force policies, substantive modifications were made. The most
notable change is the Level 2 use of force designation for any allegation/suspicion of excessive force or the
commission of a prohibited action (e.g., use of a chokehold) even if there is no injury to a subject.” NYPD, Use of
Force Report 2017 at 1, available at https://www1 nyc.gov/assets/nypd/downloads/pdf/use-of-force/use-of-force2017.pdf.
97
Level 3 is defined as the use of physical force that is readily capable of causing, or
causes, serious physical injury (hospital admission required), or alleged use of a
chokehold.450
Level 4 includes the discharge of a firearm and any case where a civilian dies or is
likely to die just before or while in police custody, or during apprehension.
Typically, around 95% of force incidents are categorized as Level 1. In 2019 (before
implementation of Level 4), 94.4% of force incidents were categorized as Level 1. Level 2
accounted for 3.9% and the remaining 1.7% were classified as Level 3. Depending on the method
of deployment use, of Conducted Electrical Weapons (CEW or Tasers) can be classified as a Level
1 or 2. For the most part, they are classified as Level 1 and account for 15% of police use of force
incidents (1,271 of 8,595 in 2019).
In 2019, tasers were used nine times during the course of a stop that did not result in an
arrest or involve an Emotionally Disturbed Person.451 They were used 621 time to affect an arrest
and 380 times in situation involving an Emotionally Disturbed Persons.
Reporting and Investigating Use of Force
In June 2016, the Threat, Resistance, or Injury Incident Report (TRI) was introduced to
centralize force reporting. The member of service must complete Part A of a TRI Worksheet for
every “reportable” use of force.452 Reportable incidents cover a wide range, from hand strikes, use
of restraints, and police canine bits, to use of tasers, firearm discharge, and more. Actions that are
not reportable include ordering or guiding a person to the ground or use of handcuffs. If more than
one officer was involved, each must separately prepare the form. If there is more than one subject
of the force, a TRI form is filed for each subject. Upon notice, the immediate supervisor is then
responsible for a preliminary assessment and to categorize the level of force for the purpose of
determining which investigating authority will pursue the matter.
If a member of the service becomes aware of the use of excessive force, that member is
required to report the incident to the IAB Command Center. Absent a civilian complaint, the
450
Patrol Guide § 221-03 defines a chokehold as “any pressure to the throat, carotid artery or windpipe, which may
prevent or hinder breathing, or reduce intake of air or blood flow.” NYC Admin. Code § 10-181 prohibits restraint in
the course of an arrest that restricts the flow of air or blood by compressing the windpipe, carotid arteries, or
diaphragm. A violation is a class A misdemeanor. The crime of Aggravated Strangulation (N.Y. Penal Law § 121.13a), a class C felony, was enacted in 2020 (L .2020, ch. 94). It punishes obstruction of breathing or blood circulation,
or use of a chokehold or similar restraint that applies pressure to the throat or windpipe of a person in a manner that
may hinder breathing or reduce intake of air, which cause serious physical injury or death. A conviction of either
crime will lead to presumptive termination under the Guidelines. A chokehold where no injury resulted will receive
a presumptive penalty of twenty penalty days. On June 22, 2021, a state court struck the entire Administrative Code
provision on the grounds that the phrase “compresses the diaphragm” is unconstitutionally vague. Police Benevolent
Ass’n of the City of New York v. City of New York, 2021 WL 2555799 (Sup. Ct., N.Y. Cnty. June 22. 2021) (Love. J.).
That decision was reversed, and the Administrative Code provision was upheld on May 19, 2022. (205 A.D.3d 552
[1st Dep’t], aff’d 40 N.Y.3d 417 (2023)).
451
NYPD, Use of Force Report 2019 at 46, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/use-offorce/use-of-force-2019-2020-11-03.pdf.
452
Patrol Guide § 221-03.
98
incident will not be reported to CCRB. Regardless of the level of force used, the Patrol Guide
requires documentation of the incident allowing the Department to analyze incidents where
members of the service have used force, have had force used against them, and/or when subjects
have actively resisted custody. The investigative procedures to be followed depend upon ongoing
assessments of the seriousness of the injuries and amount of force involved. In all cases where use
of force is applied, the member of service must obtain medical attention for any person injured and
notify his or her immediate supervisor regarding the type of force used, the reason force was used,
and any injury to any person involved. If the officer’s immediate supervisor was involved in the
incident, notice should be provided to a supervisor of the same rank or higher within the command
who was not involved.
If Level 1 conduct (physical force or injury) was involved, the immediate supervisor will
question the subject regarding possible injuries, document any such injuries, and will be
responsible to ensure that timely medical attention is provided. The supervisor interviews any
witnesses and questions the member of service involved regarding the basis for applying force and
the type of force used. After speaking with the relevant parties, the supervisor must then determine
whether the use of force was within NYPD guidelines or whether further investigation is
required.453 The supervisor completes Part B of the TRI form, which is filed with the desk sergeant.
If a Level 2 use of force (substantial physical injury or excessive use of force) is suspected,
the Patrol Bureau Command and the Internal Affairs Bureau are notified. Level 2 investigations
will stay with the local command at a rank above the immediate supervisor (the Commanding
Officer, the Executive Officer or the Duty Captain), unless superseded by IAB or the Force
Investigation Division (“FID”).454 The local command may utilize the Patrol Bureau Investigation
Units. The investigator prepares an “Investigating Supervisor’s Assessment Report,” (PD370154A) (“ISAR”), which goes to the First Deputy Commissioner, the Chief of Department, IAB,
Legal Matters and RMB. IAB has the option of taking over the investigation in their discretion.
If a Level 3 use of force (use of deadly force or serious physical injury which is not lifethreatening) is reported, IAB conducts the investigation, unless FID supersedes.
If a Level 4 use of force (firearm discharge, death, serious physical injury likely to result
in a death) is reported, FID will investigate. In addition, FID may assume control of any level
investigation at the direction of the First Deputy Commissioner.
In determining whether use of force is reasonable, officers are told to consider a number of
factors, including the nature and severity of the crime, any actions taken by the subject of police
action, and the immediacy of the perceived threat or harm to the subject, members of the service,
and/or any bystanders.455 The Patrol Guide requires “de-escalation techniques when appropriate
and consistent with personal safety.”456
453
Id.
454
While IAB reports directly to the Police Commissioner, FID, DAO and RMB report to the First Deputy.
455
Patrol Guide § 221-01.
456
Patrol Guide § 221-02.
99
Within 48 to 72 hours after receiving notice of a triggering event within its jurisdiction, the
FID must circulate a preliminary report to senior NYPD executives, followed by a preliminary
presentation to the Police Commissioner and the First Deputy within two weeks.457 Thereafter,
monthly reports are provided to the First Deputy.
Finally, the Use of Force Review Board, chaired by the First Deputy, reviews all cases
where IAB or FID were the lead investigators. The Use of Force Review Board may review any
alleged violation of the use of force guidelines. It is empowered to find that, under exigent or
exceptional circumstances, the use of prohibited force was justified and within guidelines. The
subject of any disciplinary action or civilian complaint related to use of force may submit a request
for a review of the circumstances to the Board, which then may make a final determination of
whether the force used was reasonable under the circumstances and within applicable guidelines.
Reported Use of Force in Stop and Frisk Encounters
In the context of Floyd concerns: How often is force used in the course of a Terry stop?
How often was a civilian forcibly stopped or frisked without probable cause to arrest? How often
is there a force misconduct complaint after a stop? Given the separate strands of investigative
authority, between CCRB, IAB, FID, local Command, and the Force Review Board, this is not an
easy set of questions to answer.
Statistics garnered from filed stop reports at the online Stop, Question and Frisk Database
and statistics from TRI Reports at the online Use of Force (“UOF”) Reports give different answers.
If one looks at the stop report filings, force was used in 2,645 stops in 2018 and in 3,162 stops in
2019. Yet if one looks at the TRI/Use of Force Reports, under the category “suspicious
person/condition stop,” force was only used 56 times in 2018 and 90 times in 2019. Obviously,
the criteria for data entry in the two data sets do not match. Some of the mismatch is
understandable. For example, handcuffing is listed as physical force in stop reports, but it is not a
reportable TRI/Use of Force event. Similarly, drawing or pointing a firearm is listed in stop
reports, but not in TRI reports.458 The reports and statistics are handled separately and apparently
not coordinated. These two items alone, however, do not account for the vast discrepancy. The
dissonance makes it difficult to reconcile or draw firm conclusions from the two sets of reports.
In any event, it appears that force is used commonly in stops and frisks and that the use of force in
most of those cases are not reflected in TRI/Use of Force reports, which would otherwise have led
to a separate investigation by a supervisor, a command executive, IAB, or FID under the use of
force guidelines.
Consider the following:
457
Independent Panel Report at 9; Patrol Guide § 221-04.
458
In 2019, a firearm was drawn or pointed, according to filed Stop Reports, 586 times out of 13,459 stops (4.5%). In
420 of the 586 instances, there was no arrest. These cases would not be reported in TRI/Use of Force Reports. NYPD,
Stop, Question and Frisk Data, 2019, available at https://www1 nyc.gov/site/nypd/stats/reportsanalysis/stopfrisk.page.
100
In 2018 out of 11,009 stop reports filed:
3,115
7,894
2,630
Stops led to an arrest (28.2%)
Stops did not lead to an arrest (71.7%)
Force used in stops (23.9%)
o 788 Force was used in the stop, followed by an arrest
o 1,842 Force was used during stop but no arrest (16.7% of
all stops)
6,519
1,280
337
242
85
12
Push, shove, handcuff
A firearm was drawn or pointed
Physical force (other)
A restraint was used
CEW used
Frisks as part of a stop (59.2%)
o 4,638 Frisk did not lead to arrest
o 1,302 Force was used with frisk but no arrest (11.8% of
all stops)
In 2023 out of 16,971 stop reports filed:
4,900
12,071
3,793
Stops led to an arrest (28.9%)
Stops did not lead to an arrest (71.1%)
Force used in stops (22.3%)
o 1,905 Force was used in the stop, followed by an arrest
o 1,888 Force was used during stop but no arrest (11.2% of
all stops)
10,924
1,503
332
100
295
30
Push, shove, handcuff
A firearm was drawn or pointed
Physical force (other)
A restraint was used
CEW used
Frisks as part of a stop (64.4%)
o 8,411 Frisk did not lead to arrest
o 1,259 Force was used with frisk but no arrest (7.4% of all
stops)
101
Force commonly is used in executing stops and frisks that do not lead to an arrest.
Ultimately, an important question is whether use of force correlates with unlawful stops and/or
unlawful frisks. If one credits the stop reports, force is used in roughly 23% of all reported stops.
Force is used 11% to 16 % of the time when a person is stopped, but not arrested. Force was used
in 7% to 12% of stops with frisks where the civilian was not arrested. The Department’s list of
stop reports459 tells us how many stops or frisks were accompanied by force and how many of those
concluded with or without an arrest. But there is no attempt to match that data with misconduct
complaints.
Correlation, if demonstrated, between wrongful stops and frisks and excessive force needs,
as well, to take into account profiling complaints. As recently remarked by CCRB’s Director of
the Racial Profiling/Bias-Based Policing Unit, “the legislative history leading to CCRB’s creation
. . . reveals that concerns over discrimination – particularly allegations regarding the use of
excessive force by NYPD officers against Black and Latino community members – greatly
influenced the creation of the agency.”460
In sum, it is clear that force is used in a number of cases where a civilian is stopped or
stopped and frisked but there is no ensuing arrest. How many of those forcible stops and forcible
frisks were proper and how many were improper? Since the Department’s listing of stop reports461
is not correlated with CCRB’s Complaint Tracking System, this potentially useful analysis is not
available.
Because CCRB and IAB/FID separately investigate force incidents, it is difficult to track
and trace the efficacy of use of force investigations overall. Sometimes both CCRB and NYPD
will conduct overlapping or sequential investigations. Sometimes one will investigate while the
other does not. No effort is made to coordinate investigations, data, or discipline for parallel use
of force investigations.
Recently, U.S. District Court Judge Raymond Dearie criticized gaps that follow from
separate investigations when force and related misconduct allegations are split up. Looking at
cases investigated within NYPD, he found: “Most complaints are referred to another department
for further investigation, but IAB receives no information about how, or whether, those
departments conduct investigations and the results of the investigations.”462 And looking at
referrals to CCRB, he found that “[p]ertinent information from an [IAB] investigation is not shared
459
See NYPD, Stop, Question and Frisk Data, available at https://www1 nyc.gov/site/nypd/stats/reportsanalysis/stopfrisk.page.
460
Memorandum, Darius Charney, “Changing CCRB’s Rules to Incorporate CCRB’s New Jurisdiction under Local
Law 47,” July 8, 2022, at 3 (citing N.Y. City Dep’t of Investigation, Office of the Inspector General for the NYPD,
Biased Policing Complaints in New York City: An Assessment of NYPD’s Investigations, Policies, and Training, at
39 n.45 (June 2019) (citing N.Y.C. CCRB: Hearing on Intro. No. 549 Before the Comm. On Public Safety, N.Y. City
Council 52–53, 435 (1992))), available at https://www1 nyc.gov/assets/doi/reports/pdf/2019/Jun/19BiasRpt_62619.p
df.
461
See NYPD, Stop, Question and Frisk Data, available at https://www1 nyc.gov/site/nypd/stats/reportsanalysis/stopfrisk.page.
462
Jenkins v. City of New York, 388 F. Supp. 3d 179, 190 (E.D.N.Y. 2019) (Dearie. J.).
102
with other departments [e.g., CCRB] conducting additional investigation.”463 Based on this and
other findings in the case before him, he concluded, “persistent inadequacies in the CCRB and
IAB investigations demonstrate that City officials simply did not care what a thorough
investigation would reveal [and] were indeed indifferent to whether or not excessive force was
used.”464
This remains problematic in the context of Stop and Frisk compliance. Precinct
commanders, or IAB, or FID may investigate a force complaint. Along with the force complaint,
IAB may investigate a FADO allegation if there is no civilian complaint. CCRB may investigate
the same force complaint if there is a citizen complaint. Along with an NYPD force investigation,
CCRB may investigate use of force as part of a FADO allegation. As Judge Dearie pointed out,
the investigations are not coordinated.
It would be desirous to be able to match stop reports, TRI reports, IAB Force investigations,
and CCRB Force investigations with one another. Correlating Terry stops with Use of Force
Reports, and then analyzing the outcomes if the encounter was investigated, whether upon a
civilian complaint or otherwise, would go a long way to understanding the extent to which the
Department complies or fails to comply with Floyd. To do this, any use of force by officers during
a stop or frisk should be scrutinized and consistently catalogued in a way that is understandable.
At this time, there is no data set that coordinates reports, investigations, and discipline for use of
force, when applied to stops and frisks.465
As to outcomes for misconduct investigations of use of force, a comparison of the effort
by NYPD and CCRB shows the following:466
2018467
NYPD reports
7,879 force incidents reported on TRI forms where an officer used force
5,035 during arrest (out of 246,779 total arrests)
37 IAB improper use of force cases; four substantiated
463
Id. at 191.
464
Id. (alteration in original) (internal quotation marks omitted).
465
An added difficulty in reviewing stop investigations with other Departmental investigations is tallying by
“allegations” vs. “complaints” vs. “cases” vs. “incidents” in various reports, which makes comparisons tedious if not
impossible. Further, summaries in reports which compare complaints received to dispositions is always imprecise
because they are moving targets, i.e., complaints received in one year are usually resolved in a later year.
466
The data received from IAB listed “cases” while the data available from CCRB listed “allegations,” so the
comparison is indicative but not precise.
467
NYPD Discipline Investigations 2018-2019 Matrix – received (July 25, 2020), on file with the Monitor. “Partially
Substantiated” indicates that allegations other than wrongful use of force within the complaint were substantiated.
103
CCRB Reports
1,767 excessive force complaints received
1,747 excessive force complaints investigated
3,651 excessive force allegations received
1,226 excessive force allegations fully investigated/closed
73 excessive force allegations substantiated:
o 13 officers guilty or partly guilty468
Five cases where both an SQF and a use of force allegation was substantiated
2019469
NYPD Reports470
8,595
5,062
30
incidents reported on TRI forms in which an officer used force
force during arrest (out of 214,615 total arrests)
IAB improper use of force cases; one substantiated
CCRB Reports
1,982 excessive force complaints received
1,970 excessive force complaints investigated
4,205 excessive force allegations received
1,433 excessive force allegations fully investigated/closed
98 excessive force allegations substantiated
o 17 officers guilty or partly guilty471
10 cases where both an SQF and a use of force allegation were substantiated
iii.
“M” Cases
IAB refers most M (“Misconduct”) cases to investigative units at Bureau or Borough
commands (BIU) which pass the results on to the Office of the Chief of Department. The
Investigation Units are separate from the precincts. They are generally staffed by detectives,
sergeants, and lieutenants. They report their findings to a Unit Commander and the Commanding
Officer for the Patrol Bureau. There are 35 Borough/Bureau Investigation Units.
468
NYPD, Discipline in the NYPD - 2018, at 10, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/anal
ysis_and_planning/discipline/discipline-in-the-nypd-2018.pdf. There were seventeen sustained force complaints.
Thirteen were by CCRB and four were by IAB.
469
See NYPD, Use of Force Report 2019, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/use-offorce/use-of-force-2019.pdf.
470
There were 10,270 TRI reports filed, but 1,675 showed no use of force by an officer.
471
NYPD, Discipline in the NYPD -2019, available at https://www1 nyc.gov/assets/nypd/downloads/pdf/analysis_
and_planning/discipline/discipline-in-the-nypd-2019a.pdf. Eighteen were reported overall, but one was IABsubstantiated.
104
Cases sent from CCRB containing an allegation of profiling along with a corruption
allegation were kept in and investigated by IAB and are not “split.”472 On the other hand, if a case
contains an excessive force allegation or a rule violation (OG) along with a profiling allegation,
the IAB Assessment and Analysis Unit will split the case.473 Prior to 2022, the profiling allegation
went to BIU. The OG allegation may be sent to OCD and passed on to the local command. The
force allegation may be sent to the local command, IAB, or the Force Investigation Division
depending on the level of force employed.
Racial profiling complaints filed by a citizen moved in 2022 from NYPD to CCRB due to
an amendment to Section 440 of the City Charter.474 CCRB promulgated regulations implementing
the change effective September 22, 2022.475 Presumably, nothing bars IAB from investigating
discriminatory policing in the absence of a citizen complaint.
In addition, NYPD, in conjunction with the Monitor team, developed Internal Affairs
Bureau Guide 620-58, which delineates guidelines for investigation of complaints related to Racial
Profiling and Bias-Based Policing.476 The Court in Floyd approved the process outlined.477 Since
the City of New York is the Defendant in that action, the shift of profiling investigations from
NYPD to CCRB does not vitiate the need for both City agencies to follow the protocol, at a
minimum. Going forward, whether a profiling complaint is investigated by CCRB, NYPD, or
both, the procedures in §620-58 should be followed.
A referral of an “M” case to IAB or OCD may or may not be related to a parallel CCRB
FADO case.
In 2018, CCRB referred 911 complaints to IAB and 4,798 complaints to OCD. Of cases
referred to IAB, 23.7% (216/911) were related to a CCRB case. Of cases referred to OCD, 20.7%
(995/4,798) were related to a CCRB case.
By category of complaint, referrals to IAB and OCD by CCRB were as follows:
472
NYC Dep’t of Investigation, Addressing Inefficiencies in NYPD’s Handling of Complaints: An Investigation of
the “Outside Guidelines” Complaint Process at 5 n.3 (Feb. 2017), available at https://www1 nyc.gov/assets/oignypd/
downloads/pdf/Reports/OGReport.pdf. With the direction to CCRB, in the amended Charter, to investigate profiling
cases, it remains unclear if IAB will independently investigate bias allegations or review findings by CCRB.
473
The Department contends that the term “split investigation” is a “misnomer” since it sends part of a complaint to
CCRB but “Whether CCRB decides to investigate is not within our jurisdiction.” Nonetheless, when IAB determines
that a complaint contains both FADO and non-FADO allegations, IAB logs will contain a “standard disclaimer” that
“CCRB will investigate the FADO allegations against uniformed members of the service contained in this log.” Letter
from Jeff Schlanger, former Deputy Commissioner, Risk Management Bureau to the Monitor Team (Jan. 7, 2021).
The complaint is split.
474
Local Law No. 47 (2021) (effective 270 days from Apr. 25, 2021).
475
See generally, 38 RCNY 1-01, et seq.
476
Procedure 620-58, eff. Aug. 7, 2018.
477
Doc. No. 802 (Dec. 3, 2020).
105
2018
CCRB REFERRAL TO IAB
Force with severe injury/ related CCRB case
Cavity search
Complaint not against Member of Service
Complaint by MOS against MOS
Complaint against NYPD civilian
Criminal Prosecution allegation against MOS
False Official Statement
Impersonation of MOS
Improper/ refusal to file accident or complaint
No FADO allegation
Off-duty/unrelated to authority
Ongoing harassment by MOS
Other
Past Statute of Limitations
Profiling
Retaliation for filing CCRB complaint
Sexual Misconduct
Dispute over summons or arrest
Unreturned property
TOTAL REFERRED TO IAB
CCRB REFERRED TO OCD -2018
Complaint against non-MOS
Complaint by MOS against MOS
Complaint against NYPD civilian
Improper/ refusal to file accident or
complaint.
918
No FADO allegation
Off-duty/unrelated to authority
Ongoing harassment by MOS
Other
Sexual Misconduct
Dispute over summons or arrest
Unreturned property
TOTAL REFERRED TO OCD - 2018
Related to a
CCRB case
1
5
1
1
1
15
8
2
1
2
2
52
11
1
28
13
35
1
36
216
Not related to
a CCRB case
0
2
0
17
0
55
0
25
5
60
75
201
49
55
56
17
23
1
54
695
TOTAL
1
7
1
18
1
70
8
27
6
62
77
253
60
56
84
30
58
2
90
911
0
0
1
4
1
418
4
1
419
59
977
35
0
0
8
0
16
17
995
1,769
3
2
26
1
1,470
50
3,803
1,804
3
2
34
1
1,486
67
4,798
Importantly, in the SQF context, M cases (whether investigated by IAB, BIU, or OCD)
include stop report failures, other failures to properly report (activity logs, memo books, strip
search reports, etc.), and improper use of body-worn cameras (BWC). A substantial number of
potential M violations are noticed during the course of an SQF investigation by CCRB. This is
especially true for SQF investigations where profiling complaints, BWC failures, and stop report
failures first become evident in a CCRB inquiry. CCRB refers the potential violations to NYPD
for investigation as “OMN” cases. “OMN” is CCRB’s notation for “Other Misconduct Noted.”
106
OMN cases, usually M cases, are separated from the FADO investigation and forwarded to IAB
for follow-up.478
In 2018, Other Misconduct Noted allegations referred by CCRB in the course of
investigating a FADO complaint were as follows:
Failure to prepare a memo book entry
Failure to produce stop report
False official statement
Improper use of body-worn camera
Other Misconduct
293
57
8
6
62
In 2019, of 1,540 fully investigated FADO complaints by CCRB, 610 included an OMN
referral. Of these, 271 OMN referrals were made for memo book failures, and 55 were for stop
report failures.
The biggest change in OMN referrals came after patrol officers were outfitted with bodyworn cameras (BWC). An officer’s failure to activate as required is referred from CCRB to IAB
as an OMN “M” case. In 2018, there were only six such referrals. With expanded camera
employment, that number jumped to 132 BWC referrals in 2019. In 2020 and 2021, CCRB
referred 444 instances of improper use of a BWC.479
CCRB has adopted a Rules change regarding BWCs. The Board now includes “improper
use of body worn cameras” within the definition of “Abuse of Authority.”480 Once implemented,
the panels would no longer be required to refer BWC violations to the Department but would be
free to evaluate the allegation at CCRB.481 In January 2023, the NYC PBA initiated an Article 78
proceeding seeking to prohibit CCRB’s inclusion of BWC violations as an abuse of authority.482
Most “M” cases are investigated by BIU. CCPC, after study of the range of cases sent
from IAB to BIU, observed, “[b]orough and bureau investigation units usually investigate cases
that range from landlord-tenant disputes and domestic violence complaints, when there is no
serious physical injury, to allegations that officers have stolen property, when that property does
not consist of money, credit or debit cards, or valuable jewelry.”483 In borough-based cases, if
investigated by units other than IAB, when an investigation has concluded, the Duty Captain is
responsible for submitting a detailed report to the IAB with the disposition of all allegations and
478
Prior to the Charter amendments in 2020, CCRB includes False Statement referrals in its OMN listings. They were
categorized as “C” cases and kept by IAB for investigation.
479
Policy Memorandum, CCRB (July 6, 2022), available at https://www nyc.gov/assets/ccrb/downloads/pdf/about_p
df/board/2022/memo/07062022_BWC_Justification_Memo.pdf.
480
38-A Rules of the City of NY § 1-01, effective Sept. 22, 2022.
481
https://rules.cityofnewyork.us/rule/implementation-of-charter-changes-and-other-amendments/.
482
NYC PBA v. CCRB, Index No. 150441/2023 (Sup. Ct. NY Cty.). That portion of the petition was denied on January
3, 2024. NYSCEF Doc. No. 71.
483
CCPC, Fourteenth Annual Report of the Commission at 11 n.21 (Feb. 2012), available at
https://www1.nyc.gov/assets/ccpc/downloads/pdf/14th_annual_report.pdf.
107
recommendations for further investigation, if warranted. The Duty Captain may also recommend
that the IAB close the investigation.484
In 2018, there were 3,148 closed “M” investigations. In 2019 there were 2,102 closed M
investigations.485 Some were investigated by IAB and the results were passed on to DAO and the
Police Commissioner. Some were investigated by BIU and the results were passed on to the Chief
of Department.
For 2018 M cases:
IAB substantiated 28 of 181 M cases. (15.5%)
o IAB “partially substantiated” 38 cases.486
BIU substantiated 859 of 2,967 M cases (28.9%).
o BIU “partially substantiated” 406 cases.
For 2019 as of July 25, 2020, M case dispositions were:
IAB substantiated 41 of 211 M cases. (19.4%)
o IAB partially substantiated 51 cases.
BIU substantiated 583 of 1,891 M cases (30.8%).
o BIU “partially substantiated” 267 cases.
iv.
“C” Cases
If a police officer receives a complaint of corruption about himself or herself, he or she
must request that a supervisor respond to the scene. Once the supervising officer responds, he or
she must interview the complainant and confer with the IAB’s Command Center before
interviewing the subject police officer.487 C cases investigated by IAB can include false testimony,
theft, improper involvement in businesses or enterprises that are in conflict with assignments, or
potentially criminal behavior.
As noted, the Patrol Guide sets forth a process for officers to report corruption and other
misconduct, including excessive force and perjury.488 A member who has observed or become
aware of such violations must contact the IAB’s Command Center by telephone or fax. Members
are also permitted to lodge such reports anonymously by writing to the Chief of Internal Affairs.489
The reporting officer will receive a confidential identification number from the command center
investigator, the receipt of which satisfies the officer’s reporting responsibility.
484
485
Patrol Guide § 202-08.
NYPD Discipline Investigations Matrix, (July 25, 2020), on file with the Monitor team.
486
NYPD Discipline Investigations Matrix, (July 25, 2020), on file with the Monitor team. “Partially substantiated”
can mean that some, but not all, allegations of misconduct were substantiated.
487
Patrol Guide § 207-21.
488
Id.
489
Id.
108
Failure to report allegations of known or perceived corruption or misconduct itself
constitutes an offense of serious misconduct and can be charged as such when uncovered.
Moreover, any attempt to cover up acts of corruption are referred to the prosecutor’s office with
jurisdiction over the matter.490
In the past, false official statement referrals (for statements made while being interviewed
by CCRB investigators) were treated as “C” cases when received by IAB from CCRB.491 There
were 22 such referrals between 2018 and 2019. In 2016, IAB began to report the disposition of
False Official Statement cases (OMNs) back to CCRB (not the penalty, merely the finding). In
2018, eight such cases were decided by the Department. Only one was substantiated. In 2019,
IAB resolved eight of the sixteen False Official Statement cases sent by CCRB. None were
substantiated. Going forward, false statements made by a subject officer to a CCRB investigator
can be investigated by CCRB. (The Charter change is discussed later). It seems likely that IAB
will continue to, and should, investigate falsity as well. While the Charter limits CCRB
investigations of untruthful statements made in the course of an investigation, it is possible, if not
likely, that an officer who made a false statement to a CCRB investigator also made a conforming
statement about the event, in writing or orally, within the precinct, to a prosecutor, to a grand jury,
to a court, or to an IAB investigator. It makes little sense to cabin the investigation to CCRB alone.
In 2018, there were 611 Corruption, or “C,” cases investigated by IAB. 46 of the C cases
were substantiated. 145 were “partially substantiated,” which means that misconduct other than
corruption was sustained. 231 of the 611 investigations resulted in findings of Exonerated,
Unfounded, Unsubstantiated and I&I. Another 185 resulted in a finding of a Minor Procedural
Violation.492
In 2019, 475 “C” cases were closed. 58 of them were substantiated and 132 were partially
substantiated. 151 resulted in findings of exonerated, unfounded, unsubstantiated and I&I.
Another 127 resulted in a finding of a “Minor Procedural Violation.
With 2021 amendments to its Rules, expanding FADO jurisdiction by a revised definition
of “Abuse of Authority” (discussed later in this Report), there is a possibility that CCRB may begin
to examine corruption cases within the rubric that an officer was “misusing police powers.”493 In
the past, as argued by the PBA in opposition to the Rule change, CCRB did not investigate
490
Id.
491
With the 2019 Charter amendments, the Board has the power to investigate “the truthfulness of any material official
statement made by a member of the police department who is the subject of a complaint received or initiated by the
board, if such statement was made during the course of and in relation to the board’s resolution of such complaint.”
Going forward, CCRB may investigate false statements made to the CCRB investigator, but that does not prevent
CCRB from referring false statement investigations to IAB where the statements were made elsewhere. The 2022
proposed Rules changes define “Abuse of Authority” to include “intentionally untruthful testimony and written
statements made against members of the public in the performance of official police functions. . . .” This is broader
than the language in the Charter, but arguably falls properly within abuse of authority and would permit CCRB to
investigate misstatements in reports, filings, and court proceedings.
492
Misconduct was not found but Command is notified of an MPV which results in a CRAFT entry only.
493
38-A RCNY Chapter 1, Subchapter A: Definitions.
109
corruption cases since criminal acts were thought to be outside CCRB’s jurisdiction.494 However,
the Appellate Division, First Department recently rejected that argument, holding, “Contrary to
petitioners’ contention, the governing statute does not prohibit the CCRB from investigating
matters that may touch upon criminal conduct. While the CCRB had a prior practice of referring
such matters to the Police Department’s Internal Affairs Bureau, that prior practice does not render
the CCRB’s current interpretation arbitrary, especially where CCRB has set forth a rational basis
for changing its approach.”495
F.
Bias-Based Policing and Racial Profiling Investigations at NYPD
Prior to 2016, allegations of racial profiling made to CCRB were not investigated by either
CCRB or IAB.496 Following a meeting with the Monitor in 2016, CCRB and IAB personnel agreed
that, going forward, CCRB would notify IAB upon receipt of a profiling complaint. Absent
unusual circumstances, those complaints are classified as “M” cases and passed on to a
Borough/Bureau Investigating Unit (BIU) for investigation.497 The results have not engendered
confidence in the review process. As of July 2021, out of 5,174 complaints filed against Members
of the Service over a seven-year period, only four allegations were substantiated by IAB or BIU
(two allegations against uniformed members and one against a school safety agent). However, in
those cases, the misconduct occurred off-duty and was unconnected to any enforcement action.
As such, neither charges nor a complaint for profiling or bias-based policing were drawn by DAO.
No officer has been charged with bias-based policing or profiling in connection with an
enforcement action.
The Charter was amended in April 2021, authorizing CCRB to include racial profiling and
bias-based policing within its abuse of authority jurisdiction, commencing January 2022.498
Because CCRB needs a civilian complaint to act, some profiling investigations will still be kept at
NYPD rather than CCRB, despite the change. As of July 8, 2021, of 5,174 profiling complaints
logged in the past, 323 were listed as coming from Members of the Service. The matrix is not
specific, so it is possible that some of these complaints were civilian complaints made to a Member
of the Service and then passed along by officers rather than originating from sources other than a
494
Plaintiffs-Petitioners’ Memorandum of Law (I) in Reply and in Further Support of Their Verified Petition, Lynch
v. NYC CCRB, NY Cnty. Sup. Ct., Index No. 154653/2021, Doc No. 77 at 8-9 (Aug. 6, 2021).
495
Lynch v. NYC CCRB, 206 A.D.3d 558 (1st Dep’t 2022).
496
Second Report Of The Independent Monitor at 59 (Feb. 16, 2016), https://www nypdmonitor.org/wpcontent/uploads/2016/02/2016-02-16FloydvCityofNY-MonitorsSecondStatusReport.pdf.
497
As explained in a report by OIG-NYPD, “[a]lthough biased policing allegations, standing alone, are classified as
‘M,’ if the complaint includes other allegations that IAB classifies as ‘Corruption’ (represented by the ‘C’
classification) (i.e., acts of corruption, criminal activity, or serious misconduct), then the entire case is categorized as
‘C.’ NYPD categorizes all internal investigations according to the most serious allegation in the case. In these
instances, IAB would investigate the biased policing allegation because IAB investigates all ‘C’ cases. Prior to
January 2015, biased policing allegations were classified as ‘Outside Guidelines”’(OG) cases, which are considered
less serious than either ‘M’ or ‘C’ classified allegations. OG cases go through the Investigative Review Section of
the Office of the Chief of Department to determine where the allegations should be sent for investigation, but they are
sent to the subject officer’s precinct.” OIG-NYPD, Complaints of Biased Policing in New York City: An Assessment
of
NYPD’s
Investigations,
Policies,
and
Training
,
at
10
n.14
(June
2019),
https://www1.nyc.gov/assets/doi/reports/pdf/2019/Jun/19BiasRpt_62619.pdf.
498
N.Y.C. Charter § 440(c) (eff. January 20, 2022).
110
civilian complaint. If the complaints originated with a civilian compliant from Members of the
Service, they will continue to be investigated by IAB or BIU, not CCRB.499
It might be that IAB or BIU will open concurrent investigations for profiling complaints,
as the Department does in some use of force cases. It may be the Department will independently
investigate a profiling case, but only after a substantiated case is referred to the Department by
CCRB.500
In addition, 571 of the 5,174 profiling complaints were made against non-uniformed
Members of the Service. By its rules, not the Charter, CCRB declines to investigate cases against
non-uniformed members. Profiling complaints against non-uniformed members will still need to
be investigated by IAB or BIU if CCRB continues its policy of not investigating non-uniformed
members.
Working with the Plaintiffs and the Monitor team, NYPD has written a careful protocol
(IAB Guide 620-58), approved by the Court, detailing how NYPD should conduct profiling
investigations. Going forward, CCRB will need to adopt, under a similar process, guidelines or
protocols for the cases they do accept.
Biased policing remains a serious concern today, as it did in 2013 when the decision in
Floyd was rendered.501 A recent study submitted to the Court by the Monitor found that “racial
disparities in frisk, search, summons, arrest, use of force, and the recovery of a weapon or other
contraband diminished” during the 2013-2019 study period.502 The report did note, however:
The number of Black and Hispanic people subjected to stop encounters dropped
significantly between 2013 and 2019, though the overall share of stops by race and
ethnicity remained largely unchanged. The lack of change in the racial distribution
of stops during this time period, even with an overall reduction in stops, reflects the
fact that the number of stops of Whites and other groups was substantially lower
than Hispanics and Blacks. In 2013, for example, the total number of reported stops
of Black and Hispanic subjects was 5.0 and 2.6 times larger than that of reported
499
In a 2019 report, OIG-NYPD urged that the Patrol Guide should explicitly require officers to report observed
instance of biased policing. The Department responded that PG § 207-21 already requires officers to report “[c]riminal
activity or other misconduct of any kind including the use of excessive force or perjury” to IAB (PG § 207-21) and
that was sufficient. OIG asserted that it would “continue to monitor the issue.” OIG-NYPD, Annual Report 2020:
Annual Report 2020:
Office of the Inspector General for the NYPD at 9 (Apr. 2020),
https://www1.nyc.gov/assets/doi/reports/pdf/2020/OIGNYPD_SixthAnnualReportFinal_4.9.2020.pdf.
500
CCRB recently acquired jurisdiction in false statement cases as well. The same possibility of concurrent or
consecutive investigations arises for those cases. In all, nothing prevents the Department from investigating a force,
profiling, or false statement case independent of a CCRB investigation.
501
“Biased policing, whether perceived or actual, is a matter of significant public concern. Communities affected by
certain policing practices report high levels of distrust of the police, as the remedial process of Floyd v. City of New
York has documented.”
OIG-NYPD, Annual Report 2020,
supra
note
500
at 8,
https://www1.nyc.gov/assets/doi/reports/pdf/2020/OIGNYPD_SixthAnnualReportFinal_4.9.2020.pdf.
502
Thirteenth Report of the Independent Monitor, Racial Disparities in NYPD Stop Question, and Frisk Practices: An
Analysis of 2013 to 2019 Stop Reports at 2-3 (Sept. 1, 2021), https://www nypdmonitor.org/wpcontent/uploads/2021/09/13th-Report filed_.pdf.
111
stops of White subjects. In 2019, reported stops of Black and Hispanic subjects
were 6.6 and 3.2 time larger than the total number of stops of White subjects.503
i.
Biased Policing and Profiling Defined
Bias in policing is prohibited by Administrative Code § 14-151 and by NYPD’s
Administrative Guide 304-17.504 The former, Administrative Code § 14-151, declares, “[e]very
member of the police department or other law enforcement officer shall be prohibited from
engaging in bias-based profiling.”505 The Code creates a private right of action which may be
brought in court or by a complaint filed with the Commission on Human Rights.
The bill creating § 14-151506 was vetoed by then Mayor Bloomberg on the ground that it
“would unleash an avalanche of lawsuits against police officers.” 507 The Mayor continued, in his
disapproval message: “From the police officer’s perspective . . . every officer acting on a
description that includes some characteristic of a possible perpetrator would have to think about
whether taking action will result in a lawsuit.”508 Nonetheless, the City Council persisted and §
14-151 was enacted by a veto override on August 22, 2013.
Subsequently, § 14-151 was challenged in two separate court proceedings. One,
commenced by Mayor Bloomberg at the end of his third term, in September 2013, was withdrawn
by Mayor de Blasio a few months into his first term in April 2014. The other was brought by the
Police Benevolent Association and the Sergeants Benevolent Association and continued to
conclusion.509 Important to the litigation was the meaning of the phrase “the determinative factor”
as one of the required elements of proof of bias in Administrative Code § 14-151.
During the drafting of the law, NYPD requested that the phrase “the determinative factor”
be incorporated. According to the Department, in applying Fourth Amendment analysis,
demographic factors, such as race, could and should be considered in deciding whether to initiate
law enforcement action if, for example, it is a physical characteristic as part of a description of a
503
Id.
504
Formerly Patrol Guide § 203-25. Effective 6/2/21, Patrol Guide § 203-25 was re-numbered as Administrative
Guide § 304-17. It was also amended to include, “[T]he Department complies with Federal civil rights laws” including
“Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin
(including language)” and “Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination based on
disability.”
505
Here, the prohibition in the NYC Administrative Code is read to bar discrimination by all Members of the Service.
Despite CCRB’s self-imposed limitation of investigations to uniformed members, the section applies to all members
as reflected by Administrative Guide § 302-17, which applies 14-151 to all members of the service.
506
LL 71/2013.
507
Mayor’s Veto Message, M-1184-2013 (July 23, 2013).
508
Id.
509
PBA of the City of New York, Inc. v. City of New York, 2014 N.Y. Slip Op. 31570 (U), aff’d 142 A.D.3d 53 (1st
Dep’t June 23, 2016).
112
suspect. It would only be unlawful to stop an individual if the deciding factor for doing so was
that the person stopped matched the race of the person described.510
The Department’s language was adopted when Administrative Code § 14-151 was enacted.
The Code prohibits “intentional bias-based profiling” and reads:
[A]n act of a member of the force of the police department or other law enforcement
officer that relies on actual or perceived race, national origin, color, creed, age,
immigration or citizenship status, gender, sexual orientation, disability, or housing
status as the determinative factor in initiating law enforcement action against an
individual, rather than an individual’s behavior or other information or
circumstances that links a person or persons to suspected unlawful activity.511
Nonetheless, in its legal challenge to the provision, the PBA argued that the Criminal
Procedure Law empowers officers to stop a person upon reasonable suspicion. Therefore, they
argued, a local law could not prohibit a stop when an officer has reasonable suspicion. The
exception would be where race was the “sole” basis for the action. If no other factor supported
enforcement action, there would be no authority for the stop under the CPL because race alone
does not provide reasonable suspicion. However, the PBA argued, because state law authorized a
stop based on race along with other factors combining to give reasonable suspicion, the local law
conflicted with general law (the CPL) and was therefore void.
The Appellate Division rejected the challenge to the local law. It held that there is a
difference between “the determinative factor” (the language in § 14-151) and a determinative
factor as posited by the PBA. If race was a determinative factor, a stop is authorized under the
CPL. If race was the determinative factor, it is barred under the criminal law. The court held that
the Administrative Code was not in conflict with the CPL because the Code required proof that
race was the determinative factor. For those purposes, the CPL and the NYC Administrative Code
are in sync.
The Appellate Division ruled the CPL and Administrative Code did not conflict for the
additional reason that they address two distinctly different areas of the law. The CPL proscribes
Fourth Amendment incursions. There, the findings in criminal court are based on objective criteria
and the totality of the circumstances. On the other hand, Administrative Code § 14-151 addresses
Fourteenth Amendment concerns. In that area, subjective intent of the officer comes into play in
deciding if the actions are discriminatory. Under Equal Protection analysis, it would be
discriminatory if, subjectively speaking, race was a motivating factor but not the only factor.
According to the Court, the distinction is that, for criminal procedure purposes, “a police stop that
is motivated by discrimination or pretext may still be upheld if it is otherwise supported by
reasonable suspicion” but might still be discriminatory under civil law.512
510
NYPD Finest Message, Nov. 21, 2013.
511
N.Y.C. Admin. Code § 14-151(a)(1) (emphasis added).
512
PBA, 142 A.D.3d at 66.
113
The Court added that selective enforcement is barred by the Equal Protection Clause.
“[T]he Constitution prohibits selective enforcement of the law based on considerations such as
race. But the constitutional basis for objecting to intentionally discriminatory application of laws
is the Equal Protection Clause, not the Fourth Amendment.”513 Under § 14-151, a claim of “biasbased profiling” against an individual officer must be founded upon proof that the officer: (1)
relied upon actual or perceived membership in a protected class; (2) as the determinative factor in
initiating a law enforcement action against an individual; (3) rather than the individual’s behavior
or other information or circumstances that linked the individual to suspected unlawful activity; and
(4) the officer engaged in bias-based profiling intentionally.
When one analyzes the combined elements of proof required by § 14-151, a case against
an officer is quite difficult to prove. Mere disparate treatment or impact is not enough. Cases
claiming selective enforcement or pattern and practice alone would also fail under § 14-151 if the
officer had sufficient Fourth Amendment grounds for the stop, frisk, search or arrest. During
investigations, if there is proof that bias was a determinative factor in an enforcement action, that
proof can be, and usually is, countered by evidence that the action was otherwise legally justified
and cause for enforcement. Take the prototypical case of a summons for an open container
violation. If the officer had reason to believe the civilian had alcohol in an open container, a bias
claim under § 14-151 fails absent further proof that the action was taken with the intention of
discriminating, even if the officer gave a ticket to a protected class member while ignoring
contemporaneous violations by others. If, however, intentional bias is proven in the enforcement
action, an abuse of authority based on a Fourteenth Amendment violation may still be pursued.
Fourth Amendment analysis is measured by looking at the surrounding circumstances
objectively. Equal Protection analysis, and profiling investigations, look at the subjective
motivation of the officer. A recent decision by the Appellate Division, Third Department, may
upend the bifurcated analysis between equal protection investigations and Fourth Amendment
scrutiny. In People v. Jones,514 the court held that the state constitution, Article 1, sec. 12, does
not preclude a challenge to a traffic stop on racial profiling grounds even where the officer had
probable cause to believe the motorist had violated the Vehicle and Traffic Law. In that case, the
defendant was observed to have made a turn without proper signaling. The observation was made
by officers following the car during a narcotics surveillance operation. The Appellate Division
acknowledged that federal and state precedent held that neither the Fourth Amendment nor the
state constitution would justify suppression on a claim that the asserted justification is pretextual,
i.e., the primary motivation of the officer was bias rather than enforcement of the VTL.515 But the
Court held that suppression is an available remedy in a criminal case when “assessed objectively
513
Id. at 67. This is consistent with Judge Scheindlin’s statement in 2013 in the Floyd Liability Opinion that the City
“continue[s] to endorse the unsupportable position that racial profiling cannot exist provided the stop is based on
reasonable suspicion. This position is fundamentally inconsistent with the law of equal protection and represents a
particularly disconcerting manifestation of indifference.” 959 F. Supp. 2d at 665-67.
514
People v. Jones, 210 A.D.3d 150 (3d Dep’t 2022).
515
Whren v. United States, 517 US 806 (1996); People v. Robinson, 97 N.Y.2d 341 (2001). But compare, The
Appellate Division, First Department has decided that suppression in a criminal trial is not an available remedy for
discriminatory enforcement. People v. Dula, 198 A.D.3d 463 (2021).
114
with reference to the facts and circumstances of the encounter” the “traffic stop was premised on
racial profiling.”
Suppression of evidence in a criminal case is a serious matter to be applied with caution.
Nonetheless, the Appellate Division is willing to consider suppression when traffic laws are
selectively enforced. The Police Commissioner has considerable latitude in governing police
conduct as she writes the Departmental Manual. He could, if he chose, follow the lead of the
Appellate Division and sanction bias by looking at both the subjective motivation of the officer
(current practice) and the objective facts surrounding the conduct, i.e., condemning discrimination
in selective stops even where reasonable suspicion might otherwise justify a particular stop.
ii.
Comparing Language in Sections of Law to Sections of the NYPD
Administrative Guide
The NYPD Administrative Guide adopts a two-tier approach to bias and profiling
complaints, distinguishing “Bias-Based Policing” from “Racial Profiling,” and prohibiting both.
The definition of bias-based policing in the NYPD Guide tracks the stringent language in the
Administrative Code. On the other hand, the bar against racial profiling in Administrative Guide
§ 304-17(3) adopts a broader standard.
Paragraph 5 of NYPD Administrative Guide § 304-17 repeats the Administrative Code
language barring an officer from intentionally engaging in Bias-Based Policing (also
interchangeably called Bias-Based Profiling in the Administrative Guide):
The Administrative Code and Department policy prohibit . . . officers from
intentionally engaging in bias-based profiling, which is defined as ‘an act of a
member . . . .that relies on actual or perceived race, national origin, color, creed,
age, immigration or citizenship status, gender, sexual orientation, disability, or
housing status as the determinative factor in initiating law enforcement action
against an individual, rather than an individual’s behavior or other information or
circumstances that links a person or persons to suspected unlawful activity.516
“Bias-based profiling” under this section of the Guide and under the Administrative Code
broadly protects against enforcement on the basis of national origin, gender, disability, sexual
orientation, immigration or citizenship status and housing status.
Separately, Racial Profiling is barred by paragraph 3 of Administrative Guide § 304-17:
Race, color, ethnicity, or national origin may not be used as a motivating factor for
initiating police enforcement action. When an officer’s decision to initiate
enforcement actions against a person is motivated even in part by a person’s actual
or perceived race, color, ethnicity or national origin, that enforcement action
violates Department policy unless the officer’s decision is based on a specific and
516
Admin. Guide § 304-17(5) (emphasis added).
115
reliable suspect description that includes not just race, age, and gender, but other
identifying characteristics or information.517
“Racial profiling” under the Patrol Guide enforces the Fourteenth Amendment and applies
to acts based on race, color, ethnicity and national origin. It does not include profiling based on
disability, sexual orientation, immigration status, citizenship status, or housing status.
To its credit, the Department has opted to go beyond the Administrative Code and seeks to
protect Fourteenth Amendment interests even when an enforcement action might satisfy the Fourth
Amendment. It bans profiling of persons with protected status when racial considerations are a
motivating factor “even in part.”518
Specifically, with regard to SQF activity, the Administrative Guide continues this more
expansive approach and warns that:
Individuals may not be targeted for any enforcement action, including stops,
because they are members of a racial or ethnic group that appears more frequently
in local crime suspect data. Race, color, ethnicity, or national origin may only be
considered when the stop is based on a specific and reliable suspect description that
includes not just race, gender, and age, but other identifying characteristics or
information.519
This is repeated in Patrol Guide 212-11 (“Investigative Encounters”). “In addition, a
person may not be stopped merely because he or she matches a generalized description of a crime
suspect, such as an 18-25 year old male of a particular race.”520 Such a stop would implicate both
the Fourth and Fourteenth Amendments.
On May 31, 2022, CCRB publicly posted a series of amendments to its Rules. The
amendments were approved and adopted by the Board on September 14, 2022. There, the Board
defines “Racial Profiling” to mean “a law enforcement action initiated by a member of the Police
Department against a civilian that is motivated, at least in part, by the civilian’s actual or
perceived race, color, ethnicity or national origin, unless the decision to initiate the law
enforcement action is based on a specific and reliable description of a suspect in a recently reported
crime or series of crimes that includes not just race, age, and gender, but other identifying
characteristics or information.” 521
517
Admin. Guide § 304-17(3) (emphasis added).
518
The language was developed with the help of and the advice of the Monitor Team. The Court, in the Floyd Liability
Opinion, found: “To establish discriminatory intent, plaintiffs must show that those responsible for profiling did so
‘at least in part because of, not merely in spite of, its adverse effects upon the profiled racial groups. Plaintiffs are not
required to prove that race was the sole, predominant, or determinative factor in a police enforcement action.” 959 F.
Supp. 2d at 662.
519
Admin. Guide § 304-17(4).
520
Patrol Guide § 212-11.
521
https://rules.cityofnewyork.us/rule/implementation-of-charter-changes-and-other-amendments/
supplied).
(emphasis
116
It is unclear why the Board chose to alter the language, previously approved by the Court
in Floyd, by substituting “at least in part” for the language in the Patrol Guide—“even in part”—
or if the substitution carries any consequence for enforcement.522
Finally, the NYPD Disciplinary System Penalty Guidelines defines an abuse of discretion
to include an “enforcement action such as an arrest or summons for which there is a lawful basis,
however, but for the officer’s improper motive, enforcement action would not have been taken.”523
Does the use of a “but for” analysis here require proof that bias was “the determinative factor” or
that the arrest was motivated in part by bias? Time will tell whether this provision is invoked when
investigating allegations of selective enforcement.
iii.
Burden of Proof, Class by Class
The scope of coverage for different groups of civilians varies under different provisions of
the Charter, the Administrative Code and the NYPD Administrative Guide.
Racial Profiling, under § 304-17, paragraph 3 of the Administrative Guide, the
narrowest of coverage, protects against discriminatory enforcement based on actual or
perceived race, color, ethnicity, or national origin.
“Act of bias” under § 441 of the Charter covers acts based on race, ethnicity, religion,
gender, sexual orientation or disability.
“Bias-based Policing (or Profiling)” under Administrative Code § 14-151 and
paragraph 5 of Administrative Guide § 304-17 uses the broadest definition, looking at
bias based on actual or perceived race, national origin, color, creed, age, immigration
or citizenship status, gender, sexual orientation, disability, or housing status.
The last, the broader definition in the Administrative Code and Administrative Guide
§ 304-17(5), requires proof that class identification was the determinative factor in a police
decision to act. For the more limited class, defined by Administrative Guide § 304-17(3), and in
particular with regard to stop and frisk actions, proof is sufficient if enforcement was motivated
even in part by class identification.
Of 5,077 discrimination allegations524 logged by IAB as of March 31, 2021, 3,392 (66.8%)
alleged bias based on race, color, ethnicity or national origin—the groups covered by § 304-17(3).
The remaining complaints—1685 (33.2%)—were claims of discrimination based on the other
groups itemized in the Administrative Code—age, immigration or citizen status, gender, sexual
orientation, disability, and housing status.525
522
“At least in part. . .” is language used in the Floyd Liability Opinion. 959 F. Supp. 2d at 662
523
NYPD Disciplinary System Penalty Guidelines at 27 (Feb. 15, 2022), https://www nyc.gov/site/nypd/about/aboutnypd/policy/nypd-discipline-matrix.page.
524
3,336 cases. Item 167, City 09.01.23 Feedback to Yates Report.
525
Internal Affairs Bureau Assessment and Analysis Unit, Profiling Case Analysis Report, updated as of Mar. 31,
2021.
117
iv.
Consolidating Bias Investigations and Allegations
It is particularly fitting that profiling cases in the future will be considered by CCRB in
conjunction with SQF complaints.526 After reviewing a number of profiling investigations,
Plaintiffs’ counsel expressed dissatisfaction with the adequacy of NYPD handling of bias
complaints:
IAB investigators sidestepped clear inference of racial profiling or selective
enforcement in certain stops. Their investigations frequently ignore how the choice
to make stops may reflect racial profiling and how race factors into whom officers
deem suspicious—an issue that lies at the heart of the Floyd liability opinion.527
Without revisiting the files viewed by Plaintiffs, the point made is a good one: Complaints
of SQF misconduct and profiling should be examined as one inextricable whole. Commencing in
2022, the two halves of the Floyd opinion (detailing both Fourth and Fourteenth Amendment
concerns) are properly conjoined for the first time.
Any investigation of an SQF-profiling complaint requires determining both whether the
officer had discriminatory intent and whether the officer had reasonable suspicion. The bias
decision should not be artificially isolated from the suspicion issue being decided. It is difficult
enough to decipher whether profiling was intentional (under paragraph 5) or what motivated an
officer (under paragraph 3), but the difficulty is unduly compounded when the judgment is made
in a silo, stripped of an evaluation of the surrounding circumstances that led to the encounter. In
an IAB investigation, IAB Guide § 620-58 specifically directs that “[t]he officer should articulate
in their own words, the specific circumstances that provided the basis for their actions or
inactions.” This is proper and necessary. The problem in the past, however, was that IAB’s
determination of “the basis” for the officer’s actions was made separately from CCRB’s resolution
of the reasonable suspicion issue. Ultimately, it is too easy for an NYPD investigator to dismiss a
profiling complaint because that investigator believed the subject officer had reasonable cause to
engage the complainant without the full benefit of the companion CCRB investigation.
In 2016, there were 34 SQF allegations, involving 14 subject officers, that had a racial
profiling allegation spun off to IAB and which were fully investigated and closed by a vote of a
CCRB panel. CCRB substantiated 14 of the SQF allegations, against seven of the officers. The
remainder were unsubstantiated or exonerated. In 2017 to 2018, there were 41 SQF allegations,
involving 20 subject officers, that were fully investigated and closed by CCRB panels and where
a racial profiling allegation was spun-off to IAB for the same complaint.528 21 SQF allegations
were unsubstantiated and 20 SQF allegations ended with exoneration. None of the 41 SQF
526
The Charter directs CCRB to investigate both bias-based policing and racial profiling. N.Y.C. Charter § 440(c)(1).
527
Letter to the Monitor, Re: Review of IAB Investigative Files, (Apr. 17. 2020).
528
There were 126 SQF allegations in CCRB with a spin-off racial profiling allegation sent to IAB. 85 of the SQF
allegations did not close with a finding on the merits by CCRB either because they were truncated, closed for pending
litigation, mediated, the officer was unidentified, or the complainant was uncooperative. While CCRB mediates a
substantial number of the SQF complaints with a racial profiling allegation, NYPD does not mediate profiling
complaints that it receives.
118
allegations were substantiated by CCRB. In none of these cases was the profiling investigation
substantiated by the NYPD.
It is difficult to know if, in the future, consolidation of allegations into a single investigation
will or will not lead to a higher rate of substantiation.
v.
Discourtesy, Slurs, Offensive Language, and Proof of Bias
If a complaint alleges that an officer used a racial slur but does not allege any additional
bias-based enforcement, that allegation is investigated by CCRB as “offensive language.”
Offensive language complaints made to NYPD are sent to CCRB. If a racial slur is alleged in
connection with other race-based law enforcement conduct, the complaint was investigated by the
NYPD as a racial profiling investigation (until CCRB begins conducting profiling investigations).
What happens if a profiling complaint also contains a racial slur allegation? In the past,
the allegations were split.529 In the future, CCRB can also investigate bias complaints made by a
civilian along with the slur allegation. However, NYPD may continue to investigate profiling
complaints while CCRB will continue to investigate the offensive language complaint.
Nothing prevents NYPD from independently examining both the slur and the bias
allegations at any point in time. In cases where there is no civilian complainant, NYPD may be
the only available body authorized to investigate. So, for example, going forward, when CCRB is
unable to pursue a profiling complaint for want of cooperation by a civilian complainant, if there
is evidence of bias, it would seem appropriate for IAB/BIU to complete the investigation
notwithstanding CCRB’s abstention.
Even though CCRB and the Department distinguish discourtesy from offensive language,
neither the Patrol Guide nor the Administrative Guide define discourtesy. Subdivision one of
Patrol Guide § 203-10 (now Administrative Guide § 304-06) prohibits “[e]ngaging in conduct
prejudicial to good order, efficiency, or discipline.” This subdivision has been cited by CCRB
investigators when substantiating a finding of discourtesy.
Administrative Guide § 304-06 prohibits “[u]sing discourteous or disrespectful remarks
regarding another person’s age, ethnicity, race, religion, gender, gender identity/expression, sexual
orientation, or disability.” This apparently is used when an offensive language (slur) allegation is
adjudged.530
The Disciplinary System Penalty Guidelines define and distinguish discourtesy and
offensive language, with the latter carrying a much heavier presumptive penalty—five penalty
days vs. 20 penalty days.531 The Guidelines define Discourtesy to include “foul language, acting
529
Although NYPD sent the slur allegation to CCRB, while keeping the profiling investigation, in practice IAB/BIU
would investigate the slur as well.
530
Note that housing status, immigration status, or citizenship—categories protected by the Administrative Code—
are not listed as a basis for an offensive language claim under Administrative Guide § 304-06.
531
Disciplinary System Penalty Guidelines at 26. https://www1 nyc.gov/assets/nypd/downloads/pdf/public_informat
ion/nypd-disciplinary-penalty-guidelines-effective-2-15-2022-final.pdf.
119
in a rude or unprofessional manner (such as demeanor or tone), and flashing rude or offensive
gestures that is unjustified or unwarranted with no legitimate law enforcement purpose.”532
Offensive language is defined as “more serious conduct than discourtesy and includes slurs based
on membership in a protected class such as race, religion, ethnicity, gender, gender identity, sexual
orientation, age or disability.”533
The Guidelines also added a new category, prohibiting “Hate Speech” which is “[s]peech
or other form of expression that is intended to intimidate, attack, or threaten/incite violence against
a person or group on the basis of national origin, ethnicity, color, religion, gender, gender identity,
sexual orientation, disability or other protected class.”534 This offense carries a presumption of
termination. The Guidelines state, “Hate Speech is more egregious than ‘Offensive Language’
and may not be language that merely offends or insults an individual or is considered rude,
distasteful or offensive but rather shocks the conscience.”535
In 2019 the Office of the Inspector General for the NYPD (OIG-NYPD) examined the files
in 888 profiling cases, none of which had been substantiated. It recommended that CCRB
investigate profiling complaints under its “abuse of authority” jurisdiction.536 In defending its
failure to substantiate profiling complaints, the Department argued, “[e]ven the best investigative
protocols, and the NYPD believes that it has the best protocols in place, cannot go inside an
officer’s mind to glean, and prove by a preponderance of the evidence, intent or motivation.”537
OIG-NYPD acknowledged that “biased policing complaints are often difficult to
substantiate because of the need to prove discriminatory intent” and that “CCRB may need
additional data and records from NYPD—and on an expedited basis—to complete such
investigations in the required time frame.”538
The report also focused on the decision to split profiling complaints from complaints of
offensive language (slurs). It recommended that “offensive or derogatory language associated
with an individual’s actual or perceived protected status, such as an officer’s use of racial slurs
[should be] classified, investigated, and adjudicated as biased policing.”539
532
NYPD Disciplinary System Penalty Guidelines, supra note 30 at 25.
533
Id.
534
Id. at 47.
535
Id.
536
OIG-NYPD, Complaints of Biased Policing in New York City: An Assessment of NYPD’s Investigations, Policies,
and Training, supra note 498 at 40-42, 56, https://www1.nyc.gov/assets/doi/oignypd/response/FinalResponse_to_
IG_v2_81619.pdf.
537
NYPD Final Response to Complaints of Biased Policing in New York City at 7-8, (Aug. 16, 2019).
https://www1.nyc.gov/assets/doi/oignypd/response/FinalResponse_to_IG_v2_81619.pdf.
538
OIG-NYPD, Complaints of Biased Policing in New York City: An Assessment of NYPD’s Investigations, Policies,
and Training, supra note 498 at 42.
539
Id. at 52.
120
As well, the OIG June 2019 report observed, “NYPD’s early intervention and performance
monitoring systems do not monitor biased policing allegations . . . with the same depth and
diligence that NYPD brings to tracking excessive force claims involving NYPD personnel.”540
There ensued a dialogue between OIG-NYPD and NYPD about the feasibility and legality
of counting slurs as a biased policing matter.541 Without repeating the interchange in full, in
essence the Department argued:
Establishing use of a slur does not require proof of intent, but showing profiling does.
Combining them might make proving slurs more difficult by imposing a “higher
standard.”542
The “statutory scheme of division of cases between the NYPD and the CCRB does not
currently allow for the NYPD to investigate such allegations of misconduct.”543
Biased policing under the Code requires more than a biased “act” such as uttering a
slur. It requires a biased enforcement “action” such as a stop or arrest.544
RMB has, through its monitoring and intervention programs “undertaken a nondisciplinary review of complaints alleging both protected-class profiling and offensive
language, which could be indicative of an officer who can benefit from additional
Training irrespective of the disciplinary outcome of the . . . case.” 545
OIG-NYPD responded546 by asserting:
Nothing requires NYPD to engraft an intent element in defining slurs as misconduct.
The fear of a “higher standard” of proof for slurs is misplaced.
The statutory division does not prevent NYPD from conducting concurrent
investigations as it does in cases of excessive force.
A slur issued in the course of police enforcement is an “action” that meets the statutory
standard.547
Notably, the dialogue has focused entirely upon the strict language of the Administrative
Code and the Charter without taking into account the Department’s ability to set a higher standard
of conduct for officers than the minimum required by law. Local laws establish a floor, not a
ceiling. The Police Commissioner is free to prohibit biased policing proactively. If the elements
of proof required by the Administrative Code are too difficult, if not impossible, to meet, the Police
540
Id. at 3.
541
See generally id.; NYPD, Final Response to Complaints of Biased Policing in New York City.
542
Id. at 8.
543
Id. at 13.
544
Id. at 12.
545
Id. at 4.
546
OIG-NYPD, Annual Report 2020, supra note 500 at 3, 9.
547
In People v. Jones, 210 A.D.3d at 156, the Appellate Division, wrote that “most relevant” to objective assessments
of profiling was a “consideration of the officers’ actions and comments during the encounter.” In the Jones case, the
requirement was satisfied by evidence of a “highly concerning racist statement” made by the officer.
121
Commissioner can alter the Administrative Guide to effectuate the goal in a manner above the
minimum required by the Administrative Code with robust enforcement against biased policing.
As was demonstrated earlier, nothing prevents the Police Commissioner from adopting OIG’s
recommendation in defining misconduct under the Police Guide or the Administrative Guide as
independent grounds for enforcing anti-discriminatory measures and in authorizing concurrent
investigations by CCRB and IAB. The distinction between “acts” or “actions” and “words” or
“slurs” is an artificial construct which the Police Commissioner has complete authority to
dismantle. Now that CCRB has jurisdiction to investigate these matters, the Department and
CCRB should work together to overcome inappropriate hurdles in proving bias where it exists.
vi.
A Look into Prior Wrongs and Patterns in Bias Cases
Following a February 2021 hearing on racism, bias, and hate speech in the NYPD, the City
Council determined there was a “need for performance of a comprehensive public integrity
investigation to identify any instances of previous professional misconduct by an NYPD employee
who has been found to have engaged in an act exhibiting racism or bias or in hate speech.”548 The
goal was to review in a comprehensive way, harassment, discourtesy, slurs and profiling in an
officer’s past. The Council Committee found that “neither the IAB nor the CCPC has yet taken
the initiative to proactively investigate past professional conduct by any NYPD employees found
to have engaged in racist, biased, or hate speech.”549
On April 25, 2021, the City Council added a new section 441 to the City Charter.550 Its
provisions did not take effect until 270 days thereafter, on January 20, 2022. By its terms, the
NYPD, the Commission on Human Rights (CCHR), and the Department of Investigation (OIGNYPD) are required to advise CCRB of any final determination, in the last five years, by CCHR
that an officer engaged in an act of bias.
Charter section 441 defines an “Act of Bias” as:
[A]n act stemming from a specific incident:
(i) that is motivated by or based on animus551 against any person on the basis of
race, ethnicity, religion, gender, sexual orientation or disability, and
548
City Council Committee Report of the Committee on Civil and Human Rights, Intro. No. 2212-A, at 9 (Mar. 25,
2021), https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4770945&GUID=B5D55B19-D0FD-440C-999F1708BF09F374&Options=ID%7cText%7c&Search=2021%2f047.
549
Id. at 10.
550
Local Law 47 of 2021, https://legistar.council nyc.gov/LegislationDetail.aspx?ID=4770945&GUID=B5D55B19D0FD-440C-999F-1708BF09F374&Options=ID%7cText%7c&Search=2021%2f047. The Mayor took no action
upon the bill, presented to him on March 25, 2021 Id. As such, it became law without approval 30 days later. N.Y.C.
Charter § 37.
551
“Animus” is introduced for the first time, without further definition.
122
(ii) that the board is empowered to investigate pursuant to paragraph 1 of
subdivision c of section 440.552
In essence, the section proposes two reforms long sought by advocates: (1) it takes slurs
and discourtesies into account when looking at biased behavior, rather than concentrating solely
on particular acts of bias in enforcement; (2) it looks at history for patterns.
The former directly addresses an argument made by NYPD in its August 16, 2019,
response to the OIG report on biased policing. An “act of bias” is distinguished in its definition
from “enforcement actions” required by Administrative Code § 14-151. A slur is an act of bias,
whether one considers it a biased enforcement action or not.
Under the new Charter provision, CCRB will also define a new term, a “severe act of
bias,” thereby separating “acts of bias” from “severe acts of bias.” CCRB may conduct its own
investigation of past acts of bias and must conduct the investigation if there was an earlier finding
of a severe act of bias. This review is to be conducted for past findings by any “covered entity”
which includes not only CCHR, but also DOI, NYPD, any court, or any other officer or body
designated by the Board.
Effective October 22, 2022, CCRB has adopted new regulations with a definition of a
“severe act of bias” as:
“an act of bias by a member of the Police Department that (i) causes death, physical
injury, or serious psychological or economic injury to the victim(s) of the act, (ii)
subjects the victim(s) of the act to demeaning, degrading, or humiliating treatment,
or (iii) involves criminal conduct, sexual misconduct, threat of violence, or conduct
that otherwise shocks the conscience.”
On January 12, 2023, the PBA filed an Article 78 proceeding to enjoin and declare as
illegally overbroad the definition of a “severe act of bias.” It argues that the word “severe” requires
a high standard before the label attaches since it triggers significant consequences. In this case,
the petition alleges that “it is difficult to conceive of any alleged act of bias that CCRB could not
claim is ‘demeaning, degrading, or humiliating’ to the alleged victim.” As such, the agency has
failed to adequately distinguish severe acts of bias from other acts of bias.553
CCRB can examine off-duty acts of bias if the conduct could have: (i) resulted in discipline;
(ii) could have had a disruptive effect on the mission of the Department; and (iii) the Department’s
interest in preventing disruption outweighed the member’s speech interest. In either case, the
Board may make a recommendation “for remedial action, including training, discipline, where
552
This subparagraph introduces potential confusion since it remains unclear if a civilian complaint is necessary and
whether non-uniformed members of the service were meant to be included.
553
NYC PBA v. City of New York, Index No. 150441/2023, Doc. No. 22 at 25, 2024 NY Misc LEXIS 14 (Sup. Ct. NY
Cty, 2023). The court agreed, on January 3, 2024, that CCRB’s definition of “severe act of bias” needed further detail
and barred “past professional conduct investigations” until the definition was further clarified. NYSCEF Doc. No.
71. A Notice of Appeal was filed by the PBA on February 9, 2024.
123
consistent with section 75 of the civil service law, or both.”554 The Police Commissioner is to
report back on the level of discipline and any penalty imposed, with a detailed explanation” if he
varies from the Board’s recommendation.555
Because, for all practical purposes, neither CCHR nor NYPD have made any findings of
bias against a uniformed police officer,556 the impact of the Charter’s new mandate to look back is
uncertain. Is the Charter provision asking CCRB to look for patterns of past behavior in a new
inquiry or to re-open prior unresolved cases? In any event, going forward, the new section 441,
working in combination with CCRB’s expanded authority, empowers CCRB to:
1.
2.
4.
Investigate racial profiling complaints;
Combine those investigations with allegations of offensive language, discourtesy
and even stop and frisk misconduct;
Keep a record of past allegations and open them to review as new complaints come
in; and
Look for patterns.
G.
SQF Investigations Within the Department
3.
i.
Supervisory Review
In the absence of a civilian complaint, a supervisor who becomes aware of an improper
stop, question, frisk, a failure to comply with the Court-ordered provisions of Patrol Guide § 21211, or a violation or any related offenses that might otherwise be investigated by CCRB if there
were a civilian complaint, can file a “Supervisor’s Complaint Report/Command Discipline
Election Report” with the Commanding Officer or Executive Officer for “corrective action.”557
As observed by CCPC:
Supervisors have the important duty to guide their subordinates and take action to
prevent or correct mistakes and misconduct. The failure to do so can not only lead
to inadvertent misconduct by subordinates but can actually encourage misconduct
if the subordinates observe that there are no negative consequences. When the
supervisor is the person engaging in misconduct, the supervisor models that
behavior for colleagues, and sends a message that such transgressions, and perhaps
others, will be tolerated. Because of the possible far-reaching impact, these types
of cases merit significant penalties.558
554
N.Y.C. Charter § 441(d)(2).
555
Id. § 441(d)(4).
556
The Monitor team was recently advised, at a meeting with CCRB personnel on April 3, 2023, that there are 111
profiling investigations underway by CCRB.
557
Patrol Guide § 206-01 (Now AG § 318-02); PD468-123.
558
CCPC, Nineteenth Annual Report at 99 (Dec. 2019), https://www1 nyc.gov/assets/ccpc/downloads/pdf/AnnualNineteen-Report.pdf.
124
At trial in Floyd, the City asserted that NYPD was able to identify and prevent
unconstitutional stops, in part, because sergeants “routinely witness stops made by officers.”559
However, the Court concluded that this was not an “effective means for monitoring the
constitutionality of stops . . . [because] sergeants do not effectively monitor the constitutionality
of stops even when they are present.”560
The Court lamented, “when officers were found to have made ‘bad’ stops, little or no
discipline was imposed. The evidence showed that the NYPD turned a blind eye to its duty to
monitor and supervise the constitutionality of the stops and frisks conducted by its officers.”561 The
Court found, “[d]eficiencies . . . with respect to stop and frisk and in the disciplining of officers
when they were found to have made a bad stop or frisk. Despite the mounting evidence that
many bad stops were made, that officers failed to make adequate records of stops, and that
discipline was spotty or non-existent, little has been done to improve the situation.”562
To date, this problem has been addressed in part by improved stop reporting, supervisory
reviews and audits. While sergeants are correcting stop reports and, on occasion, providing
instructions for stops they find to be improper, there is no evidence that sergeants, or any other
supervisory authority within the Department, impose discipline for wrongful stops or frisks unless
brought to the Police Commissioner’s attention by CCRB or, on rare occasion, following an audit.
The Floyd Court’s observation that “discipline was spotty or non-existent” for SQF misconduct
continues today. Absent a CCRB complaint or capture by audit, there is little evidence that
supervisors within a command are reporting and referring SQF misconduct for investigation or
discipline. Mandatory audits, (QAD, RAND, or PIE), are useful tools for identifying failures to
comply with PG § 212-11563 or the Court’s orders. But the question remains whether discipline
ensues when SQF misconduct is identified, not by CCRB, but internally within a command,
whether by supervisors, by audit or otherwise. Are commanding officers, ICOs, or supervisors
identifying and disciplining improper stops and frisks? Without a civilian complaint, does the
Department self-police misconduct and does it invoke discipline when it discovers officers have
engaged in unconstitutional behavior, including repeated SQF misconduct? From records
produced by NYPD thus far, it would seem not.
The Department, with the participation of the Monitor, has established certain procedures
for supervisory review and assessment of street-encounter activity, regardless of whether there was
a civilian complaint. “As required by the court orders, Patrol Guide Section 212-11 provides for
a more robust supervision of officers with regard to their stop and frisk activity.”564 This is a
559
Floyd Liability Opinion, 959 F. Supp. 2d at 610.
560
Id. at 610-11.
561
Id. at 590.
562
Id. at 561.
563
Procedure Patrol Guide § 212-11. This is a detailed, 16-page directive, which has been developed with oversight
by the Court.
564
Seventh Report of the Independent Monitor, December 13, 2017, at 11.
125
separate process from audits conducted after the fact by QAD. As explained in the Monitor’s
Fourth Report, the supervisory review includes an assessment of SQF compliance:565
The new Patrol Guide section 212-11 governing stops and frisks requires
supervisors to respond to the scene of stops when feasible, discuss the
circumstances of the stop with the officer making the stop before the end of the
officer’s tour, and review the officer’s stop report form and activity log. The
supervisor must determine whether the stop was based on reasonable suspicion of
a felony or Penal Law misdemeanor; if a frisk was conducted, whether the frisk was
supported by reasonable suspicion that the person was armed and dangerous; if a
search was conducted, whether it was reasonable; and if force was used, whether
the use of force was reasonable. The supervisor must direct the officer to make
corrections to the stop report form if it is inaccurate or incomplete, and, if
appropriate, instruct the officer or refer the officer for additional training or other
remedial action, including, if appropriate, disciplinary action.
Similarly, the Collaborative Plan recently adopted by the City promises that “The NYPD
will require supervisors to proactively monitor discretionary officer activity for indications of biasbased policing and take corrective measures immediately.”566 The Monitor team has not been
advised of any steps taken, thus far, to implement that portion of the Collaborative Plan.
Self-examination by the Department of improper SQF activity is dependent upon: (a) onthe-scene supervision, which can occur if a supervisor is on scene or notified of the encounter;
(b) review of stop reports and associated BWC footage, which is possible only if the officer has
filed a stop report; and (c) audits, including ICAD, PIE and BWC reviews, which may catch some
SQF activity that was not, but should have been, reported.567 “The underreporting of stops has
been acknowledged by the Department and by officers and supervisors in focus groups conducted
by the Monitor, and explicitly identified in NYPD audits.”568
While helpful, none of these “screens” can fully capture the many occasions when an
officer stops, questions, or frisks a civilian. If the officer does not file a report; a witness does not
file a complaint; a supervisor does not appear at or review the stop; or an audit does not uncover
the failure to report, the encounter will go unmonitored and escape review. The number of times
this may occur could be large and is important to any assessment of NYPD compliance with the
Floyd orders. The parties acknowledge the need to identify unreviewed stops and continue to work
with the Monitor.
As noted by the Monitor in the Thirteenth Report submitted to the Court:
565
Fourth Report of the Independent Monitor, November 18, 2016, at 18.
566
NYC Police Reform and Reinvention Collaborative Plan, Adopted by the City Council Mar. 25, 2021, at 12.
567
At the time of this writing, at the direction of the Court, the Monitor is conducting research studies of BWC videos
that will, during the period of the study, identify some unreported stops. The purpose of the pilot, however, is
informational, not disciplinary.
568
Eleventh Report of the Independent Monitor at 13 (Oct. 28, 2020), https://www nypdmonitor.org/wpcontent/uploads/2020/11/11th-Report-Submission-2.pdf.
126
There is substantial evidence suggesting that many NYPD officers do not submit
reports documenting all of their stops of civilians in years 2016 to 2019. These
undocumented stops may undermine the reliability of statistical analyses to identify
racially disparate stop report patterns and practices in NYC.569
The Report aptly summed up the problem as follows:
It is important for the NYPD to strengthen its efforts to ensure that officers
document all of their stops. Without complete stop data, it will not be possible to
conduct valid and reliable statistical analyses that can appraise whether the NYPD
is in substantial compliance with the Court’s remedial order.570
If a supervisor is notified of and responds to a contemporaneous encounter, the primary
responsibility for ensuring that a stop, frisk, or search is proper rests with the supervisor.571 The
NYPD catalogues that information in its stop reports. For the third quarter of 2020, supervisors
were “on the scene” in 1,132 of 1,519 reported stops.572 After the encounter, if a stop report is
written (either at the scene or at the end of the tour), that stop report, describing the circumstances,
is reviewed by a supervisor, and may be audited.573
As found in the Eleventh Monitor Report, supervisors reviewed 12,958 stops and found 66
failed to articulate reasonable suspicion for the stop.574 They reviewed 7,290 reports of a frisk and
found 60 failed to offer a sufficient basis for the frisk.575 Supervisors reviewed 4,721 reported
searches and found 64 of the reports lacked sufficient basis for the search.576 Concededly, it is
difficult to determine whether the fault lay solely in the articulation in the reports or in the
underlying stop and frisk itself. Some could be a simple failure to report accurately and
completely; some may be the product of illegal stops and frisks.
A stop report that does not sufficiently articulate the reasonable suspicion for an otherwise
legal stop or frisk can and should be corrected by revising the report. However, if a supervisor
determines that the stop, frisk or search itself was improper, the encounter should be investigated
and the officer subject to discipline if appropriate, not merely “corrected” by revising the report
after the fact. The supervisor has a responsibility to correct behavior, not just the stop report. By
either guidance or discipline, the supervising officer and the Department have a duty to address
569
Thirteenth Report of the Independent Monitor, supra note 503 at 4.
570
Id. at 63.
571
Patrol Guide § 212-11.
572
“3Q 2020 Floyd SQF redacted” matrix, on file with the Monitor. In 11 of the 1,132 cases, the supervisor reported
that there was not sufficient basis for the stop. In none of the 11 cases was there “follow-up disciplinary action”
reported.
573
More than 7,000 stop reports are audited by QAD each year. Eleventh Report of the Independent Monitor, supra
note 569 at 79.
574
Id. at 48.
575
Id.
576
Id. Precinct supervisors are less likely to find flaws in the Stop Reports than outside auditors. Upon review by
QAD of a large sample of Reports approved by supervisors, QAD found about 20% to be insufficient. Id. at 80.
127
the underlying misconduct. Whether findings of “insufficient basis” in the reports are investigated
beyond a simple review of the stop report itself is unknown. One thing is clear: Not one of the
2019 stop reports found wanting by supervisors resulted in discipline being imposed for an illegal
stop, frisk, or search, although a number received guidance in the form of training, instruction, or
both.577 Supervisors have a duty to investigate and address Fourth and Fourteenth Amendment
violations, not simply to “paper over” them. If that is being done, assuming discipline is
appropriate in some number of cases, it is not reflected by the statistics.
In 2019, QAD looked at more than half of the stop reports which were filed—7,475 of
13,459. QAD found 6,050 of those sufficiently justified the stop. Similarly, 3,233 of 3,434 frisk
reports were found to be sufficient and 2,312 of 2,473 search reports were sufficient.578 That
means, according to QAD, officers did not articulate a sufficient basis for 1,415 stops, 201 frisks,
and 161 searches. Again, what is not known is how many of those were actually illegal stops,
frisks, or searches and how many were legally conducted encounters which were poorly described
in the stop reports. Although some guidance or negative CRAFT entries may have been instituted
at the command as a result of a QAD audit, NYPD does not conduct a misconduct investigation
by IAB, OCD, or DAO based on a QAD audit. Without further investigation or more explicit
description of the stop or stop report deficiency by supervisors, improper stops and frisks may well
go unreviewed unless reported to CCRB.579 A report that does not support the stop, frisk, or search
does not trigger a disciplinary investigation into the legality of the underlying encounter by one of
the other Departmental units charged with that responsibility. At the very least, the CO should be
required to write a report analyzing the legality of the encounter and explaining whether a precinct
investigation, reference to another investigating unit, or even discipline, is appropriate, and if not,
why not.
Similar to QAD audits, NYPD’s RAND audits look for failures to prepare a stop report.
In 2019, RAND sampling identified 74 cases where, based on the radio communications and
further investigation, a Terry stop occurred and a stop report should have been filed. In 21 of those
cases, no report was filed. In the 21 cases where a RAND audit uncovered a wrongful failure to
report, only one case resulted in imposition of a command discipline.580
577
Thirteenth Report of the Independent Monitor, Racial Disparities in NYPD Stop Question, and Frisk Practices:
An Analysis of 2013 to 2019 Stop Reports at 2-3 (Sept. 1, 2021), https://www.nypdmonitor.org/wpcontent/
uploads/2021/09/13th-Report filed.pdf.
578
Id. at 79. Unlike the numbers for CCRB allegations, prior to 2020, QAD only looked at the sufficiency of a basis
for a frisk or search if the stop appears to be justified. Therefore, the number of frisks and searches which appear to
be questionably supported do not overlap with number of stops reported to be questionable. If a stop was done without
cause and a frisk was later done without reasonable suspicion, only the illegal stop would be reflected by these
numbers. One can safely assume that some numbers of the frisks were illegal, but not accounted for in this tabulation.
579
With the introduction of Neighborhood Safety Teams, testing the validity of street encounters will become
increasingly important. Self-examination and careful supervision are vitally important to this effort.
580
Id. at 83-84.
128
Finally, by way of PIE audits, in 2019, QAD auditors reviewed some 461 arrests to
determine whether a stop preceded the arrest and if it was properly documented. The PIE audits
found that 142 arrests required the filing of a stop report, but only 70 (roughly 50%) were filed.581
In sum, for 2019, internal reviews and audits within the Department found stops which
were not properly explained or justified in 190 cases reviewed by supervisors, 1,777 considered
by QAD, 21 uncovered by RAND audits, and 72 discovered by PIE audits. The total missing or
defective stop reports in one year is significant. It may be that some of the failures were simply a
paper error, and the underlying stop and frisk was completely lawful. But it is improbable that all
of the deficient or missing reports were mere reporting errors and that every one of the encounters
was otherwise lawful and justified. In any event, there is little record of discipline being invoked
as a consequence of an illegal stop, question or frisk uncovered by the audits or self-inspection.
Included in the various reviews and audits are two kinds of stop report failures. In some
instances, a report was filed but failed to specify reasonable suspicion. In other cases, no report
was filed when it should have been. The former category could be either a mere articulation failure
or could have exposed the fact that reasonable suspicion was not articulated because the officer
did not have, objectively speaking, just cause to stop and frisk. The distinction is important and
can be discerned with a reasonable follow-up by supervisors.
There is a disturbingly high percentage of substantiated findings by CCRB for SQF
misconduct when the encounter was not documented by a stop report. Where no stop report was
filed, and articulation is not the issue, there appears to be a greater likelihood that a constitutional
violation occurred. An improper stop or search and a concomitant failure to report the incident by
the same officer may well be correlated. For comparison’s sake, consider what happens when
CCRB uncovers a failure to report. Unlike command audits and reviews, CCRB will continue to
fully investigate the encounter in the SQF complaint while forwarding the report failure back to
the Department. Since stop report failures are split off from FADO investigations, one can
determine how many times CCRB investigated and substantiated an SQF complaint after it had
alleged that a stop report should have been filed. From 2013 to 2018, CCRB referred 384 OMN582
cases to the Department where an officer made a stop but did not file a report. As of 2019, we
know the outcome of the CCRB investigation in 327 of those cases.583 In 192 of the 327 closed
cases (59%), CCRB substantiated SQF misconduct.584 Notably, although many investigations are
581
Id. at 85-86.
582
“Other Misconduct Noted.”
583
OMN Spreadsheet (failure to complete stop report), First Quarter 2019, on file with the Monitor team.
584
Typically, when a CCRB substantiated FADO is sent to DAO, the accompanying OMN (Stop Report Failure) is
left with DAO, rather than being fully investigated by IAB, OCD or BIU, to resolve. Oddly, in 12 of the 192 SQF
substantiations, NYPD “exonerated” or “unfounded” the stop report failure, but in each case, nonetheless, DAO
required “Instructions” or “Training” for the Stop Report failure. It is difficult to understand how a stop, question,
frisk violation can be substantiated by CCRB and confirmed by DAO, while the Department claims that the allegation
of a missing stop report is exonerated or unfounded—unless the report was discovered after the referral from CCRB.
But in that case, why would DAO order Instructions or Training for the OMN? It could be that the report was initially
misfiled. The alternative might be that the stop/frisk was illegal but the stop report fully and accurately described
illegal actions by the officer. The matter was not pursued further.
129
pending or still ongoing, this is a much higher rate of substantiation585 than, for example, the overall
12% rate of substantiation of SQF allegations at CCRB in 2019.586 Pure and simple, in CCRB’s
experience, there is a much higher incidence of unlawful behavior when a stop, which is the subject
of a complaint, is made but not reported than when misconduct is alleged, and a report is filed.
When a report is not filed, but should have been filed according to CCRB, the substantiation rate
for SQF complaints on average over the last five years is closer to 50%.
More recently, with a number of investigations still in progress, in 2022, of 118 cases
referred to NYPD by CCRB for failure to file a stop report, 44 of the cases also resulted in a
substantiated finding of a wrongful stop or frisk (37%).587 Again, this is a much higher rate of
substantiated SQF misconduct than for cases where a report was filed.
Whether there is a discernible correlation between a failure to file a stop report and
misconduct would require further analysis. But at this point, it is worth noting that, for CCRB, a
failure to file a stop report, when SQF misconduct is alleged, is a potential indicator of misconduct
beyond a mere failure to document.588
QAD or precinct commands do identify some SQF misconduct that was not reported to
CCRB during reviews or audits for stop report failures. How often does that happen? And what
discipline, if any, is imposed?
For the two-year period 2018-2019, there were 15 cases that the Department identified as
“Improper Stop/Frisk/Search” encounters identified by audits or local command reviews and the
Department issued command discipline.589 Theoretically, these should have led to some internal
response, be it discipline, guidance, or at a minimum a description of the misconduct even though
they were not the product of a CCRB referral or citizen complaint.
Eight of the cases of “Improper Stop/Frisk/Search” were discovered by QAD. Of those
eight cases, three resulted in an A-CD. Two of the A-CDs received W/A (warning and
585
This percentage could well be artificially low, since the cases that take longer to resolve are presumably more
complex or delayed for good reason.
586
Data provided by NYPD thus far does not permit a pure comparison, since CCRB does not single out for report
the SQF substantiation rate for cases where a stop report was properly filed. The 12% number is for all SQF
investigations. The 12% rate is inflated by including the non-report cases. Given the high rate of SQF misconduct in
stop report failure cases, if one were to subtract them from the overall substantiation rate, and simply look at cases
where a stop report was available, the CCRB substantiation rate would fall to an even lower rate than combined total
rate of 12 % for SQF allegations.
587
3Q 2022 CCRB OMN Fail to Complete Stop Report, supplied by NYPD and on file with the Monitor. Notably,
this statistic does not screen for other failures to document such as a missing activity report, which may expand the
number of CCRB misconduct findings.
588
After analysis of the application the Disciplinary Matrix by the Commission to Combat Police Corruption, the
observation was made that, “We thought the presumptive penalties for failing to complete reports should be higher in
some cases, but we viewed those penalties as sufficient where multiple charges were brought, and where the penalty
for failure to file reposts was imposed consecutively. Commission Report to the Office of the First Deputy Mayor,
August 2021, at 6. https://www.nyc.gov/assets/ccpc/downloads/pdf/Report-on-Matrix-Penalties-for-Failure-to-TakePolice-Action-October-2021.pdf.
589
“Stop Report Failure Discipline 2-25-20” matrix provided by RMB, on file with the Monitor team.
130
admonishment). One A-CD ended with a penalty (two hours). The remaining five cases received
“Instructions” only.
Seven cases of “Improper Stop/Frisk/Search” were identified by the precinct command
during the same period. Two received A-CDs. Both officers were given warnings. The remaining
five cases, where no A-CD was ordered, ended with two warnings, two CRAFT and one
instruction.
In sum, only one case in the two-year period resulted in imposition of a penalty for an
illegal stop/frisk/search where officers within the Department, not CCRB, examined the
misconduct. The penalty was a loss of two hours of credited time.590 While audits and supervisory
review do help to identify some illegal stop activity, without a civilian complaint, Departmental
investigations do not lead to disciplinary action. Absent a civilian complaint, investigations and
disciplinary action for unconstitutional stops and frisks within the command remain just as Judge
Scheindlin described them to be—“spotty” or “nonexistent.”591
Beyond “correcting” a deficient or missing stop report, the validity of the encounter must
be examined carefully, and discipline should be considered. The Court has previously accepted
language in the Patrol Guide that “isolated” and “erroneous” but “good faith” SQF misconduct
may be dealt with by guidance rather than discipline.592 The fact that reported discipline is
practically non-existent for the many cases where a stop or frisk occurred but was not reported or
described accurately is troubling. The purpose of the stop report requirement is not to have reports
corrected or completed. No one seeks an empty “paper chase.” Rather, stop reports are required
to ensure Fourth and Fourteenth Amendment compliance.
Whether it be an isolated or a repeated wrongful act, officers are not penalized at the
precinct level for illegal stops or frisks. Reserving discipline for cases where a civilian has
complained to CCRB confines effective discipline to a small universe of misconduct. If patrol
officers know that audits or supervisory reviews do not lead to discipline for Fourth and Fourteenth
Amendment violations, and if they know that the majority of CCRB complaints, although
unwelcome, lead to little more than training, instructions, or “CD accepted” without penalty, then
they certainly know that the chance of discipline for constitutional violations overall is minimal.
ii.
Disciplining Supervisors Within a Command
If investigations and disciplinary responses within the precinct or at IAB for SQF
misconduct are thought to be inadequate, the next question is: Are supervisors held accountable
for SQF misconduct by officers they supervise within their command?
590
Id.
591
Floyd Liability Opinion, 959 F. Supp. 2d at 561.
592
Patrol Guide § 212-11.
131
In the two-year period 2018 to 2019, there were 510 instances noted where, according to
departmental audits and reviews, supervisors “Failed to Detect/Identify Unconstitutional
Stops/Frisks/Searches” while reviewing stop reports.593
Nine of the supervisors received an A-CD in 2018. Three accepted an A-CD with no
other consequence. Six officers in the Ninth Precinct were reported to have been
assessed a time deduction totaling 24 hours. (It is unclear from the report if that penalty
was for other included misconduct—which seems likely since no other officers in the
two-year period received discipline for SQF supervisory failures.)
No supervisor received command discipline for the failure in 2019.
121 of the supervisors were given CRAFT notices, without penalty.
The remaining 380 supervisory failures resulted in Training, re-Training, or
Instructions—all without discipline.
When CCRB suspects that a superior officer is directly or indirectly responsible for a junior
officer’s SQF misconduct, one of two things may follow. If the Board finds that the supervisor
authorized or directly participated in the misconduct, it will substantiate an abuse of authority
claim. If the Board believes the superior officer did not participate, but passively failed to properly
supervise the encounter, it will refer an OMN allegation to NYPD. The distinction is subtle and
subject to arbitrary conclusions. A supervisor on the scene should be held accountable for SQF
misconduct by officers under command. In a similar situation, Patrol Guide § 221-01 (governing
force incidents) emphasizes that “[f]ailure to intervene in the use of excessive force . . . is serious
misconduct . . . that will result in Department discipline . . . ” and “[i]f a member of the service
becomes aware of the use of excessive force . . . the member must report such misconduct” to IAB
(emphasis in the original). Placing a similar affirmative responsibility to manage Fourth and
Fourteenth Amendment misconduct on a supervising officer at the scene of an encounter makes
eminent good sense. Unfortunately, experience has shown that charges of a “failure to supervise”
SQF misconduct, once sent from CCRB to the Department, carry little or no consequence.
In the three-year period 2016 to 2018, a total of ten supervisors were so charged or referred.
Because NYPD imposes and reports penalties based on all the proven allegations in a complaint
or encounter, and because the failure to supervise complaints were coupled with other misconduct
allegations against the supervisor, such as discourtesy or false statement or strip searches, it is
difficult to ascertain if any penalty was imposed upon a superior officer for improper SQF
supervision of a subordinate during a street encounter, or if discipline ensued for personal
misconduct beyond a failure to supervise a stop encounter. In the ten cases reported by CCRB:594
Four officers (three Sergeants and one Lieutenant) were found by CCRB to have
actively authorized or supervised SQF misconduct beyond passive failure to prevent.
A Lieutenant retired before he was served with charges.595
593
2-25-2020 command audit stop reports, on file with the Monitor.
594
CCRB Fail to Supervise SQFT matrix, on file with the Monitor.
595
Lt.
.
132
One Sergeant (since promoted to Lieutenant)596 improperly searched and questioned an
individual and authorized an improper frisk. CCRB recommended a B-CD, but the
Police Commissioner imposed Instructions without discipline.
Another Sergeant (since promoted to Lieutenant)597 was charged with supervising the
search of two individuals. He was charged with conducting an unlawful frisk and two
unlawful searches. Before trial, he negotiated a plea with APU of 10 penalty days. The
Police Commissioner reduced the penalty to 4 days.
A Sergeant authorized an improper stop and was given Instructions.
Six officers were referred to NYPD for a passive OMN-Failure to Supervise improper
SQF conduct by officers under their command.598
Three allegations were dismissed by the Police Commissioner with “NDA.” This
included a Lieutenant, a Sergeant, and a Deputy Inspector.
Two were only found to have failed to prepare or supervise preparation of a stop report.
Allegations of failing to supervise SQF misconduct were not substantiated by the
Department.
One Sergeant was given an NDA by the Police Commissioner for failure to supervise
and for discourtesy but was given Training for his illegal search of a vehicle.599
In one example during that time period, a Sergeant600 and another officer stopped a vehicle
for an “obscured rear license tag.” The officer wrongfully frisked three occupants in the Sergeant’s
presence. The patrol officer also interfered with a cellphone recording and allegedly spoke
discourteously. That patrol officer was charged and negotiated a plea with APU of ten days
forfeited. Charges were not brought against the Sergeant. However, his case was referred to the
Department as an OMN-failure to supervise. The Sergeant has a history of eight complaints
brought to CCRB, mostly for wrongful force, slurs, and discourtesy. None have been
substantiated, although one of the cases, involving a wrongful tasering, led to a $30,000 judgment
against the Department in the Eastern District of New York. The Department investigators
exonerated the Sergeant of the failure to supervise charge.
In sum, for the three-year period (2016-2018) only one supervising officer received
discipline for a failure to supervise or for authorizing wrongful SQF actions by officers under their
supervision.601 Not one superior officer was found by departmental investigators to have failed to
supervise SQF misconduct by junior officers in the superior officer’s presence when the OMN was
596
Lt.
.
597
Lieutenant
is assigned to IAB. In this case, DAO had asked for reconsideration and exoneration.
DAO contended that there was insufficient evidence that
supervised the frisks and searches.
598
On February 10, 2021, the Rules of CCRB were amended. CCRB, Notice of Adoption (Feb. 10, 2021),
https://www1.nyc.gov/assets/ccrb/downloads/pdf/about_pdf/CCRB_Final%20Proposed%20Rules%20and%20Law
%20Dept%20Certification_02042021.pdf. Included therein was a change to 38-A RCNY 1-44, citing “a superior
officer’s failure to supervise” as “outside” CCRB’s jurisdiction. Id. at 13. No distinction was made between active
or passive supervision.
599
Sgt.
600
Sgt.
.
.
601
There may have been discipline or guidance for the six officers in the Ninth Precinct discussed above. But again,
without a data response from the Department there is no reason to assume such.
133
referred to them by CCRB. Two superior officers who were found by CCRB to have directly
participated by authorizing or supervising SQF misconduct received “Instructions.” One officer
who pled to supervising an improper search and frisk of two individuals had his agreed-upon
penalty reduced.602
iii.
A Move Away from CCRB Review of Supervisory Failures
A recent amendment to the CCRB Rules that excludes “failure to supervise” from CCRB
jurisdiction is highly unfortunate.603 The amendment is discussed later in detail, under “Subject
Matter Jurisdiction.” At this point it is worth mentioning that, in 2021, CCRB wrote into its rules,
for the first time, that a failure to supervise is not within its jurisdiction. In light of the statistics
cited herein, CCRB’s decision to abdicate responsibility is worrisome. The Floyd court, in the
Remedies Opinion, highlighted the need for “meaningful supervisory oversight of the officer’s
decision to conduct the stop . . .” 604 Excluding that area from CCRB review seems to be a step
backward from the City’s attempts to comply.
As noted by CCPC in their Eighteenth Annual Report:605
Supervisors are responsible not only for their own actions, but also for the actions
of their subordinates, as they directly impact their subordinates’ performance and
behavior. A supervisor’s failures can lead to subordinates making mistakes that
can lead to discipline and affect their careers. A supervisor’s unwillingness to take
corrective action or to conform his own conduct to Department standards can also
cause subordinates to emulate bad behavior, believing it to be appropriate.
Accordingly, failures of supervisors to discharge their responsibilities should
receive significant penalties, especially when these failures result in subordinates’
avoidable misconduct.
iv.
Investigations Within a Local Command - Process
Section 206-01606 of the Patrol Guide requires supervisors who observe misconduct to
report it.607 Supervisors prepare a Supervisor’s Complaint Report/Command Discipline Election
602
There is one case where a “supervising Sergeant” personally conducted two illegal stops and an illegal search of a
teenager’s backpack. At the same time, a fellow officer under his supervision “slammed” a teenager to the ground
was charged, went to trial, and received ten penalty days.
and the “stomped” him. In that case, Sgt.
In part, the penalty applied was due to a prior record of three separate disciplinary matters resulting in 45 penalty days
was
and, in addition three separately substantiated CCRB cases where no penalty was dispensed. Sgt.
subsequently promoted to Lieutenant.
603
38-A § 1-44, effective Sept. 22, 2022. CCRB, Notice of Adoption, supra note 599 at 13 (citing “a superior officer’s
failure to supervise” as “outside” CCRB’s jurisdiction).
604
Floyd, Index No. 08-cv-1034, Doc. No. 372 at 19.
605
CCPC, Eighteenth Annual Report, supra note 606 at 95.
606
Now AG § 318-02.
607
Administrative Guide § 304-06, formerly Patrol Guide § 203-06, forth a list of prohibited conduct while officers
are on duty, which includes consuming alcohol, gambling, and using any electronic or digital device such as a personal
gaming device or a personal digital assistant.
134
Report, which is submitted to the Commanding Officer (“CO”).608 The CO or the Executive
Officer (“XO”) within the command is then authorized, for less serious misconduct, to impose
informal discipline or guidance.609
The complaint, prior to adjudication, is entered in the local Command Discipline Log,610
but is not forwarded outside the precinct. Then, following notification to the officer and, if
requested by the officer, a representative of any line organization representing the officer, the CO
must give the member an opportunity to make a statement in rebuttal and conduct any necessary
further investigation. The interview is intended to be an informal, non-adversarial occasion and
no minutes are recorded. The subject officer must be given a copy of the Supervisor’s Complaint
Report/Command Discipline Election Report.611
Prior to February 2022, the Patrol Guide specified which violations may be addressed
through Command Discipline by the CO. The offenses were enumerated in Section 206-03 of the
Patrol Guide. There were 36 listed “A” violations and eight listed “B” violations. They range
from truly minor to some relatively more serious infractions. For example, failure to sign a return
roll call, “unnecessary conversation” and “improper uniform” are among listed A violations, along
with obvious neglect of care of firearms and loss of a summons book.612 Parking a car illegally,
whether Departmental or private, is listed as a Schedule A offense. Theoretically, deficiencies in
filing or preparing a stop report might be included under “Omitted entries in Department records,
forms or reports” or under “Failure to submit reports in a timely manner.”
The “B” violations included failure to safeguard a prisoner,” “loss of Department
property,” and “failure to give name and shield number to person requesting,” i.e., a “Right to
Know Act” offense.613
On February 16, 2022, the lists itemizing A-CDs and B-CDs for which a local precinct
commanding/executive officer is permitted to impose a penalty were moved to Administrative
Guide § 318-01 and the Disciplinary System Penalty Guidelines. The list for “Misconduct
Adjudicated by level A Command Discipline” is now entirely contained in the Disciplinary
Guidelines and mirrors the list formerly in the Patrol Guide. The level B-CD violations are listed
in both AG § 318-01 and is repeated in the Disciplinary Guidelines.
SQF violations were not listed in Patrol Guide § 206-02. Command Discipline is available
to precinct Commanding Officers for SQF violations and violations of Patrol Guide § 212-11
(Investigative Encounters) without requiring a finding by CCRB. If a local commanding officer
becomes aware of improper stop and frisk behavior, the CO has the option to discipline the
offender. Nothing in the Departmental Manual precludes investigation of SQF misconduct by a
CO or an XO. To the contrary, Patrol Guide § 212-11 requires Integrity Control Officers (ICO) to
608
Patrol Guide § 206-01. Now AG-§ 318-02.
609
Administrative Guide § 318-02, formerly Patrol Guide § 206-02.
610
PD 568-102.
611
Admin. Guide § 318-02.
612
Patrol Guide § 206-03.
613
Patrol Guide § 203-09; N.Y.C. Admin. Code § 14-174 (Identification of police officers).
135
“take appropriate remedial action if warranted, including discipline, if appropriate.” And COs are
to “Identify training needs and necessary remedial or disciplinary actions required.”
Section 206-02 declared that a CO “may initiate command discipline” for the listed
offenses.614 The replacement section, § 318-02, “Violation Subject to Command Discipline,” states
that a CO can issue an A-CD for minor violations listed in the Guidelines.615 Neither § 206-02 nor
§ 318-01 specify stop and frisk violations as part of the responsibility of a CO. The absence of
reference to SQF misconduct, rightly or wrongly, lends itself to a negative implication that COs
are not authorized to assess an A-CD or a B-CD for conduct not enumerated, such as SQF
misconduct.
There was a catch-all provision in the Guidelines, which had been in § 206-02, allowing
an A-CD for “[a]ny other minor violation that, in the opinion of the commanding/executive officer
is appropriate for Schedule A command discipline procedure.”616 The question remains: If a
supervising officer within the command observes an illegal stop or frisk, but there is no civilian
complaint made to CCRB, may the CO order an A-CD or a B-CD? While the language is
ambiguous, this is a hypothetical question since no cases could be found where, absent a CCRB
finding or capture by audit, a precinct commander proactively imposed an A-CD, a B-CD, or any
other penalty for an illegal SQF encounter.
At the conclusion of a precinct investigation, the commanding officer prepares a report in
which any findings are indicated and whether the allegations are substantiated.617 If there is
sufficient evidence of an offense listed in Admin. Guide § 318-02 , the findings and a proposed
penalty are presented to the accused officer in an interview which is “informal and nonadversarial.”618 A representative of the union (“line organization”) may be present if the officer so
requests. The officer may accept or decline the findings. If the member declines the findings, then
DAO is notified, and Charges and Specifications can be prepared. At that point, the proceedings
become “formal,” and discipline may not be imposed absent a trial before a Deputy Commissioner
of Trials (DCT), or as part of a negotiation and settlement.
There are exceptional cases where consultation with the DAO is required prior to
adjudication and command disciplinary action. If the alleged misconduct involves the loss of or
failure to safeguard a firearm, DAO must be consulted.619 Or if the accused member has two or
more prior command disciplines within the last six months, Patrol Guide § 206-03 required the
CO to confer with the patrol borough/bureau adjutant to determine if Charges and Specifications
614
Emphasis added.
615
Discipline is available for an abuse of authority finding by CCRB and that includes Fourth and Fourteenth
Amendment violations listed in the Disciplinary System Guidelines Matrix. However, the question raised here is
whether COs are instructed to impose Command Discipline within the precinct upon observing an SQF violation. The
Guidelines do not list SQF misconduct, under “Violations of Department Rules and Regulations” (offenses for which
command discipline may be imposed).
616
Patrol Guide § 206-03(35) (emphasis in original).
617
Admin. Guide § 318-02.
618
Id.
619
Formerly Patrol Guide § 206-03, now AG § 318-02.
136
should be drawn. It is hard to confirm whether this proviso is honored since A-CD records are
kept locally. No member has faced Charges and Specifications under this provision for a minor
violation based solely upon a record of two or more prior command disciplines within a six (or
even twelve) month period.620 Further, “DAO does not currently have a way to track this specific
subset of cases,” rendering any attempt to monitor compliance ineffective.621 The Court has
ordered Early Intervention review for members who accrue multiple CCRB complaints within a
short time period, but there is no review, disciplinary or otherwise, for officers who accrue multiple
precinct complaints.622
Upon receiving notice of a Supervisor’s Complaint, the CO is to direct the ICO to
investigate the subject’s prior twelve-month disciplinary history and to attach it to the report.623 A
disciplinary history, no matter how extraordinary or serious, which is more than twelve months
old is not a requisite component of the evaluation for discipline within the command. In any event,
a search for records after one year would often prove futile since Patrol Guide § 206-02 (now AG
§ 318-02) requires the command to:
Remove and destroy records and dispositions of convictions listed under Schedule
“A” on the anniversary date of each entry, provided the member has no subsequent
disciplinary violation. Additionally, remove and destroy all unsubstantiated
command disciplines from the Command Discipline Log on the anniversary date
of entry.
The requirement to “remove and destroy” records apparently applies to all A-CDs in the
officer’s record available to the CO, XO or ICO. Not only are all records of A-CD commandinvestigated misconduct destroyed, but records of A-CDs substantiated by CCRB, IAB, BIU,
DAO, and Trial Commissioners are expunged from the command history. Similarly, prior
investigations within the command of misconduct not substantiated are expunged. Expungement
after just one year has two unfortunate consequences: (a) relevant prior substantiated misconduct
is unavailable when considering appropriate disciplinary measures; and (b) any meaningful
attempt within the Department to ferret out patterns of misconduct by an individual officer or
squad is significantly hampered.
620
The Discipline System Penalty Guidelines will, in the future, permit aggregation of substantiated command
disciplines under consideration within one complaint to arrive at a determination that Charges and Specifications
should be filed. This is different from a decision to elevate a command discipline to Charges based upon two or more
prior command disciplines. See also the discussion of progressive discipline under the Guidelines, infra.
621
Letter, March 5, 2021, Dep. Commissioner Schlanger to Monitor Team.
622
As of December 31, 2019, 9,499 of 36,602 officers (26%) had three or more CCRB complaints lodged against
them. However, only 217 officers had three or more CCRB substantiated complaints. CCRB, Annual Report 2019 at
28, https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2019CCRB_AnnualReport.pdf.
623
Patrol Guide § 206-02. Now AG § 318-02.
137
Patrol Guide § 206-14624 also calls for “sealing” of records of B-CDs after three years.625
Later in this Report, there is a discussion regarding the recently adopted Disciplinary
System Penalty Guidelines (referred to as “Matrix” or “Guidelines” throughout this Report).626
The Guidelines are to be utilized by Commanding Officers when imposing discipline at the
command level. The Guidelines consider prior disciplinary history as an aggravating factor which
may elevate a penalty, apply progressive discipline for repeated misconduct, and look for patterns
of misbehavior. The Guidelines consider prior disciplinary events where the subject officer
received a penalty of five days or less if imposed in the last three years, and cases where the officer
received five to ten penalty days over the past five years. However, the Department has indicated
that it will continue to expunge records of A-CDs after one year and seal B-CDs after three years.
If that information is unavailable, it will prove an obstacle to application of the Guidelines within
the precinct or command going forward.
The Matrix also purports to consider as an aggravating factor “[c]onduct demonstrating a
pattern of behavior that indicates an inability to adhere to Department rules and standards.”627 It
would seem to be inherently difficult to look for patterns of a history of non-compliance with rules
and standards if Command Discipline records are expunged shortly after discipline is imposed.
As noted above, once an investigation is concluded, the CO presents the findings and
penalty recommendations to the subject officer. The subject officer can then either accept the
findings and proposed penalty, accept the findings but appeal the proposed penalty to a Command
Discipline Review Panel assembled by the CO, or decline to accept the findings and proposed
penalty, in which case the matter is referred to DAO for formal proceedings commenced by the
filing of Charges and Specifications.628
If the subject officer accepts the findings and proposed penalty, the Command Discipline
Election Report is updated with the disposition and filed in Command. The information is stored
manually and kept in the local precinct. If there are Schedule B violations, then the Report must
also be filed in the subject officer’s personnel folder and forwarded to the DAO.629 It is DAO’s
responsibility to enter information regarding a Schedule B violation that has been forwarded to it
in the member’s Central Personnel Index (CPI).
If the subject officer accepts the findings but contests the proposed penalty, then the matter
goes before a Command Discipline Review Panel, whose decision is final and not subject to
review. The Command Discipline Review Panel can approve, reduce, or increase the proposed
624
AG § 318-12 as of Feb. 16, 2022.
625
CCRB will have its own records but will not be advised of A-CDs or B-CDs adjudicated internally. See discussion,
infra, regarding disciplinary history. Trial Commissioners, similarly, are only advised of formal disciplinary history.
See Below.
626
NYPD, Disciplinary System Penalty Guidelines.
627
Id. at 10.
628
Admin. Guide § 318-02.
629
Id.
138
incidents” and the need for careful review of those incidents in recent years.642 On the other hand,
IAB, BIU, or OCD do not independently monitor or investigate street encounters for stop, frisk,
or search misconduct.
A bad stop or frisk may incidentally show up during a force, corruption, or “M”
investigation already underway. When the use of force is investigated, how thoroughly is the
propriety of a stop or search in the same encounter investigated? Departmental investigative units
do not commence misconduct proceedings for SQF violations standing alone. The Borough
Commands and the Departmental hierarchy review audits and CCRB recommendations, but there
is no centralized effort at the Departmental or Borough levels to investigate stop and frisk
misconduct or to administer discipline for stop and frisk violations. SQF reviews are left to local
audits and relegated to precinct discretion. That is not to say that every stop and frisk should be
the subject of a full investigation. But lifting serious or repeated stop and frisk misconduct out of
the realm of precinct and informal discipline would send a valuable message to patrol officers in
general.
IAB can be proactive. IAB conducts Programmatic Review (PR) investigations when it
feels a closed investigation may require further inquiry. Those investigations tend to focus on
corruption. Active review by IAB, if focused on SQF misconduct in a particularly troubled
precinct, might be of value and go a long way toward preventing systemic misbehavior within a
command.
Outside of audit notices to the precinct, there is no evidence that IAB or any other
centralized investigating body within NYPD proactively pursues disciplinary investigations for
incidents of stop and frisk misconduct, repeated SQF violations, or patterns of SQF misbehavior.643
Invariably, the Department waits for a civilian complaint to CCRB before it considers discipline
for illegal SQF activity. As discussed earlier, discipline for SQF misconduct at the precinct level
is very rare and, even then, DAO, IAB and OCD do not gather or maintain records of precinctinitiated disciplinary actions.
One place the Department could start would be an investigation in cases where a stop took
place, there was no arrest, but force was used. The use of force is routinely investigated. Why not
thoroughly investigate the stop itself? For Level 1 force, the local command looks at the use of
force. Shouldn’t the command be told to evaluate and report upon the entire encounter in cases
where a constitutional question is at issue along with the force inquiry? Similarly, when IAB is
642
Examples include reorganization of force investigations, use of FID, creation of TRI reporting, use of force reports
to NYS, to name a few.
643
RISK reviews were terminated in 2023. For several years prior, RISKS reviews were held semi-annually for each
precinct, but RISKS reviews were not used for disciplinary investigations. Administrative Guide § 318-01 lays out a
procedure for complaints not involving corruption or force. If the complaint did not fall under the purview of FADO,
it went to the OCD Investigation Review Section (IRS), which passes it on to the local Commanding Officer or BIU
responsible for the allegation. The Guide calls for an interview of the officer and witnesses within five days and the
filing of a Disposition Report (PD 468-152) within ninety days. Since these allegations do not involve force, racial
profiling or SQF misconduct, and have been abandoned by the Department, this Report did not attempt an assessment
of compliance with the stated goals. As of 2024, the Department is in the process of testing a new program,
Compliance Stat, which may capture levels of SQF misconduct in highlighted precincts. This program is a nondisciplinary review and will not be analyzed in this Report.
141
investigating a use of force incident, if there was no arrest, shouldn’t IAB assess the propriety of
the entire encounter?644
As indicated earlier, 3,162 of 13,459 stop reports filed in 2019 recorded the use of force
during the stop.645 If customary procedure was properly followed,646 a TRI report and a force
investigation within the Department would flow from many of the 3,162 force incidents. As a
starting point, it would be appropriate to consider whether a thorough SQF investigation should be
conducted by IAB as well. It would seem that use of force against a civilian during a Terry stop
or frisk where the civilian was not arrested, summonsed, or otherwise engaged in criminal activity
should receive a careful review and careful documentation.647 Given the overlap with CCRB
jurisdiction, it could be that some of the stops or frisks were investigated by CCRB. As a measure
of Fourth Amendment compliance, it would be useful to know how many cases where force was
employed by the officer were examined for SQF misconduct by CCRB, how many by IAB, and
how many went without investigation.
There were 863 SQF complaints to CCRB in 2019. There were 1,982 excessive use of
force complaints to CCRB in 2019. There is no data on the intersection, i.e., how many SQF
complaints to CCRB were accompanied by a use of force investigation by either CCRB or IAB.648
Some of the SQF/Force complaints, examined by CCRB, might have overlapped with a concurrent
force investigation by IAB, the CO, or FID. However, there is no effort to correlate SQF
complaints at CCRB with force investigations at the Department. Also, if a stop or frisk occurred,
force was used, no arrest was made, and no complaint went to CCRB, what investigation of the
propriety of the stop ensued, if any, as part of the force investigation conducted by the Department?
Some FADO allegations are investigated by IAB. IAB investigates corruption and force
incidents and when an abuse, discourtesy, or offensive language violation surfaces along with the
corruption or use of force report, IAB will investigate that matter as well, even in the absence of a
civilian complaint. If there is a civilian complaint, IAB will split the case and send the FADO
allegations to CCRB while continuing to investigate force, C cases, and M cases.
Questions remain: What happens to SQF investigations if and when conducted by IAB as
an adjunct to another investigation such as force or corruption? Are they treated seriously and is
wrongdoing, if present, substantiated by IAB? Is discipline applied? Are FADO and SQF
violations reviewed and appropriately disciplined when there is no complaint to CCRB but
644
While reviewing a draft of this Report, the Department responded that, “ICMS and ICMT systems contain Disputed
Stop allegations. If during the course of the investigation there is reason to believe that the stop was improper, or it is
alleged by the complainant the stop was improper, the allegation would be added and investigated.” Item 180, City
09.01.23 Feedback to Yates Discipline Report. The Department has been asked to give statistics or an example of a
case where IAB substantiated a force complaint and, at the same time, disciplined an officer for an illegal stop arising
out of the same encounter independent of any CCRB complaint or investigation.
645
372 drawn or pointed firearm + 2421 physical force + 342 use of force (other).
646
Patrol Guide § 221-03.
647
CPL § 140.50 permits a stop only where the subject is suspected of a felony or misdemeanor defined in the penal
law. This does not include lesser petty offenses or summons able Administrative Code violations.
648
While that number is unknown, it should be noted that of 96 complaints with a substantiated SQF violation in 2019,
nine also substantiated a wrongful use of force.
142
discovered within the Department by IAB? Without access to the IAB files in those cases, these
questions remain unanswered at this time.
vi.
Concurrent, Split Investigations - Results Might Not Be Combined
If a complaint contains a corruption or profiling allegation along with a FADO allegation,
a duplicate “spin off” log is created, and the FADO complaint is sent to CCRB. When this is done,
IAB removes the C or M level allegations (except for profiling) in the notice to CCRB.649 In that
case, nonetheless, most FADO allegations may be investigated concurrently by CCRB while the
C or M case will be investigated by the NYPD.650 When there is a “force incident” NYPD will
investigate it whether there is a civilian complaint or not. If a civilian does initiate a force
complaint, that may be investigated concurrently, by both CCRB and IAB.
Once the allegations in a complaint are split up, with some staying in NYPD and some
going to CCRB, IAB does not track the investigation at CCRB and does not “pair back” the IAB
investigation with the CCRB investigation.651 If both investigations independently result in a
substantiation, then the Department Advocate’s Office (DAO) will be advised, but the
investigations themselves are not coordinated.
There are some efforts, discussed later,652 to share information between CCRB investigators
and NYPD investigators, but there is a gap between sharing some information and coordinating
parallel ongoing investigations.653
Putting aside access to information, there is a preliminary question: Are concurrent
investigations reconciled? It would seem, as a matter of common sense, that even if allegations
within a complaint are being investigated in separate, independent venues, and even when there is
a reluctance to allow “open-file” sharing of interviews and other information, that CCRB and
NYPD should, at least, keep each other current on the status and outcome of investigations as well
as coordinating interviews.
However,
“The NYPD does not provide the CCRB with disposition or results of concurrent
investigations. The exception to this rule is for False Official Statements which the
CCRB has referred to the NYPD which result from the CCRB’s investigation. In
the past, this has been an issue which, in part, led the CCRB to pursue investigations
into sexual misconduct allegations. The NYPD refused, and continues to refuse, to
649
IAB Assessment and Analysis Unit, “Response to agenda topics for upcoming meeting with Federal Monitor”
(Nov. 17, 2018).
650
In the CCPC study cited supra note 636, some FADO cases were spun off to CCRB and some stayed with IAB.
651
Memo response to Monitor inquiry, Erin Pilnyak, Risk Management Bureau, NYPD (Sept. 9, 2020).
652
See discussion of the Matrix-MOU, infra.
653
See, for example, the MOU between CCRB and NYPD, regarding BWC access, signed November 21, 2019,
discussed infra. See also MOU Concerning the NYPD Discipline Matrix, signed Feb. 4, 2021, discussed infra.
143
provide the CCRB with any information regarding sexual misconduct allegations
against MOS referred by the CCRB.”654
The dichotomy is best explained in a 2021 report by the Citizens Union:
Pursuant to the New York City Charter, the CCRB has the power to “compel the
attendance of witnesses and require the production of such records and other
materials as are necessary for the investigate on of matters within its jurisdiction.”
In practice however, the NYPD withholds significant, relevant information form
the CCRB or produces it after substantial delays and often with redactions. The
NYPD does not provide the CCRB with the complete disciplinary records of police
officers who are the subject of complaints—clearly relevant information with
respect to credibility as well as the CCRB’s recommendation regarding an
appropriate penalty. . . . The NYPD justifies its failure to provide the CCRB with
prompt access to documents and other relevant material based on a myriad of claims
of privilege and privacy concerns, some based on statutes designed to protect
innocent civilians, not police officers accused of misconduct. It is easy to get lost
in the competing legal arguments involved. Our conversations with various
interested parties, both inside and outside city government, as well as a review of
the relevant laws, convince us that for the most part the NYPD’s arguments against
sharing materials with the CCRB do not appear to be well-supported. The basic
point is the City currently runs two parallel systems for disciplining police officers.
One is run by the NYPD through its Internal Affairs Bureau and has access to all
relevant information the possession of the Department the other is run by the CCRB
and has access only to the material that the NYPD decides to turn over. This
situation is intolerable.655
It is unclear if information flows in the other direction when investigations are split. Do
NYPD investigating units track concurrent CCRB investigations? The Monitor team asked if IAB,
BIU, or any other NYPD investigating unit (e.g., FID) learns of a FADO disposition made by
CCRB in cases where CCRB has referred an OMN case such as a profiling, false statement, failure
to complete a stop report or even force matter arising from the same encounter. DAO, the unit
charged with reviewing multiple substantiations arising from an encounter, directed the Monitor
654
Matthew Kadushin, General Counsel, June 3, 2019, letter. After the letter was written, and after a court-imposed
delay, CCRB has resumed investigation of sexual misconduct complaints by civilians against officers. Matter of
Lynch v. NY City Civilian Complaint Review Bd., 206 A.D.3d 558 (2022). In its review of a draft of this Report, the
Department noted that, for sexual misconduct cases referred to NYPD by CCRB, in the past, there was a “duty to
redact information in order to safeguard the privacy rights of victims from being handed over to an independent nongovernmental agency.” (Item 180, City 09.01.23 Feedback to Yates Discipline Report). It is true that Civil Rights
Law § 50-b exempts disclosure to the public, under FOIL, of a police report which “tends to identify such a victim”
unless or until consented to by the victim or ordered by a court for “good cause.” Since the quoted matter in the
Kadushin letter speaks to cases referred, in the first instance, by CCRB to NYPD, it can be assumed in most such
cases the victim at first complained to CCRB and consent of the victim to receive records would have been obtained
by CCRB. In any event, going forward, now that CCRB investigates the matter in any case where the victim complains
of sexual misconduct by an officer to CCRB, it would seem paradoxical for the Department to resist access to police
reports surrounding the encounter in the name of protecting the identity of the victim.
655
Citizens Union Agenda for Police Reform, “CCRB Access to NYPD Materials” at 12 (Mar. 2021).
144
team to ask the question of “IAB/Investigations.”656 Accordingly, the question was put to IAB if
it was true that “the Department does not track the case for outcome unless it comes back to DAO
as substantiated by CCRB?”657 IAB’s response was,
Cases referred by CCRB to DAO for charges are not paired back up with the
original Log #. This is because the Log # is an IAB tracking number and the
interaction between CCRB and DAO has nothing to do with IAB. DAO only
contacts IAB because of a different rule that a log # must accompany Charges &
Specifications. CCRB is not mandated to report their investigations to IAB, and
thus there may not have been any logs prior to the request for a log # for
charges . . . . Once something is “spun off” to CCRB, it is up to that agency to
determine what they do with it. IAB does not track this.658
The unfortunate reality is that multiple entities can, and often do, investigate the same
encounter without sharing information or outcomes. Turf wars and secrecy are not uncommon in
bureaucracies, so this is not surprising. What is of concern is the fact that officers, witnesses, and
victims may be interviewed, and records gathered, without commonality or coordination of the
interviews and of the evidence before a judgment is made by the investigating entities. In the end,
substantiated cases do come to DAO or the Police Commissioner, but that does not dispel the
likelihood of inconsistencies, confusion, misunderstanding, or conflict in the process.
As just an example of the imbalance of information, take the case of Lt.
.
659
If one were to look at his posted disciplinary history in the “Officer Profile” website. it would
appear that Lt.
has no disciplinary history.660 If one looks at the CCRB history posted
online,661 it would appear that he has had 16 complaints investigated by CCRB with only two
substantiations for which he received “Instructions” and “Training,” respectively. Not available
online, but known to CCRB, are another 12 current complaints that are “pending.” CCRB does
not post “open” cases on its website.
What is not shared with the CCRB is that Lt.
has been the subject of another 31
internal investigations, including three “C” cases, 11 M cases (3 profiling), 12 OG cases, and 5 FI
cases. In 2020-2021 alone, he has been the subject of nine internal investigations with allegations
of ranging from improper force to profiling to illegal searches. Some of those undoubtedly overlap
656
DAO Response letter on file with Monitor Team (July 10, 2019).
657
Id.
658
Memo response to Monitor inquiry, Erin Plinyak, Risk Management Bureau, NYPD (Sept. 9, 2020).
659
NYPD Online, Officer Profile, https://nypdonline.org/link/2.
660
Indeed, Lt.
’ profile reflects a number of recognition and awards for meritorious and excellent police duty
while failing to disclose the complete list of complaints against him. A more recent review of his online profile,
accessed on April 9, 2023, shows an update with eleven cases entered. Nonetheless, a comparison of CCRB’s posting
with the NYPD posting shows the latter to be confusing and, to a large extent, misleading. The CCRB posting lists
32 complaints, to CCRB (which do not include IAB investigations within the Department). Fourteen of the 32
complaints were substantiated by CCRB. There were 35 allegations of SQFS misconduct investigated by CCRB,
eight of which were substantiated. The NYPD profile lists two B-CD “recommendations” without reference to the 12
substantiated allegations that were dismissed by the Police Commissioner.
661
CCRB, NYPD Member of Service Histories, https://www1 nyc.gov/site/ccrb/policy/MOS-records.page.
145
with CCRB’s investigations, but there is no guarantee, without a civilian complainant, that CCRB
is even aware of the allegations or investigation which are kept within the Department. At the
time of this writing, he has a pending CCRB complaint claiming improper force, improper pointing
of a gun, property damage and discourtesy. To the extent that the full record of his prior
investigations remains unknown to CCRB investigators, CCRB panels, and Trial Commissioners,
any meaningful consideration of discipline is substantially impaired if not futile
In the past (and continuing until the Charter change allowed CCRB to investigate
profiling), discourtesy and offensive language complaints have been split off from racial profiling
or bias-based policing complaints against the same officer. CCRB kept the discourtesy and slur
allegations while sending the bias complaint to IAB, and vice-versa.662 To the extent that
discourtesy or offensive language findings were substantiated by CCRB, while profiling
allegations in the same encounter were not substantiated by NYPD, the outcome is understandably
difficult for complainants to accept.663
In the coming year, the Charter change, authorizing CCRB investigations into profiling
allegations will help to combine some cases before one body.664 Offensive language and
discourtesy complaints can be indicators of profiling, biased policing, or selective enforcement.
As discussed later, inquiry into bias-based policing will best be served when allegations of slurs,
discourtesy, excessive force, and SQF misconduct are combined and investigated with external
scrutiny, i.e., by CCRB.
Over the five-year period, 2014-2018, 52.5% of all CCRB complaints were brought by
Black individuals, who comprise 25.5% of the city population. White individuals brought 14.4%
of complaints while comprising 33.3 % of the population. Hispanic individuals brought 25.4% of
the complaints, while comprising 28.6 % of the city population. There may be numerous
explanations for these numbers, but putting aside any argument over whether the statistics prove
or do not prove unlawful disparity in enforcement or misconduct, separating allegations within
one complaint, ending with substantiation by one investigative body and non-substantiation by
662
Seventh Annual Report of the OIG-NYPD at 14-15 (Apr. 2021), available at https://www1 nyc.gov/assets/doi/
reports/pdf/2020/OIGNYPDAnnualRpt_4012021.pdf. The OIG-NYPD has argued that a racial slur is an act of bias
and, therefore, separating slur investigations from bias investigations is unjustified; an officer who utters a racial slur
during an official encounter has committed an act of bias. On the other hand, NYPD takes the position that NYC
Admin. Code § 14-151 requires a bias-based “enforcement action.” To NYPD, uttering a racial slur is an act, not an
action. Ac § 14-151 condemns “an act of a member of the force . . . that relies on . . . race [etc.] . . . as the determinative
factor in initiating law enforcement action. . .” NYPD’s interpretation separates the biased “act” of the member (the
slur) from the “enforcement action” (the stop, frisk or arrest) of the officer and, according to the Department, the law
requires proof, not that a biased act occurred, but that the enforcement action itself was bias-based. Under either
interpretation, a slur would seem to be material evidence in a selective enforcement investigation—which hopefully
will be taken into consideration when CCRB assumes oversight of profiling claims.
663
In 2016 to 2018, CCRB referred 44 cases with profiling allegations where there was a contemporaneous SQF
investigation by CCRB. None of the profiling allegations were substantiated.
664
Local Law 47 of 2021 took effect on January 20, 2022. From 2016-2020, 1,348 of 5,077 profiling complaints
handled by IAB came from CCRB referrals. With the change, since CCRB needs a civilian complaint, it is unclear
how many profiling investigations will be sent from NYPD to CCRB and whether some will be kept at IAB. CCRB
is only authorized to investigate upon a civilian complaint. As of July 8, 2021, of 5,174 logged profiling complaints
323 were listed as coming from Members of the Service. The matrix is unclear, so it could be they were civilian
complaints passed along rather than originating from fellow officers.
146
another opens the Department to community skepticism. Inconsistent findings will always be
viewed with suspicion. This may continue to be true in any case where there are parallel
investigations, be it force, false statements, or even bias to the extent that IAB may continue to
investigate those allegations in tandem with CCRB.665
Theoretically, if a case is substantiated by either IAB or CCRB, the matter will end up with
DAO. Multiple substantiations from different sources could be considered as one before a
recommendation is made to the Police Commissioner or a final determination is made. DAO
admits that it has asked for reconsideration of some CCRB cases before they have received a
closing report from an NYPD unit that may be investigating the same incident.666 After asking, or
not asking, for reconsideration DAO will try, “if practicable,” to send both sets of substantiated
findings to the Police Commissioner at the same time, “however it does not happen in all cases.”667
Unanswered is what happens if the results of an IAB or FID investigation and a CCRB
investigation do not match or are in direct conflict. A substantiation by CCRB without
substantiation by IAB of related allegations regarding the same encounter would be of concern.
Of equal concern is the possibility that CCRB does not substantiate allegations in a complaint
while IAB does. In the latter example, neither DAO nor the Police Commissioner would have
reviewed CCRB’s investigation. In cases where the results seem inconsistent, a better practice
would be to present the Commissioner with all the investigative materials to contextualize the
entire incident.
False Statement Referrals and Investigations
The lack of coordination between CCRB and NYPD is troubling in SQF investigations. In
many SQF investigations, the outcome may well depend upon the officer’s statement and
credibility. Where CCRB has reason to believe the officer lied, but IAB disagrees, without sharing
information and coming to a mutual resolution about the alleged falsity, a reasoned outcome to the
SQF allegation is awkward if not difficult. How does the Police Commissioner balance a claim
by CCRB that the officer may have lied about an illegal stop or frisk with a finding by IAB that
the officer did not lie? CCRB’s doubts about the credibility of the officer will be reflected in its
assessment of the FADO complaint. Where CCRB substantiates SQF misconduct and takes the
serious step of referring an allegation of a false statement to IAB, it is worth cataloguing not only
665
Given the penalty (presumptive termination) associated with false official statements (intentionally lying under
oath about a material matter to CCRB, Patrol Guide § 203-08), CCRB has been sparing in its referrals to IAB about
false testimony referrals. From 2016 to 2018, only 47 such referrals were made. Matrix response by CCRB to Monitor
Team, June 3, 2019. From 2013 to 2017, CCRB sent a total of 139 false statement cases to IAB. CCRB was able to
track 81 of those cases, sent between 2010 and 2018 and found that only two of 81 false statement referrals from
CCRB were substantiated by IAB. 2019 Charter Commission, Preliminary Staff Report at 22 (Apr. 2019),
https://static1.squarespace.com/static/5bfc4cecfcf7fde7d3719c06/t/5cc20da7085229f4fcd80ffc/1556221355492/Prel
iminary+Staff+Report.pdf. With the recently acquired power to investigate false statements, in 2022, 97 allegations
of false (52), misleading (44) or inaccurate (1) statements were substantiated. Not one officer prosecuted by APU
was terminated.
CCRB Executive Director’s Monthly Report, January
2023
at 21,
https://www.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2023/01112023_monthlystats.pdf.
666
The reconsideration process, described in 38-A RCNY 1-36, has fallen into disuse in recent times.
667
DAO response to Monitor inquiry (July 10, 2019).
147
what happened to the false statement referral, but also what happened to the SQF finding in that
same complaint.
Going forward, with CCRB’s examination of untruthful statements made to a CCRB
investigator as authorized by the 2019 referendum, this may well continue to be a problem if IAB
and CCRB conduct parallel investigations which are not reconciled.
There were just 15 complaints in years 2017 to 2020 where CCRB substantiated an SQF
allegation while making a false statement referral to IAB.668 There were 20 officers alleged to have
made a false statement in those 15 investigations. Since a finding of a false statement during a
CCRB investigation carries a presumptive penalty of termination, referral to IAB is a serious
matter, undertaken sparingly by CCRB. A referral means more than that CCRB did not credit the
officer’s testimony. A referral means CCRB has reason to believe the officer intentionally lied
about the stop encounter or sought to mislead while under oath.
How many times did CCRB substantiate an SQF allegation while, simultaneously, IAB
found that the officer lied about the encounter in the CCRB interview? For 2017 to 2020, only
one CCRB-substantiated SQF complaint coincided with an IAB substantiation of the false
statement referral.669 There were 19 cases where CCRB substantiated SQF misconduct, referred a
false statement investigation to IAB, but IAB failed to substantiate the false statement referral.
Of the 19 false statement referrals where falsity was not substantiated by IAB, CCRB
recommended Charges for five officers, command discipline for 12 officers, and training for two
officers for the substantiated SQF misconduct.670 In the end, the Police Commissioner imposed
penalties (forfeited days or hours) upon five of the 19 officers.671
Reconciling false statement findings with credibility assessments in SQF cases is critical.
If a complainant describes an improper stop or frisk and the officer denies the factual allegations,
668
RMB 910-2020 dated August 24, 2020, Matrix on file with the Monitor. As with profiling investigations, a recent
Charter change has now authorized CCRB to keep and investigate false statements made in the course of a CCRB
investigation. Simultaneously with the Charter change, the Police Commissioner amended the Patrol Guide
definitions of false statements in a manner inconsistent with the many recommendations of the CCPC, which had
called for more rigorous pursuit of false statements. Patrol Guide § 203-08 (amended Apr. 1, 2020).
669
CCRB substantiated allegations of an illegal frisk and search of person against PO
. A false statement
allegation and a strip search allegation were referred to IAB. IAB concluded that the strip search was improper, and
that
made false and/or inaccurate and misleading statements twice—once to CCRB and once in a Departmental
interview.
received five penalty days for the CCRB allegations and a 30-day penalty with dismissal probation
, in the same complaint, it was
for the IAB findings (it is unclear if two sanctions ran concurrently). Along with
determined that Sergeant
“made misleading/inaccurate statements during a CCRB interview,”
“wrongfully authorized the strip search of a prisoner,” and failed to document the matter in several respects as required.
He was given 30 penalty days and dismissal probation. Shortly thereafter, in June 2021,
was promoted to
Lieutenant.
670
In 2020, CCRB was given authority to substantiate false statements made in the course of a CCRB investigation.
Since then, CCRB has charged three officers (Sgt.
, PO
, and PO
) with
making an untruthful statement at the same time as substantiating an SQF violation. All three cases are pending and
open as of February 2023.
671
No officer received penalty days for an SQF violation alone. Each officer who received discipline had other abuse
or force allegations associated with the encounter.
148
then much will depend on the credibility of the officer’s denial. Now that CCRB has authority to
investigate false statements made in the course of a CCRB interview, there will be some, but not
complete, coordination of the findings. A false statement made to CCRB may be consistent with,
or inconsistent with, statements made at a Departmental interview, in filed reports, and in
statements made to a District Attorney, a Grand Jury, or in court. It is likely that DAO or IAB will
be asked to re-assess a finding by CCRB that a false statement was made. Presumably, IAB will
separately interview the officer, look at all the documents and affidavits that were filed, and look
at grand jury and courtroom testimony, among other things to match up the officer’s statements to
CCRB with other sources. Unless those materials are equally available to CCRB, inconsistent
conclusions about the SQF allegations are likely to persist. This ties directly into the Court’s
concern about deference to credibility determinations made by CCRB in stop and frisk cases.
IAB investigatory files in false statement cases are not shared with CCRB. CCRB and
DAO cannot come to agreement about the weight of the evidence and the credibility of an officer
when a false statement or bias referral is independently investigated by IAB without a shared file
or results. If the officer lies to, or misleads, CCRB, neither DAO nor CCRB is in a position to
dismiss or unsubstantiate a complaint based on his or her word. The investigation and
determination of the falsity allegation is inextricably intertwined with acceptance or rejection of
explanations offered in defense of the stop and frisk allegations.
Of the 20 substantiated SQF cases accompanied by a CCRB-false statement referral
(discussed above), DAO requested reconsideration by CCRB in eight cases while the false
statement investigation by IAB was still open. In five of the eight cases, DAO asked CCRB to
reconsider and unsubstantiate the case. In each of the eight cases, CCRB refused the
reconsideration request. Nonetheless, DAO and CCRB are working at irreconcilably conflicting
purposes when CCRB concludes that misconduct occurred and the officer lied while, at the same
time, DAO ask CCRB to unsubstantiate its finding that misconduct occurred. After CCRB
declined to unsubstantiate upon reconsideration, the Police Commissioner dismissed the SQF case
with an NDA in four of the cases and ordered Training in the fifth case. All eight reconsideration
cases ended with a lesser penalty than requested by CCRB. In the end, the Police Commissioner
discounted CCRB’s fact finding.
As the Court pointed out in Floyd, CCRB credibility assessments are an integral part of
any SQF determination. Because very few allegations of false denials, lies, or misleading
statements made to CCRB are substantiated by IAB,672 the likelihood that CCRB may find a stop
or frisk to have been improper over an officer’s testimony to the contrary, and that the finding may
then be in conflict with an IAB evaluation of the officer’s credibility, is of concern. Rather than
lending increased deference to CCRB determinations, as ordered by the Court, contrary findings
made by NYPD without coordination with CCRB unfairly devalues CCRB’s assessment. If CCRB
finds that the officer lied but IAB does not agree with that conclusion, the inconsistency should
not, by itself, be used to call into question CCRB’s finding for the SQF allegations.
With the Charter change, CCRB’s expanded authority to investigate a false statement made
to their investigators during the course of an investigation will alleviate, but not resolve the
conflict. Questions outside the SQF investigation concerning false or missing paperwork, efforts
672
CCPC, Nineteenth Annual Report, supra note 636, at 23.
149
to mislead or impede an NYPD investigation, bias, selective enforcement, or false statements to
district attorneys or a court, will all elude examination by CCRB for want of jurisdiction as the
stop or frisk complaint is evaluated. Any complete investigation of an alleged false statement
made to CCRB will necessarily require a look at statements made in police reports, filings with
district attorneys, grand jury and court testimony (if such occurred), and interviews with IAB.
Confining the inquiry to testimony at CCRB without more cannot lead to an adequate
determination.673
H.
Adjudication and Processing of Substantiated Complaints within NYPD
i.
Department Advocate’s Office
The Department Advocate’s Office (DAO) is an internal NYPD office staffed by 22
attorney advocates and one managing attorney, along with a number of uniformed and civilian
personnel.674 Five of the attorneys are assigned to review CCRB recommendations.675 It is
responsible for evaluating substantiated allegations of serious misconduct, prosecuting them as
necessary, and recommending disciplinary measures to the Police Commissioner.676 DAO receives
for review all cases investigated and substantiated by CCRB and receives a copy of the case report
for all cases that are investigated by other units within the Department if the recommended penalty
is Command Discipline B or Charges and Specifications.
The Independent Panel wrote that the DAO was “significantly understaffed.” As of the
Panel’s report (December 2018), DAO had 1,162 open cases with only ten attorneys. The problem,
according to the Panel was “exacerbated in recent years by the failure to fill vacancies and make
new hires.”677 They called for an addition of “at least 10 new attorneys.” In response to a Monitor
inquiry, the Monitor was advised that, at that time, there were 138 open DAO CCRB cases which
were assigned to five attorneys. Assuming both responses are accurate, it appears that DAO, at
that time, was handling 1,024 non-CCRB (FID, IAB, OCD, DCT, and Command cases). In other
words, only about 12% of the disciplinary cases reviewed by DAO and, presumably, the Police
Commissioner, come from substantiated civilian complaints made to CCRB.
NYPD responded to the Independent Panel by acknowledging that a staffing shortage
caused unwarranted delay. As of 2021, seven additional attorneys were hired, and a promise was
673
Subsequent to this Report, under its new-found authority, CCRB substantiated 52 of 62 investigated allegations of
“False Official Statement” and substantiated 44 of 45 investigated allegations of “Misleading Official Statement.”
Executive Director’s Monthly Report, January 2023 at 21, https://www nyc.gov/assets/ccrb/downloads/pdf/policy_p
df/monthly_stats/2023/01112023_monthlystats.pdf.
674
As of August 2018, the DAO is staffed by 65 people, including 37 civilians and 28 officers. See DAO
Organizational Chart.
675
Letter, Deputy Commissioner Jeffrey Schlanger to Monitor Team (Dec. 3, 2018).
676
Discipline in the NYPD, at 3, https://www.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/
discipline-in-the-nypd-2019a.pdf;
CCRB,
Semi-Annual
Report
(Jan.
–
June
2018)
at
37,
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/20181221_SemiAnnual%20Report.pdf.
677
Hon. Mary Jo White, The Report of the Independent Panel on the Disciplinary System of the New York City Police
Department at 4 (Jan. 2019). at 37.
150
made to add six more to that count.678 When IAB investigates a case, DAO is contacted and a
conferral with a DAO attorney is scheduled to review the case file. The DAO attorney will have
more background information about the subject officer than the investigator.
DAO maintains its own DADS database which records all disciplinary actions, whether
substantiated or not. DADS also retains a history of command disciplines after they have been
expunged or sealed in other databases. DAO also looks at the evaluation history of the officer.679
There is one instance when DAO will seal records within its own DADS database. If an
officer has been found “not guilty” of all allegations in a complaint and the verdict was dismissed
because a violation did not occur or there was a case of mistaken identification—in essence a Trial
Commissioner’s equivalent of an “unfounded” finding. In such a case, an application may be
made to the Police Commissioner, whose decision to seal the record is discretionary.680 If the
Police Commissioner orders the records to be sealed, it may not be referred to in future.
When recommending action or disposition to the Police Commissioner, the “DAO may
obtain if available any command level investigations or investigations done by IAB or
Investigative Units related to the same incident” and “an officer’s CPI, CORD report
(Commanding Officer’s Recommended Discipline) and officer’s evaluation history.”681 The
CORD report,682 signed by the officer’s local Commanding Officer, contains a recommendation
regarding potential discipline, based on a review by the CO of annual evaluations, CCRB history,
PEPR (Performance Evaluations), the precinct’s CD log and Minor Violation Log.683 It also
contains a narrative description of the of the CO’s “overall impression of . . . demeanor, work
performance, professionalism and career potential.” It contains a rating, between 1 to 10 of the
officer’s “overall performance.”
If SQF misconduct is identified by a supervisor, through audit or otherwise, and a
command discipline, guidance, or CRAFT is issued, DAO may obtain that information upon
request, but the information would not be shared with CCRB, even in the case of repeated SQF
violations.684 If SQF misconduct is substantiated by CCRB and an A-CD is recommended and
678
“De Blasio Pledges to Speed Up Discipline Against Accused Cops After Years of Logjams,” The City (Aug. 25,
2021), https://www.thecity.nyc/2021/8/24/22640485/de-blasio-pledges-to-speed-up-discipline-against-accused-copsafter-years-of-logjams?mc_cid=9b304ec81c&mc_eid=dde979a67a.
679
There is one instance when DAO will seal records within its own DADS database. If an officer has been found
“not guilty” of all allegations in a complaint and the verdict was dismissed because a violation did not occur or there
was a case of mistaken identification—in essence a Trial Commissioner’s equivalent of an “unfounded” finding. In
such a case, an application may be made to the Police Commissioner, whose decision to seal the record is discretionary.
Patrol Guide § 206-15. If the Police Commissioner orders the records to be sealed, it may not be referred to in future
personnel decisions, but may be “utilized for informational purposes as necessary.” Id.
680
681
Patrol Guide § 206-15.
Letter, Jeffrey Schlanger, Deputy Commissioner, Risk Management Bureau to the Monitor, December 3, 2018.
682
PD 468-153.
683
Replaced by CRAFT Report.
684
NYPD’s position is that CRAFT is not part of the disciplinary process and, for instance, would not be considered
in imposing “progressive discipline” under the new disciplinary guidelines. CRAFT is folded into positive or negative
performance evaluations.
151
accepted, but the CO imposes guidance, the information is not noted on the CPI or the SOEH
provided to CCRB in the event of a new complaint.
In sum, DAO is in a position to make decisions armed with a wealth of information not
available to CCRB, APU, IAB, OCD, or Trial Commissioners. DAO has information it does not
share in several important interchanges: (a) When DAO asks CCRB to reconsider a matter; (b)
when DAO exchanges correspondence on whether APU can go forward on a case or it will be
“retained”; (c) when DAO explains a downward departure in a recommended penalty; or (d) when
DAO rejects an IAB finding or recommendation.
The information known only to DAO may be mitigating and justify a decision to reduce a
recommended penalty. The information may be pejorative and justify elevating a recommended
penalty. A case-by-case analysis would be needed to weigh whether the withheld information
should have been shared. But one thing is certain: The dialogue is one-sided.
Better access to a complete personnel record of a subject officer would seem to be essential
to APU’s pursuit of Charges and Specifications. CCRB commented on this imbalance more than
six years ago in one of its public reports:
Presently the APU does not have access to the NYPD’s Disciplinary Administrative
Database System (DADS) and as a result we must rely on DAO for many
administrative tasks related to prosecuting a case. Allowing the APU limited
DADS access would enable us to process and resolve cases more expeditiously, in
the same way that the NYPD’s operations are enhanced by having limited access
to the CCRB’s Complaint Tracking System (CTS). This benefits both the
respondent who is eager to resolve his case and the complainant who seeks closure
regarding the incident. The expeditious resolution of cases will increase public
confidence in the disciplinary system by demonstrating that civilian complaints are
taken seriously by the Police Department. Finally, Allowing the APU limited
access to DADS shifts part of the administrative burden of processing APU cases
from DAO to the CCRB. . . .
At present time the APU does not have access to respondents’ Central Personnel
Index (CPI). Instead, DAO prepares a Word document for the APU titled
“Summary of Employment History” (SEH) which includes some but not all of the
respondent’s relevant disciplinary history. For example, the SEH contains only the
respondent’s most recent evaluation even though DCT considers the respondent’s
last three evaluations when making a penalty recommendation.
The lack of complete information regarding respondents’ disciplinary history
impedes the penalty recommendation and plea negotiation process. The APU is
working without a complete picture of the respondents’ background, making it
difficult to recommend an appropriate penalty or negotiate a fair plea agreement.
152
We, therefore, request that the APU be provided with the same version of the CPI
provided to DAO attorneys.685
If DAO concludes that Command Discipline is warranted, it can send a letter to IAB
describing the misconduct and directing a penalty. IAB is responsible to ensure the CO
complies.686 At this stage, DAO may direct discretionary or “open” discipline, which gives the
commanding officer discretion to deviate from DAO’s recommendation. If, however, DAO
recommends non-discretionary discipline, the commanding officers may deviate from DAO’s
recommendation only after consulting with DAO.687
In cases involving more serious misconduct, DAO will prepare administrative charges
known as Charges and Specifications, the adjudication of which is handled in the first instance by
the Department of Trials. Charges and Specifications must include “a brief statement of
disciplinary matters to be adjudicated,” which must set forth the alleged misconduct, and the date,
time, and place of occurrence.688
If IAB substantiates a serious misconduct allegation, it will present its case to DAO and
request that Charges and Specifications be drawn. If DAO decides not to proceed because there
is insufficient evidence, the disposition is changed from substantiated to unsubstantiated. In its
analysis of IAB-DAO procedures, CCPC has urged that the matter should be recorded as
“unsubstantiated-DAO declined discipline” in those circumstances. “This would alert future
investigators who review the officer’s background that although the disposition was ultimately
unsubstantiated due to DAO’s belief that it lacked sufficient evidence to bring charges, IAB
determined based on its investigation that the subject officer committed the misconduct.”689
The recently adopted Disciplinary System Penalty Guidelines empowers DAO to “direct
that a disciplinary matter be adjudicated through CD [Command Discipline] in lieu of Charges and
Specifications when appropriate.”690 This authority will be of significance in SQF cases since, as
demonstrated later when Guidelines recommendations for SQF misconduct is discussed, multiple
stop and frisk findings can lead to a CCRB recommendation for Charges. A number of such
recommendations are still in the pipeline and are subject to DAO approval.
If the DAO approves Charges and Specifications, the commanding officer reviews the
specifications for accuracy and serves them upon the subject officer. A copy is also sent to the
subject officer’s attorney within two weeks.691 Depending on the method of service used, the
685
CCRB, Status Report for the CCRB’s Administrative Prosecution Unit: First Quarter of 2014 at 4-5 (Apr. 29,
2014),
https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/apu-2014q1.pdf.
The new Matrix-MOU, discussed infra, promises more information sharing.
686
The Police Commissioner must approve imposition of a B-CD or higher.
687
Patrol Guide § 206-02.
688
38 RCNY § 15-03.
689
CCPC, Nineteenth Annual Report, supra note 636, at 27.
690
Disciplinary System Penalty Guidelines at 52, https://www1 nyc.gov/assets/nypd/downloads/pdf/public_informat
ion/nypd-disciplinary-penalty-guidelines-effective-2-15-2022-final.pdf.
691
Patrol Guide §§ 206-05, 206-06. As of Feb. 16, 2022, AG §§ 318-04, 318-05.
153
subject officer has between eight and thirteen days to respond to the allegations.692 The respondent
officer must sign and return the original Charges and Specifications. Unless the Charges and
Specifications are resolved through a settlement with the subject officer, the commanding officer
and the DAO then schedule a Departmental trial.693 If the officer accepts a settlement through a
guilty plea, the proposed settlement is sent to the First Deputy Commissioner and then the
Commissioner for final approval.694
ii.
Departmental Investigations - Charges and Specifications Presented by
DAO
On average, NYPD investigative units handle ten times the number of investigations
completed by CCRB. Those investigations may occasionally lead to Charges and Specifications
filed, not by the CCRB, but by DAO itself.
DAO may take over the prosecution of a case initiated by the CCRB’s Administrative
Prosecution Unit (APU), but that is rare. Rather, most cases prosecuted by DAO were brought by
IAB, FID, Borough Investigation Units and OCD. Some of those cases may have been initiated
by a citizen complaint and kept within the Department. For example, a force complaint or a
corruption complaint may have first been drawn to the attention of IAB by a citizen complaint.
Those complaints may be investigated by local command, IAB or FID. Theoretically, profiling
complaints, if one were to be substantiated by BIU or IAB, could be prosecuted by DAO as well.695
Charges and Specifications specify the “activity or conduct at issue, along with date, time
and place of occurrence.”696 They include a statement of the behavior or incident which is the
subject of the action. “Additionally, the Charges and Specifications shall identify the contract
provision, law, policy, regulation or rule that was allegedly violated.”697 If the allegations are the
product of an internal investigation, DAO draws up the charges. If the allegations are the product
of a CCRB recommendation, APU drafts the charges and submits them to DAO for review. Unless
the Police Commissioner directs otherwise or CCRB requests DAO substitution, APU will then
be responsible for the prosecution before a Trial Commissioner.698
Once the DAO approves the Charges and Specifications, the commanding officer reviews
them for accuracy and serves them upon the subject officer. A copy is also sent to the subject
officer’s attorney within two weeks.699 Depending on the method of service used, the subject
692
38 RCNY § 15-03.
693
Patrol Guide §§ 206-05, 206-06.
694
Independent Panel, supra note 365, at 11.
695
From 2014 through March 2021, 5,077 profiling complaints have been referred to NYPD. Not one has been
substantiated against a uniformed officer. Commencing January 2022, profiling cases are investigated by CCRB if
based on a citizen complaint. This does not eliminate the theoretical prosecution of a profiling complaint by DAO.
696
38 RCNY 15-01.
697
Id.
698
699
38-A RCNY 1-42.
Patrol Guide §§ 206-05, 206-06.
154
officer has between eight and thirteen days to respond to the allegations.700 The respondent officer
must sign and return the original Charges and Specifications. Unless the Charges and
Specifications are resolved through a settlement with the subject officer, the commanding officer
and the DAO then schedule a Department trial.701 If the officer accepts a settlement through a
guilty plea, the proposed settlement is sent to the First Deputy Commissioner and then the
Commissioner for final approval.702
iii.
Disciplinary Trials
If an officer elects to proceed to trial, a disciplinary trial takes place in an NYPD trial room
at One Police Plaza and is presided over by the Deputy Commissioner of Trials (“DCT”) or one
of three Assistant Deputy Commissioners.703 This is true irrespective of whether DAO or APU is
prosecuting the case. Basic rules governing the proceedings can be found at 38 RCNY § 15-01 et
seq. The same rules apply to uniform and non-uniform members of the service. Trials are open
to the public and, as of March 2019, trial calendars are posted publicly on the NYPD’s website
one month before the trials are scheduled to take place.704 The trial calendar lists the date, time,
and location of the trial, as well as the name and rank of the respondent officer. Unfortunately,
the Charges and Specifications of which the officer is accused are omitted.705 Unless an attendee
is personally familiar with the Member or history of the matter, keeping track of the proceedings
is not easy for a casual observer.
Proceedings before the DCT are similar to, though less formal than, ordinary civil bench
trials. The parties may take discovery beforehand, including a request that the DCT issue
subpoenas, and they may call witnesses and present evidence.706 The trial is not governed by rules
of civil procedure or evidence. The DCT is free to apply principles of civil practice or rules of
evidence but is not required to do so. Hearsay is admissible, and it may form the sole basis for
findings of fact.707 However, Trial Commissioners take the view that “hearsay declarations are
insufficient to support findings of guilt in cases that pose close questions of credibility.708 The
700
38 RCNY § 15-03.
701
Patrol Guide §§ 206-05, 206-06.
702
Independent Panel, supra note 365, at 11.
703
NYPD, Trials, https://www1.nyc.gov/site/nypd/bureaus/administrative/trials.page.
704
Id. The trial calendar lists the date, time, and location of the trial, as well as the name and rank of the respondent
officer; the Charges and Specifications of which the officer is accused are omitted. On the other hand, CCRB also
posts the trial calendar. Its version is even less useful since it lists the trial date, the precinct and the top allegation,
but doesn’t list the officer’s name. https://www1 nyc.gov/site/ccrb/prosecution/apu-trials.page.
705
Update: More recently, the Department has begun to post a Disciplinary Trial Calendar which categorizes the
allegations by “Case Type,” such as “physical alteration” of “violated EEO policy,” etc., without listing the allegations
or Charges. https://www nyc.gov/site/nypd/bureaus/administrative/trials.page.
706
Rules of the City of New York Civilian Complaint Review Board (38-A RCNY) §§ 15-03–15-04.
707
Id.
708
Trial Memorandum, Sergeant
.
Other agencies permit hearsay to form the sole basis for a finding of fact. See N.Y.C. Charter § 1046(c)(1); 38 RCNY
§ 15-04 (e); Gray v. Adduci, 73 N.Y.2d 741, 742 (1988); Dep’t of Correction v. Jackson, OATH Index No. 134/04 at
155
APU will continue with a trial if there is sufficient alternate evidence even where the complainant
is absent. DAO has a different policy and will only proceed if the complainant or necessary
witnesses are available. Until recently, DAO would move to dismiss a case if the complainant
does not cooperate.709
The hearing is transcribed. After the hearing is concluded, the DCT will review the
testimony and evidence presented and prepare a Draft Report and Recommendation.710 The Draft
Report and Recommendation provides a summary and analysis of the evidence, and recommends
findings of fact and conclusions of law, as well as an ultimate disposition.711 The parties are then
provided with an opportunity to review and comment on the Draft Report and Recommendation
by submitting written comments to the DCT, which is commonly referred to as a “Fogel” letter.712
Upon receiving the parties’ comments, the DCT prepares a final Report and
Recommendation and forwards it to the Police Commissioner along with a transcript of the
proceedings, all exhibits received in evidence, and any comments submitted by the parties in
response to the Draft Report and Recommendation.713 Unlike findings made by a CCRB panel,
the DCT renders a verdict of Guilty or Not Guilty for each allegation. The DCT can submit a
penalty recommendation permitted by the Administrative Code and the Civil Service Law. In the
alternative, the parties may submit an agreed upon penalty recommendation to DCT outside the
scope of the statutes.714
Notwithstanding that the trial is open to the public, the transcript, record,715 preliminary
findings, and the Fogel response are still considered confidential personnel records by NYPD and
are not available to the complainant or the public, even in redacted or anonymized form.716 Given
that the testimony and arguments were made in a public forum and given the repeal of CSL § 50a, keeping the transcript from public view seems anomalous. Under the Public Officers Law, the
transcript should be available by a FOIL request, if not made public automatically. Because the
proceedings are open to the public, a claim that a transcript (or recording) of the event is an
unwarranted invasion of privacy is questionable, unless some portion of the proceedings had been
4-5 (May 5, 2004); Police Dep’t v. Ayala, OATH Index No. 401/88 (Aug. 11, 1989), aff’d sub nom., 170 A.D.2d 235
(1st Dep’t 1991).
709
The Department has asserted that “DAO rarely moves to dismiss a case in recent year [sic] with a non-cooperative
complainant,” Item 185 City 09.01.23 Feedback to Yates Discipline Report, but has not cited any case where this
, where an illegal
occurred. A quick survey of published trial decisions did uncover a recent case, PO
search of a car was sanctioned, notwithstanding the non-appearance of the victim. https://nypdonline.org/link/1016.
710
38 RCNY § 15-06.
711
38 RCNY § 15-06.
712
Rules of the City of New York Civilian Complaint Review Board (38-A RCNY) § 1-46.
713
Fogel v. Bd. of Educ., 48 A.D.2d 925 (2d Dep’t 1975) (Petitioner should have been afforded an opportunity to read
and respond to findings and recommendation prior to adjudication); see also 38 RCNY § 15-06; 38-A RCNY § 1-46
(a).
714
38 RCNY §15-07.
715
Buzzfeed, Inc v. Deputy Comm’r of Trials, No. 155278/2018, 2019 NY Misc. Lexis 3338 (NY Cty. Sup. Ct.).
716
New York Civil Liberties Union v. NYC Police Dep’t, 32 N.Y.3d 556, 571 (2018). A union representative may
publish the officer's Fogel response, but the Department does not.
156
ruled to be confidential by the DCT at the time of the trial. Even in that case, a later assertion of
a need to continue confidentiality would need to be made and supported by the information access
officer for NYPD.717 Given the City’s current litigation posture, NYPD does not release records
of pending matters, those records might not be available for public inspection.
To counter this, to some extent, CCRB has modified its Quarterly Reports, which are
online. The description of APU prosecuted cases in the Trial Room that have been finalized are
described, with a short recitation of the facts and a listing of the CCRB complaint number along
with the name of the subject officer.718 The APU reports are posted anywhere from six to eighteen
months after the decision.
In addition, the Department has recently begun to post trial decisions in a Library which is
available online.719 This new listing is quite useful and more current, with postings running just
months after the decision.
The Police Commissioner may suspend the officer without pay pending the hearing and
determination of the charges.720 Notwithstanding the open-ended language of the Administrative
Code, Civil Service Law §75(3-a) limits the suspension to a period not to exceed thirty days.721
iv.
Cases in the Trial Room722
Most cases brought to the Trial Room for formal discipline are prosecuted by DAO. As of
December 31, 2020, there were 1,034 active cases with formal charges. 920 of those cases were
handled by DAO while 114 were APU cases. Matters prosecuted by DAO typically depend upon
the word and work of fellow officers (IAB, BIU, or FID), as opposed to CCRB matters which are
heavily reliant on civilian testimony. As well, CCRB is frequently in the position of trying a matter
based on hearsay when civilian witnesses fail to appear. It follows that a higher percentage of
DAO cases are pled rather than tried since the outcome might appear foregone. Ten to fifteen
717
“Requests for records pursuant to the N.Y. Public Officers law sections 87 and 89, referred to as the Freedom of
Information Law (FOIL), must be in writing and must contain a description of the records that is sufficiently detailed
to enable a search to be conducted.” https://www1 nyc.gov/site/nypd/bureaus/administrative/document-productionfoil-requests.page.
718
See generally CCRB, Report on the Administrative Prosecution Unit (“APU”): First, Second, Third, and Fourth
Quarters of 2020 (May 28, 2021), https://www1.nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_
reports/05282021_APU2020.pdf.
719
NYPD Online, Trial Decisions Library, https://nypdonline.org/link/1016.
720
Admin. Code § 14-123.
721
Matter of Bullock v. Kelly, 847 N.Y.S.2d 384 (N.Y. Cty. Sup. Ct. 2007) (Even where the officer was incarcerated
and unavailable for duty pending a criminal trial, and the disciplinary proceedings were delayed pending the criminal
proceedings, upon a not guilty determination he was entitled to salary after the thirty-day suspension expired.).
722
Precise numbers for activity in the Trial Room are difficult, if not impossible, to report since CCRB-APU quarterly
reports and NYPD annual Discipline Reports do not use the same parameters. Trials commenced in one year may
show up in statistics for a later year. NYPD records do not separate APU cases from cases prosecuted by DAO. There
is no apparent attempt to harmonize the alternate sets of reports. The numbers gleaned here are summaries after
combing through multiple reports from both agencies. While the totals may not be precise, they are generally an
accurate reflection of case-flow through DCT.
157
percent of DAO cases go to trial, while more than one-half of the cases prosecuted by CCRB go
to trial.723
From the third quarter 2016 through 2020, CCRB brought 310 cases to the Trial Room.
193 (62%) went to trial, of which 82 (42%) resulted in a guilty or partial guilty verdict. The Police
Commissioner reversed or reduced the penalty in 19 of the 82 guilty/verdict cases (23%)724
At the same time, 117 of the 310 CCRB cases pled guilty. After CCRB and DCT negotiate
and approve a plea, it is presented to the Police Commissioner for final approval. A negotiated
plea is no guarantee of discipline and can be disregarded by the Police Commissioner. The Police
Commissioner vacated or reduced the approved plea in 41 of the 117 plea bargains (35%) approved
by DCT. In 2020 (an admittedly atypical year due to Covid), the Police Commissioner allowed
one out of six pleas to stand while reducing the rest.725
Taking 2019 as a typical year, there were 339 officers who faced formal charges by DAO
and APU combined.726 In all, 66 trials and mitigation hearings were held.
DAO in the Trial Room - 2019:
288 cases resolved the Trial Room by DAO.
38 Trials (34 Guilty; 4 Not Guilty).727
13 officers pled guilty but also had a mitigation hearing in the trial room.728
279 officers were disciplined (245 by plea).
9 were dismissed.729
176 forfeited penalty days.
94 were placed on dismissal probation and lost penalty days.
17 officers separated from the Department.
723
Discipline in the NYPD (reports from 2018 to 2021) at https://www nyc.gov/site/nypd/stats/reportsanalysis/discipline.page.
724
CCRB, Report on the Administrative Prosecution Unit (“APU”): First, Second, Third, and Fourth Quarters of
2020 (May 28, 2021), https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/052
82021_APU2020.pdf.
725
Id.
726
Discipline in the NYPD, at 8, https://www.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/
discipline-in-the-nypd-2019a.pdf. The online report does not always separate APU prosecutions from DAO
prosecutions. Accordingly, parsing out APU and DAO prosecutions and discerning the outcome for each category
may not be precise.
727
“Guilty” includes partial guilty verdicts where at least one charge was sustained. “Not Guilty” means all specified
charges are dismissed.
728
At a mitigation hearing the officer pleads guilty to the charges and presents evidence in mitigation regarding the
penalty to be submitted to the Police Commissioner. This may be countered by the prosecution. Typically, unlike the
trial phase of the proceedings, mitigation hearings (as with the penalty phase following a trial) are closed to the public.
729
The discipline report lists these cases as dismissals, which presumably do not include forced separations.
158
APU in the Trial Room - 2019:
51 cases resolved in the Trial Room by APU.
28 Trials (15 Guilty; 13 Not Guilty).
10 officers negotiated a plea with APU.
25 officers were disciplined.
1 was dismissed (
).
24 forfeited penalty days ranging from 1 to 30 days.
Typically, cases DAO considers serious enough to warrant Charges involve conduct within
the station house or while off-duty. DAO prosecutions for misconduct during a citizen encounter
are the exception, not the rule. In 2019, 288 cases were formally prosecuted by DAO, out of a
total of 339 cases presented to DCT.730 Only 23 of all 339 cases formally finalized in 2019 were
for “Misconduct Involving Public Interaction.”731 Another 26 of the 339 cases alleged wrongful
“Use of Force.” Most of those were based on a CCRB substantiation and not brought by DAO.
The bulk of formal disciplinary cases brought by DAO were for Departmental Rule Violations
(189 total, of which 187 pled guilty). The remaining 101 cases formally prosecuted were for an
assortment of personal misbehavior such as off-duty Domestic Incidents, Narcotics Related
charges, Official False Statements, DWI, Sexual Misconduct, and Criminal Conduct. With the
exception of a substantiated force complaint, it is unusual for DAO, rather than CCRB, to bring
formal charges against an officer for a street encounter involving a citizen victim.
A total of 35 officers were disciplined in the Trial Room for misconduct in the categories
of excessive force or public interaction misconduct. DAO was responsible for ten of those cases
and APU was responsible for 25 of those cases. Thirty-two of the disciplined officers forfeited
penalty days. Two (including
) were dismissed. One was placed on Dismissal Probation.
v.
Stop and Frisk in the Trial Room
It is difficult to measure discipline imposed for stop/frisk misconduct handled by APU
since Charges and Specifications are rarely filed for stop and frisk misconduct standing alone.
SQF allegations are wrapped up in other misconduct allegations such as excessive force or
untruthful statements. This became increasingly true in the last three years, as CCRB’s
Framework732 and, subsequently, the Department’s Guidelines recommend Charges and
Specifications for other types of misconduct, but not for an illegal stop, question, frisk, or search.
In 2020, CCRB recommended formal discipline in only three of 68 complaints that included a
730
51 cases were prosecuted by APU before a Trial Commissioner. “Discipline in the NYPD 2019” at 8.
https://www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/discipline/discipline-in-the-nypd2019a.pdf. Each prosecution against an officer is denominated a “case.” A complaint may encompass several cases
if more than one officer is accused.
731
Id. at 10. Since CCRB-APU handled 51 cases, it is unclear why all 51 were not “public interaction” cases. The
discrepancy lies in the separate reporting and classification by CCRB and NYPD. “Public Interaction” cases, in the
NYPD classification system is “any misconduct by an on-duty UMOS that occurred when he or she had contact with
a civilian, including during law enforcement activities or any other dealings with the public.”
732
An attempt by CCRB to standardize recommendations for formal discipline was adopted in 2018 and is discussed
infra as a precursor to the later adoption of the Disciplinary System Penalty Guidelines.
159
There were nine trials ending in seven guilty verdicts—all received ten penalty days or
less with the exception of one case where the verdict was 15 days for illegal force with
an added three penalty days for the illegal stop.
There were two negotiated pleas—for four days and five days respectively.
2019
CCRB recommended Charges and Specifications in 13 of 96 cases (14%) that included
a substantiated SQF allegation.
Only eight of those cases have closed. There were two trials (one resulting in a not
guilty verdict and the other resulting in imposition of 20 penalty days after a guilty
verdict), three negotiated pleas for five, 18, and 25 penalty days respectively, one case
administratively closed upon retirement of the officer, and two cases retained by the
Police Commissioner without discipline.
2020
CCRB recommended Charges and Specifications in three of 68 cases (4%) which
included a substantiated SQF allegation.
Two of the cases resulted in a negotiated plea with penalty days.737 The third case
remains unresolved, four years after the complaint. That officer, PO
, has
a history of seven complaints—six of which include allegations of unlawful stop or
frisk behavior.
2021
CCRB recommended Charges and Specifications in 27 of 46 cases (under the Matrix).
As of 12/31/2022, only ten had been resolved. Nine of the ten were closed without
penalty. One resulted in a negotiated plea of 18 penalty days.
CCRB recommended Charges and Specifications (under the Matrix) in 92 of 254 cases.
As of 12/31/2022, 21 cases were administratively closed without finding due to the
Department’s assertion that the cases were received too late to be resolved due to an
impending Statute of Limitations deadline. One case received a negotiated disposition
of Training. The remainder are still open.
2022
vi.
A Case Study of a Negotiated Plea Reduced by the Police Commissioner
As indicated, the Police Commissioner reduces the penalty or sets aside the plea in more
than one-third of the cases where CCRB previously negotiated a disposition with the subject
officer. The following is a typical example of an instance where this occurred in a stop and frisk
matter.
737
One of the two officers is Lt.
. See supra note 734.
161
As background, the following is the description offered by CCRB in its Quarterly Report:738
In March 2017 at approximately 1:30 p.m. in Staten Island, the Victims, two Black
males in their early twenties, were standing in front of a building alongside other
individuals. PO
and his partner, a fellow officer, pulled up in their
vehicle and approached the Victim stating, “I see you rolling up. I can see the weed
through the car.” PO
and his partner frisked the outside of one of the
Victim’s clothing and searched the inside of the other Victim’s hooded sweatshirt.
PO
stated that he conducted the search to recover a suspected marijuana
cigarette and did not recover any marijuana cigarettes from either Victim. The
searches and frisks were captured on cellphone video.
The Board substantiated three (3) total allegations: three (3) Abuse of Authority
allegations against PO
for searching and frisking Victim 1 and searching
Victim 2. PO
pleaded guilty and agreed to accept eight (8) days’ vacation
forfeiture. Commissioner Shea set aside the negotiated plea and instead imposed
four (4) days’ vacation forfeiture, stating that in reaching the penalty he considered
the cases cited by the CCRB and PO
history with the Department.
Officer
has a CCRB history of eight complaints. They almost all include an
allegation of illegal stop and frisk or closely related activity, ranging from strip searches to vehicle
searches to slurs to use of force. Two of the complaints arose after the described incident, but
while the matter was pending. Only one other case had been substantiated and, in that case, PO
received no discipline, he was sent to Training. At least two of the complaints were
dropped for failure of witnesses to cooperate. Also, around the same time (April 11, 2018) PO
was separately accused in a civil suit filed in the U.S. District Court for the Eastern District
of New York of falsely arresting and illegally searching a 31-year-old Black construction worker
and City University of New York student. It was alleged that he stopped the victim’s vehicle for
failing to signal as he pulled out of a parking area. According to the complaint the victim’s car
was searched and his pants were pulled down in public view on the street. He also complained of
intentional distress as he was strip-searched again in the precinct before a female officer. A charge
of marijuana possession was later dismissed. The case settled for $7,500.
Without an attempt to assess the merits of any of the seven other complaints or the lawsuit,
the more pertinent question is whether the Police Commissioner was aware of, and took into
account, the array of similar sounding (and almost contemporaneous) complaints when he made
the decision to reduce the negotiated penalty.
738
CCRB, Report on the Administrative Prosecution Unit (“APU”): First, Second, Third, and Fourth Quarters of
2020, supra, at 19-20.
162
Date of Incident if Known or
Date of Filing if Incident Date Unknown
2/12/06
o CCRB complaint against PO #1
force, pepper spray, stop,
question - complainant uncooperative.
5/15/11
o CCRB complaint against PO #2
(search unsubstantiated).
4/22/12
o Federal lawsuit against PO #1
settled for $50,000 - false
arrest/force.
10/17/12
o CCRB complaint against PO #1
for stop/frisk/force/strip search
- complainant uncooperative.
1/29/13
o Lawsuit commenced against PO #1
, et al., settled for
$300,000 - false arrest/malicious prosecution.743
3/4/13
o CCRB complaint against PO #2
(force unsubstantiated).
3/22/13
o Federal lawsuit against PO #1
for frisk and retaliatory
arrest. $20,000 settlement - stop/frisk/search.
8/1/13
o CCRB complaint against PO #2
for Frisk/Question
substantiated, Received Instructions and No Disciplinary Action (DUP).
8/9/13
o CCRB force complaint against PO #2
complainant unavailable. 744
8/9/13
o Federal lawsuit against PO #2
settles for $50,001 - force.
11/3/13
o Lawsuit against PO #2
, still open -false arrest/force - Court ordered
PO #1
to be deposed as a witness - unclear if complaint will
contain allegations against PO #1
.
11/13/13
o CCRB force complaint against PO #2
- victim uncooperative.
5/2/14
o CCRB complaint against PO # 1
threaten arrest
unsubstantiated.
under-the-radar settlements.” https://www.nydailynews.com/2024/04/08/nyc-paid-83-million-in-claims-against-thenypd-in-under-the-radar-settlements/.
743
Based on Law Department posting. https://www.nyc.gov/site/law/public-resources/nyc-administrative-code-7114.page. Not available on NYSCEF.
744
“[N]o complainant” means a complaint was filed, but the complainant was no longer available or cooperative.
165
Officer #2
was promoted to Detective on July 30, 2021. The only disciplinary history
listed in the online “Officer Profile” is the one finding of guilt for an illegal stop and frisk. Officer
#2
has a CCRB history of 13 complaints, four of which were substantiated. Five allegations
of SQF misconduct have been substantiated and a chokehold complaint went unresolved as it was
“closed – pending litigation.”
viii.
Records in the Trial Room
Depending upon the outcome, the record of the proceedings may be sealed or expunged.
There is a contract provision with the unions that “upon written request to the Chief of Personnel
by the individual employee [the Department will] remove from the Personal Folder investigative
reports which, upon completion of the investigation, are classified “exonerated” and/or
“Unfounded.”746 The Agreement also provides that Schedule A violations “heard in the Trial
Room” where the disposition is “other than ‘guilty’” may be expunged after 2 years upon petition
to the Police Commissioner.747 A review is conducted by a board composed of the Deputy
Commissioner- Trials, Department Advocate, and the Chief of Personnel, or their designees. The
Board makes a recommendation to the Police Commissioner. The employee concerned will be
notified of the final decision of the Police Commissioner by the Deputy Commissioner-Trials.
Similarly, Section 7(c) of the Police Sergeants’, Lieutenants’, and Captains’ Collective
Bargaining Agreement, states the NYPD “will upon written request to the Chief of Personnel
remove from the Personal Folder investigative reports which, upon completion of the investigation
are classified ‘exonerated’ and/or ‘unfounded.’”
PG § 206-15 (replaced by AG § 318-01) says that a “not guilty” after a Departmental trial
may be sealed upon application to the Police Commissioner. The Commanding Officer of DAO
is to make a recommendation based upon the member’s service record, the nature of the charges
and “other relevant factors.” In addition, the DAO “shall ensure” sealing if the charges were
dismissed because a violation did not occur or were based on mistaken identification. It is unclear
if the caveat that a “violation did not occur” applies to all unfounded and exonerated cases. It
should not, if properly understood, apply to allegations which were unsubstantiated. Once sealed,
unlike the provisions in PG § 206-14, not only are the records sealed in the CPI, but they are to be
sealed in DAO’s DADS system as well and deleted from any records kept in command. Once
sealed, the matter may not be referred to when the member is being considered for promotion,
transfer, or detail assignment. However, DAO may review the file “for informational purposes as
746
CBA, art XVI, § 7 available at UFO, et al., v. de Blasio, 20 Civ 5441, Dkt. No. 220 at 21 (S.D.N.Y. Sept. 4, 2020).
For simplicity, unless noted otherwise “CBA” will refer collectively to the entire group of Collective Bargaining
Agreements. “Where an employee has been charged with a ‘Schedule A’ violation as listed in Patrol Guide 118-2 [sic]
and such case is heard in the Trial Room and disposition of the charge at trial or on review or appeal therefrom is other
than ‘guilty,’ the employee concerned may, after 2 years from such disposition, petition the Police Commissioner for
a review for the purpose of expunging the record of the case. Such review will be conducted by a board composed of
the Deputy Commissioner - Trials, Department Advocate, and the Chief of Personnel, or their designees. The Board
will make a recommendation to the Police Commissioner. The employee concerned will be notified of the final
decision of the Police Commissioner by the Deputy Commissioner - Trials.”
747
It is the City’s position that discretionary removal from the officer’s personnel file “does not create an entitlement
to remove the investigative reports or the actual complaint and allegation from [NYPD’s or CCRB’s] own records in
toto, much less from the public domain.” UFO, Dkt. No. 220 at 21.
168
necessary.” If the file is available for “informational purposes,” then not much is accomplished
with regard to the DADS file, since DAO does not include previous not guilty determinations in
its reports to CCRB, Trial Commissioners, or the Police Commissioner.
ix.
Police Commissioner Review After Trial
In cases where formal discipline is pursued, after trial and before the trial record is
delivered to the Police Commissioner, the trial record is first reviewed by a supervisor and two
officers in the First Deputy Commissioner’s Office. The file, including the First Deputy
Commissioner’s own penalty recommendation, is then delivered to the Police Commissioner’s
Office, where it is reviewed again by officers on the Police Commissioner’s staff. These officers
prepare a case analysis for presentation to the Commissioner’s Executive Officer and Chief of
Staff, who each make their own independent penalty recommendations. These recommendations,
along with those of DAO, the DCT, the CCRB (as appropriate), and the First Deputy
Commissioner, are then presented to the Police Commissioner for his final review.748
The Police Commissioner may approve or modify the recommended findings and the
penalty, if any.749 If the Commissioner approves the findings and penalty, the Commissioner
stamps the Report and Recommendation as “Approved” and signs it, along with a separate
“Disposition of Charges” form that identifies each charge and its disposition, as well as the
disciplinary penalty. These documents—the approved Report and Recommendation and the
Disposition of Charges form—are provided to the charged officer and the officer’s attorney. The
records are considered by the NYPD whenever officers are considered for promotions, transfers,
or assignments, as well as in determining the penalty in any subsequent disciplinary matter under
consideration by the Police Commissioner.750
At a committee meeting attended by representatives from the First Deputy Commissioner’s
Office, DAO, and the Professional Standards Bureau (formerly the Risk Management Bureau “RMB”), as well as a rotating three-star chief, the Police Commissioner makes a final
determination as to whether imposing discipline and a penalty are warranted.751 By law, the Police
Commissioner has complete authority and discretion over discipline within the NYPD.752 The
penalty imposed is required to take into account the officer’s employment history and the nature
of the proven misconduct.753 The written final determination is then served on the officer and the
DAO.754 For CCRB cases, the final determination is also forwarded to the CCRB, which then
748
Independent Panel, supra, at 14.
749
38 RCNY § 15-08(a).
750
As explained in other parts of this Report, some or most of the records are not made available to CCRB panels or
Deputy Trial Commissioners.
751
Independent Panel, supra, at 14; 38 RCNY § 15-08.
752
N.Y.C. Admin. Code § 14-115; N.Y. City Charter § 434.
753
38 RCNY § 15-07.
754
38 RCNY § 15-08.
169
communicates the disposition to the complainant by letter. The letter merely provides the finding,
i.e., substantiated, exonerated, unsubstantiated, or unfounded without further detail.
Given the unstructured nature of the decision-making process, there have been “frequently
voiced allegations of favoritism in the NYPD’s disciplinary process. . . .”755 This was especially
true in claims of “white-shirt immunity” with lesser penalties for high-ranking officials.756 The
Independent Panel’s investigation wrote that there was “possible inappropriate influence . . . [in]
that certain decision makers may be susceptible to pressures, which could adversely affect the
integrity of the disciplinary process.”757 The Panel went on to say,
As is true of any multi-step, complex decision-making process, the Department’s
disciplinary system is susceptible to improper influences or inequities, including in
making decisions not to report misconduct at all. And, during the course of its
review, the Panel was made aware of certain fact patterns that suggest that, on
occasion, officers failed to report incidents and impeded or otherwise interfered
with ongoing investigation, including by “pulling rank” or exploiting their
relationships with influential members in the Department.758
They “found that the Department Advocate is particularly vulnerable to internal and
external influences.”759 The Panel made two recommendations: (1) there should be guidelines to
ensure “that the disciplinary process is free from inappropriate influence and what factors members
should consider before participating in internal and external functions and events;” and (2) the
Department should implement a recusal policy.760
In partial satisfaction of the request, the Department adopted Interim Order No. 11 of
2020, which contained “guidelines to members of the service regarding recusal from
involvement in disciplinary proceedings or investigations when there is an actual or perceived
conflict of interest based on a personal or familial relationship with a subject.”762 Additionally, the
Administrative Guide now prohibits “[d]iscussing substance of a pending case ex parte. . . .” It is
unclear if the Order resolved the problem cited in the Panel’s report since it applies to DAO “during
761
755
Independent Panel, supra, at 6. See, e.g. Graham Rayman & Thomas Tracy, NYPD chief used rank to dodge
penalty, fueling criticism that brass rarely held accountable, Daily News (Mar. 13, 2018),
https://www.nydailynews.com/new-york/nypd-chief-rank-dodge-penalty-park-fight-article-1.3872978.
756
After implementation of the Matrix, the Police Commissioner posted 184 Departure Letters where
recommendations by CCRB for discipline were reduced or dismissed. As of Apr. 7, 2023, of 184 downward
departures, dismissed cases included 1 Deputy Chief, 1 Inspector, 3 Deputy Inspectors, 2 Captains, 17 Lieutenants,
and 22 Sergeants. posted letters at https://www nyc.gov/site/ccrb/complaints/redacted-departure-letter.page.
757
Id.
758
Independent Panel, supra, at 31.
759
Id. at 6.
760
Id. at 50.
761
Issued January 24, 2020, the Order amended Administrative Guide § 318 and Patrol Guide § 203-06. Both added
sections were moved to Administrative Guide § 304-06, July 2021.
762
NYPD Public Score Card -DCPI 10-13-2020.
170
the pre-charge stage.”763 One cannot assume the Order prohibits the Department Advocate from
ex parte communications with attorneys and representatives at later stages, after charges have been
filed. A more carefully crafted prohibition may be needed. On the one hand, conversations with
attorneys and representatives are a necessary part of any prosecution effort. On the other hand, ex
parte conversations with the Department Advocate were the very kind of questionable conduct
condemned by the Panel. A distinction should be drawn between discussions that are part of the
process and are noted on the record versus casual off-the-record conversations. Towards that end,
the Panel recommended,
The guidelines should further require proper documentation of all such informal
communications. Creating a record and maintaining logs of such communications
are critical to ensuring accountability and, at the very least, internal transparency
about those who have access to key decision makers within the Department. Such
logs should be made available for internal audit and inspection by the OIGNYPD.764
Neither the Interim Order nor the Department Manual requires logs or documentation of
ex parte conversations. The newly adopted Disciplinary Guidelines provide,
An individual member of the service’s status as a supervisor will generally be
viewed as an aggravating factor, particularly for on-duty misconduct, which may
warrant a penalty higher than the presumptive penalty for the particular violation.
Supervisors are expected to lead by example and they are responsible for holding
their subordinates accountable. The Department has higher expectations for
supervisors, including their ability to exercise sound judgment and to be more
deliberate in their actions than subordinate members.765
There are not enough cases yet to evaluate whether that promise has been met.
x.
Level C Command Discipline in Lieu of Charges and Specifications
The Disciplinary Guidelines provide that “[t]he Department Advocate may direct that a
disciplinary matter be adjudicated through CD in lieu of Charges and Specifications when
appropriate.”766 It might be that this provision was meant to apply only to C-CD cases brought to
DAO by NYPD investigations and not to extend to CCRB recommendations. However, there is
nothing in the Matrix that clearly exempts APU charges from DAO diversion. Under the new
Guidelines System, CCRB may add the penalties for several offenses and arrive at a conclusion
that somewhere between a 10 and a 20-day penalty is required by the Guidelines. At that point,
763
Admin. Guide § 304-06.
764
Independent Panel, supra, at 50.
765
NYPD Disciplinary System Penalty Guidelines at 10, eff. Jan. 15, 2021, at
https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/disciplinary-system-penalty-guidelineseffective-01-15-2021-compete-.pdf.
766
10.
NYPD Disciplinary System Penalty Guidelines, supra, at 50.
171
CCRB will recommend Charges. The Guidelines would appear to permit a plea to such a penalty
without a trial. The Matrix goes on to say that
A C-CD may be utilized in lieu of Charges and Specifications by the Deputy
Commissioner, Department Advocate for situations in which there are no
significant aggravating factors or additional misconduct.
The Deputy
Commissioner, Department Advocate will evaluate each case on its merits and
consider all relevant factors when making a determination to issue a C-CD
including consultation with the member’s Commanding Officer. Prior disciplinary
history, including the same or similar acts of misconduct, contemporaneous
pending unrelated disciplinary matters and any significant aggravating factors may
make the issuance of a C-CD inappropriate. At the direction of the Deputy
Commissioner, Department Advocate, the assigned member from the Department
Advocate’s Office will prepare the C-CD and forward it to the Commanding
Officer of the appropriate adjudicating borough or equivalent command with a
memorandum identifying the significant facts related to the misconduct, the
appropriate penalty range as well as the presumptive penalty. In accordance with
Patrol Guide procedures 206-04 and 206-05, the Borough Adjutant (or equivalent)
will adjudicate the C-CD promptly, adhering to the guidance/direction provided by
the Department Advocate.767
There is no required minimum penalty that flows from imposition of a C-CD, the maximum
penalty is 20 vacation days. In 2020, there were two cases resolved by imposition of a Schedule
C Command Discipline; neither were SQF cases.
xi.
Police Commissioner’s
Recommendations
Duty
to
Explain
Departures
from
Under Section 440 of the Charter, in CCRB cases only, if the Police Commissioner departs
upward or downward from the recommendation made by the DCT or CCRB, he must prepare a
variance memorandum explaining the basis for deviating from their recommendations. A more
detailed explanation is required if the Police Commissioner imposes a penalty or level of discipline
that is lower than that recommended by the Board or DCT.768
767
Id. at 52.
768
NYC Charter §I 440 (b)(7)(d)(3). “ In any case substantiated by the board in which the police commissioner intends
to impose or has imposed a different penalty or level of discipline than that recommended by the board or by the
deputy commissioner responsible for making disciplinary recommendations, the police commissioner shall provide
such written report, with notice to the subject officer, no later than 45 days after the imposition of such discipline or
in such shorter time frame as may be required pursuant to an agreement between the police commissioner and the
board. Such report shall include a detailed explanation of the reasons for deviating from the board's recommendation
or the recommendation of the deputy commissioner responsible for making disciplinary recommendations and, in
cases in which the police commissioner intends to impose or has imposed a penalty or level of discipline that is lower
than that recommended by the board or such deputy commissioner, shall also include an explanation of how the final
disciplinary outcome was determined, including each factor the police commissioner considered in making his or her
decision.”
172
The obligation to report outcomes and to explain departures was part of the Charter
referendum approved by the voters in November 2019. In essence, any departure in the penalty or
level of discipline from that recommended by CCRB or a DCT needs a written explanation giving
the reasons for deviating. Further, if the penalty or level of discipline is lower than that
recommended, a more detailed explanation of “how the final disciplinary outcome was
determined, including each factor the Police Commissioner considered in making his or her
decision” must be provided. This Charter amendment could be of significant benefit in
understanding SQF outcomes. Discipline in substantiated SQF cases is commonly reduced from
CCRB’s recommendation. Previously, downward departure letters were only supplied in formal
disciplinary cases prosecuted by APU.769 No explanation was given in the majority of SQF cases
where command discipline or guidance were recommended by CCRB and not pursued formally.
The Charter now requires an explanation in all cases, which should include all SQF substantiations
regardless of the level of discipline sought. This would, or should, include cases where CCRB
recommended an A-CD or B-CD or even guidance.
Aside from the Charter, there are obligations or promises to report under the 2012 APUMOU, the Disciplinary Guidelines, and a Penalty Matrix-MOU signed in 2021 designed to
implement use of the Disciplinary Guidelines.770 The varying, and sometimes conflicting,
requirements are discussed later in this Report.
xii.
Unfettered Discretion of the Police Commissioner
Although the Commissioner’s discretion is referred to as “unfettered,”771 there are some
limitations to the power. Administrative Code § 14-115 enumerates and limits the available
penalties the Commissioner may impose:
The commissioner shall have power, in his or her discretion, on conviction by the
commissioner, or by any court or officer of competent jurisdiction, of a member of
the force of any criminal offense, or neglect of duty, violation of rules, or neglect
or disobedience of orders, or absence without leave, or any conduct injurious to the
public peace or welfare, or immoral conduct or conduct unbecoming an officer, or
any breach of discipline, to punish the offending party by reprimand, forfeiting and
withholding pay for a specified time, suspension, without pay during such
suspension, or by dismissal from the force; but no more than thirty days’ salary
shall be forfeited or deducted for any offense.
769
Previously, downward departure letters were required in limited cases by 38-A RCNY § 15-18 and by a MOU
entered into in 2012 for trial cases prosecuted by the APU-CCRB.
770
Matrix-MOU (Feb. 4, 2021), https://www1 nyc.gov/assets/nypd/downloads/pdf/public_information/nypd-ccrbdiscipline-matrix-mou-final.pdf.
771
See Independent Panel, supra, at 28 (“The Panel is concerned, however, that the Commissioner’s unfettered
discretion gives rise to the perception, whether justified or not, of bias or inconsistency, which undermines the
confidence of the public and other constituencies in the integrity, fairness, and robustness of the NYPD’s disciplinary
system.”); id. at 48 (“The exercise of unfettered discretion has the potential to result in inconsistent outcomes,
favoritism, and excessive leniency.”)
173
Further, the Commissioner’s determination may be challenged in an Article 78 proceeding,
which reviews whether the decision was arbitrary and capricious, not supported by substantial
evidence, or the penalty or discipline imposed was an abuse of discretion.772
xiii.
Efforts to Remove the Police Commissioner’s Final Authority on
Discipline
A recurring theme throughout the history of civilian oversight has been an effort by some
to give final authority to an outside, independent, body in assessing civilian complaints of police
misconduct. The effort is as alive today as it has been in the past. In its submission to the JRP,
Citizens Union argued,
Concurrently, the City and the State should explore ways through legislation or
other means that would allow CCRB complaint hearings to go through OATH, or
an alternative independent body, to create a needed level of independence and
impartiality. One possible approach would be to enact legislation specifying that
hearing officers be appointed for fixed terms, removable only for cause. At present,
the hearing officers are a deputy commissioner and assistant commissioners who
serve at the pleasure of the Commissioner. . . .
[I]n administering justice in cases of alleged police misconduct, too much authority
currently resides in the Police Department to prosecute, hear, adjudicate, and decide
penalties. Investing so much authority in a single entity to handle essentially four
different, major parts of the police disciplinary process – the same entrusted with
the right to use force to provide public safety and enforce the law – does not provide
for an appropriate level of public oversight or separation of powers in a democratic
society.773
A recent report by the National Organization of Black Law Enforcement Executives
concurs. They wrote:
Citizen review and oversight is a necessary component in reimagining public safety
and creating accountability on the part of law enforcement. In order to address the
power disparity between police who are tasked to protect and serve the community
and the community members themselves, the community must be empowered
through civilian awareness, visibility, and engagement. Accountability on the part
of law enforcement requires the creation of an environment that is inhospitable to
officers who are not following the rules, both internally and externally. Internally,
police departments need to identify officers who are not following the rules and
subject them to disciplinary action. Equally important though, citizens should
weigh in on review and oversight of law enforcement agencies, because ultimately,
citizens are the most affected by their actions. . . . Citizen oversight of law
772
Montella v. Bratton, 93 N.Y.2d 424 (1999) (NYPD disciplinary proceedings are governed by NYC Admin. Code
§ 14-116 which confines review to an Article 78 proceeding.) See also Batista v. Kelly, 16 A.D.3d 182 (1st Dep’t
2005) (“[S]ubstantial deference is due to the police commissioner’s disciplinary determinations.”)
773
Appendix, JRP Final Report, Case No. 8-cv-1034-AT, Dkt. No. 598-1 at 44.
174
enforcement should be available in the form of a separate body that is given a
meaningful seat at the table, with the power to weigh in on all aspects of
enforcement. . . . To provide meaningful review, citizens must have access to all
relevant information and evidence and need the power to subpoena records and
testimony. . . . Consistent with review of use of force and misconduct, citizens
should weigh in on disciplinary actions, and be empowered to advance discipline,
including when it can result in suspension or dismissal of officers.774
On March 25, 2021, the New York City Council adopted Resolution 1538-A/2021. The
Resolution cited reports that the concurrence rate775 for formal discipline, i.e., serious cases where
Charges and Specifications are pursued by CCRB, was only 32 percent. Seeking greater deference
to CCRB determinations, the Council’s Resolution sent a Home Rule Message776 to Albany,
requesting legislative adoption of S5252/A6012, a bill pending in the State Legislature.777 The bill
amends Sections 434 and 440 of the NYC Charter and Section 14-115 of the Administrative Code.
It removes discretion from the Police Commissioner in misconduct cases brought following
civilian complaint. CCRB’s FADO jurisdiction would remain, but CCRB would send cases where
command discipline or Charges and Specifications have been substantiated by a panel to an
independent hearing officer appointed by the Executive Director of CCRB for final adjudication.
The Interplay with two state statutes may be read to limit this effort in New York City.778
While the bill amends Local Laws (the NYC Charter and the Administrative Code), it does not
amend State Law—either Unconsolidated Law 891 or Civil Service Law § 75. For clarity’s sake,
if the sponsor’s desire is to assign discipline to a body other than the Police Commissioner, it might
be provident to make clear, legislatively, that § 891 and § 75 do not control. As well, if the
sponsor’s desire is to do such without collective bargaining, the Taylor Law779 may need
amendment.780
774
National Organization of Black Law Enforcement Executives (NOBLE), Report of the Reimagining Public Safety
Task Force at 22-23 (2020), https://www.cga.ct.gov/jud/tfs/20200116_Police%20Transparency%20and%20Account
ability%20Task%20Force/Related%20Materials/Report%20of%20the%20NOBLE%20Reimagining%20Public%20
Safety%20Task%20Force.pdf https://noblenational.org/about-us/.
775
The rate at which the Police Commissioner follows CCRB’s recommendation for discipline.
776
N.Y. Municipal Home Rule Law § 40. A Home Rule Message is needed when a locality asks the State Legislature
to amend or deviate from State law in a way that would affect that municipality but not the entire State.
777
Subsequent to the drafting of this Report, the proposal was encompassed in A.376/S.2108 of the 2023-24 legislative
session. The bill remains in committee and would require a new home rule message.
778
CSL § 75; Unconsolidated Law § 891; Admin. Code § 14-115.
779
CSL § 201.
780
See Matter of Rochester Police Locust Club, Inc. v. City of Rochester, 231 N.E.3d 1001, 208 N.Y.S.3d 94 (Nov.
20, 2023). The Taylor Law, Civil Service Law § 201, L. 1967, ch 392, (requiring bargaining of terms and conditions
of employment) was held, in a 4-3 opinion, to include discipline when local laws are amended subsequent to the
enactment of Civil Service Law §74, et seq. in 1958. In 2022, the Legislature amended the Taylor Law to specifically
denominate “discipline” as part of “terms and conditions of employment” for firefighters. See Civil Service Law §
201(4)(b), L.2022, ch 674 §3, effective March 1, 2023. Police organizations were not included in that amendment,
but, nonetheless, the ruling in Rochester may well be held to require bargaining absent specific textual inclusion in
the Taylor Law
175
Special Local Laws (applying solely to an identified local government) require enactment
in the State Legislature if in conflict with general laws. In this case, the Council asks the
Legislature to amend NYC law in a way that bypasses general laws, without amending the general
laws that would apply elsewhere.781
As expected, the CCRB supports the legislation,
Providing the CCRB with final disciplinary authority would lead to greater police
accountability and ensure New Yorkers have a disciplinary process that—from start
to finish—is totally independent from the police department. . . . Communities
across this country are searching for ways to improve community-police relations
and achieve more accountability in their police departments. New York can step
up and be a leader on this issue and show the rest of the nation that empowered
civilian oversight [is] possible.782
On the other hand, the Police Commissioner has argued that,
As the final arbiter in matters of discipline, a Police Commissioner’s role is similar
to a trial judge in imposing penalties . . . . This command structure enables the
Police Commissioner to effect change in the department and ensures consistency
and efficiency in all of the department’s operations. This becomes essential in
flexibly responding to events—such as crime upticks or national security issues—
in real time. It would be hard to imagine a system for rapid discipline by an outside
body—in effect, weakening what is a longstanding, paramilitary style justice
system affording the Police Department wide latitude for rapid accountability and
for real time operational maneuverability in times of public need.783
Given the importance of this topic to compliance with Floyd, a brief diversion into the history and
failure of attempts to remove adjudicatory authority from the Police Commissioner in New York
City is helpful.
xiv.
Previous Efforts to Limit the Authority of the Police Commissioner
In July 2000, the New York City Commission to Combat Corruption published a Report,
“The New York City Police Department’s Prosecution of Disciplinary Cases,” which analyzed the
781
The Resolution passed on a voice vote without a roll call. A Home Rule Message requires either the concurrence
of the Mayor or approval by two-thirds of the Council without the Mayor. The Amendment would need to be passed
by the State Legislature, since an amendment to local laws would open the discipline to collective bargaining. Matter
of Rochester Police Locust Club, Inc. v. City of Rochester, 2023 NY LEXIS 1901 (2023). Even then, without an
amendment to Civil Service Law § 75, a potential conflict with the Taylor Law (discussed above) would ensue.
782
CCRB, Press Release: After Council Resolution Passes, CCRB Chair Reiterates Need for Final Disciplinary
Authority (Mar. 25, 2021), https://www1.nyc.gov/assets/ccrb/downloads/pdf/about_pdf/news/press-releases/2021/
PR_FinalAuthorityRes_03252021.pdf.
783
N, NYPD Vision for Fair and Effective Discipline (Nov. 10, 2020), https://www1.nyc.gov/site/nypd/news/pr1110
/nypd-vision-fair-effective-discipline.
176
effectiveness of the Department’s processing of civilian complaints.784 The Commission found an
inordinate delay in civilian-initiated prosecutions, which it attributed to delayed transfer of
information from CCRB to NYPD when DAO took over the prosecution of a case after CCRB
recommended Charges and Specifications.785 The Commission proposed that CCRB be allowed
to handle cases without transfer, while leaving the ultimate decision with the Police
Commissioner.786
In response, in July 2001, the Department and CCRB entered into a Memorandum of
Understanding permitting prosecutions directly by CCRB.787 The implementing Rules change (38
RCNY 15-12) provided that lower-level disciplinary actions would be decided by the Board with
recommendations passed on to the Police Commissioner. In more serious cases, calling for
potential termination or suspension, beginning July 25, 2001, Charges and Specifications would
be filed by CCRB. If a hearing, rather than a negotiated settlement, was necessitated, that would
be conducted by the New York City Office of Administrative Trials and Hearings (“OATH”). The
Administrative Law Judge at OATH, after the hearing, would issue a report with proposed findings
of fact and a recommended decision to the Police Commissioner.
OATH was established within the City Charter in 1988 as part of a New York City Charter
Revision Commission ballot proposal creating the City Administrative Procedure Act.788
Administrative Law Judges within OATH are authorized to “conduct adjudicatory hearings for all
agencies of the city unless otherwise provided for by executive order, rule, law or pursuant to
collective bargaining agreements.”789 OATH is “an independent body that can be a resource to
agencies in conducting their adjudications, while at the same time establishing an independent
structure outside of the agency to provide an unbiased assessment of the matters to be
adjudicated.”790
OATH hearings separate the investigator/prosecutor from the adjudicating officer—a
common staple of any fair-hearing procedure. Secondly, the hearing officers are trained
independent arbiters. OATH Administrative Law Judges are outside the chain of command;
difficult decisions can be made without fear or favor. Administrative Law Judges are not hired,
selected, fired or punished for their independent judgments; and, as is demonstrated by the existing
practice utilized for correction officers, decisions are made openly and publicly, with written
decisions explaining outcomes and providing guidance for future proceedings. Decisions are
posted on a website with full disclosure, naming the parties and detailing the facts and
784
See Commission to Combat Police Corruption, The New York City Police Department’s Prosecution of
Disciplinary Cases (July 2001), https://www1 nyc.gov/assets/ccpc/downloads/pdf/The-NYPD-s-Prosecution-ofDisciplinary-Cases-July-2000.pdf [hereinafter CCPC Report].
785
Id. at 6-13.
786
Id. at 93.
787
See Section II.C, supra (discussing the framework of the MOU).
788
At its inception, OATH was created by Mayoral Executive Order No. 32 of 1979. It was included in the Charter
nine years later.
789
Chapter 45-A, N.Y.C. Charter § 1048.
790
Matter of Victor v. N.Y.C. Off. of Trials& Hr’gs, Ind. No. 100890/15 (N.Y. Cty. Super. Ct. 2018) (quoting NY City
Charter Revision Commission, Final Report at 117 (Sept. 4, 2003)).
177
recommended findings. If needed, OATH officers have discretion to redact items to protect
particular items of information needing privacy.791
OATH disciplinary hearings are the rule, not the exception for all other City employees,
including other uniformed services. Firefighters and City correction officers facing discipline,
suspension and termination, currently have their cases heard before OATH. There are 11,600
correction officers. Their trials are public. The results are published and posted online with the
name of the officer included.792 OATH postings list both substantiated allegations and those that
are not substantiated.793
Today, issues surrounding the propriety of a police stop are, on occasion, heard before an
OATH officer, however these are in the context of Krimstock hearings (seeking return of seized
property), not discipline.794 Isolated misconduct matters dealing with employee relations charged
against a police officer, not prosecuted by APU and not leading to possible termination, can also
be resolved before OATH Administrative Law Judges. When the Law Enforcement Bureau of the
NYC Commission on Human Rights (“CCHR”) brings a complaint against individual police
officers, it is heard in the Office of Administrative Trials and Hearings when there is an LEB
finding of probable cause. The parties are publicly identified by title and name in the
Commission’s published decisions.795 Thus far, CCHR has not brought an action before OATH
against any individual officer or group of officers for misconduct other than internal employment
or violations of the public accommodations section of the Charter. CCHR also has the authority
to investigate claims of bias-based profiling, independent of CCRB or NYPD actions that may be
pursued.796 Presumably those claims could be resolved at a public OATH proceeding if needed.797
The 2001 MOU and the Rules, allowing APU prosecutions and hearings before OATH
Administrative Law Judges, were successfully challenged by the PBA. The Appellate Division,
First Department, held that OATH was barred from hearing the matters because New York State
Unconsolidated Law § 891 provides that removal hearings for police officers must be held by the
791
48 RCNY § 1-49(d); see Dep’t of Correction v. Johnson, 2019 NY OATH LEXIS 362 (2019); Victor v. N.Y.C. Off.
of Trials & Hr’gs, 174 A.D.3d 455 (1st Dept 2019).
792
A recent application to extend the confidentiality blanket of Civil Rights Law § 50-a, prior to its repeal, to the
proceedings, was rejected on the grounds that it was untimely. Victor, 174 A.D.3d 455.
793
The Correction Officers Benevolent Association (COBA) had joined as Plaintiffs in federal litigation brought by
the PBA, asking that unsubstantiated and pending claims, prior to substantiation, be withheld from the public. UFO,
Dkt. No. 197 (S.D.N.Y. Aug. 21, 2020). COBA’s application for a preliminary injunction as to Correction Officers
was denied. The case in its entirety was voluntarily dismissed with prejudice on April 13, 2021.
794
Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002); see, e.g. Police Dep’t v. Neofytides, 2014 NY OATH LEXIS 146
(2014).
795
See, e.g. In re Comm’n on Human Rights ex rel. Carter v. NYC Police Dep’t, OATH Index No. 0019/15, 2018 NY
OATH LEXIS 330 (2018) (dismissing a claim of retaliatory denial of overtime by a supervisor, a Sergeant).
796
Admin. Code § 14-151(d)(1)(ii) specifically authorizes CCHR to investigate and pursue a complaint alleging biasbased profiling against “any law enforcement officer who has engaged, is engaging, or continues to engage in biasbased profiling.”
797
In Jaggi v. NYC Police Department, OATH Index No. 1498/03 (2004) a Traffic Enforcement Agent successfully
alleged religious discrimination - again on an employment issue - before an OATH administrative judge.
178
Commissioner or a “deputy or other employee” of the Department.798 The Court interpreted the
use of the word “other” to require that any deputy appointed by the Police Commissioner to hear
disciplinary hearings must also be an employee of the Department.799 OATH judges are
independent agents. 800 They can be deputized but cannot be “employees” of the agency for which
they provide hearings. Although the statute permitted the Police Commissioner to assign hearings
to deputies, the Appellate Division ruled that the Police Commissioner was not allowed to
“deputize” OATH judges for the purpose of conducting a hearing, even if the end result was only
advisory. The Court ruled that, under § 891, only employees of the Department could conduct
termination hearings.
The court in Giuliani went further than requested by the Plaintiff unions.801 Today, all
formal disciplinary hearings are held by deputies within the Department and not OATH. After
concluding that removal hearings must be chaired by employees, the panel, unfortunately,
extended its holding beyond removal hearings covered by the statute to all disciplinary
proceedings.
Unlike Section 891, both Civil Service § 75 and NYC Administrative Code §14-115 apply
to all disciplinary hearings. They are not limited to hearings where termination is sought. Neither
section requires that hearing officers in disciplinary cases must be employees of their department.
Section 75 specifically authorizes deputization or outside designation. After the hearing, the
recommendation is referred back to the employer “for review and decision.”802 It is for that very
reason that, consistent with Section 75, firefighters and correction officers have their disciplinary
hearings first heard by OATH appointees.
The Giuliani panel conceded that Section 891, “by its terms, applies only to charges that
may result in an officer’s removal from service.”803 Nonetheless, it concluded that Section 891
and Administrative Code §14-115 should be “construed together as forming part of the same
798
Matter of Lynch v. Giuliani (“Giuliani”), 301 A.D.2d 351, 359 (1st Dep’t 2003).
799
A good example of the ambiguity (and potential for alternate construction) with which the use of the word “other”
may be interpreted in a similar situation is the discussion by both the majority and the concurrence in Heien v. North
Carolina, 574 U.S. 54, 67-68, 69 (2014). There, the state motor vehicle code required a stop lamp and all other rear
lamps to be in good working order. The question was: If all rear lamps are required to be in working order, does the
law then require all stop lamps to be in working order? Or does just one stop lamp have to be in working order if there
are more than one stop lamp? The semantic debate was whether the phrase “stop lamp and other rear lamps” meant
that all “stop lamps” were, therefore, “rear lamps.” Similarly, in Giuliani, the question was whether “deputy or other
employee” means that all “deputies” are “employees.” The various justices in Heien conceded that the word “other”
permitted dual conflicting interpretations, either including all stop lamps as also being rear lamps, or not. The Court
acknowledged that either interpretation was reasonable.
800
See, e.g., Dep’t of Correction v. Royster, OATH Index No. 156/20 (2020).
801
Respondent – Cross Appellants (OATH) only appealed “from that portion of the judgment granting the petition to
the extent of ‘(i) declaring that § 891 of McKinney’s Unconsolidated Laws prohibits respondent Office of
Administrative Trials and Hearings hearing prosecutions that may result in recommendations for termination against
police officers serving in the competitive class of service and (ii) barring said respondent from hearing such cases.’"
Id. at 356.
802
Civil Service § 75.
803
Giuliani. 301 A.D.2d at 359-60.
179
subject matter” (while ignoring Civil Service Law § 75). The court extended its reading of Section
891 to “enjoin OATH from holding any hearings based on complaints filed with the CCRB,
whether or not removal is a possible outcome of the hearing.”804
The court’s expanded reading of Section 891 directly affects attempts to enforce Floyd’s
holding in stop and frisk cases. SQF allegations, standing alone,805 are not typically considered
“serious” enough to warrant termination and do not result in removal, or even suspension.806 SQF
violations, even when substantiated, are not sent to a hearing officer for formal disciplinary
proceedings. They are dealt with informally through Command Discipline or guidance. From
2016 through 2020, there were 44 closed cases containing a substantiated SQF allegation (along
with other charges such as force) where CCRB recommended Charges and Specifications (a
necessary predicate to termination).807 None resulted in a Police Commissioner order of
termination or suspension. As a consequence of Giuliani, SQF misconduct proceedings cannot be
heard, in public, before a neutral and independent body such as OATH notwithstanding the
Department’s practice of discounting SQF violations to the point that termination is not an
available outcome in cases of SQF misconduct.808
Overall, removal or termination proceedings are rare and constitute a small fraction of the
4,500 investigations conducted by CCRB each year. In the three-year period, 2017-2019, 130
APU cases went to a final hearing and recommendation in a trial before a trial commissioner.809
One case,
, resulted in termination. The Appellate Division’s extended mandate is a
classic example of the “tail wagging the dog.” The procedures for the exceptional case of
termination controlled the choice of hearing site for all formal discipline.
To be clear, while adjudication before a neutral and independent body may be salutary and
a desirable legislative goal from the perspective of the public, it is not a necessary requirement of
due process for the officers who are charged.
804
Id. (emphasis added).
805
See discussion supra indicating that no case could be found where an SQF allegation standing alone resulted in
termination or suspension. As well, the grid or matrix recently adopted by CCRB does not recommend charges for
SQF allegations.
806
The disciplinary matrix or “grid” used by CCRB does not suggest Charges and Specifications for SQF violations.
NYPD’s “Disciplinary System Penalty Guidelines,” provide “Presumptive Penalties for Abuse of Authority.” The
guidelines for SQF misconduct presume Training or command discipline with possible imposition of “penalty days,”
i.e. accrued vacation days or credit for suspension days, up to a level B-CD. This would permit a loss up to 10 days,
but only for intentional or bad faith conduct, otherwise the penalty is 3 days or less. Termination is not listed as a
potential outcome.
807
SQFST matrix supplied by the Department to the Monitor.
808
See discussion, infra, of the Disciplinary Matrix and of CCRB’s Guidelines - both of which do not provide for
termination for SQF misconduct absent extraordinary circumstances. Since the Floyd decision, no uniformed officer
has been terminated for an improper stop, question or frisk alone.
809
Executive Director’s Monthly Reports for January 2018, 2019, and 2020 compiled. CCRB calculates an APU
“case” as the proceeding against each individual officer. Accordingly, APU “case” counts and CCRB reports on
“complaints” may not match.
180
The New York Court of Appeals has ruled that,
[D]ue process requires only notice and some opportunity to respond . . . due
process could be satisfied by a pretermination showing that ‘there are reasonable
grounds to believe that the charges against the employee are true and support the
proposed action.’ This . . . demands no more than that the employees be given an
explanation of the charges against them and an opportunity to present their side of
the story either in writing or in person.810
As a matter of federal constitutional law, it is an open question whether due process also
requires an impartial decision-maker at a pre-termination hearing, i.e., a hearing and
recommendation to the Police Commissioner who makes the final decision. It is argued that the
availability of Article 78 review post-termination is sufficient to protect any due process rights.
The Second Circuit, in 2001, held that a pre-termination hearing for a police officer does not
require a neutral adjudicator as long as full due process is available in a post-termination hearing.811
On the other hand, given the limited scope of review permitted in an Article 78 proceeding,812 and
in light of subsequent Supreme Court holdings, a later panel of the Second Circuit, in an
unpublished decision, questioned the continued viability of the earlier opinion.813
xv.
Deference to the Trial Commissioner’s Factual Findings
The Court of Appeals has held that the Police Commissioner may not arbitrarily disregard
a Trial Commissioner’s findings of fact. Although the Police Commissioner is not bound by the
findings of a trial commissioner, “it is not proper for an administrative agency to base a decision
of an adjudicatory nature, where there is a right to a hearing, upon evidence or information outside
the record.”814 This is true with regard to the finding of guilty or not guilty but is not the case when
assessing a penalty. “After a civil service employee has been found guilty of misconduct the public
employer may consider material included in the employee’s employment record in determining an
appropriate sanction; however, the employee must first be given notice of the data to be considered
and an opportunity to submit a written response relative to such information.”815
In one case, a Trial Commissioner exonerated an officer, a Lieutenant, of a charge of
soliciting and advising another officer to make a false statement during an investigation. The
Police Commissioner overrode the determination, finding the officer guilty. The charges rested
entirely on the uncorroborated testimony of an alleged accomplice. In an Article 78 proceeding,
810
Prue v. Hunt, 78 N.Y.2d 364, 369 (1991) (Internal citations omitted).
811
Locurto v. Safir, 264 F.3d 154, 174 (2d Cir. 2001).
812
An Article 78 proceeding is limited to three questions: (1) Is the decision arbitrary and capricious? (2) Is the finding
unsupported by substantial evidence? or (3) Does the penalty shock the conscience?
813
Rothenberg v. Daus, 2015 US Dist. LEXIS 39764. 2015 WL 1408655 (S.D.N.Y. Mar. 27, 2015) (Stein, J.), quoting
481 F App’x 667 (2012). But see Green v. Dep’t of Educ. of N.Y., 16 F. 4th 1070 (2d Cir. 2021).
814
Simpson v. Wolansky, 38 N.Y.2d 391, 393 (1975) (applying CSL §75 to a case where the commissioner reversed a
hearing officer’s determination “on matters not appearing in the record”); accord Matter of Farrell v. Dowling, 90
A.D.2d 849 (2d Dep’t 1982); Matter of Spetalieri v. Quick, 96 A.D.2d 611 (3d Dep’t 1983).
815
Bigelow v. Bd. of Trustees, 63 N.Y.2d 470, 472 (1984).
181
the Lieutenant argued that the hearing officer’s credibility determination should be final and
binding upon the Police Commissioner. In restoring the not guilty finding, the Court
acknowledged that a hearing officer’s report “is not conclusive against being overruled by the . . .
Commissioner” but it is “entitled to weight in determining the existence of substantial evidence
particularly to the extent that material facts in any case depend on the determination of credibility
of witnesses as shown by their demeanor or conduct at the hearing.”816
In a later case, an officer argued that a guilty finding should be overturned for want of
accomplice testimony corroboration, as in Kelly. In denying the appeal, the Court wrote that there
is no fixed requirement of accomplice corroboration in police discipline trials.817 The lack of
corroboration in Kelly was “one reason among several” for reversal. The Court reiterated that, in
finding the Respondent guilty, “the Hearing Officer’s evaluation of the witnesses’ credibility was
entitled to great weight” because the Hearing Officer is “able to perceive the inflections, the
pauses, the glances and gestures—all the nuances of speech and manner that combine to form an
impression of either candor or deception.”818 But, here, the Trial Commissioner had found
Petitioner guilty and the Police Commissioner’s reliance on that finding was based upon
substantial evidence.819
Even though the outcomes differed, the common thread that ran through both cases was
that some level of deference should be accorded the factfinder, the Trial Commissioner, by the
Police Commissioner whose “review is confined to a lifeless record.”820 The hearing officer’s
factual finding cannot be unreasonably ignored.
Similar arguments might be made with regard to CCRB findings. Factual findings by a
panel should not be disregarded.821 Panels have the benefit of tape recordings, documentary
evidence, videos, and full interviews. On the other hand, CCRB panels are not presented with live
816
Kelly v. Murphy, 20 N.Y.2d 205, 209-10 (1967) (internal citation omitted).
817
Berenhaus v. Ward, 70 N.Y.2d 436, 445 (1987).
818
Id. at 443, 445.
819
Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to
support a conclusion or ultimate fact. Id. at 443.
820
Id.
821
Generally, the rule for review of factual findings by an administrative body was best stated in a dissenting opinion
by Justice Friedman, vindicated by a reversal on appeal, “if we can discover somewhere within the record ‘a rational
basis . . . for the findings of fact supporting the agency’s decision, the agency’s determination must be confirmed.
Further, an administrative agency’s determinations concerning the credibility of witnesses who have testified before
it at an evidentiary hearing are ‘largely unreviewable by the courts.’ In sum, ‘[w]here there is a conflict in the testimony
produced . . . [and] where reasonable [people] might differ as to whether the testimony of one witness should be
accepted or the testimony of another be rejected, where from the evidence either of two conflicting inferences may be
drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The
courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and
room for choice exists.” Rodriguez-Rivera v. Kelly, 3 A.D.3d 379, 384 (1st Dep’t 2004) (Friedman, J., dissenting),
rev’d 2 N.Y.3d 776 (2004) (“We agree with the dissenter below that the majority improperly substituted its credibility
determinations for those of the Police Commissioner” which had confirmed the findings of the Trial Commissioner).
182
testimony and examination of the witnesses. They rely heavily on the presentation and
recommendations of the investigator, making direct comparison to Departmental Trials difficult.
CCRB has begun to post departure letters it receives from the Police Commissioner when
the Commissioner imposes a lesser penalty or level of discipline than that recommended by CCRB
when it substantiates a complaint.822 As of March 2023, there were 181 Departures described in
cases decided in 2022. Although the letters are required to explain in detail the reasons for the
Police Commissioner’s rejection of CCRB’s recommendation, they are brief and opaque.
Nonetheless, an attempt to categorize the reasons given for departure (or deviation) may be
classified into groupings.
A review of the most recent 100 letters (as of April 1, 2023) shows the following:
In 81 of the 100 cases, CCRB recommended a B-CD
o In 58 of the 81, the Police Commissioner dismissed the case with NDA.823
o 14 of the 81 cases were reduced from B-CD to A-CD.
o 9 of the 81 cases were reduced from B-CD to Training.
In 19 of the 100 cases, CCRB recommended an A-CD.
o In 18 cases, the Police Commissioner dismissed the case with NDA. The
remaining case was reduced from an A-CD to Training only.
More interesting, in the context of discussions around the Police Commissioner’s
acceptance, rejection, or deference for factual determinations by CCRB, are the reasons offered
for departure or deviation.824
43 of the 100 departures/deviations appear to have been a result of a rejection of the
factual findings of the CCRB panel.
18 of the 100 departures/deviations were based upon the Police Commissioner’s
conclusion that the officer acted “in good faith” or “without intent” to commit
misconduct.
39 of the 100 departures were based upon the Police Commissioner’s reading of the
law and guides in determining that the conduct did not violate such.
822
At https://www nyc.gov/site/ccrb/complaints/redacted-departure-letter.page. Departures (a penalty other than that
recommended by CCRB) and Deviations (a penalty other than one called for by the Disciplinary Matrix) are combined
in the postings. The differing requirements under the law and MOUs is discussed later in this report.
823
Any case resulting in NDA is a deviation from the Matrix.
824
The departure letters rarely delineate the cause with precision. The statistical breakdown here is this reviewers best
interpretation of letters which are frequently ambiguous.
183
VII.
The Civilian Complaint Review Board
A.
Board Structure
The composition, powers, and duties of the current CCRB are delineated by Section 440
of the City Charter.825 That section underwent significant changes by way of a Referendum in
November 2019.826 One important change was in the Board composition.
From 1993 to 2020, the Mayor appointed 13 Board members to head the CCRB. Five
members were directly appointed by the Mayor. He would appoint one as Chair. Eight were
appointed by the Mayor after “designation” – the City Council designated five members - one from
each borough - and the Police Commissioner designated three.
As noted in the Preliminary Staff Report to the 2019 Charter Revision Commission, “[t]he
Mayor does not have to accept a particular person designated by the Council or the Police
Commissioner; the Mayor may reject (and has in the past rejected) proposed designees and may
require the designation of someone else who would be mutually agreeable to the designator and
the Mayor.”827
Effective March 31, 2020, the CCRB was expanded from 13 to 15 members with the
addition of one direct appointee by the Public Advocate and a Chair, to be jointly appointed by the
Mayor and the City Council Speaker. The five members previously appointed by the Mayor upon
designation of the City Council are now appointed directly by the City Council. In sum, the
balance shifted. He no longer has control of all 15 slots. Of the 15 members on the Board, the
Mayor now has five direct appointments and three upon designation of the Police Commissioner.
All members must be residents of the City and the Board must “reflect the diversity of the
city’s population.”828 Members may not hold any other public office of employment. Other than
the Police Commissioner’s designees, no member may have had experience as a law enforcement
professional or be a former employee of NYPD. The Police Commissioner’s designees are
required to have experience as law enforcement professionals.829
Board members receive compensation on a per-session basis.830 In the event that one of
the Board seats becomes vacant, a successor is designated by the same authority (City Council,
825
See generally 18-A NY City Charter § 440 (“Civilian Complaint Review Board”).
826
Local Law No. 215 (2019).
827
Charter 2019 NYC, Preliminary Staff Report (Apr. 2019), at 16, accessed at https://static1.squarespace.com/static
/5bfc4cecfcf7fde7d3719c06/t/5cbe86c2e4966bc917c36e0f/1555990215645/PreliminaryStaffReport2019.pdf.
828
§ 440 (b)(1).
829
§ 440(b) (2). “For the purposes of . . . section [440] experience as a law enforcement professional shall include
experience as a police officer, criminal investigator, special agent, or a managerial or supervisory employee who
exercised substantial policy discretion on law enforcement matters, in a federal, state, or local law enforcement agency,
other than experience as an attorney in a prosecutorial agency.”
830
CCRB, The Board, https://www1 nyc.gov/site/ccrb/about/the-board.page (last visited May 30, 2019). Board
Members are paid a stipend at a rate of $315 for every six-hour session of time spent on CCRB related work or
activities. Compensated time includes time spent reviewing and analyzing files, panel meetings and board meetings.
184
Police Commissioner, Mayor or Public Advocate) that chose the former occupant of the seat, and
the successor serves the remainder of the former occupant’s term.831
Direct appointment by the Council and the Public Advocate, bypass the need for Mayoral
approval and concurrence. This is a significant step toward establishing the Board’s independence.
As part of the testimony before the Charter Commission, Brian Corr, President of the National
Association for Civilian Oversight of Law Enforcement, representing 70 Civilian Oversight
agencies across the United States, pointed out that “it is very important . . . to] exercise oversight
effectively you need entities that also report to the Mayor, the City Council and can balance out
that power. . . .”832
It is a welcome addition to the Board’s composition that the Public Advocate now has a
direct appointment. In the past, the Office of the Public Advocate has demonstrated a strong
interest in assuring that CCRB and NYPD properly address civilian complaints of police
misconduct.
In 1997, Advocate Mark Green asked to review two years’ worth of substantiated CCRB
case files to “ascertain whether the NYPD’s failure to prosecute and/or impose discipline against
misbehaving officers is indicative of systemic problems in the response to complaints.”833 NYPD
objected, citing Charter § 24 (j), claiming that review of misconduct complaints was not an
authorized power of the Public Advocate. The Court disagreed, writing “[t]hat one third to one
half of CCRB ‘substantiated’ complaints resulted in no discipline is a legitimate area for study by
[the Public Advocate] to determine why such a result ensued,”834 an analysis with which the
Appellate Division agreed and described as “cogent.”835
Subsequently, the Public Advocate published a 147-page report836 analyzing 664
substantiated cases and finding that 75 percent of the officers disciplined received insignificant
penalties which he characterized as a “slap on the wrist.”837
831
N.Y. CITY CHARTER, ch. 18-A, § 440(b)(4) (2019).
832
P.63, March 7, 2019, Transcript of the Minutes of the Charter Revision Commission 2019.
833
Green v. Safir, 174 Misc. 2d 400, 401 (Sup. Ct. N.Y. Cty 1997).
834
Id. at 401.
835
Green v. Safir, 255 A.D.2d 107 (1st Dep’t 1998). As pointed out by the City in its 09.01.23 Feedback to Yates
Discipline Report, Item 186, “Supreme Court ruled in favor of [Green] stating (1) Public Advocate serves a watchdog
function, (2) police misconduct is and has always been an area of concern for the government, (3) the Public Advocate
was looking for patterns, not resolve individual cases (something the Public Advocate cannot do), (4) stated that lack
of disciplinary action in the proportion that exists was a legitimate area of study, (5) noted that Civil Rights Law §50a (4) provides an exception to its general rule of police officer record privacy for government agencies in furtherance
of their official duties.”
836
Mark Green, Investigation of the New York City. Police Department’s Response to Civilian Complaints of Police
Misconduct, New York: Office of the New York City Public Advocate and the Accountability Project, 1999. Repeated
attempts to obtain a copy of this report from the office of the Public Advocate and Richard Aborn, who is said to have
participated in the draft, have failed. The description comes from the NY Times article cited infra.
837
W. Rashbaum, “More Police Officers Being Punished but Not More Severely,” NY Times (July 28, 2000), Section
B, Page 1.
185
More recently, Letitia James, then Public Advocate, sued unsuccessfully to obtain Grand
Jury records in the case examining the death of Eric Garner and the involvement of Officer
. There, the Appellate Division Second Department denied the application838 on the
grounds that the office of Public Advocate, which reviews complaints against city agencies, lacked
the capacity to oversee either District Attorney offices or the Courts and, as such, had no legitimate
reason to obtain the testimony in the criminal proceeding.
i.
Panel Assignment
After their appointments, all Board members attend orientation and receive training from
the General Counsel’s Office on the CCRB’s processes, terminology, and disciplinary framework.
The full Board does not sit and review every case. The Charter provides that the Board
shall create rules and may establish panels to review a given complaint, and states that a panel
should contain no less than three Board Members, and no panel may consist exclusively of one
group of appointees (i.e., a panel cannot be entirely composed of three appointees of the Mayor,
designees of the Police Commissioner, or appointees of the City Council).
The CCRB Chair or Executive Director generally assigns cases that have been fully
investigated to panels for review.839 Panels are determined by the CCRB’s Case Management Unit
(“CMU”). The CMU collects the Board members’ availability and then sets a six-month schedule
of panel-meeting dates.840 Board members are assigned to panels on a rotating basis, with the CMU
adjusting panel composition as necessary to accommodate individual members’ schedules.841
Panel members meet, generally via online video conference, to discuss and register final
votes on each case. These meetings are not taped or transcribed. A CCRB attorney is present to
answer any legal questions and provide legal advice, but she may not recommend how the panel
should dispose of any case. Before reaching a conclusion, the panel may ask questions of the
investigator who handled the case. The panel can also return the case to the Investigations Unit
for further investigation, or conduct its own additional fact-finding, including interviews.842 A
panel operates by majority rule, meaning a panel can determine the outcome of any allegation by
a two-to-one vote. Panel votes are confidential.843
838
Matter of James v. Donovan, 130 A.D.3d 1032 (2d Dep’t 2015).
839
CCRB RULES, at § 1-31(a).
840
CCRB, Procedures and Standards for CCRB Board Panels.
841
Id.
842
CCRB RULES, at § 1-32(b).
843
Plaintiffs assert that “panel votes are subject to FOIL, now that Section 50-a has been repealed.” Item 224, 09.29.23
Plaintiffs Feedback on Draft Discipline Report. Plaintiffs recommend that findings be made by staff without requiring
a vote by a panel of Board members. On the other hand, the Communities United for Police Reform (“CPR”), “strongly
disagree” with that recommendation. July 12, 2024 “Recommendations for Draft Floyd Discipline Report by Hon.
James A. Yates.”
186
When asked if, in the past, panel members have personally participated in an interview, the
CCRB response was:
Despite the fact that CCRB Rules authorize personal interviews of witnesses by
Board Members, historically, the Board has not personally interviewed witnesses.
Board panels do utilize the Further Investigation process whereby Members submit
questions to the investigator which can include another interview. If a CCRB panel
disagrees with the investigator’s finding, the Case Management Unit sends a memo
to the investigator, to which the investigator may respond. In 2018-2019, 18 cases
were sent back for Further Investigation.844
CCRB convenes two to four panels each month, and each panel is assigned approximately
50 cases for review. As a result, “most Board members review 50 cases a month, though there are
times when some will review as many as 100 cases.” In discussions with the Monitor team, some
Board members have expressed concerns about the number of cases they must review each
month.845
Panels are assembled and members are asked to review 45 to 50 cases in a meeting, which
is usually scheduled three weeks after the documents are sent to the members. The panels do not
physically convene in one setting. Rather, members log into the system where they view audio
files, video recordings, and a closing report along with relevant documents. They officially
conference by Video Conferencing.
In theory, a panel could send a case to the full board for review. Any one member of a
panel may ask for full board review. Any member of the board outside the reviewing panel can
ask the Chair to pull a case for review by the full board.846 The Chair, on its own initiative, may
ask for full board review. During panel review, a Request for full Board review can be made by a
panel member or any other member of the Board. Full Board review is also possible if the majority
of the three members on a panel cannot agree on a disposition. The CCRB Rules provide that in
certain circumstances, cases can be assigned to the full fifteen-member Board.847 The full Board
reviews about one to three cases per year. Between 2016 and 2018, the full Board voted on a total
of 7 closed cases.
ii.
Police Commissioner Designees on All Panels
With two additional members, following the Charter amendments, the Board now has an
opportunity to address one of its rules governing rotation of assignments and, in particular, whether
844
Matthew Kadushian, General Counsel, CCRB, June 3, 2019, letter.
845
Interviews (Aug. 17, 2018).
846
See CCRB RULES, supra note 332, at § 1-32(c) (“[U]pon request of a member of the panel, or upon the direction
of the Chair at the request of any member of the Board, the Case will be referred to the Full Board for its
consideration.”).
847
See CCRB RULES, supra note 332, at § 1-31(a) (providing that fully investigated cases may be assigned “to the
Full Board for review”); see also INVESTIGATIVE MANUAL, supra note 392, at 23 (noting that the full board “initially
reviews all completed cases in which the police conduct allegedly resulted in an individual’s death and may opt to
decide the case itself rather than refer it to a board panel”).
187
it is necessary to have a NYPD designee on every panel. The requirement that one member be a
NYPD designee is not in the Charter or the Administrative Code. It was, however, promulgated
as a Rule of the CCRB.848
In 2018, the rule was amended to permit designation of a panel by the Chair, in rare
instances, to decide a case without requiring that at least one member be a NYPD designee. This
is limited to instances where it is necessary to avoid interference or unreasonable delay in the
Board’s operations. The amendment was unsuccessfully challenged by the PBA, with a claim that
“this prejudices the interests of Police Officers for no rational reason.”849 The Supreme Court
disagreed, holding that “[t]he revision is rational, because, if there is an emergency situation, the
CCRB needs to proceed rapidly.”850 The Appellate Division affirmed on this point. It held that
“the Charter only requires that the panels be formed with members from two of the categories”
and PBA’s “contention that the rule will tend to prejudice police officers because Police
Commissioner designees are fewer in number and therefore less likely to be available for a given
panel is speculative.”851 Since there is no statutory basis for the police-designee rule in the first
place, it seems unnecessary for the Court or the Board to rely on necessity as justification for its
elimination. The rule can be dropped entirely and replaced by one grounded in the principles of
fairness and the need for true civilian oversight.
A mathematical consequence of the Board’s Rule mandating inclusion of a police designee
on every panel is the disproportionate quantity of cases heard by police appointees. The Board
assigns cases on a rotational basis.852 But a police designee is always one of the three “in the
room.”
It is difficult to be precise about relative workload of each board member, in part because
of turnover within the Board. In the years 2016 to 2018, there were twenty different board
members sitting on the thirteen-member Board. During that period, the three police designees
voted on 4,409 cases – an average of 1,469 cases for each police-designee during those years.853
The five Mayoral appointees voted in 3,805 cases – an average of 761 decisions for each Mayoral
appointee. The five Council designees voted on 4,041 cases – for an average of 808 cases for each
designee.
There might be sound reasons for the statistical imbalance in the number of cases heard by
various members. For example, turnover, illness, and unfilled vacancies within the Board might
be reflected in lower numbers of decisions by certain board members. Deference to the burden of
other duties assigned to the Chair that might limit her availability. But the inescapable fact is that,
848
Rule 38A RCNY 1-31[b].
849
Lynch v. New York City Civilian Complaint Review Board, 98 N.Y.S 3d 695 (Sup. Ct. N.Y. Cty. 2019) 2019, aff’d
in part, 183 A.D.3d 512 [1st Dept 2020]). The decision addressed challenges to twelve separate rule changes by
CCRB. The. Appellate Division affirmed in part and reversed in part.
850
Id.
851
Lynch, supra, note 850, at 516.
852
38-A RCNY 1-31(b).
853
One police designee participated in 653 investigations in 2016 alone.
188
as a result of the Board’s decision to include a law enforcement official in every panel, the police
designees decide a far greater number of cases than other appointees.854
The choice to apportion membership with its current makeup (five mayoral, five council,
one joint, one public advocate, and three law enforcement) was a political choice, which is not the
object of this analysis. One can agree or disagree with the political “balance” set out in the Charter
(not the Rules), but it is a political compromise made by the Council that is accepted for sake of
analysis. As noted in the earlier discussion about oversight and independence, there are and have
been serious differences of opinion about the makeup of an oversight board. But, for the moment
that issue was settled by the voters in 2019 and the ultimate compromise set by the Charter and is
not the point of this discussion.
Rather, the point being made here is that the Charter makes all members equal, but the
Rules alter that by giving some members the opportunity to weigh in on a greater number of overall
dispositions. Some members have a more frequent say on dispositions and, consequentially, a
heavier imprint on precedent and norms. They have a greater voice. This was not a choice made
by elected officials or the voters.
As to the merits of the Rule, not the Charter, arguments can be made on either side of the
issue. It can be said that the resulting statistical imbalance has a beneficial or a detrimental
influence on outcomes. Without statistical analysis, or even anecdotal evidence, any assumptions
are just that, theoretical assumptions.
Civil Rights advocates and reform groups might argue that the weighted system
undermines independent civilian oversight envisioned for the Board. Historically, reform groups
fought to exclude law enforcement representatives entirely. Assigning three votes out of fifteen
to Departmental appointees was a choice by the voters they must accept. But the Rule, giving
them more say, is not.
On the other hand, an argument can be made that law enforcement experience lends context
and validity to the Board’s decisions. Without that inclusion, decisions would be challenged as
insufficiently grounded in reality. One can say that inclusion leads greater to public and officer
acceptance.
Beyond the direct impact on each individually decided case, the Rule also has a
consequential bearing on trends and norms, and ultimately policies. The Disciplinary Guidelines,
in a section headed “Effect of precedent” explain that precedent was “taken into account” in their
formation and that “situations may arise that are not included in or adequately addressed by the
Guidelines. If so, a penalty evaluation will be made based upon the facts and circumstances of
the present caseload considering relevant, recent or analogous cases. If the grid or future values
to be inserted in the grid are based on precedent, then precedent sets the norm and expectations.
“Precedent” as used in this context is not the kind of precedent one thinks of when looking at U.S.
Supreme Court jurisprudence which is based upon text, legislative intent, deductive reasoning, and
854
Based on the numbers cited in the study period referenced in this section (2016-2018) - before the Charter change
- it appears that police designees decided almost twice as many cases as the Mayoral appointees and about 80% more
cases than Council appointees.
189
common law evolution. “Precedent” in the context of a disciplinary guideline or grid is merely an
algorithm urging an outcome based on past disciplines with similar characteristics. It is merely a
statistical aggregation of past votes. The result of Rule 1-31 is that each police designee has had
and will have a disproportionate weighted vote in CCRB’s decision-making process overall and in
setting presumptive penalties under the guidelines.
A breakdown of decisions made by each designee is not available to the Monitor. Pertinent
to this Report, it is clear that a police designee voted on every SQF complaint brought by a citizen,
but how individual votes were cast is unknown. It would be unfair to assume, without evidence,
that background plays a role.
In January 2016, Police Commissioner William Bratton asked the Board to disclose to the
Department (but not to the complainants or the public) how panel members voted in each case.855
This would have been useful in measuring the impact of designee participation in panel
assignments. There was opposition, both within and outside the Board, to disclosure for fear of
retribution or intimidation. It is possible that the Board might assert confidentiality on grounds
that the record constitutes pre-decisional intra-agency materials under the Public Officers Law,856
but at this time, CCRB Rules do not specifically provide for confidentiality. The Bratton proposal
was not adopted.
Following the addition of two panel members by the 2019 referendum, Rule 1-31
(Assignment of Cases) underwent revision in 2021. But when Rule 1-31 was amended, an
opportunity to balance the proportion of cases heard by police representatives was squandered and,
if anything, the imbalance was increased. The rule mandated that “each panel will consist of at
least one member designated by the City Council, at least one designated by the Police
Commissioner, and at least one designated by the Mayor.” Adjustments needed to be made to
include the Public Advocate’s appointee and the Chair in the rotation. Effective March 26, 2021,
38-A RCNY 1-31(c) was added to provide:
(c) Due to the special characteristics of their respective offices and appointments,
the Public Advocate Appointee and the Chair may participate on a panel as either
a Mayoral Appointee or a City Council Appointee.
This change gave the Board the flexibility to permit the two added members to join a panel
in either capacity. That means a panel with a police representative and a Council representative
could be joined by one of the two new members, and just as well, a panel with a police
representative and a Mayoral representative could be supplemented by one of the two new
members. In effect, these additions, or rather substitutes, would patch a hole when needed, but
would displace non-law enforcement members only.
Ironically, by adding the two new members to the “non-police” bucket but maintaining the
rule that a police representative must be present in every panel, the mathematical imbalance
855
Susan Watts, NYPD Wants Civilian Complaint Review Board to Show How its Members Vote on Police Cases,
Daily News, January 5, 2016, available at https://www.nydailynews.com/new-york/ccrb-asked-show-votes-policecases-article-1.2485480.
856
Public Officers Law § 87(2)(g).
190
between appearances by police and non-police representatives will be even greater. Each Council
representative and the Mayoral representative will be called upon less frequently to participate –
each of them will vote on a smaller share of the overall caseload. The police representatives will
have a vote in every decision and their proportionate share of all votes will be increased.857
Indirectly, the impact of law enforcement votes was raised in litigation. In Buchanan v.
City of New York,858 an employee of CCRB claimed she was wrongly fired in retaliation for
engaging in protected speech. She had prepared a memo, directed to the Chair of the Board and
the Executive Director, detailing a pattern of “flips” where Board members overturned case
dispositions by CCRB investigators. In the main, the flips she described were cases where the
investigator had requested substantiation of misconduct allegations, but panel members voted
against substantiation.859 According to reports, the police designees “flipped” at a much higher
rate than other Board members. Two police representatives were said to flip 43% and 55% of
recommendations while “Five [other] members had rates between 0.6% and 8%. Among them:
former CCRB Chair Fred Davie . . . flipped 4.5% of substantiated allegations, the analysis said.”860
In a July 2020 memorandum, according to the federal complaints, one employee argued that
“whether some complainants saw justice for misconduct was very likely related to which Board
Members were assigned to their panels rather than the merits of their complaints.”861 The verity
of the memo was not reached in the litigation. District Court Judge Sidney Stein granted portions
of a motion to dismiss but denied a motion to dismiss as against the Executive Director.862 The
case was subsequently settled without a public posting of the terms of the settlement or a copy of
the “flip” memo in the electronic filings.863
If the flip memorandum was correct, the law enforcement representatives play a significant
role in misconduct claims that are not substantiated. Without knowing more, it cannot be said
857
In reviewing a draft of this Report, CCRB explained that it currently has adopted a different practice, not explained
in the Rules. Apparently, it can send a case to a preliminary screening panel without a Police Commissioner
representative. It the matter is not substantiated; the vote becomes a panel recommendation. If one of the members
disagrees and wishes to substantiate an allegation, then it needs to go to an appellate panel with a Police Commissioner
representative for a decision. If anything, this exacerbates the problem . . . requiring a double vote before a case may
be substantiated and exalting police designees into membership in an appellate panel. Item 243, City 09.01.23
Feedback to Yates Discipline Report.
858
21-cv-0660 (S.D.N.Y.) (Stein, J.). The case was settled on November 1, 2022 (ECF Doc. No. 93) without disclosure
of the terms of the settlement.
859
Overall, including the law enforcement representatives, panels overturned 585 allegations of police misconduct
where investigators had recommended substantiation from January 2014 to May 2020 for a flip rate of 11.4 percent.
(The Board substantiated 5127 allegations of misconduct during that period.) Not all flips were to unsubstantiate.
There were 180 allegations where panels substantiated out of 39,000 allegations where investigators had
recommended against substantiation.
860
Yoav Gonen, NYPD Oversight Board Overturned Hundreds of Its Own Police Misconduct Findings, The City,
May 4, 2021, at https://www.thecity nyc/2021/5/4/22419968/nypd-oversight-board-ccrb-overturned-cop-misconductfindings?mc_cid=23f76d78e0&mc_eid=dde979a67a. (Quoting a former investigator with CCRB as saying, “The vast
majority of the flips soften outcomes.”).
861
Complaint, paragraph 34, Buchanan v. City of New York, 21-cv-0660 (S.D.N.Y.), Doc No. 1.
862
Buchanan v. City of New York, 21-cv-0660 (S.D.N.Y.), Doc No. 30.
863
Order of Dismissal, Buchanan, Doc No. 61, and Stipulation of Voluntary Dismissal, Doc No 93 (Nov. 10, 2022).
191
whether any particular vote was a good vote or a bad vote.864 That is not the question. Rather, the
question is why the Board gives the Police Commissioner’s designee’s vote more weight against
a claim that the Rule slows down the process by overloading a few members with a
disproportionate share of decisions. It had been argued that a “law enforcement perspective on
each panel was essential, and more important than a delay in deciding a case.”865 While that may
be true in some cases requiring expertise, there are other factors that would argue for “fresh” eyes
in SQF cases. At the outset, few if any SQF cases, standing alone, are prosecuted by APU at trial.
Most SQF cases are resolved with a panel vote, followed by DAO requests for reconsideration or
by DAO recommendations to the Police Commissioner, and the Commissioner has the sole and
final power to decide whether misconduct occurred. In the area of SQF cases, which have been a
source of friction between the community and the police, the need for unvarnished community
input in weighing discourtesy, selective enforcement or bias is to be valued. While the technical
aspects of stop and frisk law can be daunting,866 there is nothing inherently beyond the capabilities
of civilian Board Members to identify inappropriate or abusive SQF behavior. The Patrol Guide
section on Investigative Encounters, as written with the Court’s direction, is equally
comprehensible to citizen Board Members as to those with law enforcement background. And,
while there may be argument for the need for police experience and insight in making judgments
about use of force, which is debatable, there is nothing to indicate that police representatives on
the panel understand the constitutionality of an SQF encounter better than other appointees.867
More to the point, there is not a dearth of police insight in the disciplinary process. The Police
Commissioner and his employees are fully experienced in such matters and all decisions are
reviewed by them with final decision by the Police Commissioner. At the same time, the Police
Commissioner needs to hear the reactions of a citizen panel to a disputed stop encounter before he
renders final judgment.868
864
In an audit published by the New York State Comptroller, it was reported that “less than 2% of fully investigated
allegations were flipped by the Board.” Although “the panel is required to document the rationale for their dissent”
the report went on to write that “our analysis of the supporting documentation indicates that explanations are not
always sufficiently descriptive for the investigator to understand the reasoning behind the flip, which could improve
future investigations.” It concluded, “Not only would it help to ensure consistency across entities, but it would also
promote transparency in decision making.” (Office of the New York State Comptroller, Division of State Government
Accountability, “New York City Civilian Complaint Review Board – Complaint Processing” Report 2020-N-9 at 13.
October 2022).
865
Lynch v. N.Y.C. CCRB, No. 152235/2018 (N.Y. Sup. Ct.), Memorandum of Law in Support (Mar. 13, 2018)
(NYSCEF No. 3).
866
See, People v. De Bour, 40 N.Y.2d 210 (1976) and its progeny.
867
Each Board member has an impressive history in legal studies or public administration. See Meet the Board,
available at https://www1.nyc.gov/site/ccrb/about/board/members.page. Fred Davie was replaced by Arva Rice as
Chair of the Board in February 2022.
868
In a review of a draft of this Report, the City response complained that the Report was “strongly implying that the
NYPD should be removed entirely from the oversight group.” Item 254, City 09.01.23 Feedback to Yates Discipline
Report). This clearly misapprehends the entire discussion. For one thing, the NYPD cannot be “removed” since the
NYPD designates former law enforcement personnel but is not a participant in the first place. More importantly, an
observation that certain designees get to vote in a disproportionate number of cases, not as a result of language in the
Charter or the Administrative Code, but merely as a matter of choice by CCRB, does not imply in any way that NYPD
should be removed entirely.
192
B.
CCRB Budget869
An oft-repeated lament regarding CCRB’s capacity to receive and thoroughly investigate
complaints is that it suffers from budgetary limitations. In 2018, CCRB complained to the Charter
Revision Commission of “historical underfunding” compared to other peer agencies. The Charter
Commission noted, for example, that San Francisco’s Department of Police Accountability is
guaranteed, by city Charter, one line investigator for every 150 sworn members of the police
department – a ratio of 0.67 percent. NYPD in FY 2020 had a budgeted uniform officer headcount
of 36,113. If the same ratio were applied in New York, the CCRB would have 242 lineinvestigators. In 2017, San Francisco’s Accountability Office had a budget equal to 1.23 percent
of the San Francisco Police Department. If that were true in New York, CCRB’s budget would be
roughly $67 million. Oakland, Chicago and Miami also have budgets that are linked to the size or
allocation of the police forces they oversee. Chicago’s Civilian Office of Police Accountability
has a budget of nearly $17.5 million used to investigate complaints lodged against 15,000 officers.
As outlined in 2018 CCRB’s request, prior to the Charter change, for an established budget
line:
Currently, the CCRB’s budget is approximately 0.27 percent of the NYPD’s total
budget. After intra-city (i.e. required) spending for items such as occupancy,
internet service, and telephone lines, the Agency has less than one million dollars
in available funds to support its investigations, prosecutions, and employees,
generally. On a per head basis, that amounts to less than $2,000 per person each
year. Such limited resources make it unnecessarily difficult for Agency staff to
effectively investigate a police department with a budget of more than 5.6 billion
dollars and some 35,000 uniformed officers. As a point of comparison, the
Inspector General for the NYPD (“OIG-NYPD”), housed within the Department of
Investigation (“DOI”), had an Other than Personal Services (“OTPS”) budget of
nearly $17,000 per head for fiscal year 2018, and the DOI as a whole had an OTPS
allocation of almost $35,000 per person in the same period. Similarly, the City
Commission on Human Rights had an OTPS allocation of more than $3.7 million
869
NB: The budgetary process is in constant and rapid flux, with planned expenditures, proposed expenditures,
adopted plans, a Program to Eliminate the Gap (“PEG”) and emergency adjustments. It would be a Sisyphean task to
attempt to stay current as the Report is written. Numbers provided here are more to the point of proportion rather than
precision. Under the Charter, the most relevant number is the budgeted Full Time Equivalent (“FTE”) number of
employees in CCRB compared with the budgeted Uniform Officer Headcount for NYPD, which is to be .0065 absent
emergency declarations by the Mayor. As an update to some of the numbers which follow, the police budgeted
uniform headcount planned for FY 2024 is 35,001(Report to the Committee on Finance and the Committee on Public
Safety on the Fiscal 2024 Executive Plan, May 18, 2023 https://council.nyc.gov/budget/wpcontent/uploads/sites/54/2023/05/NYPD.pdf). The CCRB FY 2024 $22.4 million budget allows for a headcount of
237, which is 9 above the Charter mandated FTE count of 228. However, with 31 vacancies, which cannot be filled
during the pendency of a Mayoral mandated freeze, CCRB is operating with 22 fewer employees than mandated by
the Charter. (Report on the Fiscal 2024 Preliminary Plan, Committee on Public Safety, NYC Council.
https://council.nyc.gov/budget/wp-content/uploads/sites/54/2023/03/CCRB.pdf). The most recent budget agreement
between the Mayor and the City Council, as of July 2024, included an appropriation of $25,442,983 (an increase of
$2,110,968
above
that
proposed
by
the
Mayor),
with
a
baseline
FTE
of
259.
https://www.nyc.gov/site/omb/publications/finplan06-24-cc.page.
193
for an authorized headcount of 156 in fiscal year 2018, compared with the CCRB’s
allocation of $3.5 million for 187 authorized heads.870
Police oversight in New York is a massive undertaking. In 2017, the CCRB
received over 10,500 complaints, 4,487 of which were in its investigative
jurisdiction. CCRB requires additional funding for a number of essential initiatives
to support these investigations. For instance, it is absolutely critical for the Agency
to upgrade to its systems, hardware, Training, security, and operations, some of
which are more than twenty years old. The CCRB’s case tracking system dates
back to the early 1990’s and continues to run on outmoded and often redundant
technologies—this system simply cannot keep up with the pace of the Agency’s
investigations or the digital storage demands that continue to grow as the NYPD
equips every officer with a body-worn camera. With the Right To Know Act taking
effect in October 2018, officers for the first time will be required to hand out
business cards during all Level 2 and Level 3 stops. The card will include the
number for 311 and a notation that civilians may call the number if they wish to
comment on their interaction with the officers. Many of those calls will be routed
to the CCRB, and the Agency will need to increase its intake staff, investigators,
and resources in order to effectively manage the inevitable increase in
complaints.871
A focus of that testimony was the budgeted allocation for Other Than Personal Services
(“OTPS”). The Charter Commission’s response was to require a fixed ratio of staff to the size of
the police department. No change was made to accommodate OTPS demands. That is, the Charter
as amended now guarantees a budget for salaries and employees, but still leaves CCRB strapped
for funds to pay for equipment and computer services.
The adopted Charter amendment requires an appropriation each year, beginning in fiscal
year 2021, in an amount sufficient to fund a “full-time equivalency” (FTE) rate equal to 0.65
percent of the number of uniform budgeted headcount of the Police Department. This ratio looks
exclusively at the number of personnel in each agency and, in effect, requires that the City budget
appropriate enough money so that the number of employees at CCRB should be .0065 of the
number of uniform police in the same budget. It does not look at source of funds. It does not look
at hardware, technology costs, rental, equipment or other OTPS. It does not look at relative salaries
or overall budget,872 remembering that the average cost of a uniformed officer (including benefits)
is higher than the average cost of a CCRB employee.
870
That number has been reduced to 136 as of April 2024 according to Item No. 946 of the City’s line comments to
the second draft of this Report.
871
Fred Davie, Chair, CCRB to New York City Charter Revision Commission, May 23, 2018.
872
For perspective, the overall operating budget for NYPD in recent years has been: (FY 2020 = $6.086 billion
[spent]) (FY2021 = $5,565 billion [budgeted]) ((FY 2022 = $5,587 billion). Budgeted OTPS (FY 2021 - $607 million)
(FY 2022 = $450 million). Not included in this number are items in other budget lines for police-related expenditures
such as capital costs, litigation, council member discretionary precinct funds, etc., which can almost double the
allotment. Additionally, the NYPD regularly exceeds its budget. In FY 20, NYPD spent $6.1 billion when allotted
$5.5 billion.
194
The Charter allows some flexibility:
[T]he appropriations available to pay for the personal services expenses of the
civilian complaint review board may be less than the minimum appropriations
required . . . provided that, prior to adoption of the budget . . . the mayor determines
that such reduction is fiscally necessary and that such reduction is part of a plan to
decrease overall appropriations or is due to unforeseen financial circumstances, and
the mayor sets forth the basis for such determinations in writing to the council and
the civilian complaint review board at the time of submission or adoption, as
applicable, of any budget or budget modification containing such reduction.873
In the Spring of 2020, former Mayor de Blasio had proposed, with his Executive Budget
proposal for FY 2021, a 7 percent reduction as part of an overall reduction due to the fiscal impact
of the pandemic. But with passage of federal economic relief in the CARES Act, that reduction
was no longer necessary. Accordingly, a modification letter was not required.
There are roughly 35,000 uniform officers with the NYPD. To be more precise, the
budgeted uniform headcount over the past few years has been:874
FY 2016
FY 2017
FY 2018
FY 2019
FY 2020
FY 2021
FY 2022
-
34,483
35,780
35,822
36,461
35,910 875
35,007
35,030
If the Charter is followed, that would mean CCRB should receive sufficient Personal
Service funding for approximately 228 FTE in the current fiscal year.876
The allocated budget for Personal Services for CCRB877 over the past five years (in
thousands of dollars) with an authorized headcount of full-time equivalent employees, was:
873
LL 215/2019.
874
Finance Division, NY City Council, Report to the Committees on Finance and Public Safety on the Fiscal 2022
Executive Budget for the New York Police Department, May 11, 2021, available at https://council.nyc.gov/budget/wpcontent/uploads/sites/54/2021/05/NYPD.pdf. (This does not include roughly 19,000 Members of the Service [MOS]
who may be officers or other civilian employees but are not uniform police. There are approximately 5,300 School
Safety Agents who are not uniformed officers.)
875
The Department went over budget projections, the actual number was 36,178.
876
0.0065 x 35,007 = approximately 228.
877
NY City Independent Budget Office, Fiscal History: CCRB, (last accessed Apr. 16, 2022), available at https://ib
o.nyc ny.us/RevenueSpending/ccrb.html; https://council nyc.gov/budget/wp-content/uploads/sites/54/2020/03/054ccrb.pdf.
195
FY 2016
FY 2017
FY 2018
FY 2019
FY 2020
FY 2021879
FY 2021
FY 2022882
$15,077
15,174
16,403878
18,459
19,330
18,973880
19.700
19,626
180 FTE
166 FTE
173 FTE
168 FTE
212 FTE
203 FTE - original COVID plan
228 FTE - updated COVID plan881
262 FTE883
The numbers above are the amounts budgeted and expected to be spent. The Adopted 2022
Financial Plan for the City884 called for 269 FTE by June 30, 2022. In the end, CCRB did not fill
all the positions and accommodated a hiring freeze. CCRB estimates that it spent $18.95 million.
In January 2022, Mayor Adams proposed an across the board cut of 3 percent in agency
budgets, which applies to CCRB as well. That is not a finalized number for FY 2023 as
negotiations with the City Council are in progress.
The Mayor had proposed to spend, in FY 2023, $3.2 million for Administration, plus $3.1
million for the APU, and $10.6 million for investigations/mediation for a total of $16.9 million.
In addition, the newly created “[b]iased [sic] Based Policing Investigations Unit would receive
$2.8 million, for a grand total of $19.7 million.” The plan is to fund 252 positions. This does not
include an additional $5.2 million for OTPS, which is separate and apart from the Charter staffing
requirement.
The Mayor’s proposed FY 2023 budget for the NYPD885 was $5.66 billion with a Personal
Services appropriation to fill 50,863 positions, which includes uniformed and non-uniformed
878
Increase reflects implementation of a Feb. 24, 2016 stipulation and settlement with the union for investigators, DC
37 Local 1113, regarding promotion to Level II.
879
Adjusted, COVID 19.
880
For a variety of reasons, some related to the COVID pandemic and some related to other personnel issues, the
actual expenditure for FY 2021 was only $16,346,000.
881
Frederick Davie, Preliminary Mayor’s Management Report FY 21, Civilian Complaint Review Board, accessed on
April 18, 2022, available at https://www1.nyc.gov/assets/operations/downloads/pdf/pmmr2021/ccrb.pdf (updated
after passage of federal pandemic relief).
882
Adopted Budget July 2021. OTPS budget was increased from FY 2021 = $4.77 million to FY 2022 = $5.15 million.
883
“The City of New York Adopted Budget Fiscal Year 2022,” at 69e, available at
https://www1.nyc.gov/assets/omb/downloads/pdf/erc6-21.pdf. For comparison, the Department of Investigation has
a budget allocation providing for 365 FTE.
884
The Financial Plan of the City of New York, Fiscal
https://www1.nyc.gov/assets/omb/downloads/pdf/adopt21-stafflevels.pdf.
885
Years
2021-2025,
available
at
This includes $4.3 million to fund a Gun Violence Suppression Unit of 60 uniformed officers.
196
members. The Mayor proposes to maintain a uniformed headcount of 35,030.886 Under the
Charter, this would call for 228 FTE positions at CCRB. (.0065 x 35,030).887
The latest proposed Executive Budget (FY 2024) offers CCRB $18,932,463 in personal
services, providing for 259 FTE, and another $ 4,412,763 in other than personal services.
The City Council, in its response to the Mayor’s budget proposal, has observed, “CCRB
has encountered roadblocks to reaching their full capacity as a result of a hiring freeze and an
inadequate Personal Services budget, and as of March [2022], was not in compliance with the
Charter headcount requirement.”888 The Council called for an additional $2 million to allow hiring
for vacant positions.
After negotiations with the City Council, the adopted financial plan for FY 2023 allocated
$5.59 billion to the police department and $23.5 million to CCRB.889 In September 2022, the
Mayor directed an additional 3% cut in spending for CCRB, but not for NYPD. This action was
repeated with another 3% directed cut in November.890
Despite aspirational budgeting, the actual headcount at the end of January 2021 was 185
positions (Investigations and Mediation had 119 personnel + Executive and Administrative
program area had 52 personnel + APU had 14 personnel). This in part was due to a hiring freeze
during the pandemic and delays by the Office of Management and Budget in approving new hires.
“As a result of not being able to fill vacant positions, the City is currently [March 16, 2021] out of
compliance with the Charter.”891
The most significant changes in personnel were in the APU and in the number of
investigative staff. In 2018, there were 24 employees in APU. That dropped in 2021 to as low as
886
The Financial Plan of the City of New York,
https://www1.nyc.gov/assets/omb/downloads/pdf/feb22-stafflevels.pdf.
Fiscal
Years
2022-2026,
available.
887
The Mayor’s proposed budget, submitted Jan. 5, 2023, appropriates $23.5 million to CCRB with allowance for 259
FTE. 236 of those positions are city-funded. https://data.cityofnewyork.us/City-Government/Full-Time-and-FTEHeadcount-including-Covered-Orga/84ax-hg3y. The personal service allocation for IAB is $74.3 million allowing for
625 full-time employees. Risk Management Bureau is allotted $18.9 million for 42 FTE. The Departmental Advocate
appropriation is for $6.1 million, allowing for 71 employees. The total operating budget appropriation for NYPD is
$5.7 billion. (Not including capital expenditures.) There are 34,158 uniformed officers currently active, with a
budgeted headcount of 36,201 uniformed officers. https://data.cityofnewyork.us/City-Government/Full-Time-andFTE-Headcount-including-Covered-Orga/84ax-hg3y/ and https://www nyc.gov/site/ccrb/policy/data-transparencyinitiative-mos.page.
888
Response to the Fiscal 2023 Preliminary Budget and Fiscal 2022 Preliminary Mayor’s Management Report, at 37.
https://council.nyc.gov/budget/wp-content/uploads/sites/54/2022/04/Fiscal-2023-Preliminary-Budget-Response.pdf.
889
https://www1 nyc.gov/assets/omb/downloads/pdf/exec22-fp.pdf.
890
Jesse O’Neil & Bernadette Hogan, Eric Adams orders city to leave jobs vacant after migrant crisis, union bill, NY
Post (Nov. 22, 2022), at https://nypost.com/2022/11/22/nyc-orders-third-round-of-budget-cuts-this-year/.
891
Finance Division of The Council of the City of New York, The New York City Council’s Response to The Fiscal
2023 Preliminary Budget and Fiscal 2022 Preliminary Mayor’s Management Report, April 1, 2022, available at
https://council.nyc.gov/budget/wp-content/uploads/sites/54/2022/04/Fiscal-2023-Preliminary-Budget-Response.pdf.
197
11. As of March 2023, the number of positions in APU were back up to 22.892 On the other side
of the coin, the number of investigators (including Intake & Evidence Collection), NYPD
Relations increased from 110 to 133. In March 2023, the number of positions in the “Investigations
and Mediations” unit was at 144.
The number of investigators listed includes supervisors, intake personnel, mediation
coordinators and investigator managers. There were 86-line investigators in the Investigations
Division (Levels I, II, III). The attrition rate is high, between 11 percent to 31 percent in recent
years (Supplemental Question Number 2 – Staffing and Hiring). Level I investigators have a
starting salary of $39,370. After one year of experience, they are eligible to become Level II
investigators with a salary of $54,147.893
For the sake of perspective, with the understanding that approximately 4,500 complaints
are fully investigated in any given year by approximately 100 investigators, a rough estimate of
caseload per investigator would be in the range of 50 cases per year.
There are, as with any agency, budgetary factors and needs which are unique, one-shots or
peculiar to the agency. So, for example, one problem for CCRB is that approximately $2.5 million
of its budget is transferred to other city agencies for things like rent, phone services and other
technical services. In all, almost $3.5 million of its budget is for other-than-personnel services.
As well, within its budget are extraordinary one-time, non-personnel service costs such as
computer and video build-ups associated with the increased use of body worn cameras and
surveillance videos.894
An Article 78 proceeding was commenced on Jan 28, 2020, by the Police Benevolent
Association (“PBA”) contending that the budget provisions in the Charter amendments are illegal
under state law because they deprive the Council of its appropriation authority. The petition
contended, as well, that the entire set of Charter amendments approved in the November 2019
referendum were null and void since they are all part of one integrated amendment and vote. The
petition was dismissed on October 31, 2020, for want of standing. The PBA has filed a notice of
appeal.895
As a result of budget cuts, CCRB has decided to limit its review of a number of authorized
matters. The following announcement has been posted on its website:
On September 9, 2023, the Office of Management and Budget (“OMB”) announced
citywide budget cuts. As a result, the CCRB will lack the resources to fully investigate
892
Report on the Fiscal 2024 Preliminary Plan and the Fiscal 2023 Mayor’s Management Report for the CCRB, Chair
of
the
Committee
on
Public
Safety,
NYC
Council.
https://council.nyc.gov/budget/wpcontent/uploads/sites/54/2023/03/CCRB.pdf.
893
Supplemental Question Number 2 – Staffing and Hiring.
894
Requested needs include: $150,000/year for expanded computer storage, $1.45 million for case-tracking platform,
and added needs for a call-recording system, sexual misconduct investigators, language access facilitation, etc.
895
Lynch v. City of New York, (Sup. Ct., N.Y. Cnty.) (Edmead, J.S.C.) Index No. 150957/2020., Doc. No 39 (Oct. 15,
2020), 2020 NY Misc LEXIS 10123.
198
certain cases within its jurisdiction. After careful consideration, effective January 1, 2024,
the CCRB suspended investigating:
Failure to provide officers' business cards pursuant to the Right to Know Act (“RTKA”)
with no other allegations:
Refusal to provide name or shield number with no other allegations;
Discourteous words or actions with no other allegations;
Threats with no action with no other allegations;
Refusal to process a civilian complaint with no other allegations;
Property seizures with no other allegations;
Forcible removal to hospital with no other allegations;
Untruthful statements with no other allegations;
Any complaint that has only the above referenced allegations.
The CCRB will resume investigating these cases as soon as the city allocates sufficient
funding to do so.896
C.
CCRB ACTIVITY - Generally
Complaints, when first made, are reviewed by CCRB’s intake unit. CCRB receives
complaints from the public through multiple channels. The Intake Unit receives complaints, logs
them into the CCRB’s computerized Complaint Tracking System (“CTS”), and forwards any that
will be investigated by the CCRB to one of sixteen Investigative Squads.897
Less than one-half of them are accepted or, in CCRB’s jargon, “received,” since many fall
outside its jurisdiction or do not properly complain of police misconduct by a uniformed officer.
In FY 2020, CCRB received 4,597 complaints compared to 5,236 in FY 2019 and 4,392 in FY
2018.898 These numbers are down from a high of 7,660 complaints in 2009.899 The CCRB gets
complaints in four ways: civilians may: (1) call CCRB; (2) complain in person at a CCRB office;
(3) send an online complaint form or written letter; or (4) complain to the NYPD or another city
agency and be referred to the CCRB.900 (As discussed later, the Charter was amended in 2022901
to permit CCRB to initiate investigation on its own without a field complaint.) About half of the
896
https://www nyc.gov/site/ccrb/complaints/file-a-complaint/ccrb-jurisdiction.page. Last visited July 13, 2024.
897
See CCRB, Response to Federal Monitor’s Request Number Six, at 12 (document compilation that is the second
enclosure in the CCRB’s first response, dated July 17, 2018, to the Federal Monitor’s request for CCRB documents;
on file with author); CCRB INVESTIGATIVE MANUAL, supra note 392, at 5-6; CCRB, Intake Training at 25
(PowerPoint presentation that is the fourth enclosure in the CCRB’s third response, dated Oct. 1, 2018, to the Federal
Monitor’s request for CCRB documents; on file with author) (hereinafter “Intake Training”).
898
Mayor’s Management Report for FY 2021 at https://www1.nyc.gov/site/operations/performance/mmr.page.
899
Data Transparency Initiative—Complaints, CCRB, https://www1 nyc.gov/site/ccrb/policy/data-transparencyinitiative-complaints.page (last visited May 8, 2019). See also https://www.nyc.gov/assets/ccrb/downloads/pdf/
policy_pdf/annual_bi-annual/2009_annual-appendix.pdf.
900
INVESTIGATIVE MANUAL, supra note 392, at 4-5; see also File a
https://www1.nyc.gov/site/ccrb/complaints/file-complaint.page (last visited May 5, 2019).
901
Complaint,
CCRB,
Local Law 24 of 2022.
199
complaints CCRB handles are filed directly with the CCRB, and most of those complaints are
reported by phone or through the CCRB website.902 The other half of the complaints start at the
NYPD, where civilians generally complain to the IAB by phone or at the precinct.903
i.
Processing Complaints at CCRB
Many complaints to CCRB are not “received” or kept at CCRB, meaning, they are screened
out at intake as not being a matter which CCRB can investigate because the alleged misconduct
does not fall within FADO jurisdiction or because the alleged offender was not a uniformed police
officer subject to CCRB’s review.
On average there are about 10,000 complaints filed with CCRB’s intake unit each calendar
year, with the pandemic year of 2020 being predictably lower. CCRB retains fewer than one-half:
Filings
Retained
CCRB
Sent to:
OCD
IAB
Other904
2016
2017
2018
2019
2020
10,524
10,580
10,693
11,020
8,414
4,285
4,486
4,744
4,964
3,872
5,172
4,849
4,813
5,055
3,698
883
1,017
902
834
663
184
238
234
167
181
Total:
51,231
22,351
23,587
4,299
1,004
The bulk of complaints to CCRB are made initially by phone contact - roughly 65% each
year, with the on-line website accounting for much of the remainder.905 The Intake Unit will
attempt to schedule an initial interview with the complainant for each complaint that is filed in a
way other than in-person communication.906 Intake Unit personnel are provided with training
902
In 2017, 42% of the 2,269 complaints filed directly with the CCRB were reported in a phone conversation, 27.1%
were reported through the CCRB’s website, 22.3% were reported through the automated call processing system, and
6% were reported in-person at the CCRB. 2017 STATISTICAL APPENDIX, at 20 tbl. 7A. Meanwhile, 91% of the 2,084
complaints filed with the NYPD that ended up with the CCRB were reported in a phone conversation, 5.1% were
reported in person, and 2.9% were reported over the internet. Id. at 21 tbl. 7B.
903
Id.
904
“Other” would include referrals to other law enforcement agencies or relevant governmental bodies.
905
Undoubtedly due to the pandemic, there was a steep rise in on-line filings in 2020 from an average of 25% to 42%
of filings that year. CCRB Annual Report -2022, at 9. https://www nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/
annual_bi-annual/2022_Annual_Report.pdf. More recently, there were 3393 complaints received in 2021 and 3698
complaints received in 2022. The number may be on the rise. In the first ten months of 2023 alone, there were 4756
complaints received.
906
INVESTIGATIVE MANUAL, supra note 392, at 6-7, Intake Training. In Item 200 of the City review of a draft of this
Report, the “Feedback Comment” was that it “Cannot find or access this source.” (City 09.01.23 Feedback to Yates
Discipline Report). The Plaintiff Notes on City’s Feedback, responded, “Agree that the entire Investigative Manual
(which is subject to FOIL, and which plaintiffs have certain sections of) should be published on the monitor's website
in conjunction with report publication.”
200
materials that cover, among other things, how to process new complaints and enter details about
them into a Complaint Tracking System (“CTS”), and how to talk to a complainant to get an
effective narrative of her allegations.907 For “walk-in” complaints made in person at CCRB offices,
an Investigative Squad on intake duty handles the intake responsibilities, including the initial
interview with the complainant.908
Relevant to stop and frisk issues, how many times was a complaint filed in connection with
an encounter that led to an arrest or summons or something less, such as questioning or temporary
detention? One might hypothesize that the bulk of complaints would be a citizen reaction to an
arrest or ticket, whether valid or not. But that is not the case. On average, more than one-half of
the complaints received are in cases where no arrest was made and no summons was issued (57
percent in 2019 and 63 percent in 2020). According to CCRB, about 10 percent to 12 percent of
the complaints (603 in 2019, 370 in 2020) arise from a street encounter where the complainant was
suspected of crime, but it is hard to discern from the statistics in that report if a stop report was
filed in any or all of those cases. Upon investigation, if a stop is alleged, CCRB will request a
copy of the stop report, and if none is produced in a case where a stop is believed to have occurred,
an OMN referral will be generated.909 While CCRB compiles an aggregate number of stop
complaints made and NYPD aggregates the number of stop reports filed, neither CCRB nor NYPD
attempt to correlate statistics by matching stop reports for an officer, a squad or a command with
complaints. NYPD keeps track of the number of CCRB complaints by officer or command, but
they are not matched to the number of stops made. Knowing what percent of reported stops by an
active officer or in a busy precinct result in a complaint brought to CCRB might prove useful as a
performance gauge.910
Although they might arguably fall within FADO, CCRB will generally refer complaints of
abuse to the OCD when they allege that “an officer failed to make an arrest or issue a summons,
failed to take appropriate action, or improperly prepared reports,” or “when a civilian complains
that he/she was not guilty of the offense or crime for which he/she was summonsed or arrested.”911
CCRB will keep a complaint aimed at a summons or arrest as an abuse of authority if the facts
907
See generally Intake Training, supra note 898. The CCRB’s Training Unit is discussed in further detail below in
Part II.C. The Director of Intake maintains a separate queue of cases deemed “sensitive” that are not handled through
the regular intake process. INVESTIGATIVE MANUAL, supra note 392, at 6. Such cases involve, for example, officerinvolved shootings, deaths in custody, cases involving public figures or in which there has been media coverage of an
officer’s conduct, or where a video appears on social media with a “significant number of views.” Id. at 15. Such
cases are assigned to senior investigators (as discussed below in Part II.A.).
908
INVESTIGATIVE MANUAL, supra note 392, at 4-5.
909
Until 2022, the term “OMN” was used for non-FADO referrals to NYPD by CCRB where other misconduct was
noted. The PBA complained on the grounds that, without investigation, it was improper to imply that misconduct had
been found. The courts agreed, Lynch v. CCRB, Index No. 154653/2021, Doc No. 88, that the referral was only for
“possible” misconduct, and the term used thereafter is “OPMN” indicating Other Possible Misconduct. Since some
references in this Report are to items generated before 2022 and some are later, any reference herein to OMN may, in
the future be read as OPMN.
910
Although not correlative, it is worth noting that only 4,500 of 13,500 stops reported in 2019 resulted in an arrest or
issuance of a summons.
911
INVESTIGATIVE MANUAL, supra note 392, at 4-5. (Providing several illustrative examples, and noting that
“[g]enerally, the CCRB chooses not to exercise its jurisdiction over such allegations” (emphasis added)).
201
suggest that the summons was issued or arrest made in retaliation for the complainant’s response,912
the officer refused to process a complaint, or there was attendant misconduct claimed that falls
within FADO.913
If a referral to another agency is made, the Case Management Unit notifies the complainant
of the referral,914 and complainants whose complaints are referred to other agencies are mailed a
tracking number.915 Once a determination is made at intake to retain a case, CCRB is required to
notify the Department “of the actions complained of within a reasonable period of time after receipt
of the complaint.”916
Complaints that fall within the “sole jurisdiction of another agency” must be referred to
that agency.917 Where the allegations in a complaint fall partly within the CCRB’s jurisdiction and
partly within the sole jurisdiction of another agency, CCRB’s Chair (in consultation with the
Executive Director) has discretion to refer the entire complaint to the other agency to be
investigated by that agency.918
It is common for CCRB to refer some allegations in a complaint to other agencies while
retaining others.919 In 2017, the CCRB conducted split investigations for 142 (3 percent) of the
cases referred to the OCD and 222 (22 percent) of cases referred to the IAB.920
The most common OMN cases referred by CCRB to NYPD are: (1) failure to prepare an
Activity Log; (2) failure to produce stop and frisk report; (3) failure to prepare a memo book entry;
and (4) failure to document strip search.921
912
Id., Administrative Guide 304-17 (7) prohibits such actions.
913
Id. The manual provides a few examples of complainant behavior that could prompt retaliation by an officer and
result in CCRB investigation: “the use of an obscenity, a challenge to the officer’s authority, a request to obtain the
officer’s name or shield number, or a threat to file a complaint.” Id. Proposed Rule changes for CCRB would include
sexual harassment, if the cause for police action, as an Abuse of Authority within its jurisdiction.
914
Heather Cooks, Senior Counsel, CCRB, CCRB: The Life of a Case, at “Initial Case Screening” (on file with
author). The CMU is a group of eight employees (as of July 2018) who perform various administrative functions for
the CCRB, including facilitating Board review of cases. CCRB, Response to Federal Monitor’s Request Number Six,
at 13 (document compilation that is the first enclosure in the CCRB’s first response, dated July 17, 2018, to the Federal
Monitor’s request for CCRB documents; on file with author).
915
https://wwww nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2017_annual.pdf.
916
38-A RCNY § 1-17.
917
38-A RCNY § 1-15. Per this rule, the CCRB refers complaints against civilian employees of the NYPD to the
OCD or the IAB.
918
38-A RCNY § 1-15 (b).
919
See INVESTIGATIVE MANUAL, supra note 392, at 10-11 (IAB), 11-12 (OCD).
920
CCRB, Responses to Federal Monitor’s Supplemental Questions, at 1 ¶ a (CCRB’s response, dated June 3, 2019,
to the Federal Monitor’s additional request for CCRB documents; on file with author).
921
Prior to 2022, the common referrals were profiling, untruthful statements, and improper use of body worn cameras.
Subsequently, CCRB has acquired jurisdiction over profiling and untruthful statements by dint of Charter amendments
and has voted to review improper use of body worn cameras as well.
202
Prior to 2022, CCRB referred a comparatively smaller number of profiling cases to IAB.
Between 2016 and 2018, CCRB received a total of 143 profiling complaints. It was CCRB’s
policy to “capture” that information “only if the complainant or alleged victim voluntarily
expresses this belief.”922
In the years 2016-2018, there were very few false official statement referrals (49) and
virtually no BWC referrals, since cameras were not in use.923 In that time period, the majority of
OMN referrals were failure to document an encounter, which could include missing entries in
activity logs, memo book entries, stop reports, consent forms and strip search reporting. There
were 1,435 allegations/OMN referrals to NYPD. Six-hundred-thirty-eight of those referrals were
for a complaint where CCRB also substantiated FADO misconduct within the same complaint. Of
760 cases where there was an OMN referral, 284 were part of a substantiated FADO complaint.
By either calculation (complaints or allegations), somewhere between 38 to 45 percent of
the time when CCRB notes a documentation failure, CCRB determined that a FADO violation
occurred as well. This is an exceptionally high concurrence rate, given that the overall
substantiation rates by CCRB in recent years is generally in the 25 percent range.924 A fair
conclusion to be drawn is that there is a higher rate of misconduct which can be associated with
events where there was also a failure to document. Put another way, a failure to document in a
stop report, memo book, or strip-search report may be an indicator of misconduct.
For OMN cases, if no FADO allegations are substantiated, CCRB will close the case as it
refers the matter to IAB. At that point, CCRB will send the entire investigative file to IAB. For
false statement referrals, assuming the matter is not kept under the recent Charter amendments,
CCRB will send supporting documentation to IAB, but not the entire case file.
CCRB has observed that it has “better success conducting full investigations when the case
is filed directly with CCRB” rather than with the NYPD.925 CCRB’s 2017 Annual Report indicates
that in referred cases, CCRB sometimes has difficulty making initial contact with the complainant
or victim, who may not have been informed of the referral to the CCRB by the referring agency.926
Cases coming from the IAB more often result in truncated (and hence uncompleted) CCRB
investigations.
922
Appendix - CCRB Complaint Data at 52, https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_biannual/2018_annual-appendix.pdf.
923
Id.
924
https://www.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2022_Annual_Report.pdf. From
2010 to 2019, CCRB panels substantiated 2933 complaints out of 17,325 decisions—a 16.9% substantiation rated.
More recently, the substantiation rate in 2019 had increased to 24% (370 of 1540 fully investigated complaints) and
30 % (293 of 981 fully investigated complaints) in 2020. The 2020 numbers are probably skewed due to the reduced
number of complaints that could be fully examined during the Covid pandemic.
925
CCRB, Responses to Federal Monitor’s Supplemental Questions, at 3 ¶ b (document that is the tenth enclosure in
the CCRB’s third response, dated Oct. 1, 2018, to the Federal Monitor’s request for CCRB documents; on file with
author); see also JANUARY-DECEMBER 2017 REPORT, at 9-10.
926
JANUARY-DECEMBER 2017 REPORT, at 9-10.
203
In 2017, the truncation rate was 69 percent for cases filed with IAB and sent to CCRB; 44
percent for cases filed directly with CCRB; and 52 percent for cases filed elsewhere.927
In 2018, the number of truncations for cases coming through IAB was 73 percent.928 This
compares to an overall truncation rate within CCRB of 60.9 percent for that same year. In 2018,
of 4,759 complaint closures at CCRB, 2,899 were truncated, mostly due to pending litigation or
complainant reluctance of one kind or another.
More currently, albeit in a pandemic year, 2020, of 3,307 closed CCRB complaints, 2,187
were closed due to truncation. 1,711 were truncated because a complaint was withdrawn, the
witness was uncooperative or unavailable. 351 of the truncated complaints were “closed pending
litigation.”929 Effective October 22, 2022, the Board redefined its dispositional outcomes: “Unable
to Determine” replaced “Unsubstantiated.”930 As such, a number of cases in which the complainant
was uncooperative will now be categorized as “Unable to Determine” rather than
“Unsubstantiated.” This will probably have the effect, in 2023 and going forward, of lowering the
number of cases that are listed as “truncated,” where such cases previously fell. The NYPD has
not changed its categorizations of dispositions. The change is currently being challenged in court
by the PBA.931
CCRB has indicated that “[t]here are some instances where IAB refers a case after
significant delays and some occasions, including for notable incidents garnering media attention,
where IAB did not refer a case when it should have. IAB often does not inform civilians that their
cases are being referred to the CCRB if the complaint contains allegations falling with the CCRB’s
jurisdiction.”932
Without further survey data, it is difficult to know why cases truncate at a higher rate when
the victim first goes to NYPD instead of directly to CCRB. One could speculate that it derives
from witness fatigue, a reduced awareness of available recourse, treatment and response at first
contact, delay in attempts to establish a connection, or a number of other reasons. But for whatever
reason, fall-off when cases are handed-off, is a problem that needs a coordinated response.
927
Id. at 23.
928
NYC Civilian Complaint Review Board, James Blake Fellow Report 2020, at 5, available
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/issue_based/CCRB_BlakeFellow_Report.pdf.
929
Pending Litigation is a truncation category added in August 2017. It indicates that the complaint was truncated due
to the complainant/alleged victim's attorney. See CCRB, Executive Director’s Monthly Report, January 2021, at 28,
available
at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2021/20210111_monthlystats.pdf.
930
38-A RCNY § 1-33 (e)(2).
931
Police Benevolent Association v. N.Y.C. Civilian Complaint Review Board, Index No. 150441/2023 (Sup.Ct. NY
Cnty. 2023).
932
CCRB, Responses to Federal Monitor’s Supplemental Questions, at 3 ¶ b, supra note 926.
204
D.
CCRB Investigations - Generally
The Intake Unit consisted of six investigators in 2018.933 That number has increased to
eight. As noted above, the Intake Unit will attempt to schedule an initial interview with the
complainant for each complaint that is filed in a way other than in-person communication. For
“walk-in” complaints made in person at CCRB offices, an Investigative Squad on intake duty
handles the intake responsibilities, including the initial interview with the complainant.935
934
After preliminary screening, the Intake Unit forwards matters that are retained to one of
sixteen investigative squads.936 Roughly 65% of the staff at CCRB are assigned to the
Investigations, Intake & Evidence Collection, NYPD Relations and Evidence Collection Units.937
The investigative squad assigned to a complaint, along with staff known as the field team,
use various methods to locate and collect evidence to investigate that complaint. The Rules of the
CCRB enumerate specific methods that investigators may use, including requests for information
or documents; interviews with the complainant, alleged victim, subject officer and/or witnesses;
and field visits to examine the site of the alleged misconduct and collect evidence from the scene.938
If the Intake Unit determines that CCRB lacks either subject matter jurisdiction or personal
jurisdiction, it will forward the complaint to the Case Management Unit which sends it on to the
appropriate agency, if there is one. The two most common destinations for complaints referredout by CCRB are NYPD’s Internal Affairs Bureau (IAB) and the Office of the Chief of Department
(“OCD”). IAB investigates all claims of potential criminal activity, including corruption and
perjury, by NYPD officers or civilian employees.939 Until recently, CCRB referred complaints to
the IAB when they involve allegations of corruption, perjury, and off-duty criminal conduct.940
933
CCRB, Response to Federal Monitor’s Request Number Six, at 12 (document compilation that is the first enclosure
in the CCRB’s first response, dated July 17, 2018, to the Federal Monitor’s request for CCRB documents; on file with
author).
934
Item 300, City 09.01.23 Feedback to Yates Discipline Report.
935
INVESTIGATIVE MANUAL, supra note 392, at 4-5.
936
See CCRB, Response to Federal Monitor’s Request Number Six, at 12 (document compilation that is the second
enclosure in the CCRB’s first response, dated July 17, 2018, to the Federal Monitor’s request for CCRB documents;
on file with author); INVESTIGATIVE MANUAL, supra note 392, at 5-6; CCRB, Intake Training at 25 (PowerPoint
presentation that is the fourth enclosure in the CCRB’s third response, dated Oct. 1, 2018, to the Federal Monitor’s
request for CCRB documents; on file with author) [hereinafter Intake Training].
937
NYPD Relations Unit works with the IAB Liaison to obtain Departmental records and access to officers.
938
CCRB RULES § 1-23; see also Heather Cook, Senior Counsel, CCRB, CCRB: The Life of a Case, at “Role of the
Field Team” (on file with author). “Within one business day of being assigned the complaint, the investigator must
attempt to arrange to interview the complainant (and/or victim) by contacting the complainant by telephone and email.” INVESTIGATIVE MANUAL, supra note 392, at 21. NYPD officers must agree to requests by CCRB investigators
for interviews, whether they are the subjects of investigation or witnesses to investigated incidents. See N.Y. CITY
CHARTER, ch. 18-A, § 440(d)(2) (2019) (“The police commissioner shall ensure that officers and employees of the
police department appear before and respond to inquiries of the board and its civilian investigators in connection with
the investigation of complaints submitted pursuant to this section . . . .”)
939
PATROL GUIDE 207-21.
940
CCRB Rules
205
Allegations of retaliation for filing CCRB complaints are referred to IAB but allegations that an
officer refused to accept or refer a complaint to CCRB are not. If an on-duty officer files a
complaint against another officer, CCRB will refer the entire case to IAB.
CCRB refers complaints to the OCD when they do not contain FADO allegations and do
not come within the IAB’s responsibility.941 In addition, the CCRB will generally refer complaints
of abuse of authority to the OCD when they allege that “an officer failed to make an arrest or issue
a summons, failed to take appropriate action, or improperly prepared reports,” or “when a civilian
complains that he/she was not guilty of the offense or crime for which he/she was summonsed or
arrested.”942 The CCRB will, however, keep a complaint aimed at a summons or arrest as an abuse
of authority if the facts suggest that the summons was issued or arrest made in retaliation for the
complainant’s behavior or there was attendant misconduct claimed that falls within FADO.943
i.
Split and Concurrent Investigations and Cross-Referrals
A consequence of CCRB’s circumscribed jurisdiction is a practice, sometimes confusing,
of cross-referrals, split investigations and concurrent investigations. Complaints are cross-referred
when one entity, either NYPD or CCRB, receives a complaint but, rather than investigating the
matter, sends it to the other. Split investigations occur when one complaint contains allegations
that fall within FADO and allegations that fall outside FADO. In such a case, CCRB will, in most
cases, investigate the FADO allegation(s) while NYPD will receive the remaining allegations.
Concurrent investigations occur when both agencies investigate the same allegation - commonly
in force investigations. With the Charter change authorizing investigations of false statements,
overlap in that arena is likely to occur as well – particularly when an officer has given a
questionable statement to CCRB and to another entity (NYPD, Courts, prosecutors) about the same
subject matter.944
Adding to potential confusion is the fact that IAB will examine and close a FADO
complaint in many instances when there are other associated allegations within the complaint that
fell within IAB jurisdiction – usually, but not always, excessive force. In FFY 2017-2018, 205 of
803 allegations of misconduct closed by IAB were FADO allegations.945
941
Id. at 11.
942
Id. (providing several illustrative examples, and noting that “[g]enerally, the CCRB chooses not to exercise its
jurisdiction over such allegations” (emphasis added)).
943
Id. The manual provides a few examples of complainant behavior that could prompt retaliation by an officer and
result in CCRB investigation: “the use of an obscenity, a challenge to the officer’s authority, a request to obtain the
officer’s name or shield number, or a threat to file a complaint.” Id. Proposed Rule changes for CCRB would include
sexual harassment, if the cause for police action, as an Abuse of Authority within its jurisdiction.
944
“The NYPD’s Internal Affairs Bureau can, in theory, initiate its own investigations into alleged misconduct based
on media reports, although no evidence was offered that IAB has in fact done this in response to media reports over
the last decade concerning racially biased and/or constitutionally unjustified stops and frisks.”
945
CCPC Nineteenth Annual Report, at 22, available at https://www1 nyc.gov/assets/ccpc/downloads/pdf/AnnualNineteen-Report.pdf. CCPC analysis was done on a fiscal year, rather than a calendar year basis. CCPC evaluated
830 cases involving 2,707 allegations during FFY 2017 and 2018.
206
In 2017, the CCRB conducted split investigations for 142 (3%) of the cases referred to the
OCD and 222 (22%) of cases referred to the IAB.946
There is no organized effort to harmonize multiple investigations that may arise from one
encounter; CCRB and NYPD not only act independently, they commonly proceed without
coordination of the two separate ongoing investigations. Referrals can lead to concurrent
investigations run by both CCRB and NYPD. As described by CCRB counsel,
While force is the most common type of allegation that is investigated by both the
NYPD and the CCRB, there are numerous incidents that both the NYPD and CCRB
investigate, although each investigation may focus on different aspects of the
incident. . . . The NYPD will open concurrent investigations into portions of an
incident being investigated by the CCRB that are outside of the CCRB’s
jurisdictions – such as corruption – or IAB will at times pursue investigations into
non-FADO aspects of a case referred by the CCRB. The CCRB is not always
notified of these investigations. Additionally, there are allegations within IAB’s
sole jurisdiction that arise out of concurrent investigations into FADO allegations
that IAB pursues, but that the CCRB did not refer to them. . . . At times, the CCRB
may receive complaints that fall partially within the jurisdiction of the CCRB and
partially within of another agency or the NYPD. Often these cases will only require
that “spin-off” case be referred to the external agency with jurisdiction in some
cases, the case may be better served by referring the entirety of the investigation to
another agency . . . In these instances, the Executive Director, in consultation with
the Board Chair, will make the final determination about whether to pursue an
investigation, but the Agency reserves all rights to investigate FADO’s in any
complaint.947
CCRB employs three different “levels” of investigators: Levels I, II, and III.948 Level I
investigators are considered entry-level, and can be promoted to Level II after one year of
successful employment.949 The CCRB experiences varying levels of turnover in the investigator
ranks, with a 30.9 percent rate of attrition in 2016 and a 10.9 percent rate in 2017.950 Level II and
III investigators are considered “experienced.”951 Supervisors within each squad assign the squad’s
cases to particular investigators based on a number of factors; the only rule about assigning cases
946
CCRB, Responses to Federal Monitor’s Supplemental Questions, at 1, June 3, 2019, on file with the Monitor Team.
947
Matthew Kadushin, General Counsel, CCRB, June 3, 2019, letter to Monitor Team.
948
CCRB, Responses to Federal Monitor’s Supplemental Questions, at 1 (document that is the tenth enclosure in the
CCRB’s third response, dated Oct. 1, 2018, to the Federal Monitor’s request for CCRB documents; on file with
author).
949
Id.
950
Id.
951
Id.
207
to particular investigators is that “sensitive” cases must be assigned to a Level II or III
Investigator.952
ii.
CCRB Staff and Training953
Although improving the quality and efficiency of investigations has been a priority of the
CCRB in recent years,954 measuring quality is difficult. Several metrics of quality discussed here
include the qualifications and performance standards for investigators, the supervision and
Training they receive, the agency’s specific quality control measures, and the NYPD’s evaluation
of CCRB dispositions in substantiated cases.
The qualifications for entry-level (Level I) investigators include a B.A. degree from an
accredited college or university, a 3.0 GPA or higher, relevant coursework “preferably in criminal
justice or a related field,” and strong analytical writing, oral communication, and timemanagement skills.955 At the start of investigators’ employment, and after any promotion, they are
given job expectations called “Tasks and Standards.” There are expectations for each of several
areas of job performance, including “adher[ing] to current investigative practices,” “interview[ing]
civilian and police witnesses,” “rigorously prepar[ing] impartial reports that accurately document
any and all evidence obtained,” and “obtain[ing] all relevant evidence . . . and employ[ing] other
investigatory methods as required by agency rules and procedures.”956 Specific expectations for
Level I investigators include:
“Maintains an unbiased outlook through all facets of the investigation and makes wellreasoned decisions.”
“Takes all reasonable investigative actions to locate and contact involved civilians and
understands the agency’s contact attempt requirements.”
“Understands what questions need to be asked of interviewees and utilizes proper
techniques to extract the detailed, relevant information required for investigations,
including the use of diagrams or maps to aid in understanding what occurred.”
“Drafts transcriptions of witness statements and interviews that accurately summarize
the relevant information obtained in a chronological narrative and clearly delineates . . .
the basis of the witness’ knowledge of information . . . .”
952
CCRB, Response to Federal Monitor’s Requests Number 7 and 8, at 4 (document that is the ninth enclosure in the
CCRB’s third response, dated Oct. 1, 2018, to the Federal Monitor’s request for CCRB documents; on file with
author).
953
NB: The section “CCRB Staff and Training” is outdated. It was accurate when first drafted in 2018-2019, but, as
the City rightly points out, there have been revisions. However, neither the City nor CCRB have suggested any
amendments or provided any new information in this regard. Plaintiffs have pointed out that they do not object to
streamlining this discussion to avoid unnecessary delay in the release of the Report. The discussion is left within the
Report to describe past practice and can be updated when necessary information is supplied to the Monitor.
954
See
e.g.
CCRB,
2014
ANNUAL
REPORT
1
(May
2015),
http://www nyc.gov/html/ccrb/downloads/pdf/Annual%20Report%202014-Rev4Final.pdf.
available
at
955
CCRB, Investigator Level I Job Description, available at https://www1.nyc.gov/assets/ccrb/downloads/pdf/ccrb_i
nvestigator_jobposting.pdf.
956
CCRB, Tasks and Standard Sheet, provided to Monitor Oct. 18, 2018.
208
“Demonstrates an understanding of Patrol Guide procedures, NYPD Training
materials, and legal standards to objectively reach recommendations based on the
preponderance of the evidence standard.”
“Understands what NYPD documentary and video evidence are required for incidents
under investigation and, within 24 hours of the initial assignment of a case, follows the
appropriate protocol to request such evidence from IAB, DOA, and any other
applicable NYPD command.”957
Level I investigators are evaluated against these expectations six months into the job and
again after one year to determine whether they qualify for promotion to Level II. Investigators are
generally evaluated each year thereafter and are generally eligible for promotion to Level III after
two years of employment.958 The CCRB has also defined criteria for promotion; among other
things, investigators must receive certain performance-evaluation scores for “interview skills,”
“written work,” “gathering documentary evidence,” “gather[ing] other evidence” and “case
management and organization.”959
CCRB uses its more experienced staff to promote the quality of its investigations. For
example, sensitive cases are only assigned to experienced investigators, and SQF cases are “often”
assigned to experienced investigators because they “often require proficiency in search and seizure
law.”960 Further, experienced investigators supervise the work of less experienced investigators.
For example, the squad leader gives initial instructions to the investigator to whom she assigns a
complaint and then reviews the case file that the investigator develops in working on that
complaint, including the case plan (which sets out the investigative steps that the investigator
intends to take) and the ultimate report that goes to the Board.961 The squad leader tracks data
about how well investigators are doing, known as key performance indicators (“KPI”), in the
Complaint Tracking System. In addition, the CCRB provides all investigators with legal guidance
for certain kinds of cases. An investigator must consult an agency attorney about applicable law
before interviewing officers in sensitive cases and cases involving searches of persons, vehicles or
premises, entry onto premises (absent a search warrant), and strip searches.962
957
Id.
958
CCRB, Response to Federal Monitor’s Supplemental Question Number Four (document that is the thirteenth
enclosure in the CCRB’s third response, dated October 1, 2018, to the Federal Monitor’s request for CCRB documents;
on file with author).
959
Memorandum from Jonathan A. Darche, Executive Director, CCRB, to Investigative Staff, CCRB (July 30, 2018)
(on file with author).
960
CCRB, Response to Federal Monitor’s Requests Number 7 and 8, at 4 (document that is the ninth enclosure in the
CCRB’s third response, dated October 1, 2018, to the Federal Monitor’s request for CCRB documents; on file with
author). CCRB has explained in discussions with the Monitor team that some SQF cases are assigned to Level I
investigators.
961
Id. at 7.
962
Id. at 7.
209
In addition to supervision from experienced investigators, new investigators also receive
intensive orientation training when they start.963 The CCRB has provided the Monitor with copies
of several presentations used to train investigators, particularly those that teach them to investigate
allegations relating to improper SQF and search practices. Topics include the use of documentary
evidence to assess search and seizure allegations, techniques for effectively interviewing civilians
and officers in search and seizure cases, and the law related to street encounters, entries onto
premises, and vehicular stops and searches.964 These detailed presentations cover both the
substantive rules surrounding proper searches and seizures as well as practical investigative
guidance, such as specific questions investigators should ask and consider.
As described in 2018, in addition to overseeing the initial training for Level I investigators,
CCRB’s Training Unit—made up of a Director and two Deputies—is also responsible for
providing investigators with ongoing training and professional-development programs.965 In 2018,
for instance, a law professor gave investigators a supplemental course on Fourth Amendment
search and seizure and use of force doctrines, including the law of cell phone searches.
Investigative Managers received a two-day training on coaching strategies to enhance their
supervision skills; and staff from the Perception Institute conducted implicit bias Training for all
staff, incorporating CCRB-specific case studies.966
The Training Unit assesses needs for additional Training and implements programs, in part,
in consultation with the CCRB’s Director of Quality Assurance and Improvement (“DQAQI”).967
Measuring and improving the quality of investigations is a central focus of the DQAQI’s role.
Among other things, the DQAQI: (a) provides data to the Deputy Chief of Investigations on the
state of the overall docket, delayed cases and KPIs for each investigative squad; (b) reviews
random samples of cases in their final stages, as well as reports and accompanying files in sensitive
cases before they go to the Board; (c) updates and maintains the Investigations Manual and interim
operating procedures, and develops new policies and efficiency improvements, in consultation
with the Deputy Chief and Co-Chiefs of Investigations; (d) reviews decisions to “truncate” or close
cases without full investigation (for example, because the complainant is unavailable or
963
CCRB, Responses to Federal Monitor’s Supplemental Questions, at 5 (document that is the tenth enclosure in the
CCRB’s third response, dated October 1, 2018, to the Federal Monitor’s request for CCRB documents; on file with
author).
964
E.g., Suzanne D. O’Hare, Deputy Chief Prosecutor, CCRB, Search & Seizure Law: Street Encounters (on file with
author); Suzanne D. O’Hare, Deputy Chief Prosecutor, CCRB, Search and Seizure Law: Entries (on file with author);
Suzanne D. O’Hare, Deputy Chief Prosecutor, CCRB, Vehicle Stop & Search Law (on file with author); Laura
Kastner, Investigative Manager, CCRB & Greg Finch, Investigator, CCRB, Documents Related to Search and Seizure
Cases (on file with author).
965
See e.g., CCRB, Response to Federal Monitor’s Request Number One, at 4 (document compilation that is the first
enclosure in the CCRB’s first response, dated July 17, 2018, to the Federal Monitor’s request for CCRB documents;
JANUARY-JUNE 2018, at
72,
on
file
with
author);
CCRB,
SEMI-ANNUAL REPORT:
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/20181221_SemiAnnual%20Report.pdf [hereinafter JANUARY-JUNE 2018 REPORT].
966
JANUARY-JUNE 2018 REPORT, supra note 966 at 72.
967
CCRB, Response to Federal Monitor’s Supplemental Question Number Nine, at 1 (document that is the fifteenth
enclosure in the CCRB’s third response, dated October 1, 2018, to the Federal Monitor’s request for CCRB documents;
on file with author).
210
uncooperative) and tracks truncation statistics; and (e) in coordination with the Director of NYPD
Relations, monitors evidence collection efforts between the CCRB and NYPD.968
Finally, each fall, the NYPD invites all investigators hired by CCRB since the previous fall
to the Police Academy so that the investigators can learn about how MOS are trained. The NYPD
presentations to CCRB investigators are simulations of the trainings that MOS receive. (Board
members do not attend these presentations, nor do they receive any Training from the NYPD).
The syllabus of presentations that NYPD Police Academy trainers conduct for CCRB investigators
typically includes:
Police Academy Orientation
Department Structure
Less Than Lethal Weapons
Stop, Question and Frisk/Body Cameras
Fundamentals of Defense Tactics
Police Academy Orientation
Recruit Curriculum Overview
Narcotics Operations
Arrest Warrants And I-cards
Scenario Based Training
Some other recent examples of presentations that the NYPD has conducted for CCRB staff
include:
968
A Use of Force presentation was done in August 2016, after the NYPD changed its use
of force policy.
Several years ago, after the initial Floyd decision, the Risk Management Bureau came
to speak to the CCRB about the decision.
Early in 2019, an attorney from General Counsel’s Office, the Deputy Director of
Training, and two Investigative Unit members observed the CIT Training that the
Department gives to officers.
Members of the CCRB’ s Policy Unit attended NYPD Executives Taser Training in
May 2018.
Periodically, the Emergency Services Unit (ESU) comes to the CCRB to present on
ESU’s work.
The Internal Affairs Bureau conducts an annual full-day presentation at the CCRB
outlining IAB’s work.
The impact of NYPD’s training on the perceptions of the CCRB investigators as they
conduct fact-finding exercises to evaluate pending cases is unknown.
Id.
211
iii.
Civilian Interviews
The Charter specifies that, “No finding or recommendation shall be based solely upon a
unsworn complaint or statement. . . .”969 As part of an overall revision of its rules “to accelerate
investigations” among other things, CCRB adopted twelve or more rules changes in 2018.970 One
amendment was to permit a witness to be interviewed and make a statement first and then be sworn
or asked to verify the statement after the interview.971 This, in contrast to interviews of officers
who are advised of their rights, assured of use immunity, then sworn-in at the beginning of the
interview. The “post-verification” rule, as argued by CCRB, was written “to avoid the possibility
of discouraging that witness [a civilian] from testifying,” and as the lower court found, when the
rules were challenged by the PBA, “[t]he CCRB’s concerns of intimidation and underreporting are
legitimate and provide a rational basis for the differences in swearing requirements between
civilian witnesses and officers.”972
iv.
Officer Interviews at CCRB
When a CCRB investigator wishes to interview an officer, notice is given to the
Supervisory/Ranking Officer concerned who directs the officer to answer questions. A subject
officer is given two business days’ notice prior to the interview to obtain and consult with counsel.
The officer is advised that all questions must be “answered fully and truthfully,” that “refusal to
cooperate . . . will result in immediate suspension and preparation of disciplinary charges,” and
that “answers given in an interview or proceeding may not be used against the member in a later
criminal action.”973 False or misleading statements are subject to discipline as provided by
Administrative Guide 304-10.
Patrol Guide section 206-13 (now AG section 318-11) explains the procedures to be
followed when an officer is the subject or witness in an official investigation. The officer is given
time to confer with counsel (who may be accompanied by a union representative). Prior to the
interview, the officer is advised of the nature of any accusation, the identities of witnesses and
complainants, and information concerning all allegations. The interview is recorded; there are no
“off the record” interchanges. If charges are brought against the officer, a copy of the transcript
or recording is given to the officer within 20 days of commencement.
969
NYC Charter § 440 (c)(1).
970
Notice of Adoption, City Record, Jan. 2, 2018, eff. Feb. 1, 2018.
971
38-A RCNY 1-24(d).
972
Lynch v. CCRB, 64 Misc. 3d 315, 329 (Sup. Ct. N.Y. Cty.), aff’d, 183 A.D.3d 512 (2020)
973
Patrol Guide § 211-14. Police officers who refused to sign waivers of immunity from prosecution could not be
summarily dismissed under Article I § 6 of the New York Constitution and § 1123 of the New York City Charter, but
those provisions must be read together with this section and would be construed to afford police officers a hearing and
an opportunity to explain. Gardner v. Murphy, 46 Misc. 2d 728, 260 N.Y.S.2d 739, 1965 N.Y. Misc. LEXIS 1780
(N.Y. Sup. Ct. 1965), rev’d, Koutnik v. Murphy, 25 A.D.2d 197, 268 N.Y.S.2d 265, 1966 N.Y. App. Div. LEXIS 4654
(N.Y. App. Div. 1st Dep't 1966).
212
The time it takes to bring an officer in for an interview is a significant cause of delay in
completing investigations. In 2019, it took 21 days on average to have a full interview with a
complainant. It took 98 days on average for an officer to be interviewed.974
If there are multiple allegations, CCRB and NYPD investigators act completely
independently once the matter is “split” or “spun-off.” Only “[i]n cases where there is a concurrent
force investigation by NYPD [and CCRB does] the investigative entity maintains contact with
CCRB.” In the case of concurrent investigations, “[a]s a matter of course, with the exception of
profiling investigations, IAB does not provide its disposition without CCRB requesting them. IAB
does not share dispositions of corruption cases or other non-FADO categories . . . [except False
Official Statement cases]. IAB will not provide any case materials or additional information
beyond the disposition. . . . If the CCRB generates an OMN for a False Official Statement, IAB
will provide the disposition to this allegation without being requested. IAB will not provide any
case materials or any additional information beyond the disposition. . . . IAB will provide CCRB
with GO-15 recordings (audio of IAB’s interview with the MOS) when requested, but these are
provided solely so that the officer may avail himself/herself of their Patrol Guide right to review
previous statements prior to testifying with the CCRB. The CCRB is rarely provided with audio
of officers’ statements to IAB regarding concurrent incidents.”975
v.
Case Study - Force, False Statement, and FADO Investigations
Interwoven
Overlapping jurisdictions by IAB and CCRB can easily weave a tangled web. Multiple
investigations might take place in separate venues. Interviews may be repeated at disconnected
locations. Information is not shared. Conclusions can vary. And, most of all, resolution is
prolonged.
Rather than speak hypothetically, consider as a case study following the investigation of a
brief encounter that occurred in the Bronx in 2017, on the Saturday before Thanksgiving, at a
residence for people who had difficulty finding permanent housing as they aged out of foster care,
suffered from mental illness, or presented other care issues.976
Six officers responded to calls of an assault or fight in progress in the lobby and on the fifth
floor. When they arrived at the location, they were directed to the fifth floor by a building security
officer. Some officers went to the fifth floor, and some went to the sixth floor. As three officers
rode an elevator to the fifth floor, complainant “C,” a resident but not a suspect, hurled several
insults at the officers. (C had joined another person in calling for the police to come to the facility
but vocally objected to their walking through the facility unaccompanied.) The exact nature of the
verbal exchange is in dispute. C says he was asking “who are you looking for?” and was told by
PO #1
“mind your business.” Further words were exchanged. The officers exited the
elevator and, according to PO
, C said “you all are a fucking bunch of keystone cops.” At
974
CCRB Annual Report 2019 at 30.
975
Matthew Kadushin, General Counsel CCRB, June 2, 2019, letter to the Monitor Team.
976
Generally, CCRB NYPD Officer History can be found at https://www nyc.gov/site/ccrb/policy/MOS-records.page.
Description of events in this case study derives from investigative reports provided by CCRB and NYPD. For copies
of any such reports, inquiry should be directed to the relevant agencies.
213
PO #1
has been named in five civil lawsuits. Four of them are unrelated to the
CCRB complaints. One lawsuit, still pending, was filed by complainant C for the November 2017
incident. Four of the lawsuits were pending at the time of this incident. One, commenced in 2016,
settled for a $20,000 award against the City in 2019.
The IAB investigation was extensive and thorough. Seven Patrol Guide § 206-13
interviews were conducted. During the investigation, an IAB Intelligence Agent reported that “PO
#1
is described as a loudmouth and likes to sound like a tough guy in order to gain
compliance on patrol.” Another agent stated, “there is a rumor in the command that PO #1
likes to tell lies on an on-going basis.” The investigators conferred with the Bronx District Attorney
who declined jurisdiction, the Comptroller’s office which confirmed a claim had been filed, and
the CCRB investigator assigned to the case who shared her file.
The IAB investigation was closed on April 4, 2019, one year after it had been sent to IAB.
The chokehold and punch allegations were referred back to CCRB for investigation and closed by
IAB for I&I. CCRB lists the case as “Previously adjudicated, with discipline.” DAO lists the case
as “Administratively Closed.”978
PO #2
PO #2
was investigated by IAB in regard to the use of the taser. She has
no previous substantiated CCRB complaints. She had been on Level 3 Dismissal Probation for
unrelated activity. Part of the investigation was a review to see if she had properly reported the
incident on a TRI form and whether she had improperly classified C as an EDP. Both matters
were closed for I&I. IAB recommended Exoneration on the allegation of CEW/Taser misuse.
That finding was made on January 31, 2019. Nonetheless, the use of the Taser was referred back
to CCRB for prosecution of the Charges on April 4, 2019.
A DCT trial was held on January 4, 2020, on the Taser charge. On March 13, 2020, an
Assistant DCT recommended that she be found Not Guilty. That recommendation was approved
by the Police Commissioner on April 15, 2020.
PO #3
CCRB referred to IAB seven allegations of False Statements against PO #3
based on his CCRB interviews as a witness. In essence, CCRB alleged that he lied when he
testified: (1) C initiated the incident by getting within two centimeters of PO #1’s
face;
(2) C was known to the police; and (3) the security guard directed them to the fifth and sixth floors.
IAB determined that all three statements, while not accurate, were qualified statements of
uncertainty and, while inaccurate, were not made to deceive or mislead. His case was closed as
unfounded.
978
The most current SQFSTA spreadsheet provided by the Department, (Final Federal Monitor – SQFSTA – 2023 Q,
Q2) lists the case as closed administratively. The CCRB online website lists the penalty as 1-year dismissal probation.
It is unclear how or when the decision to place him on probation occurred.
215
E.
Jurisdiction - Personal
There has been a dramatic set of changes in the landscape for CCRB in the last two years.
As a result of recent amendments in the Charter, the Administrative Code, and the Rules, biasbased policing, sexual misconduct, and false statements made to CCRB are now investigated by
CCRB. Other closely related items, such as failure to document enforcement actions, false
reporting in other venues, such as complaint or arrest reports or court testimony, making
misleading or inaccurate statements that impede an outside investigation may remain outside
CCRB jurisdiction.979 Use of Force incidents, remain in a hybrid status, since a minority of them
lead to a citizen complaint to CCRB but undergo NYPD investigation nonetheless.980
i.
Who May be Investigated?
CCRB’s jurisdiction under the Charter runs to “complaints by members of the public or
complaints initiated by the board against members of the police department. . . .”981 However,
CCRB Rules define the Board’s jurisdiction as limited to “complaints by members of the public
against uniformed members” of the NYPD.982
This narrows the range of CCRB’s authority considerably. By definition, “Members of the
Service” (“MOS”) include all personnel of the Department, which includes Uniformed Members
of the Service and civilian Members of the Service.983 The sub-group “Uniformed Members of the
Service” (“UMOS”) are “police officers, detectives and supervisory officers authorized to wear
the police uniform, who are defined as police officers under Section 1.20 of the Criminal Procedure
Law.” Civilian members of the service are “Members of the Service not authorized to wear a
police uniform,” which include: Traffic Enforcement Agents and their supervisors; School Safety
979
CCRB asserts that, by its rules, it “investigates false/misleading/inaccurate statements against a civilian in other
venues.” (Item 351, City 09.01.23 Feedback to Yates Discipline Report.). It is unclear if this is only in connection
with a pending FADO complaint already under investigation for an untruthful statement made to a CCRB investigator,
or if CCRB will actively pursue a false statement case wholly unrelated to, and independent of, a complaint or an
ongoing investigation. Subparagraph 440 (c)(i) of the New York City Charter provides: “The board shall also have
the power to investigate, hear, make findings and recommend action regarding the truthfulness of any material
official statement made by a member of the police department who is the subject of a complaint received or
initiated by the board, if such statement was made during the course of and in relation to the board's resolution of
such complaint.” However, CCRB Rule 38-A RCNY 1-01 includes within the definition of Abuse of Authority,
“intentionally untruthful testimony and written statements made against members of the public in the performance of
official police functions.”
980
In 2018, there were 6,344 use of force incidents where force was used by members of the service (MOS), and
which were investigated within the Department. There were only 1,767 force complaints by civilians to CCRB. CCRB
substantiated 73 excessive force allegations. See NYPD, 2018 Use of Force Report, at 36, 40, available at
https://www1.nyc.gov/assets/nypd/downloads/pdf/use-of-force/use-of-force-2018.pdf. While it is common for
CCRB and IAB to have separate, concurrent, investigations of lower level force complaints, as a matter of practice,
CCRB defers to FID in the investigation of those in the category of “readily capable of causing death or serious
physical injury.”
981
NY City Charter, ch 18-A, §440 (c)(1) (emphasis added). The Board was granted the additional power to initiate
complaints effective January 20, 2022. LL 24/2022.
982
38-A RCNY § 1-02 (emphasis supplied).
983
NYPD Administrative Guide 322-11, effective June 23, 2020.
216
Agents and their supervisors; Police Cadets, and School Crossing Guards.984 By its own Rules,
CCRB has limited itself to investigation of misconduct complaints against uniformed members
only and does not investigate misconduct by non-uniformed members of the service.
The budgeted headcount for uniform members in FY 2021 was around 36,000 officers.
There are approximately 19,000 other employees of the NYPD who are members of the service
and whose conduct does not fall within CCRB jurisdiction (there are many other civilian
employees of the Department who are not members of the service and thus have little interaction
with the public). Under Mayor de Blasio, there were ongoing discussions and plans on whether
and when to remove over 5,300 School Safety Agents in the School Safety Division from NYPD
control. Mayor Adams had let the number drop to the point that there were only 3,900 agents in
February 2023. In November 2023, as part of an overall budget reduction, the Mayor announced
that he was cancelling an expected class of 200 new agents. There were fewer than 200 uniformed
MOS assigned to work in schools along with School Security Agents in the Division. The MOU
between the Department of Education and NYPD was modified and renewed on June 20, 2019.
In 2019, there were 182 FADO complaints and eight racial profiling complaints filed against
School Safety Agents. Former Mayor de Blasio announced plans for School Safety Officers to be
moved from NYPD to the Department of Education by the end of fiscal year 2022. With the
change in administration, that plan appears to be on hold. The Mayor’s budget plan for FY 2023
leaves the Division in place, but with a baseline reduction of 560 officers.
A recent study by the New York State Office of the Attorney General commented upon
this and recommended that CCRB assume broader authority:
The CCRB’s jurisdiction must also be expanded, both in terms of what complaints
it is authorized to hear and what portions of the City’s workforce it is authorized to
hear them against. For instance, CCRB currently does not have the authority to
investigate misconduct complaints against NYPD’s 19,000 non-uniformed
employees, such as School Safety Agents and Traffic Enforcement Agents, City
Peace Officers working for City entities like the Department of Homeless Services,
and volunteer auxiliary police. Many of these workers interact directly and
regularly with the public—including vulnerable populations—and complaints
against them should get a full and thorough hearing.985
Notwithstanding the statement that “CCRB currently does not have the authority” to
expand its reach, it would appear that the limited engagement is self-imposed and not a
consequence of language in the Charter. Citizen complaints against non-uniformed members of
the service are investigated by the Department itself.
984
Administrative Guide 322-11.
985
NYS Attorney General, Preliminary Report on the New York City Police Department’s Response to
Demonstrations Following the Death of George Floyd, at 41, available at https://ag ny.gov/sites/default/files/2020nypd-report.pdf.
217
ii.
Who May Complain?
Another bone of contention, the subject of repeated litigation brought by the PBA, is
whether a sworn complaint by a civilian victim of police misconduct is a necessary predicate to
commencement of an investigation by CCRB. Until 2022, Section 440 of the Charter gave the
Board the power to investigate “complaints by members of the public against members of the
police department.” This opened the question of whether misconduct could be investigated absent
the involvement of a “victim” or a “witness” to an encounter. In 2022, after years of litigation and
revisions to the Rules, the matter, for the most part, was settled. The Charter was amended to
permit investigations “initiated by the Board.” At the same time, the Board amended its Rules,
providing that, “The Board may delegate its power to initiate complaints to the Civilian Complaint
Review Board’s Chair, Executive Director, General Counsel, or Board member panel. . . .”986
Prior to the recent Charter amendment, the Board had subdivided the manner by which an
investigation could be commenced into three categories. 38-A RCNY 1-11 had three subdivisions:
Sec. 1-11(a) permitted any individual having personal knowledge of misconduct gained
through firsthand observation or experience, and as well permitted a parent, legal
guardian or legal representative to initiate a complaint;
Sec. 1-11(b) (the “Non-Witness Rule”) permitted initiation upon a complaint by a
“Reporting Non-Witness, after consideration of the nature and/or severity of the alleged
misconduct, the practicability of conducting a full investigation and the numbers of
complaints received by the Board regarding the incident;
Sec. 1-11(c) (the “Sua Sponte Rule”) authorized investigations initiated by the Board
without a sworn complaint by a “member of the public.” The Rule provided: “The
Board has the power to review incidents involving members of the New York City
Police Department and investigate Cases arising therefrom within the Board’s
jurisdiction under the New York City Charter.”
The PBA challenged the Rules claiming they went beyond the authority granted CCRB by
the Charter. The objection to Rule 1-11 (a) was that it went beyond witnesses with personal
knowledge, allowing complaints by representatives.
Petitioners objected to, and denominated Rule 1-11(b) as the “YouTube Rule” because,
they interpreted the Rule as permitting complaint by “a viewer on YouTube [who] watches an
incident and then makes a complaint of misconduct to the CCRB [when t]hat person has no
firsthand experience, and no knowledge whether the video is embellished or fabricated.” The
lower court agreed, striking the YouTube clause on the “possibility of a mass influx of complaints
based on unreliable information.”987
The PBA also challenged the Sua Sponte Rule claiming that it allowed the CCRB to
“investigate” potential misconduct without a “complaint by [a] member of the public,” in
violation of the City Charter. The Rule was defended on the basis that it only allowed the CCRB
986
38-A RCNY § 1-14, eff. Oct. 22, 2022.
987
Lynch v. N.Y. City Civilian Complaint Review Bd., 64 Misc. 3d 315 (Sup. Ct. NY Cnty. 2020).
218
to “review” incidents that had not been complained about; it did not allow the CCRB to
“investigate” those incidents toward the end of disciplining a subject officer.
In sum, the PBA claimed that all three rules were “likely to cause more harm than good.”988
The lower Court agreed, finding that the rules created “a serious likelihood” that the
CCRB would receive and investigate “complaints based upon unreliable information,” and that
“[t]he Rule would allow respondents to expand its Charter to solicit complaints actively, rather
than ‘investigating upon complaint.’” 989
The City did not appeal the lower court’s striking of the Sua Sponte Rule, and the Appellate
Division was not asked to address the issue. Accordingly, the Rules were amended and 38-A
RCNY 1-11 (c), the Sua Sponte Rule, was deleted effective March 26, 2021.990
A live example of the importance of flexibility in the witness rules is a case reviewed by
the Monitor team. There, three police officers approached a group of children playing in a park
telling them that “they had received a call about someone in the park with a gun.” Two of the
children, an 11-year-old boy and a 13-year-old girl began to flee. The subject officer followed
them, at which point they ran to an apartment building. The officer chased them, unholstering and
pointing his gun at the girl. CCRB determined that there was insufficient basis for the attempted
stop and brandishing of the weapon. The scene was witnessed by an adult who filed a complaint.
The complainant described himself as the girl’s “godfather.” He was neither a parent/guardian nor
a victim of the threatening gesture. CCRB recommended Charges and Specifications, without a
sworn complaint by the girl. DAO asked for reconsideration, claiming that the complainant’s
status was “insufficient to satisfy the sworn complaint or statement requirement.” Since “the
CCRB does not have a verified, sworn statement from [the girl] . . . this matter should not have
been substantiated.”991 The Police Commissioner retained the case992 and ordered “Training” in
place of a disciplinary hearing.
Another notable example of the need for flexibility is the proceeding against PO
. The subject officer filed a motion to dismiss on the grounds that the complaint triggering
the investigation was not made by an eyewitness to the event. The DCT ruled that the intake call
provided CCRB with a rational basis to move forward with the investigation.
On appeal, the First Department reversed the decisions regarding both the “witness rule”
(1-11[a]) and the “non-witness rule” (1-11[b]), finding that:
38-A RCNY 1-11(a), as amended, permits any individual having personal
knowledge of alleged misconduct by a member of NYPD to file a complaint.
988
Id. at 332.
989
Id at 331.
990
Councilmember Adrienne Adams introduced legislation authorizing investigations of “complaints initiated by the
board” (Intro 2440-2021), Nov. 10, 2021, which was enacted as a Charter amendment, LL 024/2022 in February 2022.
991
PO
992
Provision two of the 2012 APU-MOU.
, CCRB #
, at 3, April 7, 2018.
219
“Personal knowledge” is defined as knowledge “gained through firsthand
observation or experience” (38-A RCNY 1-01). This rule is within the CCRB’s
statutory authority and is rationally rooted in the New York City Charter's directive
that the CCRB receive complaints from “members of the public” (NY City Charter
§ 440[a]).
38-A RCNY 1-11(b), as amended, gives the CCRB discretion to investigate
complaints filed by “Reporting Non-Witnesses,” i.e., persons “without personal
knowledge” of the alleged misconduct (38-A RCNY 1-01). This rule is rationally
related to the purpose of the establishment of the CCRB, i.e., that the investigation
of complaints of police misconduct “is in the interest of the people of the city of
New York and the New York city police department” (NY City Charter § 440[a]).
There is no basis for Supreme Court’s speculation that 38-A RCNY 1-11(a) and
(b), as amended, would result in “a mass influx of complaints based on unreliable
information.” Rule 1-11(b) provides a non-inclusive list of the factors to be
considered in determining whether to investigate a complaint by a non-witness,
among which are “the nature and/or severity of the alleged misconduct, . . . the
practicability of conducting a full investigation . . . and the numbers of complaints
received by the Board regarding the incident.” Thus, the CCRB would serve as its
own gatekeeper for the investigation of non-witness complaints.
….
Moreover, the broad nature of much of the CCRB’s FADO jurisdiction, which, as
indicated, includes complaints of discourtesy and use of offensive language (NY
City Charter § 440[c][1]), naturally suggests that complaints may be filed by
members of the public at whom the misconduct is not directed. Indeed, it is easy
to imagine a scenario in which a witness to discourtesy or offensive language might
wish to file a complaint while the object of the discourtesy or offensive language
might not.993
Even after the appellate approval of 11(a) and 11(b) there were still calls for reinstatement
of the Sua Sponte Rule. The rationale, as best articulated by Citizens Union of the City of New
York, in a plea to the Charter Revision Commission of 2019, had been,
to permit CCRB to initiate an investigation into reported or known incidents of
police misconduct within its jurisdiction in the absence of a complaint. Such
authority would track the authority of the Police Department’s Internal Affairs
Bureau. With this authority, the CCRB would no longer be forced to remain on the
sidelines when there is a notorious or sensitive incident that has become the focus
of community and police concern.994
993
183 A.D.3d at 514.
994
Citizens Union of the City of New York: Testimony to the New York City Charter Revision Commission 2019
(Mar. 7, 2019).
220
In the context of SQF investigations, the point made by Citizens Union is especially apt.
Awaiting a complaint by a civilian before wrongful stop and frisk behavior can be independently
examined is not the most effective way to address the problem. While improper SQF behavior
contributes to community resentment, unwillingness to pursue a CCRB complaint by the victim is
understandable. The relatively low number of CCRB complaints of illegal stops (862 in 2018)
may be an indicator of improved policing, or it might readily be ascribed to a number of other
factors: (i) unless force or some egregious behavior, such as a strip search or an illegal arrest,
accompanies the charge, civilians may not think a report to CCRB is “worth the effort”; (b) the
majority of persons stopped are young, Black or Hispanic males who, for a variety of reasons, may
view official avenues of redress with skepticism;995 (c) a reluctance, by many, even if innocent of
any criminality, to voluntarily undergo examination and submit sworn testimony, explaining
circumstances where they were suspected by an officer of engaging in criminal activity is
understandable; (d) a given percentage of subjects of SQF enforcement activity have a criminal
complaint pending as a consequence of the stop; an inordinately high number of those criminal
complaints, especially for lesser offenses, end up with declined prosecutions or dismissal but,
nonetheless the fact of a pending prosecution in another setting acts to discourage full participation
in the CCRB process.996 Even when a FADO complaint is filed, only a minority are fully
investigated (1,408 of 4,759 in 2018).997 The rest are truncated or mediated. Truncations most
commonly occur when a complainant withdraws or fails to participate, for a variety of reasons
including pending litigation. Absent authority for CCRB to proactively pursue SQF misconduct
without a participating complainant, there is no external, independent locus to identify and
prosecute improper stop and frisk behavior. The only alternative is to fall back and rely upon the
Department to self-inspect. With the Monitor’s assistance, the Department has stepped up efforts
to screen, self-inspect and audit, but is Departmental self-examination the equivalent of external
independent scrutiny? Given the court’s finding of a history of deliberate indifference to SQF
misconduct in the past, that question must be asked going forward. Can self-inspection suffice or
should some independent entity, such as CCRB or DOI, be authorized to proactively monitor
Fourth and Fourteenth Amendment compliance?
In the end, an agreement was reached to overcome the legal challenges to the Sua Sponte
Rule and to permit reinstatement of CCRB’s authority to commence an investigation prior to
995
In 2018, 12,244 of 13,459 (91%) of persons listed in stop reports as suspects were non-white. 12,179 were male
(90%). 8,262 were under 30 years of age (61%). These numbers are for reported stops. There is reason to believe
that the percentage of minorities are even higher if unreported stops are included. See Twelfth Report of the
Independent Monitor: The Deployment of Body Worn Cameras on NYPD Officers at 74 (Nov. 30, 2020). 76% of
CCRB complaints are made by Black or Hispanic victims. See CCRB Annual Report 2018, at 20.
996
Even when a complaint is filed and accepted by CCRB, only a minority undergo full examination. In 2018, only
1408 of 4759 complaint closures at CCRB were fully investigated. 2899 were truncated, mostly due to pending
litigation or complainant reluctance of one kind or another. In 2020, of 3307 closed CCRB cases, 2187 were closed
due to truncation. 1709 of those were truncated because a complaint was withdrawn, the witness was uncooperative
or unavailable. 351 of the truncated cases were “closed pending litigation. Pending Litigation is a truncation category
added in August 2017. It indicates that the complaint was truncated due to the complainant/alleged victim's attorney,
CCRB,
Executive
Director’s
Monthly
Report,
January
2021,
at
28,
available
at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2021/20210111_monthlystats.pdf.
997
CCRB, James Blake Fellow Report 2020 at 9. In 2021, 612 of 2677 (23%) of case closures were by way of full
investigation. In 2022, 2343 of 3909 (60%) case closures were by way of full investigation. CCRB Annual Report
2022 at 25.
221
receipt of a complaint. In its presentation of planned reforms to the Governor, in 2021, the City
committed to amending the law to “increase CCRB’s authority so it can initiate investigations on
its own.”998 On January 9, 2022, the Charter was amended. Section 440 of the Charter now permits
the Board to initiate complaints on its own.999
As a practical matter the initial deletion of the Sua Sponte Rule was mitigated by the
appellate approval of the “YouTube” clause.1000 Just about any concerned citizen, whether a
personal witness to the event or not, can file a complaint under the “non-witness” or “YouTube”
rule. Along that line, employees in the investigations division of CCRB were advised, “[i]n the
event that you read a tweet that is not linked to the CCRB’s Twitter feed, take a screenshot or copy
the tweet’s language & handle and email that info to [supervisors].” In those cases, the “potential
complainant” is to be encouraged to use one of CCRB’s official channels.1001
Subsequently, Local Law 24 of 2022, amended the Charter to explicitly authorize
investigations of “complaints initiated by the board. . . .”1002
Simultaneous with the Charter amendment taking effect (October 22, 2022), CCRB
adopted Rule 1-14, which authorizes delegation by the Board of the power to initiate complaints,
without a civilian complainant, to the Chair, Executive Director, General Counsel, or a Board
member of a panel. This has triggered another lawsuit, an Article 78 proceeding brought by the
PBA, complaining that the delegation from a full board to individuals is unauthorized.1003 The
matter is currently pending.
F.
Subject Matter Jurisdiction
Under earlier Charter provisions,1004 CCRB was permitted to investigate four kinds of
misconduct: (1) excessive use of force; (2) abuse of authority; (3) discourtesy; and (4) use of
offensive language (FADO).1005 Following amendment to the Charter, adopted by referendum in
998
NYC Police Reform and Reinvention Collaborative Plan, March 25, 2021, at 15, available at
https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4890502&GUID=2CB9D744-6371-434F-83314A923FF529AB&Options=&Search=.
999
Local Law 024 of 2022.
1000
§ 1-11 (b).
1001
Memo, Response Procedures for Twitter posts re potential complaints, Chiefs of Investigation to the Investigation
Division, October 26, 2017.
1002
LL 24/ 2022, Charter § 440(c)(1) became law when returned by Mayor de Blasio unsigned.
1003
NYC PBA v. City of New York, Index No. 150441/2023, Doc. No. 1 (Sup. Ct. NY Cnty., 2023) (““The Charter
does not grant the Board authority to “delegate” the new power to initiate complaints.”) Doc. No. 66 at 24.
1004
1993 to 2019.
1005
NY CITY CHARTER, ch. 18-A, § 440(c)(1) (2019).
222
November 2019, the Board’s jurisdiction was expanded to include investigations into whether a
subject officer had given a false statement in the course of a CCRB investigation.1006
By contrast, NYPD’s Internal Affairs Bureau (“IAB”) had, in the past, the exclusive ability
to investigate allegations that NYPD officers engaged in corruption, perjury, and off-duty criminal
conduct. IAB has concurrent jurisdiction with CCRB in cases alleging excessive use of force.
More serious allegations of excessive use of force may also be investigated by the Force
Investigation Division under the auspices of the First Deputy Commissioner.1007 As noted earlier,
with a revised definition of “abuse of authority” in its Rules, there is a possibility that CCRB may
begin to investigate corruption cases and false statements made outside a CCRB investigation.
When a complaint contains allegations that are outside FADO, but also contains allegations
falling within FADO, the complaint may be split. An example might be when an officer conducts
an illegal frisk while drunk on duty. CCRB would evaluate the Stop complaint and refer the
allegation regarding intoxicants.
If a complaint contains allegations that fall exclusively to NYPD, but also contains a FADO
allegation and there is joint jurisdiction, the Chair, in consultation with the Executive Director, is
authorized to send the entire complaint to NYPD. An example might be a complaint alleging a
wrongful taking of property by force. Theoretically, CCRB could investigate the force allegation
1006
“The board shall also have the power to investigate, hear, make findings and recommend action regarding the
truthfulness of any material official statement made by a member of the police department who is the subject of a
complaint received by the board, if such statement was made during the course of and in relation to the board’s
resolution of such complaint.” City Charter § 440(c)(1).
Currently and hopefully as a temporary measure, CCRB has suspended investigation of a number of matters
within its jurisdiction for want of sufficient resources. As stated on its website:
“On September 9, 2023, the Office of Management and Budget (OMB) announced citywide budget cuts. As
a result, the CCRB will lack the resources to fully investigate certain cases within its jurisdiction. After
careful consideration, effective January 1, 2024, the CCRB suspended investigating:
Failure to provide officers' business cards pursuant to the Right to Know Act (RTKA) with no other
allegations;
Refusal to provide name or shield number with no other allegations;
Discourteous words or actions with no other allegations;
Threats with no action with no other allegations;
Refusal to process a civilian complaint with no other allegations;
Property seizures with no other allegations;
Forcible removal to hospital with no other allegations;
Untruthful statements with no other allegations;
Any complaint that has only the above referenced allegations.
The CCRB will resume investigating these cases as soon as the city allocates sufficient funding to do so.” See “CCRB
Jurisdiction” at https://www nyc.gov/site/ccrb/complaints/file-a-complaint/ccrb-jurisdiction.page, last visited on
April 8, 2024.
1007
Patrol Guide 221-01, et seq. Beginning in 2015, more serious force cases are handled by the Force Investigation
Division (“FID”) and the Force Investigation Bureau (“FIB”). See “CCRB Jurisdiction”.
223
separately while splitting off the theft charge, but it has the discretion to send the entire complaint
to IAB.1008
Arguably, in the past, the “Abuse of Authority” component of FADO could have been read
to include bias-based policing and racial profiling and could have been handled by CCRB.
However, CCRB chose not to investigate those cases and, instead, referred them to IAB as “M”
cases. The decision by CCRB to send racial profiling complaints to NYPD, even when associated
with other FADO allegations, is not typical of civilian oversight entities.1009 As noted by the Office
of the Inspector General for the NYPD, the fact that CCRB “does not investigate complaints of
biased policing made against officers . . . makes CCRB an outlier among the independent police
review agencies that primarily handle complaints of police misconduct in the largest U.S. police
departments.”1010 This sentiment was seconded in a recent study by the New York State Attorney
General, who also concluded that CCRB’s jurisdiction should be explicitly expanded to include
investigating allegations of biased policing and racial profiling.
Following those observations, in 2021, the Charter was amended to authorize CCRB to
receive and investigate profiling cases, beginning in 2022, by including those allegations in the
definition of Abuse.1011
Other Possible Misconduct Noted (OMN)1012
There are other violations, such as an officer’s failure to complete a stop report, or other
necessary documentation such as an activity log, in-house rules violations, and off-duty
misconduct, that may remain beyond the CCRB’s jurisdiction and must be referred to the NYPD
as OMN’s.
In 2018, the Board revised CCRB rules with twelve amendments.1013 One of the changes
affected the way cases of misconduct are sent from CCRB to NYPD for allegations outside CCRB
subject matter jurisdiction and falling in the category described as “Other Misconduct Noted”
(“OMN"). The new rule provided that non-FADO misconduct “will be noted in case disposition
1008
38-A RCNY 1-15(b).
1009
See OIG-NYPD Sixth Annual Report at 8, online at https://www1.nyc.gov/assets/doi/reports/pdf/2020/OIGNYP
D_SixthAnnualReportFinal_4.9.2020.pdf.
1010
OIG-NYPD Sixth Annual Report at 8, online at https://www1 nyc.gov/assets/doi/reports/pdf/2020/OIGNYPD_
SixthAnnualReportFinal_4.9.2020.pdf.
1011
Local Law 47 of 2021, amending Charter § 440 (c)(1), Effective January 20, 2022. (“The board shall have the
power to receive, investigate, hear, make findings and recommend action upon complaints by members of the public
against members of the police department that allege misconduct involving excessive use of force, abuse of authority
including bias-based policing and racial profiling, discourtesy, or use of offensive language, including but not
limited to, slurs relating to race, ethnicity, religion, gender, sexual orientation and disability.”) (emphasis added).
1012
CCRB Rules were amended, effective October 22, 2022, to re-designate “Other Misconduct Noted” (“OMN”) as
“Other Possible Misconduct Noted” (“OPM”). (38-A RCNY § 1-44). Throughout this Report, citation to “OMN,” if
the disposition occurred after October 2022, should be read as “OPMN.”
1013
The Revised Rules were adopted on October 11, 2017, published in the City Record on January 2, 2018, and went
into effect on February 1, 2018.
224
by categories describing the possible misconduct and the evidence of such misconduct.” 1014 The
referral would be described as, “Other Misconduct Noted: The Board found evidence during its
investigation that an officer committed misconduct not traditionally investigated by the Board, but
about which the Police Department should be aware.” 1015
In 2018 there were 430 OMN allegations referred to NYPD from CCRB. 356 of them were
for document failures (stop report, memo book, activity log, strip search). The remainder ranged
from failure to supervise to unreturned property, etc. In 143 of OMN referrals, there was a FADO
substantiated allegation by CCRB as well. In 287 of the OMN referrals, there was not a
substantiated FADO allegation.1016 When DAO reviews a substantiated FADO allegation from
CCRB, it may or may not seek an independent investigation of the OMN referred allegation. More
often than not, DAO will simply combine the allegations without seeking an independent
investigation by IAB, BIU or OCD.
If APU becomes aware of possible misconduct outside of FADO during the course of a
prosecution, it will refer the matter directly to the Department.1017 The 2018 revision permitted note
of the referral.
The PBA objected to the 2018 revision of the OMN rule, claiming that in cases of
misconduct other than FADO, CCRB is without jurisdiction or authority: (1) to investigate; or (2)
to collect evidence; or (3) to forward evidence to the Department; or (4) to note misconduct in
CCRB records. The PBA argued that the new Rule would “allow non-FADO conduct to appear
in CCRB proceedings . . . [and] taint those reports and appear in the permanent record of that
officer. The challenge was rebuffed by the lower court on the grounds that “[d]ocumentation
affords clarity to both the NYPD and CCRB.” 1018 On appeal, the Appellate Division upheld the
rule change. The First Department panel held that the rule was merely “designed to make a record
of the existence of possible non-FADO misconduct . . . [which is] ‘noted’ as ‘possible misconduct’
with a listing of evidence of such misconduct and thus entails neither a finding nor a determination
made by CCRB.”1019
The “Other Misconduct” Rule contained within Subchapter E of the Rules of the CCRB,
applies only to APU prosecutions of Charges and Specifications.1020 Until amended in October,
2022, the rule specifically provided “[i]f during the course of a Prosecution the Civilian
1014
Revised Rule 38-A NYCRR §1-44. Subsequent to appellate approval in Lynch v. CCRB, 183 A.D.3d 517 (2020),
the PBA revised its objection because the word “possible” was not written into Rule 1-33 (e)(15). A lower court ruled,
on November 16, 2021, that “non-FADO misconduct” should be noted as “possible misconduct” to clarify that there
was no finding or determination by CCRB. Lynch v. CCRB, Sup. Ct. NY Cnty., Index No. 154653/2021 (emphasis
added). That decision was affirmed on July 11, 2022. Lynch v. CCRB, Index No. 154653/2021, Doc No. 88.
1015
38-A RCNY 1-34-(15).
1016
Appendix, CCRB Complaint Data 2018.
1017
38-A RCNY 1-44; Paragraph 7 of the APU-MOU.
1018
1019
Lynch v. N.Y. City CCRB, 98 N.Y.S.3d 695(Sup. Ct. N.Y. Cnty. 2019) (Crane, J.). (“Lynch”)
Lynch v. N.Y. City CCRB, 183 A.D.3d 512, 517 (1st Dep’t2020).
1020
Other Possible Misconduct Noted is also listed as a possible case disposition, presumably for all matters. 38-A
RCNY § 1-33(11).
225
Complaint Review Board becomes aware of possible misconduct falling outside its jurisdiction,
such as the making of a false statement by an officer, the Board shall not itself prosecute such
possible misconduct but shall instead immediately refer such possible misconduct to the Police
Department.”1021 The Rule is part of the MOU between the Department and CCRB on April 12,
2012, which mandates that CCRB amend its Rules to implement the MOU. The rules were
amended in 2022, but the MOU has not been amended.
Until an earlier Rules amendment, in January 2022, implementing Charter amendments,
bias-based policing and racial profiling allegations were examples of matters which would be split
off from investigation of a stop and frisk complaint and referred to NYPD. However, they were
not sent to the full panel first and no reference of profiling was made by the panel. Instead, an
immediate spin-off referral was made to IAB without detailing evidence or naming the subject
officers.1022
Several observations need to be made about Rule 1-44 in practice. The Lynch decision in
the Appellate Division,1023 when approving the modification, made no note of the distinction
between APU and non-APU cases, nor was it raised in the course of the litigation. In current
practice, evidence is compiled, noted and forwarded to the Department in all CCRB investigations
– not just APU prosecutions. Panels vote to refer a an OMN allegation in non-APU cases. It is
not unusual to see a stop and frisk investigation which includes a referral regarding stop reports or
activity log entries which are missing. Since Rule 1-44 does not apply to non-FADO cases, this
apparently derives from Rule 1-33 (15) which permits the Board to find “that an officer committed
misconduct not traditionally investigated by the Board” in all cases.
In sum, if other misconduct is discovered during the course of an investigation, the matter
will be referred to the Department and will not be prosecuted. If the matter is discovered before
APU prosecution, the matter will be presented to, and voted upon, by the Board panel. If the
matter is discovered after referral to APU and in the course of a prosecution, the matter will be
referred directly by APU, without presentation. When APU attorneys prepare a case for trial, they
are privy to more departmental information than they might obtain in the normal course of less
‘serious’ misconduct. Personnel records which are not automatically shared with CCRB
investigators are made available to APU. They might include, for example, IAB interviews of
officers, the CPI, Command Disciplines, prior IAB, OCD, FID investigations, or the fact that the
officer is on disciplinary probation. It is more likely that APU prosecutors will uncover other
misconduct than that which may be discovered during the normal course of a CCRB investigation
of minor misconduct.
The MOU and the Rules provide that, when an investigation is spun off or referred to
NYPD, the agencies may coordinate investigations, or the Department may enlist the assistance of
1021
Id. (emphasis added).
1022
Memo, Re: Profiled Contact, Olas Carayannis, Director of Quality Assurance and Improvement, CCRB, to the
Investigations Division, March 28, 2018.
1023
Lynch, 183 A.D.3d 512.
226
investigative encounter carries a presumptive penalty of five days with a mitigated penalty of three
days. 1027
This raises a few questions. Assuming CCRB has a stop complaint under investigation and
a camera was not activated as required, or required documents were not prepared, will the OMN
referral for BWC misconduct1028 or stop report failure go to DAO? IAB? OCD? Or the precinct?
Will that depend upon whether CCRB substantiates the stop complaint? In the past, DAO did not
send stop report failures out for investigation if the SQF complaint was substantiated. That is no
longer the case. Will the presumptive penalty for a BWC failure, or a stop report failure, depend
upon whether CCRB substantiates the stop complaint? Is, in the words of the Matrix, the
“underlying incident . . . the subject of an investigation” when CCRB unsubstantiates the stop
complaint? Without coordination with CCRB, how will NYPD or CCRB know what penalty is
appropriate for the BWC or stop report failures? An SQF violation may be noted by CCRB with
a recommendation for a given penalty. At the same time, a stop report failure may be referred to
NYPD for investigation. The important question is whether the two investigations will be
reconciled and, if so, will each allegation, if substantiated, receive independent assessment under
the disciplinary matrix?
While CCRB posts disciplinary results of its investigations online1029 and the Department
posts a limited number of disciplinary outcomes on its “officer profile” pages,1030 stop report
failures, along with other OPMN referrals sent to the local command are not available for public
inspection. In other words, there is no way to know the outcome of OPMN investigations and
whether or what discipline was imposed.
For example, in one case, CCRB had recommended a B-CD for an illegal search and
referred over to NYPD the failure to make entries in the officer’s Activity Log. The Police
Commissioner departed by reducing the search to an A-CD, and then wrote that the A-CD “will
include the failure to make proper Activity Log entries.”1031 If the usual protocol was followed,
DAO did not send the log failure out for independent investigation but merely accepted the OMN
referral and folded it into the potential discipline for the bad search. Without more, based upon the
departure letter, it appears that the documentation failure was neither investigated nor
independently subjected to discipline.
1027
The Department has proposed revisions to the discipline matrix which would reduce the mitigated penalty for
failure to prepare a required report, i.e., activity logs and memo books, to training. The comment submission period
ended June 18, 2023. The revision has not been adopted as of December 1, 2023.
1028
Rule changes adopted effective October 22, 2022, would permit BWC violations to be investigated by CCRB as
an abuse of authority. On January 12, 2023, the NYC PBA filed a lawsuit seeking to bar investigation of BWC
violations by CCRB. PBA of the City of NY v. NY City CCRB., Index No. 150441/2023 (Sup. Ct. N.Y. Cnty.). The
Department joined the union in arguing that BWC non-compliance should not be investigated by CCRB as an abuse
of authority. Doc. No. 22 at 7.
1029
https://www nyc.gov/site/ccrb/policy/MOS-records.page.
1030
https://nypdonline.org/link/2, reserved for outcomes of formal discipline, discussed below.
1031
Police Commissioner’s Penalty Departure, PO
, (now Sgt.
as of May 17, 2022), CCRB
, February. 6, 2020. PO
has had ten CCRB complaints investigated with three substantiated.
#
228
In the above-cited case, under the Guidelines, does CCRB investigate and make a finding
regarding the activity log? Is it an aggravating circumstance? It’s outside CCRB’s jurisdiction. If
CCRB refers the OMN to NYPD, how can CCRB consider this as an aggravating factor without
investigation? If DAO rolls the activity log failure into consideration of the substantiated search,
how will DAO know whether this failure is an aggravating factor or a separate offense without
independent investigation? Without investigation by CCRB or one of the investigating units at
NYPD, how can this assessment fairly be made? An illegal search of a person carries a
presumptive penalty of 3 days and a mitigated “penalty” of Training, but BWC and Stop Report
failures should be investigated, evaluated, and taken into consideration, either as an aggravating
circumstance or added penalty, or both. The question is “How and where will that be done?”
The point here is to examine problems that surface when artificial boundaries are placed
on CCRB jurisdiction as penalties are assigned in a Guidelines regime. How can CCRB’s
circumscribed jurisdiction be reconciled with Guideline penalties that are divided between two
investigating entities? With particular reference to SQF misconduct, the question is asked to
highlight the difficulty that may arise when misconduct related to an encounter, such as report
failures, BWC failures,1032 are removed from CCRB scrutiny.
With increased usage of body-worn cameras, the possibility that misconduct will be
captured even in the absence of a civilian complaint to CCRB increases as well. The BWC-MOU,
signed in November 2019, granted access in a contained viewing room to CCRB investigators
when responding to a complaint. While looking at the videos, if the investigator “recognizes or
believes that he or she has observed potential misconduct . . . unrelated to the incident under
investigation by the CCRB, the investigator shall refer the incident to the NYPD’s Internal Affairs
Bureau . . . [and] not commence an investigation into the unrelated incident.”1033 It is unclear if
CCRB will note the referral in “case dispositions by categories describing the possible misconduct
and the evidence of misconduct” under OMN referral rule.1034 However, the BWC MOU goes on
to provide that “The NYPD IAB Liaison will inform the CCRB of the actions, including
dispositions, it has taken in response to any such referral,” which is a break from the customary
practice of other OMN referrals. Unfortunately, according to CCRB, notwithstanding the MOU,
the plan for review was not implemented.1035
i.
Defining FADO
It is relatively clear what misconduct comes within the force, discourtesy, and offensivelanguage categories of CCRB jurisdiction.
1032
Subsequent to this draft Report, on October 22, 2022, 38-A RCNY § 1-01 was amended to permit CCRB to
investigate improper use of body worn cameras as an abuse of authority.
1033
BWC-MOU paragraph 7(a).
1034
38A RCNY 1-44
1035
Item 393, City 09.01.23 Feedback to Yates Discipline Report. (“This never materialized, there is no viewing room.
The CCRB still only receives the BWC that NYPD deems relevant to our requests.”).
229
FORCE
The Patrol Guide defines “Excessive Force” as “Use-of-force deemed by the investigating
supervisor as greater than that which a reasonable officer, in the same situation, would use under
the circumstances that existed and were known to the member of the service at the time force was
used.”1036
The Disciplinary System Penalty Guidelines is more specific, sub-categorizing levels of
force:1037
Deadly Physical Force – Physical force which, under the circumstances in which it
is used, is readily capable of causing death or other serious physical injury (e.g. the
use of a deadly weapon, such as discharging a firearm, against a person).
Non-Deadly Force – Force not readily capable of causing death or other serious
physical injury (e.g., physical force such as employing a takedown technique, and
using hand strikes or foot strikes against a person).
Less Lethal Force/Device – The application of a significant intermediate use of
force option including Oleoresin Capsicum (“O.C.”) spray, conducted electrical
weapon (“CEW”) or impact weapon against a person.
DISCOURTESY AND OFFENSIVE LANGUAGE
The Charter merely authorizes investigation of “discourtesy, or use of offensive language
including, but not limited to, slurs relating to race, ethnicity, religion, gender, sexual orientation
and disability” without further definition.1038 The Departmental Manual prohibits “Using
discourteous or disrespectful remarks regarding another person’s age, ethnicity, race, religion,
gender, gender identity/expression, sexual orientation, or disability” without more specificity.1039
The Disciplinary System Penalty Guidelines goes further, even including examples:1040
Discourtesy – Discourtesy may include foul language, acting in a rude or
unprofessional manner (such as demeanor or tone), and flashing rude or offensive
gestures that is unjustified or unwarranted with no legitimate law enforcement
purpose.
Example: an officer holding up his middle finger to an individual recording the
officer on a cell phone camera, with no legitimate law enforcement purpose.
1036
Patrol Guide § 221-01.
1037
https://www nyc.gov/assets/nypd/downloads/pdf/public_information/nypd-disciplinary-penalty-guidelineseffective-2-15-2022-final.pdf, at 21.
1038
N.Y. City Charter § 440 (c)(1).
1039
Administrative Guide § 304-06(2).
1040
NYPD Disciplinary System Penalty Guidelines at 26, https://www nyc.gov/assets/nypd/downloads/pdf/public_in
formation/nypd-disciplinary-penalty-guidelines-effective-2-15-2022-final.pdf.
230
Offensive Language – Offensive language is more serious conduct than discourtesy
and includes slurs based on membership in a protected class such as race, religion,
ethnicity, gender, gender identity, sexual orientation, age or disability. Offensive
language is distinguished from “Hate Speech” (see below).
Example: an officer is aware that a transgender female identifies as a woman, yet
the officer referred to the complainant as “he,” not the complainant’s preferred
gender pronoun while speaking to her.
ABUSE OF AUTHORITY
It is less clear what misconduct comes within the abuse of authority category. The term
“Abuse of Authority” is not defined by the Charter. As such, it can potentially cover a wide
spectrum of misconduct. The Board has flexibility in deciding, as a matter of policy, what
misconduct constitutes an abuse of authority.1041 Until 2021, the term went undefined. While the
Departmental Manual explains the obligations and duties of officers and the corresponding
misconduct for which they are accountable, it does not define “abuse.” The Disciplinary
Guidelines have 30 categories of penalties for Abuse of Authority, but it does not claim to be
exhaustive or exclusive. The Board is not necessarily bound by the Patrol Guide. “Abuse” is left
to reasonable interpretation by the Board. It can, within its delegated authority, reach to include
some items under the umbrella of FADO which are not explicitly banned by the Patrol Guide, or
some items banned by the Patrol Guide which the Police Commissioner may not believe are within
CCRB jurisdiction.
CCRB, in a list of allegations received by type, identifies 49 categories of misconduct as
abuse of authority.1042 Generally, they include wrongful entry, seizures, threats, interference with
recordings, and refusal or failure to perform required duties during a civilian encounter. As
pertinent to this Report, included in this category are street encounters involving wrongful stops,
questioning, frisks, searches, and an officer’s refusal to identify or non-compliance with the
requirements of the Right to Know Act.1043 Arguably, the entirety of Patrol Guide § 212-11
(Investigative Encounters) should fall within the purview of Abuse of Authority and, as such, fall
within CCRB’s jurisdiction.
Whether an act of misconduct properly falls within CCRB’s “Abuse” jurisdiction is not
always clear. One example where the Police Commissioner and CCRB disagreed over jurisdiction
is of a complainant who was pursued by an off-duty Sergeant, in a seeming moment of road-rage,
1041
Lynch v. CCRB, 206 A.D.3d 558 (1st Dep’t), Index No.154653/21, Appeal No. 16202, Case No. 2021-04687 (July
10, 2022) (“Given the CCRB’s expertise in studying and investigating police disciplinary matters, we defer to its
interpretation of the term ‘abuse of authority’ unless that definition is irrational, unreasonable or inconsistent with the
governing statute.”).
1042
CCRB Semi-Annual Report 2021 at 23, available at https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy
_pdf/annual_bi-annual/2020_semi-annual.pdf (one category is “other”).
1043
NYC Admin. Code § 14-174, eff. October 19, 2018. 38-A RCNY §1-01, as amended October 22, 2022, specifies
that “refusals to provide identifying information” is an abuse of authority, but there is no specific reference to all
provisions of the Right to Know Act such as offering a business card or explaining the reason for a stop. Failure to
comply with the Right to Know Act, in its entirety, would appear to constitute an abuse of authority as well.
DiGiacomo v. N.Y. City Civilian Complaint Review Bd., 212 A.D.3d 551 (1st Dep’t 2023).
231
in his personal car.1044 This was done without proper cause for a stop. The complainant charged
that the Sergeant threw bottles at him during a wild chase. The complainant pulled over and
stopped next to an RMP that was unconnected to the chase. An independent witness said the
Sergeant appeared to be a drunk driver, driving in an erratic manner and swerving from side to
side. The Sergeant left his private car and detained the driver. He then issued an improper
summons for Reckless Driving.1045 CCRB substantiated an abuse claim for “conducting a vehicle
pursuit of a vehicle without sufficient legal authority.” The Police Commissioner closed the case
administratively and took no disciplinary action, having determined that CCRB did not have
jurisdiction in that case.1046
Prior to the 2019 Charter referendum, the City Charter made no reference to false
statements or false documentation made by an officer in the course of processing a case or during
a misconduct investigation. Such arguably could have been considered an abuse of authority and
could potentially have been investigated by CCRB in conjunction with a complaint under
investigation.1047 “When police officers provide testimony or make official written statements
against civilians ‘in the performance of official police functions,’ they are plainly exercising their
authority as police officers, and when they intentionally falsify such testimony or statements, they
clearly abuse that authority.”1048 This may have been accomplished by amendment to the definition
of “Abuse of Authority” discussed below.
ii.
Abuse of Authority Defined for the First Time
In February 2021, the Board defined “Abuse of Authority” in its regulations for the first
time, 38-A RCNY § 1-01 was adopted to read:
Abuse of Authority. The term ‘Abuse of Authority’ refers to misusing police
powers. This conduct includes but is not limited to, improper searches, entries,
seizures, property damage, refusal to provide identifying information, and
intentionally untruthful testimony and written statements made against members of
the public in the performance of official police functions.
1044
Discussed in greater detail in the CCRB, Report on the Administrative Prosecution Unit – Third Quarter 2016Fourth Quarter 2017, at 7, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarte
rly_reports/apu_2016q3-2017q4.pdf.
1045
VTL § 1212.
1046
Vehicle stops accounted for 6% of the allegations received by CCRB in the 2021 semi-annual report. See also
Torres v. Madrid, 141 S. Ct. 989 (2021), (force used in an attempt to restrain, objectively measured, is a seizure under
the Fourth Amendment). The Disciplinary Guidelines lists Improper/Wrongful - Stop of a Vehicle” under the
Misconduct category of Abuse.
1047
See, Lynch v. NYC CCRB, Index No. 154653/2021, Memorandum of Law in Support of Defendants-Respondents’
Verified Answer to The Petition and in Support of Defendants-Respondents’ Cross-Motion to Dismiss at 11, citing
Memorandum from CCRB’s General Counsel, January 2021 (“false official statements “harms civilians, betrays the
public trust, and directly implicates CCRB’s abuse of authority jurisdiction. . . .’”)
1048
Id. at 22.
232
The new definition drew not one, but three lawsuits.1049 The petitioners complained
procedurally of the rule-making process and substantively of the definition’s breadth. The
Petitions, in the aggregate, asserted:1050
Inclusion of the term “misusing police powers” at the core of the definition of Abuse
wrongfully expands CCRB’s authority beyond the language of the Charter and
historically observed boundaries.
“Abuse” requires malicious intent, whereas “misuse” would encompass incorrect
actions without intent.
The Rule expands false statement jurisdiction beyond the Charter in that it would allow
investigation of perjury, false written statements, falsifying business records, tampering
with public records and offering a false instrument for filing - all of which are Penal
Law offenses falling within the province of District Attorneys. Criminal acts are
outside CCRB’s jurisdiction.
The Rule wrongly allows investigations of false statements by officers other than those
who are the subject of an investigation - the language of the Charter.
The Rule was adopted in violation of the Open Meetings Law and without allowing a
proper comment period.
The City responded to the arguments concerning “Abuse of Authority” by pointing out:
“Misusing police powers” and “abuse of authority” are close enough in definition and
practice to fall within the general rule that a regulatory body is entitled to deference
when it defines terms legislatively assigned to it.
False statements, when they harm a civilian complainant, always were an abuse of
authority within CCRB’s jurisdiction. The Charter amendment merely took away the
need for a complainant when the false statement was made to a CCRB investigator,
since the civilian complainant, in the past, could not complain of an interview of which
he was unaware. As a supporting memo by CCRB claims, “This area is ripe for
independent oversight.”1051
On November 16, 2021, the lower court ruled that CCRB’s interpretation of its abuse of
authority jurisdiction is entitled to great weight and judicial deference. Petitioners appealed and
on June 28, 2022, the Appellate Division, First Department affirmed the lower court and approved
the amended definition of Abuse of Authority, finding that the “making of false statements against
civilians” is an abuse and is “consistent with the plain language of the governing statute.”1052
1049
Lynch v. NYC CCRB, Index No. 154653/2021 (N.Y. Cty. Sup. Ct.) (NYC PBA); DiGiacomo v. NYC CCRB, Index
No. 154779/2021 (N.Y. Cty. Sup. Ct.) (Det. Endowment Assn.); Turco v. NYC CCRB, Unassigned (N.Y. Cty. Sup.
Ct.) (Sgts Ben. Assn). The three matters were re-assigned and joined on June 29, 2021.
1050
The petitions allege a number of other wrongs with the Rules, some of which are repeats of the prior, 2018,
litigation. The discussion here is limited to a few material complaints by the unions.
1051
Memorandum, to CCRB from General Counsel’s Office (Jan. 8, 2021), available
https://www1.nyc.gov/assets/ccrb/downloads/pdf/about_pdf/board/2021/01132021_memo_propo sedrules.pdf.
1052
at
Lynch v. N.Y. City Civilian Complaint Review Bd., 206 A.D.3d 558 (1st Dep’t 2022).
233
Untruthful statements by police officers are clear misuses of their police powers and constitute an
abuse of authority.1053
Armed with court decisions deferring to its definition, CCRB again expanded its definition,
effective October 22, 2022, to read:
Abuse of Authority. The term "Abuse of Authority" refers to misusing police
powers. This conduct includes, but is not limited to, bias-based policing and racial
profiling, improper use of body worn cameras, improper searches, entries, seizures,
property damage, refusals to provide identifying information, intentionally
untruthful testimony and written statements made against members of the public in
the performance of official police functions, and sexual misconduct.1054
iii.
Processing False Statements Under the New Rules in The
Administrative Guide
When the Charter amendment regarding false statements became law, an amendment to
Rule 1-44 and the APU-MOU became necessary since both explicitly directed APU to
“immediately” refer such “possible misconduct” (false statements) to the Department because it
fell “outside” CCRB’s jurisdiction. The Rule was amended in 2022.1055 The APU-MOU has not
yet been amended. Within the new definition of Abuse of Authority, the Board has acted to include
false reports or statements made not only in a CCRB interview, but at any time when it harms a
civilian or a civil right.1056 Under the new Rule, CCRB can investigate and sustain an abuse
allegation where the officer is claimed to have filed false paperwork (such as a stop report, arrest
report or complaint) or lied during a court proceeding or an IAB investigation. The misconduct
need not have been made to a CCRB investigator.
Aside from the question of jurisdiction, i.e., was the statement made outside a CCRB
investigation, handling of false statement allegations will need to be ironed out between CCRB
and NYPD. As discussed later, the Police Commissioner recently amended Patrol Guide 20308,1057 over the objection of CCPC, to sub-divide untruthful writings and statements by officers –
distinguishing between False Statement, Misleading Statements, Inaccurate Statements and
Impeding an Investigation. Additionally, the proposed Disciplinary Guidelines further define
Denials, Retractions, Omissions, Inaccurate Statements and Mistakes.
For example, the City, in its review of a draft of this Report, objected to a reference to
“missing reports” as possible inclusion within an untruthful statement determination by CCRB. It
1053
Lynch, supra NYSCEF Doc No. 80.
1054
38-A RCNY §1-01, adding profiling and sexual misconduct investigations as discussed below.
1055
Section amended City Record Sept. 22, 2022, § 1, eff. Oct. 22, 2022.
1056
Failure to file a report (memo book, activity log, stop report, consent to search report, strip search documentation,
etc.) are not reviewed by CCRB as “Acts of omission are not included in the CCRB’s false statement allegations.”
(Item 402, City 09.01.23 Feedback to Yates Discipline Report). This seems odd since an intentional omission about a
material item can support a false statement claim. See, e.g., Kastis v. Alvarado, 2019 US Dist. LEXIS 115731 (E.D.
Cal., 2019). Similarly, a failure to file a stop report is a violation of PG § 212-11.
1057
Now AG § 304-10.
234
noted that “Acts of omission are not included in the CCRB’s false statement allegations.” 1058
Plaintiffs responded that, “CCRB still investigates missing memo book entries, etc. as OMNs but
they are not included in the “false statement” jurisdiction that was granted.” (Presumably referring
to section 440 of the Charter.)1059 However, within the Disciplinary System Penalty Guidelines,1060
“Omissions” are included as possible misconduct within the definition of “Misleading” if the
“omitted fact(s) [are] material [and] intentional.” Is an intentional, material, omission in a stop
report an untruthful statement which can be substantiated as an Abuse of Authority or a False
Statement by CCRB?
In cases where substantiated Charges and Specifications are being prosecuted, the MOU
outlining the powers of the Administrative Prosecution Unit (“APU”), states that false statement
investigations fall outside FADO jurisdiction. The MOU dictates that the CCRB should refer false
statements and any other misconduct which falls outside FADO “immediately” to the Department
for investigation.1061
Most SQF cases do not result in Charges and Specifications and are not prosecuted by the
APU.
Since the MOU provision applies only to Charges prosecuted by APU, nothing prevents
examination by CCRB of false statements in non-APU cases, i.e., most SQF cases. A false
statement made in a report, to a fellow officer, or to a District Attorney, if made to justify a stop
or frisk can be read as an abuse of authority. However, the language in the APU-MOU that false
statements fell “outside FADO jurisdiction” had been read: (1) to bar review of all false statements,
whether made to a CCRB investigator, in a report, or to a District Attorney; and (2) to prevent
examination in non-APU cases even though the memorandum only applies to APU cases.
1062
The 2019 Charter Amendment, effective March 31, 2020, partially addresses the issue. But
by its language, it is limited to statements made to CCRB alone.1063 In 2019-2020, prior to the
Charter Amendment, CCRB sent 26 cases to IAB as OMN referrals. In the first full year of its
expanded authority (3rd Quarter 2020 through 2nd Quarter 2021), CCRB referred five substantiated
allegations of an Untruthful Statement to the Department. There were also 66 findings of an
1058
Item 402, .09.01.23 Feedback to Yates Discipline Report.
1059
Item 402, .09.29.23 Law Department Discipline Excel with headers and plaintiff comments--updated 10.24.23.
1060
NYPD Disciplinary System Penalty Guidelines (Feb. 15, 2022), at 31.
1061
CCRB & NYPD, Memorandum of Understanding Between the Civilian Complaint Review Board and the Police
Department of the City of New York Concerning the Processing of Substantiated Complaints ¶ 7, April. 2, 2012,
available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/about_pdf/apu_mou.pdf (“If during the course of its
prosecution of a substantiated civilian complaint CCRB becomes aware of possible misconduct falling outside its
FADO jurisdiction, such as the making of a false statement, which is alleged to have been committed by the subject
officer, CCRB shall immediately refer the allegation of other misconduct to NYPD for investigation and shall not
itself undertake the prosecution of such allegation.”).
1062
A review of SQF cases substantiated by CCRB for the 18-month period from January 2018 to June 30, 2019,
shows that panels recommended Charges and Specifications for 27 of 176 cases. None of those cases resulted in a
trial by prosecuted by APU.
1063
City Charter § 440 (c)(1). The Board may make recommendations “regarding the truthfulness of any material
official statement made by a member of the police department who is the subject of a complaint received by the board,
if such statement was made during the course of and in relation to the board’s resolution of such complaint.” The
Board began to investigate untruthful statements made to CCRB after July 18, 2020. Annual Report 2020 at 17.
235
Impeding Investigation allegation, but they were for officer refusals to be interviewed during the
COVID-19 pandemic, and they were “closed administratively after an agreement was reached with
the NYPD and police unions under which the officers agreed to be interviewed.”1064
As noted earlier when discussing split investigations, the officer’s interview by IAB is not
generally made available to CCRB. This is unfortunate in light of the Court’s expressed concern
in the Floyd liability opinion that NYPD tended to reject SQF complaints by over-reliance upon
the officer’s account. At the same time, in its remedy opinion, the Court ordered increased
deference to credibility determinations made by CCRB. When CCRB evaluates statements made
in a CCRB interview and IAB separately investigates false statements made outside the context of
a CCRB interview, the result may well be a “split” determination with inconsistent assessments of
credibility. The CCRB may discredit an officer’s account and substantiate a claim of an illegal
stop or search. At the same, the NYPD might examine the officer’s account and may decide to
unsubstantiate a false statement allegation. The DAO and the Police Commissioner are then
presented with the CCRB’s finding that the SQF encounter was illegal or abusive based in part on
an assessment against the officer’s credibility and that the officer’s explanation was false.
Simultaneously, the IAB may have looked at the officer’s statement or statements made elsewhere
(police reports, district attorney interviews, court testimony) and decided to credit the officer’s
account as true or not incredible.
iv.
Use of Force - Display of a Firearm
CCRB does not entirely align its force allegations with the four-tier system used by IAB.
CCRB subcategorizes force complaints into 18 groupings, from “gun pointed” to “restricted
breathing.”1065
It is unclear where “display” or “brandishing” of a firearm when the gun is not aimed at
the complainant falls. CCRB and NYPD do not always see eye-to-eye. CCRB may consider the
unnecessary brandishing of a weapon to be a use of force violation.1066 If a questionable stop is
made with a drawn firearm, does this constitute an improper use of force in the eyes of the
Department? Use of Force reports by the Department do not include cases where a gun is pointed
or drawn, since the Patrol Guide does not require the filing of a TRI unless the firearm is discharged
(Level 4) or used as a hard object against a civilian (Level 2).1067
From 2013 through 2017, there were 1,202 allegations accepted by CCRB of cases where,
according to the complaint, a gun was improperly pointed, out of a total of 19,687 use of force
1064
CCRB Annual Report at 35, available at. https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_biannual/2020_Annual.pdf.
1065
See e.g., CCRB, Executive Director’s Monthly Report, January 2020 at 42.
1066
CCRB will consider “gun drawn” as a potential abuse of authority. Item 407, City 09.01.23 Feedback to Yates
Discipline Report. On the other hand, NYPD only lists such as an abuse if there is a wrongful “threat of force.” NYPD
Disciplinary System Penalty Guidelines, at 28.
1067
NYPD, Use of Force, available at https://www1.nyc.gov/site/nypd/stats/reports-analysis/use-of-force.page.
236
allegations (6.2 percent).1068 New York State recently directed each locality to report incidents of
police use of force for statewide compilation and publication.1069 Under that law, brandishing a
weapon constitutes a reportable use of force. Division of Criminal Justice Services regulations,
promulgated to implement section 837-t, define brandishing to be when officers “point a firearm
at a person or persons.”1070 Nonetheless, “NYPD only reported to the state incidents where a
firearm was used or discharged” in the first report, unlike other police organizations throughout
the State.1071
Patrol Guide section 221-01 outlines permissible uses of force. The section prohibits an
unjustified cocking of a firearm. The Discipline Guidelines also cautions that “[d]rawing a firearm
prematurely or unnecessarily limits a uniformed member’s options. . . . The decision to display or
draw a firearm should be based on an articulable belief that the potential for serious physical injury
is present.” Threatening to use a firearm, in and of itself, may constitute a “threat of force” which,
if unwarranted, is an Abuse of Authority and punishable under the Disciplinary System
Guidelines.1072
In one case before a Trial Commissioner, an officer who verbally threatened to shoot the
complainant with his gun displayed at a “ready position: 45 to 50 degrees toward the ground” was
found not guilty of wrongful use of force, but guilty of threatening a use of force without sufficient
cause.1073
In another case,1074 an officer chased an 11-year-old boy and a 13-year-old girl who were
playing basketball in a park. The officer was acting on an anonymous call of a man with a gun in
the park with a vague description. CCRB determined that the description was insufficient to justify
an attempt to stop the two children and sought Charges and Specifications against the officer for
illegal stops and improper use of force. DAO acknowledged that: “While in pursuit, PO
pointed his firearm at both [children].” DAO asked CCRB to withdraw the Charges and exonerate
the officer, in part on the grounds that, “[t]he Department does not consider the act of an officer
1068
CCRB, 2017 Annual Report Statistical Appendix at 14, available at https://www1 nyc.gov/assets/ccrb/download
s/pdf/policy_pdf/annual_bi-annual/2017_annual-appendix.pdf, 14.
1069
Executive Law S 837-t.
1070
9 NYCRR Part 6058; see also NYS Division of Criminal Justice Services, Use of Force: Questions and Answers,
available at https://www.criminaljustice ny.gov/crimnet/ojsa/crimereporting/Use%20of%20Force%20%20Question%20and%20Answers.pdf.
1071
NYS Division of Criminal Justice Services, Use of Force Incidents Report, , July 2021, at 13, available at
https://www.criminaljustice.ny.gov/crimnet/ojsa/use-of-force-incidents-final-report.pdf.
1072
See NYPD Disciplinary System Penalty Guidelines, January 15, 2021, at 18-22, available at
https://www.nyc.gov/assets/nypd/downloads/pdf/public_information/disciplinary-system-penalty-guidelineseffective-01-15-2021-compete-.pdf.
1073
PO
.pdf.
1074
PO
, Case No.
, available at https://oip nypdonline.org/files/
, Reconsideration Request, CCRB #
, April 7, 2018.
237
v.
Failure to Supervise - Outside CCRB Jurisdiction?
Prior to the 2019 Charter change, CCRB Rule 1-44 declared that false statements fell
outside CCRB jurisdiction and should be referred to the Department. After the Charter
authorization, an amendment to Rule 1-44 could have been a simple deletion of the reference to
false statements. Unfortunately, the Rule was also amended to add a new exclusion, “a superior
officer’s failure to supervise.” This arbitrarily carves out failures to supervise as “outside CCRB’s
jurisdiction” and strips CCRB of the power to review serious misconduct.1080 There is no reason
why a failure to supervise during a street encounter should not be considered an abuse of authority.
Earlier in this Report, the distinction between active and passive supervisory failures,
which were made on an ad hoc basis by NYPD and CCRB, was noted. In fact, that is a distinction
without a difference. A supervisor in a squad car or on street patrol who is physically present
during, and aware of, egregious SQF misconduct has abused his authority even if he did not
participate personally. In that situation, the supervisor is not some passive, remote, observer
distanced in time and space.
But even if one accepts the distinction between active and passive failure, total exclusion
of both from CCRB’s ambit, as appears from the language in amended Rule 1-44, is a particular
affront and peril to stop and frisk compliance for several reasons. To understand this, it is
necessary to go back to the origins of Floyd and the Monitorship.
The liability opinion in Floyd highlighted the importance of, and failures of, supervisors in
preventing abuse and indifference:
“Much evidence was introduced regarding inadequate monitoring and supervision of
unconstitutional stops.”1081
“A municipality may incur Monell liability based upon deliberate indifference through
its Training and supervision practices.”1082
“Even NYPD commanders and supervisors have acknowledged that UF-250s do not
provide enough information to determine whether reasonable suspicion existed for a
stop.”1083
“The evidence showed that the NYPD turned a blind eye to its duty to monitor and
supervise the constitutionality of the stops and frisks conducted by its officers.”1084
“More importantly, the evidence showed that sergeants do not effectively monitor the
constitutionality of stops even when they are present.”1085
1080
For supervisors and peer officers the Patrol Guide considers, “Failure to intervene in the use of excessive
force . . . is serious misconduct.” Patrol Guide § 221-01.
1081
Floyd Liability opinion at 561.
1082
Id.; see also Monell v. NY City Dept of Social Services, 436 U.S. 658 (1978).
1083
Id. at 578.
1084
Id. at 590.
1085
Id. at 611.
239
The remedies opinion stated:
“The Monitor’s initial responsibility will be to develop, based on consultation with the
parties, a set of reform of the NYPD’s policies, Training, supervision, monitoring and
discipline regarding stop and frisk.”1086
Reforms are needed for “direct supervision” and “indirect supervision” which would
cover both on-the-scene supervision and post hoc reviews.1087
The substitution and placement in Rule 1-44 of language stripping CCRB of authority to
look at supervisory failures is antithetical to the Floyd rulings in two ways. First, the carve-out is
broader than prior practice and would appear to cover both active and passive supervisory failures.
It may be, going forward, that CCRB will be permitted to investigate cases where the supervisor
physically participated in the misconduct, but it would appear by the language of 1-44 that a CCRB
investigator or panel member cannot examine a direct, improper, order by a supervisor (“Go toss
that guy.”)1088 In any event, a supervisor who is present and condones misconduct should be
identified as one who has abused his authority.
Second, replacing the language of the false statement exception with a failure-to-supervise
exception, backfilling the same space in the Rules that was deleted, will, once again, cause
“immediate” referrals with no examination and no notation by the panel that a referral was made.
Unlike other referrals where the panel notes OMNs and cites evidence, supervisory failures will
not be documented by CCRB.1089 If the Rule follows previous practice, there will not be vote by a
panel, there will not be a notation by CCRB, and there will not be a detailing of the evidence
passed on to NYPD by CCRB. 1090
After trial, Judge Scheindlin flatly rejected the City’s defense that supervisors, left to their
own devices, are an effective guardrail against misconduct. She called for changes in the way they
supervise and for oversight of their actions on the street. Throwing the inquiry back to the
1086
Remedies Opinion at 12 (emphasis added).
1087
Id. at 23.
1088
CCRB asserts, in its response to a draft of this Report that it investigates allegations against supervising officers
“if they actively participate in the misconduct by words or deeds.” ( Item 416, City 09.01.23 Feedback to Yates
Discipline Report). If so, it would appear that the language in § 1-44 is overbroad and should be amended.
1089
CCRB asserts, in its response to a draft of this Report, that panels send failure to supervise allegations to NYPD
as OPMNs.
1090
NYPD has, in recent years, adopted a policy of reporting back to CCRB the outcome of a profiling referral sent to
IAB. Since none were substantiated, the report back would not be especially informative. At a minimum, going
forward, IAB should report the outcome of referrals in failure to supervise cases. A good example might be the
2020, PO
was found
investigation into CCRB complaint #
. There, during a protest on
to have struck a reporter with his baton and to have been untruthful during the investigation. The reporter was
wrongfully arrested and given a summons. PO
was on the scene with a supervising officer, Lt.
who was alleged to have been present and spoken discourteously (cursed) at the reporter at the same time. Based on
be charged with discourtesy.
a video with “no . . . ambiguity” the CCRB investigator recommended that Lt.
The panel unsubstantiated the discourtesy allegation against Lt.
but referred an OMN allegation of failure to
was
supervise against him. It is unknown what ensued within the Department with that referral, but Lt.
separately found to have wrongfully used force, himself, on the same day.
240
Department and stripping CCRB of the ability to scrutinize supervisory behavior is a step back
from reform of stop and frisk activity.
vi.
Sexual Misconduct
In February 2018, the Board, by Resolution1091 voted, as a matter of policy, to prosecute
allegations of sexual misconduct, including sexually motivated street stops and traffic stops as an
abuse of authority. The PBA challenged the move claiming it was, in effect, a Rule change not a
policy change, that would require public notice and comment under the City Administrative
Procedure Act (CAPA).1092 The PBA also argued that the policy exceeded Charter FADO
jurisdiction. Their claim was that sexual misconduct or harassment of a civilian is not an abuse of
authority. The lower Court upheld the Board’s determination, deciding that a mere policy change
did not require CAPA compliance. The Court also ruled, giving deference to the agency’s reading
of the Charter, that it was within the Board’s regulatory powers to include sexual misconduct in
the definition of abuse of authority.1093
The CAPA segment of the decision was reversed on appeal, with the Appellate Division
holding that the change in practice was a “sweeping policy change . . . amount[ing] to the adoption
of a new ‘rule.’”1094 CCRB did not appeal that decision.1095
Notably, the Appellate Division did not hold that sexual misconduct cannot be included in
the definition of abuse of authority. Without reaching the merits of that issue, it held the Resolution
to be a nullity on procedural grounds. The holding was that CCRB “did not follow the public
vetting process required by CAPA.”1096 CCRB in February 2021 adopted the necessary Rule
change and sexual misconduct may now be investigated.1097
The current Rule1098 provides:
Sexual Misconduct. The term “Sexual Misconduct” encompasses misconduct of
a sexual nature alleged by a civilian against a member of the Police Department. It
includes, but is not limited to, the following examples of misconduct: verbal sexual
harassment; sexual harassment using physical gestures; sexual humiliation;
sexually motivated police actions such as stops, summonses, searches, or arrests;
sexual or romantic propositions; and any intentional bodily contact of a sexual
1091
CCRB, Board Resolution, Feb. 14, 2018, available at https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_p
df/20181402_boardmtg_sexualmisconduct_resolution.pdf.
1092
City Charter § 1041 (5).
1093
Lynch v. New York City CCRB, 64 Misc. 3d 315 (Sup. Ct. N.Y. Cnty. 2019).
1094
183 A.D.3d 512 (1st Dep’t 2020).
1095
Lynch, NYSCEF #152235/2018.
1096
Lynch, at 319.
1097
Miscellaneous Rule Amendments, 2020 RG 068, effective March 26, 2021.
1098
38-A RCNY 1-01
241
nature, including but not limited to, inappropriate touching, sexual assault, rape,
and on-duty sexual activity.
Sexual Humiliation. The term “Sexual Humiliation” refers to incidents in which
an officer gratuitously shames or degrades a civilian in relation to their sexual
organs or sexual behavior.
The Sexual Misconduct rule is confined to allegations by “a civilian against a member of
the Police Department.”1099 Presumably that is limited to misconduct by Uniformed Members of
the Service and would not include other Members of the Service.1100 Since complaints between
Departmental employees are not typically processed by CCRB, one can also assume that “civilian”
in this context means someone other than Members of the Service and is not limited to someone
who is not a Uniformed Member.1101 In sum, a complaint by any employee of NYPD, including
civilian Members of the Service, would be investigated by IAB, and a complaint by a civilian, not
an employee of the Department, against a Member of the Service other than a Uniformed Member
of the Service would stay with IAB as well.
The PBA had re-instituted litigation claiming, again, procedural defects and re-asserting
that sexual misconduct or harassment of a civilian is not an abuse of authority.1102 The petition
was denied and the new Rule was approved by the Appellate Division, First Department, on July
11, 2022.1103 Even outside the adopted Rule change, and irrespective of the outcome of the
litigation, there are aspects of the sexual misconduct investigations that could and should be
pursued as an Abuse of Authority or other misconduct falling within FADO.
G.
Discourtesy and Offensive Language (Slurs) During a Stop
The Charter authorizes investigations of “discourtesy, or use of offensive language,
including but not limited to slurs relating to . . . gender [and] sexual orientation.” 1104 It would seem
1099
Id.
1100
Patrol Guide § 207-28. “Complaints made against civilian members of the service . . . will be directed to the
Internal Affairs Bureau for screening . . . .” One exception is the case where a MOS is the victim of a discriminatory
slur by another officer. In that case, the complaint is registered with CCRB, but then forwarded to the Equal
Employment Opportunity Division of NYPD for investigation. A bias complaint may also be filed with CCHR.
1101
Patrol Guide § 207-28. “A member of the service may prefer a civilian complaint against another member of the
service. Investigation of such complaint will be conducted by the commanding officer(s) assigned by the Commanding
Officer, Investigation Review Section, Office of the Chief of Department. Whenever a member of the service is a
victim of disparaging remarks relative to his/her ethnicity, race, religion, gender, or sexual orientation, made by
another member of the service, he/she may register a complaint with the Civilian Complaint Review Board. The
Civilian Complaint Review Board will record the complaint and forward a summary of the allegation to the Equal
Employment Opportunity Division for Investigation.”
1102
Lynch v. NYC CCRB, Index No. 154653/2021 (N.Y. Cty Sup. Ct) (petition dismissed in part and granted in part.)
1103
Matter of Lynch v. NY City Civilian Complaint Review Bd., 206 A.D.3d 558 (2022).
1104
The Charter authorizes investigations of “discourtesy, or use offensive language including, but not limited to, slurs
relating to race, ethnicity, religion, gender, sexual orientation and disability.” § 440 (c)(1). Currently the Board
separately identifies: Discourtesy Allegations (Word, Action, Gesture, Demeanor/tone, Other) and Offensive
Language Allegations (Race, Gender, Ethnicity, Other, Religion, Sexual orientation, Physical disability, Gender
Identity).
242
that “sexual humiliation” as defined could be investigated as a discourtesy or offensive language
allegation. However, given the history of litigation on the issue, it is probably prudent for CCRB
to list sexual humiliation under the broader ambit of abuse of authority as well.
How this will be handled by the proposed Disciplinary Guidelines remains to be seen. The
Matrix lists two kinds of sexual misconduct. The first category is for sexual propositions and
unwanted verbal sexual advances. The second category is for a “sexually motivated enforcement
action” as well as sexual touching and sexual solicitation. Both carry a range between 30 penalty
days with probation up to termination.
Can the narrower definitions in the Guidelines be used to circumscribe CCRB’s use of a
wider definition? Will we see determinations by the Police Commissioner reducing or dismissing
CCRB findings on the grounds that the facts do not support the Guidelines’ parameters?
Noteworthy is the fact that the misconduct is included in the portion of the grid reserved
for abuse of authority, discourtesy, and offensive language. The placement in this portion of the
matrix would seem to indicate that NYPD accepts CCRB’s position that sexual misconduct
directed at a civilian is within FADO’s jurisdiction as a form of Abuse of Authority.
The CCRB Rule is broader than the sexual propositions, sexually motivated enforcement
and wrongful contact covered by the NYPD’s Discipline Guidelines. Sexual Humiliation under
the Rule is not explicitly referenced in the Guidelines. On the other hand, with the Guidelines,
Discourtesy carries a presumptive penalty of five days and Offensive Language carries a
presumptive penalty of 20 penalty days.1105 Will the Department leave Sexual Humiliation as a
subset of Abuse of Authority? Or consider a remark that “gratuitously shames or degrades a
civilian in relation to their sexual organs or sexual behavior” as Discourtesy or Offensive
Language?
Offensive language (slurs), Discourtesy, Profiling and Sexual Misconduct are allegations
which would seem to overlap or, at a minimum, coincide. Of interest is what happens to those
allegations and, of even more interest, is there an overlap with substantiated SQF misconduct?
For the years 2017-2019 CCRB:
Received 3,832 complaints of Discourtesy
Received 5,461 allegations of Discourtesy
Fully investigated 2,089 allegations of Discourtesy
Substantiated 313 (15%) allegations of Discourtesy
For the years 2017-2019 CCRB fully investigated 466 allegations of Offensive Language.
48 (10.3 percent) were substantiated.
1105
Within the proposed NYPD Disciplinary Matrix at 22, defines Discourtesy as “foul language, acting in a rude or
unprofessional manner (such as demeanor or tone), and flashing rude or offensive gestures.” FN 42 declares that
“Offensive language is more serious conduct than discourtesy and includes slurs based on membership in a protected
class such as race, religion, ethnicity, gender, gender identity, sexual orientation, age, or disability.”
243
Of interest is the number of cases where CCRB substantiates an SQF violation and, at the
same time, substantiates either a discourtesy or slur allegation.
2017
-
Out of 102 cases with a substantiated SQF allegation
Seven also had a substantiated Discourtesy allegation
One also had a substantiated slur (offensive language) allegation
2018
-
Out of 88 cases with a substantiated SQF allegation
Five also had a substantiated Discourtesy allegation
No slur allegations substantiated
2019
-
Out of 96 cases with a substantiated SQF allegation
Seven also had a substantiated Discourtesy allegation
One racial slur allegation1106
2020
-
Out of 68 cases with a substantiated SQF allegation
Five also had a substantiated Discourtesy allegation
No slur allegations substantiated
H.
Do We Need FADO?
It is worth asking whether or why any jurisdictional limits are required when a citizen
complains of improper police conduct by an on-duty officer. Other than political considerations,
why do the Charter, or MOUs, or Rules, even attempt to limit oversight of public misconduct? If
a civilian complains of misconduct by an officer that injures the civilian while the officer was “on
the job,” why place any offenses out of CCRB’s power to review? Understandably, some matters,
particularly corruption complaints, can be better handled by District Attorneys, Special
Prosecutors or even IAB. That should not preclude civilian oversight and disciplinary responses,
notwithstanding the PBA claim in litigation that “CCRB does not have jurisdiction over criminal
matters.”1107 Some investigations require undercover operations, informants, or cooperating
witnesses and should be conducted by other agencies. But, as with Force Investigations, there is
no reason why protocols and agreements to defer investigations could not be drafted to
accommodate those concerns. The
cases are a good example of the need for CCRB action
when other venues have failed. Corruption investigations are probably best left to IAB, but they
are relatively small in number and could easily be excluded.1108 Personnel matters and Rules
violations, such as chronic absences, domestic violence, misuse of property, intra-agency conflicts,
failure to take police action, and improper summonses, are easily excluded as matters of internal
control. But it is difficult to understand why civilian complaints and encounters involving false
filings outside of CCRB interviews, which abuse authority or harm a civilian, intentional report or
camera misconduct when done to cover or misrepresent a civilian encounter, etc., are out of
1106
The officer retired and the case was administratively closed.
1107
Plaintiffs-Petitioners’ Memorandum of Law, Lynch v. CCRB, Index No. 154653, Doc. No. 68 at 10, citing one
line (arguably out of context) from Lynch v. CCRB, 183 A.D.2d 512,515 (1st Dep’t 2020). See also the declaration
by the Appellate Division, First Department, that “Contrary to petitioners’ contention, the governing statute does not
prohibit the CCRB from investigating matters that may touch upon criminal conduct.” Index No 154653, Doc No. 88.
1108
IAB substantiated 58 corruption cases in 2019. False statement cases are included in that count as a “C” case.
244
CCRB’s reach.1109 A recent study by staff at CCRB of 16 metropolitan forces with oversight
agencies found that twelve had no limits.1110
I.
Timeliness
CCRB’s ability to investigate a complaint is limited if the complaint is delayed or if the
investigation is prolonged. There are two deadlines. The first deadline is a discretionary one, set
by CCRB rules.1111 CCRB will not automatically investigate a complaint that is filed more than
one year after the incident. If filed late, the Chair in consultation with the Executive Director
decides whether to investigate the complaint based on the nature and/or severity of the alleged
misconduct, the availability of evidence and/or witnesses, the ability to identify officers and
civilians involved, the reason for the late filing, and the number of complaints received regarding
the incident, as well as the practicability of conducting a full investigation.1112
The second constraint is mandatory. Civil Service Law § 75(4) prescribes an 18-month
statute of limitations (SOL). After 18 months, the officer may only be disciplined if the misconduct
constitutes a crime.1113 The subject officer need not be convicted, or even charged, with a crime.
It is sufficient to avoid the statute if the conduct could constitute a crime if proved.1114 The
extension permitted by this provision has been, at least on one occasion, broadly interpreted. In
that case, an officer used false pretenses to trick the owner of a broken-down vehicle into giving
him title.1115 Although not criminally charged, the officer was disciplined after expiration of the
statute of limitations on the ground that he could have been charged with official misconduct under
the penal law.1116 Theoretically, the definition of official misconduct is so broad that the exception
could swallow the rule.
against
The most well-known example of the invocation of the “crime” exception is the case
. He was charged with an assault and chokehold in connection with the
1109
In review of a draft of this Report, CCRB asserted “They are not, we plead these allegations.” Item 883, City
09.01.23 Feedback to Yates Discipline. CCRB may investigate the totality of untruthful statements when uncovered
as part of a FADOU investigation, but CCRB does not, independently investigate adverse credibility or false statement
allegations brought against officers in the normal course of criminal prosecutions, civil litigation, or false filings.
1110
Detroit, Cincinnati, Long Beach CA, San Diego, Springfield MA, Syracuse NY, Pittsburgh, Providence RI,
Berkeley, Chicago, San Francisco, Washington DC, Atlanta, Albuquerque, Miami. June 2019 Board Meeting
Presentation.
1111
38-A RCNY 1-15(b).
1112
38-A RCNY 1-15(c).
1113
N.Y. CIV. SERV. LAW § 75(4) (McKinney 2018) (“Notwithstanding any other provision of law, no removal or
disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged
incompetency or misconduct complained of and described in the charges . . . provided, however, that such limitations
shall not apply where the alleged incompetency or misconduct complained of and described in the charges would, if
proved in a court of appropriate jurisdiction, constitute a crime.”).
1114
Rea v. City of Kingston, 110 A.D.3d 1227 (3rd Dep’t 2013).
1115
Mieles v. Safir, 272 A.D.2d 199 (1st Dep’t 2000).
1116
Penal Law § 195.00 (1) (“A public servant is guilty of official misconduct when, with intent to obtain a benefit or
deprive another person of a benefit: 1. He commits an act relating to his office but constituting an unauthorized
exercise of his official functions, knowing that such act is unauthorized . . .”)
245
death of Eric Garner, which occurred on July 17, 2014. In December 2014, a Richmond County
grand jury declined to indict him and the District Attorney Dan Donovan refused to file a criminal
court complaint. It was not until four years after the incident, July 18, 2018, that CCRB filed
Charges and Specifications. On May 9, 2019, the DCT issued a decision denying a motion to
dismiss. The tribunal ruled that the proceeding was timely if APU were able to prove, by a
preponderance of the evidence, each element of a charged crime as well as a violation of the Patrol
Guide. The Charges and Specifications cited both the Patrol Guide § 221-01,02 (use of chokehold
and excessive force) and two provisions of the Penal Law: a misdemeanor (Assault in the Third
Degree, Recklessly Causing Physical Injury, PL 120.00 [2]); and a class C felony (Strangulation
in the First Degree, intentional chokehold causing serious physical injury, PL 121.13).
After trial, the Trial Commissioner found
guilty of the first charge upon being
satisfied that the elements of the misdemeanor assault were proven at the hearing by a
preponderance of the evidence. It went on to find him guilty of the Patrol Guide violation. At the
same time, the DCT found CCRB failed to prove intentional strangulation as defined in the Penal
Law and, accordingly, dismissed the second charge as untimely before reaching the merits of the
Patrol Guide violation.1117 The ruling was upheld by the Appellate Division on March 25, 2021.1118
Another, more recent, case of note was an investigation in connection with the shooting
death of Kawaski Trawick. The Bronx District Attorney had concluded that criminal charges
would not be filed against the officers involved in the encounter, but publicly stated that the “use
of deadly physical force was not justified.” CCRB recommended that one officer face Charges.
The Police Commissioner declined, stating that CCRB had missed the SOL. CCRB countered that
the delay was due to slow production of material, including BWC footage, to the Board. The
Department was of the opinion that the statutory extension applicable to criminal behavior was not
available because the District Attorney had decided against prosecution.1119
The statutory clock starts to run at completion of the misconduct. Thus, in the case of a
continuing crime, such as concealing evidence or impeding an investigation, the 18-month clock
is tolled until “all relevant alleged acts were completed. . . .”1120
1117
CCRB exonerated
on an allegation of improper threat of summons and unsubstantiated an allegation of
discourtesy. Presumably those allegations were untimely as well.
1118
v. O’Neill, 192 A.D.3d 598 (1st Dep’t 2021). The procedural approach of DCT was unusual. The Trial
Commissioner required proof at trial of a set of facts (the Penal Law) divorced from, and in addition to, proof of
misconduct. In effect, there were two simultaneous trials occurring before her. The hearing officer could have simply
ruled (or separately taken evidence) on the statutory issue: whether the “misconduct complained of and described in
the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.” The court of appropriate
jurisdiction would be the Richmond County Criminal Court. The hearing officer could have ruled on that hypothetical
point (either on the papers or after a hearing) and left the ruling for appeal, without conducting two trials within one.
1119
“Above the law: The shameful end of the Trawick investigation.” NY Daily News, Opinion Page, April 16, 2024,
https://www.nydailynews.com/2024/04/16/above-the-law-the-shameful-end-of-the-trawickinvestigation/?oref=csny_firstread_nl.
1120
Matter of Rea v. City of Kingston, 110 A.D.3d 1227, 1230 (3d Dep’t 2013).
246
Finally, officers may be estopped from asserting the Statute of Limitations when their own
acts of wrongdoing or fraud prevented timely commencement.1121 This can include mere
concealment by failing to respond to a prosecutor’s inquiry.1122
At one time, the Department had pursued a legislative proposal to amend CSL § 75 to
extend the Statute of Limitations for the discipline of non-criminal misconduct from 18 months to
3 years. The proposal was supported by CCPC,1123 but apparently never gained traction and has
not appeared as an agenda item for NYPD in more recent years.
Lastly, 38-A RCNY 1-15(a), as amended in 2018, authorizes the Chair to investigate
complaints of misconduct filed after the expirations of the SOL. That is because the Rule,
according to the appellate court in Lynch, “merely authorizes the CCRB to investigate a complaint.
It does not authorize the commencement of any removal or disciplinary proceedings. . . .”1124 After
investigation, CCRB can “make findings and recommend action” which are not necessarily limited
to a disciplinary proceeding against an officer.
Previous to the COVID pandemic, not many cases were actually dismissed due to the SOL.
In 2018-2019 only four cases were dismissed for that reason.1125 CCRB reports 13 cases in which
the SOL had expired in Non-Charges cases from 2016 to 2020.1126 There are cases where discipline
is reduced, pled out, charges are not filed or officers separate from the Department, while filing
charges without adjudication, if the SOL dismissal date is near.1127
However, there was a surge of cases dismissed due to the expiration of time in 2022. This
apparently was the result of a confluence of factors.
The COVID pandemic prevented in-person interviews of witnesses and officers. As a
result, there was an inordinate number of cases that were delayed as alternative, video,
arrangements were sought.
Implementation of the Disciplinary Guidelines System has required in depth analysis
and application of the Guidelines, along with explanations, which has impacted the
process for final decision making.
1121
Hetelkides v. Ford Motor Co., 299 A.D.2d 868 (4th Dep’t 2002).
1122
Matter of Steyer, 70 N.Y.2d 990 (1988).
1123
CCPC, Second Annual Report of the Commission, October 1997 at 10,
https://www1.nyc.gov/assets/ccpc/downloads/pdf/Second-Annual-Report-of-the-Commission.pdf.
1124
Lynch v. CCRB, 183 A.D.3d 512, 515 (1st Dep’t 2020).
1125
NYPD SQFSTA Matrix (as of Dec. 31, 2021).
available
at
1126
CCRB Annual Report -2020 at 42, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/
annual_bi-annual/2020_Annual.pdf.
1127
Officers facing disciplinary charges sometimes “separate” from the Department through termination (rare),
resignation, retirement, or termination by operation of law (i.e., they are convicted of certain crimes which
automatically terminate employment as a public officer. (NY Public Officer’s Law § 301). Retirement may be full
retirement after 20 years of service or a reduced benefit for vested service below 20 years.
247
In a recent analysis by the Legal Aid Society, 346 complaints in 2022 were dismissed due
to want of timeliness. 45 of the dismissed cases contained a substantiated SQF allegation. This
seems to be a result of delayed findings by CCRB coupled with the Police Commissioner’s
decision to let the SOL expire for many cases where the findings were presented to the Police
Commissioner in the final weeks or months of the allotted time.1128
Although some of the delay and cause for dismissal can be attributed to the pandemic, it
should be kept in mind that the Governor’s Executive Order 202.8 extended the time permitted
under the Civil Service Law by tolling the statute for 228 days. This raises the question of whether
the extraordinarily high number of dismissals were due to a “one-time” event (the pandemic) or to
other systemic failures, such as application of the Matrix or arrival of a new Police Commissioner.
In the end, the SOL has impact on case resolutions as they are delayed, truncated or closed
pending litigation, and then result in avoidance of meaningful discipline merely because the clock
has run out.1129
In a response to a recent data request for the status of cases with a substantiated SQF
allegation in 2021, of 46 cases listed in the matrix supplied by the Department, seven of 46 cases
were listed as “closed administratively” by reason of “Short SOL.”1130 There may or may not be
more cases similarly affected since 21 of the cases were still open at the time of the submission,
March 15, 2022.1131 During the period of time from January 2022 through October 2023, the
Department closed as “Short SOL” 937 of the 2380 (39.4%) of the APU cases it received from
CCRB. 191 of those cases contained a substantiated SQF allegation.1132
Delay may be caused by any number of factors, some to accommodate witnesses and
officers, some to process and investigate the case within CCRB and some to preparation for trial
or evaluation by DAO and the Police Commissioner. No attempt was made in this Report to weigh
the various causes of delay.1133 In 2021, CCRB reported that the median age of a case on its open
docket is between five to seven months from date of incident, with 239 of 2,089 cases that are 15
months or more beyond the date of the incident.1134 An audit of timeliness by CCRB conducted by
1128
Letter, The Legal Aid Society to Mayor Eric Adams (Mar. 15, 2023). On file with the Monitor.
1129
See, e.g., Sgt.
who faced Charges for an unlawful frisk, along with allegations of improper force,
whose “penalty” was reduced to loss of 3 vacation days rather than a trial due to an impending closing date.
1130
SQF received DAO 2021 matrix (on file with Monitor Team).
1131
For a period of time, during the pandemic, it was alleged that substantial delays were caused by officers’ refusal
to appear when called by CCRB. To the extent that this may be true, equitable estoppel would justify extending the
termination date. In re Steyer, 70 N.Y.2d 990 (1988).
1132
FM-68 2023 DAO Responses to Federal Monitor Inquiry.
1133
In response to a draft of this Report, the Department pointed to “the comparative ineffectiveness of APU as
compared to DAO” and “the issue of long CCRB investigative time frames.” The response went on to assert that,
“The Department initially informed the CCRB that it would need 120 days to process its recommendations and impose
discipline. This timeframe was relaxed to 30 days after assurances that the CCRB backlog was a temporary one . . .”
(Item 440, City 09.01.23 Feedback to Yates Discipline Report.)
1134
CCRB, Executive Director’s Monthly Report, January 2021, at 39, available
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2021/20210111_monthlystats.pdf.
at
248
the NYS Comptroller, even taking COVID delays into account concluded that “CCRB does not
complete investigations in a timely manner and does not have performance measures in place to
effectively monitor lengthy investigations.”1135
i.
Case Study: NDA Due to Statute of Limitations
The Statute of Limitations does come into play when there is a confluence of litigation, a
witness who has counsel with a desire to wait, and a decision to close an investigation pending
litigation. The following history may be unusual as to the particular facts of the case, but more to
the point it is not exceptional as the histories of the officers unfold.
Sgt. #1
,1136 along with Officers #2
and #3
were on
duty in the Bronx on August 5, 2016. According to a complaint filed in Bronx Supreme Court and
interviews with the officers, they stopped two individuals on suspicion of an open container
violation. An individual, JL began to record the incident. JL was well known to officers in the
precinct as a member of “Cop Watch Patrol.” He records and posts police encounters. He was
wearing “Cop Watch Patrol Unit clothing” and displaying his affiliation with the organization.
The ensuing saga is too extended to repeat, but in essence, JL claims he was wrongly arrested,
falsely charged, and held for 23 hours, the District Attorney declined prosecution, he was rearrested and given a DAT, and his recording equipment was confiscated, with some of it returned
later but with recordings deleted.
A brief timeline is as follows:
Incident on 8/5/16 with a Statute of Limitations cutoff date of 2/5/18.
JL brought a complaint to the Department on 8/8/16.
JL was given a DAT, but the criminal case was dismissed on 1/12/17.
JL commenced a civil lawsuit on 5/11/17.
Sgt. #1
and PO #2
interviewed by IAB on 11/14/17.1137
CCRB recommended command discipline (B-CD) for all three officers on 2/20/18.1138
1135
Office of the NYS Comptroller, Division of State Government Accountability, New York City Civilian Complaint
Review Board, Complaint Processing, Report 2020-N-9 (Oct. 2022). “While CCRB officials attributed long
investigation times in part to NYPD’s delays in providing information or access to members of service, we identified
weaknesses in CCRB’s oversight of timeliness of investigations and monitoring of delays that could jeopardize its
ability to hold officers accountable for misconduct.” At 1.
1136
Sgt. #1
was promoted to Lieutenant on June 10, 2021. The fact of promotion in this case and other example
contained herein is listed in light of current litigation pending, a class action regarding NYPD’s response to BLM
protests, before J. Colleen McMahon. (In re: New York City Policing During Sumer 2020 Demonstrations, 1:20-cv8924 [SDNY], Doc No. 798 (Dec. 27, 2022). There, plaintiffs have advanced a “fail upward” theory - claiming
“numerous instances” where NYPD is alleged to have ignored CCRB disciplinary recommendations only to have
“ultimately rewarded with career benefits” the “worst kind of abusers.” Without opining one way or the other on the
validity of the theory presently before J. McMahon, note is taken, and the course of the litigation should be tracked.
1137
JL filed a false statement complaint against PO #2
and PO #1
. The allegations were unsubstantiated.
1138
It is unclear why the CCRB investigation was delayed for the entire 18 months. Litigation was commenced five
months after the CCRB complaint was made, which may have contributed to the delay.
249
The Police Commissioner dismissed the cases (administratively closed due to SOL) on
3/16/2018.1139
The lawsuit closed with a $860,000 settlement on 2/27/19.
As interesting as the details of the encounter might be, and as stunning as the size of the
award may be, the purpose of referencing the case here is not to recount the incident itself, but to
work through the procedural history of disciplinary actions and litigation that are on display in the
case of the three officers over a brief three-year interval in their careers.
During the period in question, between the time of the incident and final settlement of the
lawsuit against the three officers, 2016 through 2019, each officer was the subject of numerous
CCRB complaints and other civil lawsuits.
Officer #3
Six separate CCRB complaints alleging, among other things, illegal stops, use of force,
and discourtesy. Two were unsubstantiated, two were truncated due to litigation,
another (this case) was administratively closed for SOL, and one illegal stop was
substantiated, ending in an A-CD without penalty. The one substantiated case was for
an encounter only nine days after this case and, in that case, he was charged again with
acting with Sgt. #1
.
Six separate lawsuits (only one, this case, coincided with the distinctly separate CCRB
investigations listed above). Four of the lawsuits resulted in settlements in the amounts
of $28,000, $85,000, $170,000 and $860,000. The other two lawsuits appear to be open
for a second time.
- one of which he is named with
Officer #2
1139
:
Has eight separate CCRB complaints (only two during the period in question) alleging
force, stops, discourtesy, and retaliatory summons. Four of the cases were truncated,
one was NDA, one ended in exoneration, one unsubstantiated, and this case which was
administratively closed.
Seven separate lawsuits (only one, this case, overlapped with the CCRB complaints
above) resulting in settlements of $142,750, $860,000, $35,000, and $3500, with the
others still open—one of which he is named with PO #3
again.
Lieutenant #1
:
:
Three older CCRB complaints, two of which were substantiated. But during the oneyear period of August 2015 to August 2016 he accrued four separate CCRB complaints
alleging illegal stops, frisk, discourtesy, or excessive force. Only one of the four recent
cases ended in substantiation (nine days after this case and acting again with PO #3
) where he received an A-CD with two hours penalty for an illegal stop and seizure
of a cell phone.
Closing1.pdf at 12.
250
Four separate lawsuits, three of which settled for $860,000, $60,000 and $52,500. The
fourth lawsuit names both #1
and #2
and the complainant is, allegedly, a
tetraplegic.
In all, in a relatively short three-year period coinciding with the pending charges and
litigation in this case, it is remarkable to note that the three officers, frequently working together
and occasionally charged together, compiled an aggregate 12 CCRB complaints (not counting
older cases) and 15 lawsuits.1140 The majority of the lawsuits (10) have settled with substantial
awards. Only one complaint ended with discipline (two hours forfeited) for the Sergeant, who was
subsequently promoted to Lieutenant.
Sadly, as demonstrated further by a series of case studies laid out later in this Report, the
sheer number of contemporaneous lawsuits and open CCRB cases is not highly unusual. At this
point in the Report it is worth thinking about a case which was delayed during pending litigation
and ended up without discipline by invocation of the SOL. Given the records of repeated
truncations and failure to substantiate, at the very least it is regrettable that the allegations were
never resolved but allowed to languish without a clear finding—notwithstanding the $860,000
award.
ii.
Processing Time
With or without the statute of limitations, the time it takes CCRB and the Department to
resolve complaints is a constant concern. Officers are harmed by delay in that an open case can
impede promotions and transfers. For civilians, the truncation rate is very high and much of that
may be attributable to delay as well.
The pandemic dramatically impacted CCRB’s ability to investigate and close a case in a
timely fashion. Video interviews needed to be conducted and a number of witnesses, including
officers, were unwilling to participate in video interviews. The average time it took to have the
first interview with a complainant in fully investigated cases nearly doubled (from 71 to 141 days)
between 2018 and 2020. As such, 2020 is an outlier in metrics surrounding timeliness. As well,
even before the pandemic, delays in access to video footage, especially Body Worn Camera
(BWC) footage were a serious problem until a BWC-MOU was agreed upon. In November 2019
an agreement was reached allowing CCRB investigators to search BWC databases in a secure
search facility and in the presence of NYPD personnel. The space has not yet been used due to
pandemic restrictions.
The average age on the docket for a case rose from 101 days (FY 2018) to 109 days (FY
2019) to 142 days (FY 2020).1141
1140
As noted, one filing was a suit against both
and
, another filing was a suit against
and
.
1141
CCRB, Mayor’s Management Report, FY 2021, available at https://www1 nyc.gov/assets/operations/downloads/
pdf/pmmr2021/ccrb.pdf.
251
The average time to complete a full investigation rose from 190 days (FY 2018) to 249
days (FY 2019) to 290 days (FY 2020). (Approximately 30 percent of cases which are closed are
closed following a full investigation.)
The average time to complete an investigation which ended with a substantiated allegation
is even longer and rose from 208 days (FY 2018) to 269 days (FY 2019) to 326 days (FY 2020).
The average time to complete a full investigation for substantiated cases jumped to 564
days in 2021 and 553 days in 2022. This reached a peak in the first half of 2022 with delays
extending to 615 days. More recently, the first half of 2023, the number of days to complete a full
investigation of a substantiated case was reduced to 445 days.
One obvious cause for delay is the time between incident and first report to CCRB. One
half of CCRB’s complaints come by referral. The time it takes to pass a complaint from precinct
to IAB to CCRB can be significant. CCRB argues that the interval is critical, and delay contributes
to difficulties in contacting witness. They assert it is the cause of a higher level of truncations for
cases initiated at the precinct as opposed to those made directly with CCRB.
Before an officer may be interviewed, the officer has a right to consult with a local
representative of a line organization, who may be present at any interviews. The representative
can be an attorney. CCRB Rules in this respect are quite detailed. 38-A RCNY 1-24 lays out the
procedure, which won’t be repeated here. In essence the subject is given time to confer with
counsel. The subject can be accompanied by two representatives including counsel. The
interviewer is to accommodate the officer with a reasonable time and date for the interview. Prior
to the interview the officer is advised of the nature of the complaint and information concerning
all allegations, and the identity of witnesses and Complainants. . . .”1142
In 2018, the average time to first civilian interview was 19 days and the first officer
interview took place on average, 75 days after the complaint was received.1143 In 2022, the average
days to first civilian interview was only 16 days, but it took 256 days on average to interview the
subject police officer.1144
In the case of a recommendation for a CD, where charges are not sought, the clock is not
stopped until the Department serves the CD, specifying which allegations were substantiated along
with the penalty recommendation. Even then, the clock continues to run while the officer, after
consultation with an advisor, contemplates whether to accept the CD. If the officer declines the
CD,1145 i.e., the officer wishes to contest the findings, then Charges and Specifications are drafted
1142
38-A RCNY 1-24(f).
1143
CCRB Annual Report 2018 at 23, available at https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annu
al_bi-annual/2018CCRB_AnnualReport.pdf.
1144
CCRB Annual Report – 2022, available at https://www nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_biannual/2022_Annual_Report.pdf.
1145
Patrol Guide 318-02 (19). An officer may refuse to accept a CD finding and request formal charges.
252
and served on the officer.1146 Again, the clock continues to run until the charges are drafted and
the officer is served.
If CCRB recommends Training or Instructions, or DAO reduces a CD recommendation
from a penalty to Training or Instructions, the result is not considered “discipline” for purposes of
Section 75 and the Statute of Limitations becomes irrelevant.
iii.
Commencement
For formal discipline, the Statute of Limitations “clock” begins to run at the time of the
occurrence of the alleged misconduct and is “stopped” at commencement. After a panel has
approved Charges, the APU unit will draft the Specifications and forward them to NYPD to serve
the officer. A proceeding “commences” at time of service1147 of the Charges and Specifications.1148
Prosecutions by APU take more time than prosecutions brought by DAO. A common cause
for delay is the time it takes NYPD to serve charges upon the officer after DAO has received them
from APU. The delay from investigation to panel recommendation to NYPD actually serving the
officer can be of legal consequence. Cases become imperiled or weakened by the approaching
deadline for prosecution.
CCRB and NYPD have adopted a practice, not necessarily required by law, whereby the
entire length of the time that CCRB investigates, a panel reviews and considers a complaint, and
until NYPD serves notice with fully drafted specifications, is considered “pre-commencement.”
CSL § 75 does not define “commencement.” The usual practice in other contexts is to stop the
clock upon receiving notice even without full explication of the basis for the action, with the
understanding that amendments or more detail will be provided later. 1149
Even after a full investigation and recommendation for formal discipline by CCRB, a not
insignificant series of events are set in motion before service and commencement.
A DAO attorney will thoroughly review the CCRB file. All available records will
be reviewed, including but not limited to: Body Worn Camera footage from
responding and involved officers, relevant surveillance captures, cell phone records
and recordings, 911 calls, and witness statements. . . . The DAO will make a
1146
If the Stature of Limitations cutoff is near, NYPD will draw up Charges and Specifications in readiness for a
possible declination. (Phone conversation with Jonathon Darche, Executive Director, CCRB August 7, 2020).
1147
Mikoleski v. Bratton, 249 A.D.2d 83, 84 (1st Dep’t 1998).
1148
N.Y. CIV. SERV. LAW § 75(4) (McKinney 2018) (“Notwithstanding any other provision of law, no removal or
disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged
incompetency or misconduct complained of and described in the charges . . . provided, however, that such limitations
shall not apply where the alleged incompetency or misconduct complained of and described in the charges would, if
proved in a court of appropriate jurisdiction, constitute a crime.”).
1149
See, e.g., in civil actions, CPLR § 203 provides a “[m]ethod of computing periods of limitation generally.” An
action is commenced when the claim is interposed, basically by a serving the officer with notice of the nature of the
action and a summons which can be amended. While not exactly parallel, the Administrative Code, or even the Rules
of the CCRB could be drafted to “stop the clock,” when needed, by serving the officer with notice of the complaint
and general nature of the allegations, which could be detailed later by amendment when specifications were drawn.
253
recommendation as to whether to concur with the findings of the CCRB, or to
depart. Where they concur, DAO will serve charges. Where there is a
recommendation to depart, the case will be then reviewed by the First Deputy
Commissioner and the Police Commissioner. If the First Deputy Commissioner and
Police Commissioner agree with the departure recommendation, a departure letter
will be issued. If they disagree DAO will serve charges.1150
As indicated earlier, in the Court’s Remedial Opinion, there was a requirement in SQF
cases that NYPD provide increased deference to CCRB credibility determinations. To the extent
that DAO’s intercession includes independent assessments of credibility and a review of evidence
not in the record considered by or available to CCRB, the exhaustive evaluation process invites
findings other than that of CCRB.
Until the officer is served with formal charges and specifications, the clock is still running.
This practice is unwieldy. The clock could be stopped at an earlier point with a simple service of
notice of CCRB’s findings and recommendation. The usual need for a statute of limitations is that
delay in notice can impair an ability to prepare a defense. If the officer has participated in an
interview before CCRB, that is no longer an issue. It is true that delay may also unfairly impact
career opportunities for an officer, which is why every effort should be made to resolve accusations
as promptly as feasible. But unless there is undue delay by APU or DAO causing harm to the
officer’s career path, an officer who is aware of the allegations at the outset is in a position to
defend.
In the case of a recommendation for an informal command discipline, where charges are
not sought, again, the clock is not stopped until the Department serves the CD, specifying which
allegations were substantiated along with the penalty recommendation. Even then, the clock
continues to run while the officer, after consultation with an advisor, contemplates whether to
accept the CD. If the officer declines the CD, i.e. the officer wishes to contest the findings, then
Charges and Specifications are drafted and served on the officer.1151
Absent exigent circumstances, the Patrol Guide requires service of charges to be done
“expeditiously” defined as “within six weeks after receipt” by DAO.1152 During the three-year
period, 2018 to 2020, CCRB substantiated and sent 162 cases to NYPD with a recommendation
of Charges and Specifications and a request to serve the officer with the charges. According to
CCRB, after Charges and Specifications were submitted by APU, the Department averaged 120
days (not six weeks) to serve the officer and “stop the clock.”1153 There is no indication that a
1150
December 22, 2023 “DAO Responses to Federal Monitor Inquiry – FM 68-2023.”
1151
If the Stature of Limitations cutoff is near, NYPD will draw up Charges and Specifications in readiness for a
possible declination. (Phone conversation with Jonathon Darche, Executive Director, CCRB August 7, 2020).
1152
Patrol Guide 206-06. (Now AG § 318-04). The section, by its terms, is aimed at procedures for acting upon
internal investigations, but DAO asserts that this is “a target time to serve charges regardless of the source of request.”
December 22, 2023 “DAO Responses to Federal Monitor Inquiry – FM 68-2023.”
1153
Report on the Administrative Prosecution Unit (“APU”) First Quarter 2019 (Feb. 7, 2020), at 6, available at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/20200207_APU_1Q19.pdf
.
254
substantial number of cases were lost to the Statute of Limitations on account of delayed service
by NYPD, but the approaching deadline can be a factor in the final disposition.1154
In 2018 the Department took an average of 104 days to serve Charges and Specifications
on 54 Respondents.1155
In 2019 the Department took an average of 88 days to serve Charges and Specifications on
59 Respondents.
In 2020 the Department took an average of 85 days to serve Charges and Specifications on
50 Respondents.1156
Service delay as a contributing factor to processing time for CCRB has been a source of
concern. A study by CCPC of 1,395 disciplinary cases adjudicated between October 2014 and
August 2016 found the average delay from day of incident to service and filing of charges was 256
days for DAO and 458 days for APU. For cases that went to trial, DAO on average took 339 days
before serving charges, measured from day of incident to date of service, and APU took 455 days.
For cases that ended with a plea, DAO on average took 232 from date of incident to filing of
charges, while APU took 474 days.1157 In sum, prosecutions, and especially pleas, by APU take
considerably longer from day of incident to service and formal accusation.
A recently concluded study of timeliness [of cases where Charges and Specifications were
filed] by the NYC Commission to Combat Police Corruption concluded, “[i]n a typical DAO case
[not derived from CCRB], disciplinary proceedings are completed at least one and a half to two
years after the misconduct occurred.”1158
CCPC’s review of a large sample of closed disciplinary cases (513), spanning October
2016 through September 2018, found that the average “Investigative Period” was 8.18 months and
1154
One study of 120 closed use of force investigations by the OIG-NYPD found that five of them had been dismissed
where the Statute of Limitations expired before discipline could be imposed. NYC Department of Investigation,
Office of the Inspector General for the NYPD, Police Use of Force in New York City, October 1, 2015, at 45, available
at https://www1.nyc.gov/assets/oignypd/downloads/pdf/oig_nypd_use_of_force_report_-_oct_1_2015.pdf.
1155
Report on the Administrative Prosecution Unit (“APU”), May 2021 at 26, available at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/05282021_APU2020.pdf.
1156
In a recent response to a recent request for update (FM 68-2023 DAO, December 22, 2023, “Responses to Federal
Monitor Inquiry”), DAO asserts that the average time for service was reduced to 32 days for 2022 and 25 days for
2023. In part this was due to the large number of cases where a decision was made to not serve charges at all for a
variety of reasons, including Short SOL, Departures, and MOS resigning/retiring.
1157
CCPC, Eighteenth Annual Report of the Commission, August 2017, available at
https://www1.nyc.gov/assets/ccpc/downloads/pdf/18th-Annual-Report.pdf. The bulk of the delay for DAO can be
attributed to the average length of investigation by IAB. It is not possible to make a one-to-one comparison, given the
nature of the reports, but CCPC found that the average investigation length in those years ranged from 10 to 13 months.
CCPC
Nineteenth
Annual
Report
of
the
Commission,
at
18,
available
at
https://www1.nyc.gov/assets/ccpc/downloads/pdf/18th-Annual-Report.pdf.
1158
CCPC Nineteenth Annual Report, supra note 354, at 48.
255
the average “Adjudication Period” was 14.36 months for an overall processing period of 22.94
months.
363 of the 513 cases sampled were prosecuted by DAO. For those cases, the average
Investigative Period was 7.37 months. The average Adjudication Period was 12.31 months. The
overall processing period was 20.11 months.
150 of the 513 cases sampled were prosecuted by APU-CCRB. For those cases, the
average Investigative Period was 10.1 months. The average Adjudication Period was 19.27
months. The overall processing period was 29.8 months.
Differences in timeliness between CCRB and DAO could be ascribed to a number of
factors: (i) the time it takes to present a case to a Board panel and await a panel decision; (ii)
CCRB cases require cooperation and scheduling for civilian witnesses, whereas most DAO
prosecutions are for internal police rules violations which can be presented without civilian
interviews and attendance; (iii) delays at CCRB for investigation, which may be a function of
caseload, investigator experience or delayed access to necessary information being held by NYPD,
such as videos or BWC evidence; (iv) the nature of FADO prosecutions, which can include a
variety of ambiguous or subtle determinations as measured against the clarity of a rules’ violations
prosecuted by DAO; (v) subject officer willingness to accede to command orders to appear for
interviews and to command decisions rather than conceding to a civilian complaint before a
civilian panel; (vi) subject officers may appreciate the reality that a plea offer from DAO is less
likely to be undercut by the Police Commissioner, while realizing that an appeal to the Police
Commissioner following an APU negotiation may be more fruitful, giving them a second bite at
the apple;1159 (vii) the reconsideration process;1160 (viii) delay in serving Charges and Specifications
while the Department conducts a secondary review of CCRB’s determinations; and (ix) many other
plausible explanations which are not contemplated by this list
Finally, DAO may intervene before service of Charges to ask the panel to reconsider its
finding. Reports by the Independent Panel and CCPC have concluded that reconsiderations add
to delay. Is the delay worth it? For stop and frisk cases, reconsideration requests by DAO are
rarely successful. In SQF cases overall, in years 2017-2019, DAO requested reconsideration in 40
cases. Reconsideration was denied or there was no change by CCRB in all but five. In 12 of the
40 cases DAO requested reconsideration where the Board had substantiated Charges. Only one
was granted.1161 In that one case, DAO asked that charges be reduced to no discipline – Training.
The panel, upon reconsideration, reduced the level of discipline to a B-CD. Nonetheless, the Police
1159
In 2018-2020, the Police Commissioner reduced or set aside 18 out of 43 pleas which had been agreed to by the
officer, APU and DCT. CCRB Annual and Semi-Annual Reports.
1160
CCRB attributed the lengthy delays in 2016 to “an increase in the number of cases where the Department requested
reconsideration. . . .” CCRB, Report on the Administrative Prosecution Unit, Second and Third Quarters 2019, at 10,
available
at
https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/20200605_APU_2Q3Q19.pdf.
1161
CCRB #
, Det.
.
256
Commissioner went on to impose Training. Since 2020, the reconsideration process has rarely
been used and has not been used by the NYPD for SQF cases.1162
Processing delay is a serious concern for all involved – officers, victims, and the public at
large. Whether it’s budget, access to information, witness reluctance or simple bureaucratic
indifference, the problem with timeliness is recognized by the Department and CCRB as a
priority,1163 but success seems elusive. In 2017, 88 percent of CCRB’s docket were cases that were
less than five months old. That dropped to 76 percent in 2018 and dropped further to 68 percent
in 2019 and 2020.1164
As a snapshot of causes of delay, in December 2020, the APU looked at its open docket of
98 pending cases and found the following.1165
Awaiting filing of charges
Charges filed, awaiting service by NYPD
Charges served, awaiting personnel info
Charges served, awaiting conference
On calendar for appearance
Off calendar, appearance pending
Trial scheduled, not commenced
Trial commenced
Plea agreed, paperwork pending
4
9
62
2
3
6
2
2
3
As can be seen, by far the largest number of cases awaiting action are those where personal
history information needs to be delivered to APU attorneys by NYPD for them to proceed. In
particular, to prepare for trial, APU prosecutors need CORD reports,1166 SEH reports,1167 and DCS
reports.1168 According to the Guidelines Matrix MOU, APU prosecutors can obtain employment
history by emailing a request to the Department.
1162
In response to a draft of this Report, the Department asserts that there are “between 2-3 cases in the last 12 months
or so.” Item 460, City 09.01.23 Feedback to Yates Discipline Report. See also Final Federal Monitor – SQFSTA –
2023 Q1, Q2 on file with Monitor.
1163
“Improve the quality and timeliness of investigations” is listed as the number 1 goal by CCRB in its FY 2021
Mayor’s Management Report.
1164
CCRB
Executive
Director’s
Monthly
Reports
for
December
2017,
available
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2017/20171213_monthlystats.pdf,
seq.
1165
at
et
CCRB, Executive Director’s Monthly Report, January 2021, supra note 930, at 49.
1166
Commanding Officers Report on Members facing discipline.
1167
Summary of Employment History (a redacted version of the CPI).
1168
A Disciplinary Cover Sheet.
257
At that time (December 2020) there were another 14 cases where a plea had been proposed
or a verdict rendered and the parties were awaiting a decision by the Police Commissioner as to
how they could proceed.1169
J.
Subpoenas - Enforcement
One of the necessary reforms included in the 1993 creation of an independent civilian board
was the power to “compel the attendance of witnesses and require the production of such records
and other materials as necessary for the investigation of complaints pursuant to [Section 440 of
the Charter].” The power was further implemented by Rules of the Board which provided that
“subpoenas ad testificandum [testimony] and duces tecum [documents] may be issued and served.
Such subpoenas are enforceable pursuant to relevant provisions of Article 23 of the New York
Civil Practice Law and Rules.”1170 The subpoena power granted by the Charter and described in
the Rules applies to third parties and is distinct from the Police Commissioner’s separate duty to
provide assistance and to “cooperate fully with investigations by the Board, and to provide to the
board upon request records and other materials which are necessary for [investigations] . . . .” 1171
If the recipient of a subpoena fails to comply, a court order, pursuant to CPLR 2308, is
required to enforce the subpoena. A Richmond County Supreme Court Justice ruled in 2019 that
the Charter did not give the Board the “capacity to sue” to enforce a subpoena.1172 The Court
reasoned that the Board could not commence an action in a court proceeding without specific
authority by the Charter. In other words, CCRB investigators could subpoena third parties, but if
the recipient resisted, CCRB could not go to court independently to enforce the subpoena without
the intervention of the City Law Department.
Another lower court, in an application by CCRB for a declaratory judgment granting access
to GML section 50-h transcripts held by the City Comptroller,1173 ruled that CCRB did have
capacity to sue for declaratory or injunctive relief.1174
Generally, a prerequisite to filing any civil lawsuit against NYPD is submission of a “notice
of claim” to the NYC Comptroller.1175 Under General Municipal Law Section 50-h, the
Comptroller’s Office conducts a sworn interview of any claimant.1176 That interview, in many
cases, is pertinent to CCRB’s investigation—a sworn statement describing the alleged misconduct.
1169
CCRB, Executive Director’s Monthly Report, January 2021, supra note 930, at 48.
1170
38-A RCNY § 1-23(d).
1171
NY Charter § 440(d)(1).
1172
CCRB v. Office of the District Attorney, 63 Misc. 3d 530 (Sup. Ct. Richmond Cty. 2019) (Garnett, JSC).
1173
CCRB v. Office of the Comptroller, 2015 N.Y. Misc. LEXIS 4917 (Sup. Ct. N.Y. Cty. 2015) (Mendez, JSC).
1174
The issue here, in practice, was delay and cost more than availability, since, according to a verified petition signed
by the Assistant Deputy Executive Director of CCRB, the Comptroller’s Office has never opposed an application by
CCRB to obtain the transcripts. Petitioner’s Memorandum in Support, Index No. 452358/2015, NYSCEF Doc. No. 1,
¶ 25.
1175
N.Y. GEN. MUN. LAW §§ 50-e, 50-j to 50-k (McKinney 2013).
1176
See id. § 50-h(1).
258
However, section 50-h (3) states that, “[t]he transcript of the record of an examination shall not be
subject to or available for public inspection, except upon court order upon good cause shown, but
shall be furnished to the claimant or his attorney upon request.”
In seeking direct access to section 50-h transcripts, CCRB argued that, as a sister public
agency to the Comptroller, the Board did not need to apply to a court, on notice to the parties, with
a demonstration of individualized “good cause” in order to inspect the transcripts when relevant.1177
The court denied the application, reasoning that CCRB “although an agency, consists of members
of the public” and as such, the Board could only obtain records from the Comptroller in a judicial
proceeding under the same limited rules of access applicable to any other member of the public.1178
The court found that the CCRB must follow the requirement in section 50-h that a transcript will
not be made available for “public inspection.”1179 Accordingly, the court held that the
Comptroller’s Office cannot provide 50-h transcripts to CCRB without a court order or
complainant consent.1180
With regard to subpoenas for documents, the Court pointed out that the statutory provisions
“do not specifically identify records from other agencies or departments related to the
complainant” and, further, “[t]he relevant provisions of the NYC Charter and Rules of the City of
New York allow petitioner to obtain records from the Police Department as part of its investigation
and prosecution.” But the court went on to observe that, while the Rules permit “the Attorneys for
the parties, ‘the right to subpoena witnesses,’ it is silent as to transcripts.’”1181
The Board, in the eyes of the court, was advisory to NYPD and could request the
Department’s assistance in obtaining documents,1182 but could not independently compel
attendance or production without a good cause demonstration linked to the particular transcript
sought.
Obviously, CCRB will need, from time to time, records held by third parties, including
City agencies, that are not within the custody or control of NYPD. They should be able to compel
production without enlisting the aid of Corporation Counsel or NYPD.
In sum, there were two barriers raised to CCRB’s power to compel production of necessary
documents. One court questioned CCRB’s ability, or capacity, to go to court to compel compliance
1177
The Law Department has access to 50-h transcripts. It is unclear if, in the course of preparing a case, the
Corporation Counsel shares the transcripts with IAB investigators.
1178
(Explaining that the Charter and CCRB Rules authorize the CCRB to require the NYPD to produce documents,
“but do not specifically identify records from other agencies or departments related to the complainant”—including
the Comptroller’s Office—as within the CCRB’s subpoena power).
1179
CCRB v. Office of the Comptroller, 2015 N.Y. Misc. LEXIS 4917, at *2, *4 (Sup. Ct. N.Y. Cty. 2015) (“The
transcript of the record of an examination shall not be subject to or available for public inspection, except upon court
order upon good cause shown, but shall be furnished to the claimant or his attorney upon request” (quoting N.Y. GEN.
MUN. LAW § 50-h(3)).
1180
Id. at 4.
1181
Id. at 5.
1182
NYC Admin. Code § 14-137(a) (authorizing NYPD subpoenas).
259
and another court asserted that CCRB had no more standing than a private citizen to seek
documentary evidence from governmental entities other than NYPD.
The recent amendments to the Charter may have cured the problems created by the lower
courts’ rulings. The Charter was amended to provide that “[t]he board may request the corporation
counsel to institute proceedings in a court of appropriate jurisdiction to enforce the subpoena
power exercised pursuant to this section, and the board itself may, subject to chapter 17 of the
charter, institute such proceedings.”1183 In general, subpoenas necessary to an investigation may
now be issued as administrative subpoenas, and, if denied, enforced by way of court proceedings,
under CPLR Article 23.1184 Importantly, going forward, the Board need not await Corporation
Counsel approval and need not limit its range to NYPD records.
In addition, before amendment, the Charter required a majority vote of the full Board to
approve issuance of a subpoena. 1185 In the month of April 2018 alone, CCRB issued 179
subpoenas.1186 Convening a quorum and obtaining a vote of the full Board for every subpoena is
impractical.
Effective March 31, 2020, the Charter was amended to permit delegation of subpoena
power to the Executive Director. Paragraph (c)(3) of section 440 of the Charter now provides,
“[t]he board may, subject to any conditions it deems appropriate, delegate to and revoke from its
executive director . . . subpoena authority and authority to institute proceedings.”
i.
NYPD Administrative Subpoenas
The clarifying language in the Charter should promote CCRB’s ability to issue non-judicial
subpoenas. This may prove useful in eliminating wasted time and unnecessary motion practice.
While “administrative” subpoenas issued by NYPD under authority of NYC Admin. Code section
14-137 have drawn criticism for abuse and overuse,1187 the problem in the past was that NYPD
1183
NY City Charter § 440(c)(3).
1184
However, it may be that GML § 50-h transcripts, if not made available by the Comptroller, will continue to require
an application to a court and a showing of good cause or complainant’s consent, but for the moment CCRB should
have the same access as any other City agency. CCRB v. Office of the Comptroller, 52 Misc. 3d 226, 227 (Sup. Ct.
N.Y. Cnty. 2016) (d’Auguste, JSC).
1185
Letter, Fred Davie, Chair, CCRB to NYC Charter Revision Commission, May 23, 2018.
1186
CCRB RULES, supra note 840, at § 1-23(d) (“Upon a majority vote of the members of the Full Board, subpoenas
ad testificandum and duces tecum may be issued and served.”); N.Y. CITY CHARTER, ch. 18-A, § 440(c)(3) (2019)
(“The board, by majority vote of its members, may compel the attendance of witnesses and require the production of
such records and other materials as are necessary for the investigation of complaints submitted”).
1187
See Ali Winston, NYPD Expands Use of Controversial Subpoenas to Criminal Cases, The Appeal, August 25,
2020, available at https://theappeal.org/nypd-controversial-subpoenas; see also Thomas Tracy, NYPD Subpoenaed
Phone Records of NYC Reporter in Effort to find Department Leaks: Attorney, NY Daily News, July 17, 2020,
available at https://www.nydailynews.com/new-york/nyc-crime/ny-nypd-subpoenas-phone-records-of-reporter-tofind-leaks-20200717-mg6hhuqv55flbc4ihgg24w3sye-story html.
The NYC Admin. Code § 14-137(a) provides that the Commissioner may “compel obedience” to subpoenas. The
same language was missing in Charter § 440. A recent article in the NY Post (Nov. 14, 2020, at 2, “Subpoena ‘scare
tactics’ by NYPD”) complained that the Department has “used the subpoena 217,872 times since 2010 without
260
used administrative subpoenas for criminal investigations, thereby wrongly circumventing the
Criminal Procedure Law.1188 The same abusive practice should not arise with use of subpoena
power by CCRB. Just as NYPD may continue to obtain administrative subpoenas in aid of a
disciplinary proceeding after application to the Deputy Commissioner of Trials and upon a
showing of need, balanced by a consideration of resources and the complexity of the case,1189
CCRB will have the power to enforce subpoena compliance, limited to items needed for an
investigation upon a complaint in disciplinary proceedings only.
K.
NYPD Duty to Cooperate with CCRB Investigations
CCRB’s ability to investigate a citizen complaint is dependent upon the full cooperation of
NYPD personnel and complete access to relevant files. There has been a history of criticism by
CCRB personnel concerning difficulties in obtaining complete access to requested information.
The Charter provides,
It shall be the duty of the police department to provide such assistance as the board
may reasonably request, to cooperate fully with investigations by the board, and to
provide to the board upon request records and other materials which are necessary
for investigations undertaken pursuant to this section, except such records or
materials that cannot be disclosed by law.1190
All requests run through the NYPD IAB liaison unit. CCRB investigators cannot receive
information directly from the precinct or other investigative units.1191 Typical CCRB requests from
the NYPD include, among other things, arrest reports, radio-dispatch communications, command
logs, officers’ memo books, stop reports, BWC and video footage, 911 reports, and investigative
oversight from the courts.” The article contended that “NYPD has quietly used [subpoenas] to intimidate phone
companies, banks, Internet service providers and social media giants into handing over . . . personal information . . .
even when cases are not criminal in nature.”
1188
People v. Ayodele, 2012 NY Misc LEXIS 6651 (Sup. Ct. Queens County 2012), rev’d on other grounds, 116
A.D.3d 706 (2d Dep’t 2014) (“[T]he commissioner’s subpoena powers are limited to administrative issues that directly
affect the Police Department and cannot extend to those given the District Attorney.”) (citations omitted).
1189
Irizarry v. NYPD, 260 A.D.2d 269 (1st Dep’t 1999); 38 RCNY 15-03(f)(2). 38 RCNY § 15-03(f)(2).
1190
NY City Charter § 440(d)(1).
1191
Patrol Guide 207-31 (Now PG § 207-28) (“Any request for Department records made by representatives of the
Civilian Complaint Review Board will be referred to the Internal Affairs Bureau, Civilian Complaint Review Board
Liaison, for necessary attention. Department records will not be forwarded direct to the Civilian Complaint Review
Board.”).
261
records from the IAB and the FID.1192 IAB personnel can also assist in identifying subject officers
when the complainant is unable to identify the officers in the complaint.1193
The NYPD has limited the materials that the CCRB may obtain through Patrol Guide §
211-14 which lists a number of records that are not released to CCRB investigators:
Records concerning a case that has been sealed pursuant to Criminal Procedure Law
160.50.
Records of sex crimes per Civil Rights Law 50-b.
Psychiatric records (without patient consent).
Alcohol counseling records (without patient consent).
Medical records (without patient consent).
Administrative Guide § 318-11, “Interrogation of Members of the Service” interviews
without permission. Of Deputy Commissioner – Legal Matters).
Personnel records of police officers as per Civil Rights Law 50-a; and
Juvenile records as per Family Court Act 381.3.
It was reported to the Monitor team that since May 2018, the NYPD disclosure of their
files has become more restrictive than the Patrol Guide provisions, with the NYPD declining to
provide additional categories of records (for example, Domain Awareness System (“DAS”)
snapshots, which reflect the data officers are aware of at the time of stops) and redacting additional
content within records (for example, redacting threat resistance injury reports entirely, and
redacting everything but complainants’ arrest stamps in command logs).1194
When a complaint is first made to NYPD and logged by IAB, if the complaint or some of
the allegations are cross-referred to CCRB, certain preliminary information will be sent to CCRB.
This includes event information such as a typed 911 or radio run information, the Automated Roll
Call System roster (to help identify officers at the encounter), Threat, Resistance, and Injury (TRI)
reports, and Complaint Reports (UF-61’s) which are made upon an arrest. Any other documents
need to be specifically requested through the IAB Liaison Unit.
CCRB states that it requests the entire case file, video, and audio evidence when it is aware
of a concurrent investigation with IAB. However, IAB typically will not provide any materials
until its case has concluded, with the exception of video evidence, which it periodically shares if
specifically requested. IAB will provide the DAO with GO-15 recordings (audio of IAB’s
interview with the MOS) when requested, but these are provided solely so that the officer may
avail himself/herself of their Patrol Guide right to review previous statements prior to testifying
1192
See, e.g., Heather Cook, Senior Counsel, CCRB, CCRB 101 Presentation, at Rqst 6, page 29, in CCRB, Response
to Federal Monitor’s Request Number Six (document compilation that is the first enclosure in the CCRB’s first
response, dated July 17, 2018, to the Federal Monitor’s request for CCRB documents; on file with author).
1193
See INVESTIGATIVE MANUAL, supra note 392 at 212 (explaining that “[i]n certain cases, the Chief of Investigation
will also act as a liaison between the CCRB and IAB commanders to expedite requests for New York City Police
Department records”); id. at 61 (explaining that “the IAB Liaison Unit” will sometimes help investigators obtain the
identity of officers).
1194
Interview with J. Christopher Duerr, Chief of Investigations, CCRB [Based on “NYPD refusal to share with
CCRB.pdf” file]
262
with the CCRB. The CCRB is rarely provided with audio of officers’ statements to IAB regarding
concurrent incidents. As a matter of course, IAB does not provide its dispositions without the
CCRB requesting them. IAB does not share dispositions of corruption cases or other non-FADO
categories. If a concurrent Force Investigation is underway, CCRB will be denied access to TRI
reports. If the CCRB generates an OMN for a False Official Statement, IAB will provide the
disposition to this allegation without being requested. IAB will not provide any case materials or
any additional information beyond the disposition.
A recent example of concurrent investigations leading to conflicting results is the case of
PO
. There, CCRB substantiated two force allegations and one allegation for an
untruthful statement against the officer. The closing report indicated that the officer approached a
civilian who was recording police actions during a protest demonstration. According to CCRB,
hit a photographer in the thigh with a baton and then pushed a cameraman away with the
same baton. When asked about the incident in the CCRB interview, he denied using his baton “at
all that evening.”1195
The Police Commissioner rejected the findings of CCRB. Based upon “a thorough review
of this incident . . . conducted independently by the Department” and upon her “being shown the
video evidence” the Police Commissioner dismissed the recommended B-CD with an
NDA/DUP.1196 Apparently a force investigation by IAB conflicted with the facts found by CCRB
when it substantiated the force and rejected the testimony of the officer. When given the choice,
the Police Commissioner accepted IAB’s findings and rejected those of CCRB.
The Domain Awareness System, which officers can access while on patrol, contains a
wealth of background information. It is a useful tool in stop and frisk situations especially. It
includes information about warrants, arrests, arrest reports (UF-61). which detail arrest events,
AIDED cards, I-Cards, etc. CCRB investigators have complained that beginning in 2018, the IAB
Liaison shut off access to DAS snapshots (a “lightened” version of DAS), which had been made
available in the past. The claim was that AIDED reports might contain medical information which
could be protected by HIPAA (Health Insurance Portability and Accountability Act) – even though
the police department is not a HIPPA provider and, therefore, is not covered by HIPAA.
Beginning in 2018, under the claim of CPL 160.50 (sealed cases) and Family Court Act
381.3 (Juvenile Records) compliance, the Department redacted identifying information in
documents which had been sealed or which might become sealed. This included:
1195
UF61 (arrest reports) describing the reasons for an arrest – which had not yet been
sealed because the case was still open;
Warrants for arrested persons on the same theory;
Command Logs;
CCRB closing report, Case #
.
1196
Police Commissioner Departure Letter, CCRB Case #
. In response to a draft of this Report, the
Department pointed to the fact that “
corrected his account” after being shown the video evidence. (Item 483
City 09.01.23 Feedback to Yates Discipline Report.) This supports the observation that a secondary factfinding
proceeding by NYPD followed the proceedings conducted by CCRB.
263
Prisoner Pen Holding Rosters – on the theory that other witnesses to abuse in the
holding pen might have sealed arrests;
Threat Resistance Injury Reports (TRI) which are filed when there is a “use of force”;
All documents where FID was conducting a simultaneous investigation;
Search Warrant Applications.
As well, IAB began editing and redacting BWC footage if there was a possibility of a
sealed arrest or a juvenile arrest.
As noted above, CCRB investigators are not permitted to obtain records directly from the
precinct or command in which the civilian encounter occurred. Nor do they have ready access to
central files or databases within NYPD. All document requests are filtered through the IAB/CCRB
liaison.1197 In interviews by the Monitor team with CCRB staff, the point was made that, on not
infrequent occasion, a request for information by a CCRB investigator is met with a demand to
identify the specific complaint being investigated and to particularize the need for the file.1198
This last demand, the need to specify a complaint with particularization of the relevance of
a file to the complaint is an unnecessary hindrance to full investigations. Anyone familiar with
investigations, or inquiries of any kind, knows that being asked to particularize the need for a
specific research file in advance of seeing the file tends to hamper and artificially confine the
investigation. It is only when an investigator has an ability to scan a file that linkages, connections,
and corroborating evidence can be discovered. Asking an investigator to particularize the value
of evidence before the investigator has seen the evidence puts the cart before the horse.
In his May 23, 2018, letter to the City Charter Commission, former Chair Fred Davie asked
for broader authority to investigate. He wrote,
Currently, the Charter limits the NYPD’s duty to cooperate with CCRB inquiries
to records and materials which are necessary to investigations. With a similar goal
to that of codification of the APU, better defining the NYPD’s duty to cooperate
would enable the established cooperation between the agencies to continue,
regardless of leadership changes at either agency.
In the Agency’s suggested language emendations to the Charter, this goal is
achieved by adding an additional line to § (d)1 that specifies that NYPD’s duty to
cooperate with CCRB requests for information extends to situations necessary for
the CCRB to satisfy its Charter-mandated duties and responsibilities.
Prior to Charter revision in 2020, the Charter provided,
It shall be the duty of the police department to provide such assistance as the board
may reasonably request, to cooperate fully with investigations by the board, and to
provide to the board upon request records and other materials which are necessary
1197
Patrol Guide § 211-14. Request are made by PD 149-164 to the IAB Management Resources Section. Copies of
any pertinent records, not originals, may be obtained.
1198
Monitor Team Interviews with CCRB staff, July 24, 2018, and September 17, 2019.
264
for the investigation of complaints submitted pursuant to this section except such
records or materials that cannot be disclosed by law.1199
At Chair Davies’ request, that provision was amended as follows,
It shall be the duty of the police department to provide such assistance as the board
may reasonably request, to cooperate fully with investigations by the board, and to
provide to the board upon request records and other materials which are necessary
for investigations undertaken pursuant to this section except such records or
materials that cannot be disclosed by law.1200
Following the Charter change, CCRB amended its rules, effective March 26, 2021, to
conform:
The Board may obtain records and other material from the Police Department which are
necessary for investigations undertaken by the Board, except such records and material that
cannot be disclosed by law. In the event that requests for records or other evidence are not
complied with, investigators may request that the Board issue a subpoena duces tecum or
a subpoena ad testificandum.1201
It could be argued that these amendments to the Charter and the Rules are purely technical,
designed merely to accommodate CCRB’s expanded jurisdiction allowing for investigations of
false statements. However, given the backdrop, it is more likely that the change, although minor
in appearance, is designed to address failures (real or perceived) of NYPD to cooperate. The need
to associate a request with a particular complaint can no longer be justified by allusion to the
Charter or the Rules.
It is worth noting that the Charter and the Rules, if narrowly construed by NYPD liaison
officials, can place an artificial limit on cooperation by the Department. They speak to an
obligation for NYPD to produce materials “which are necessary for investigations. . . .”1202
According to investigative staff at CCRB, this seemingly innocuous caution, on occasion, becomes
a barrier to access and cause for denial or delay in obtaining material from the Department when
the liaison officer questions the need for records sought by a CCRB investigator. The Charter does
not authorize IAB to decide for CCRB whether an item is necessary to CCRB. By comparison,
the Executive Order for the CCPC requires the Police Commissioner to “ensure and mandate the
full cooperation of all members of the Police Department with the Commission. . . .” And “that
interference with or obstruction of the Commission’s functions shall constitute cause for removal
from office or other employment, or for other appropriate penalty.”1203 Similarly, the Department
of Investigation is awarded “full cooperation” in investigations, without limitation. Any attempt
1199
NY City Charter § 440(d)(1). (Until Mar. 31, 2020).
1200
Id. Effective Mar. 31, 2020. (New matter underlined. Deleted matter bracketed.)
1201
38-A RCNY § 1-23(e).
1202
Charter § 440(d)(1), 38-A RCNY § 1-23. (Emphasis added).
1203
Executive Order No. 18, at § 3(a) (1995).
265
to “prevent, interfere with, obstruct, or otherwise hinder any study or investigation . . . shall
constitute cause for suspension or removal from office or employment.”1204
The Charter language was broadened to require cooperation in all investigations without
reference to, or disclosure of, a particular complaint. CCRB now should receive cooperation and
have access to materials pertinent to its full review of FADO misconduct, without necessity of
proving materiality to any single specified complaint. By dint of the Charter amendment, it would
seem that CCRB is no longer confined to examination of one complaint at a time or one officer’s
conduct in a particular encounter but should receive materials connected to any FADO
investigation which began with a complaint by a member of the public but leads to review of a
broader problem. So, for example, if a civilian complained of an illegal stop or search against a
named officer, but the investigation revealed that the misconduct was one of a series of wrongful
actions by the named officer and others in his command or those supervising the named officer,
the new language would clearly authorize an investigation by CCRB with the power to request
necessary materials and records. The investigation once “undertaken” upon a civilian complaint
should be permitted to reach a logical conclusion for the entire investigation.
L.
CCRB Access to Employment and Disciplinary History
Traditionally, CCRB investigators would not receive the full employment or disciplinary
history of an officer in the course of an ordinary investigation. If a panel voted to substantiate
charges and formal discipline, the APU would receive the Summary of Employment History
(SEH) of the officer which included any prior substantiated Charges, Dismissal Probations, and
B-CDs.1205 Performance evaluations, lawsuits, pending charges and performance monitoring
would not be included. In the vast majority of CCRB investigations which are not handled by
APU, including almost all SQF inquiries, the SEH was not provided to the investigator. CCRB
penalty recommendations would rely solely on CCRB’s own, limited, record of prior substantiated
FADO complaints and formal discipline resulting in a penalty.
In testimony before the Charter Revision Commission,1206 the Executive Director
complained,
“The Charter currently requires that the NYPD cooperate with CCRB
investigations but lacks any specific language requiring the Department to
cooperate with prosecutions or the Agency’s operational capabilities. As a result,
the CCRB lacks access to items like subject officers’ NYPD disciplinary histories
or the specific penalties given to officers in non-APU cases, both of which would
help the Board to make more informed decisions on disciplinary recommendations
1204
NY City Charter § 1128.
1205
Email, Dep. Commissioner Matthew Pontillo to Monitor Team, Mar. 18, 2021. C-CDs could also be included
but, as a practical matter, they are so rare as to be not worth listing.
1206
2019 Charter Revision Commission Public Forum Presentation of Jonathan Darche, March 7, 2019, at pp. 1–2, 6
https://static1.squarespace.com/static/5bfc4cecfcf7fde7d3719c06/t/5c9b8941085229a1975c8f21/1553697097110/M
eeting_Testimony_3_7_19.pdf.
266
and provide more transparent aggregate disciplinary data to the public creating the
ability for CCRB policy reports to provide more contest to the reported data.”
This testimony was apparently aimed at shortcomings in access to information in APU
cases because CCRB never asked to see personnel history or the SEH in non-APU cases. Neither
the Rules, the Charter, nor the APU-MOU distinguished access to background information
between APU and non-APU cases. Limited access was accomplished by mutual, unwritten,
agreement. This was unfortunate given that a history of prior OMN, M, C, OG and even FADO
A-CDs1207 could and should be useful in evaluating all cases, including SQF misconduct.
Knowledge of a complete disciplinary history would seem to be essential to CCRB discipline
recommendations as well as any meaningful dialogue regarding a reconsideration request in SQF
cases.1208
Historically, even in cases where Charges and Specifications were brought by APU, there
were still inadequacies in access to a complete history. As described in CCRB’s APU quarterly
report,
Presently the APU does not have access to the NYPD’s Disciplinary Administrative
Database System (DADS) and as a result we must rely on DAO for many
administrative tasks related to prosecuting a case.
And,
At present time the APU does not have access to respondents’ Central Personnel
Index (CPI). Instead, DAO prepares a Word document for the APU titled
‘Summary of Employment History’ (SEH) which includes some but not all of the
respondent’s relevant disciplinary history. For example, the SEH contains only the
respondent’s most recent evaluation even though DCT considers the respondent’s
last three evaluations when making a penalty recommendation.1209
The recently adopted Discipline Matrix-MOU promises that the necessary background will
be shared with CCRB. As discussed later in this Report, adjustments are being worked through.
At present, after substantiation, if Charges and Specifications are drawn, the APU can request a
1207
A substantial number of FADO allegations are investigated within the Department and without CCRB
involvement. For example, in a July 2023 report, the Citizens Commission to Combat Police Corruption, in a study
of the workings of IAB, reviewed 46 randomly-selected IAB investigations that were closed in 2021. Within those
46 cases were 111 FADO allegations investigated by IAB. (Twenty-First Annual Report, NYC Commission to
Combat Police Corruption, at 11, available at https://www nyc.gov/assets/ccpc/downloads/pdf/2021-Annual-Reportwith-Executive-Order.pdf.)
1208
In response to a draft of this Report, the City responded, “The SEH is now requested by investigators whenever a
case is closed with at least one substantiated allegation. It is provided to the board during case deliberations so the
panel members can make an appropriate penalty recommendation consistent with the Matrix.” (Item 491, City
09.01.23 Feedback to Yates Discipline Report.). As discussed later in this Report, there are times when disclosure of
non-CCRB discipline would be useful during the course of an investigation and before a substantiated allegation is
being reviewed for penalty assessment.
1209
APU 1q2014, at 4, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly
_reports/apu-2014q1.pdf.
267
copy of the CORD, SEH, and a Disciplinary Cover Sheet (DCS) containing a list of prior formal
disciplinary actions.
i.
A Case Study Where Access to a Personnel File Would Be of Value to
CCRB
As has been noted at various points in this Report, it is common for CCRB to recommend
Training for SQF misconduct or for the Police Commissioner to reduce a penalty to Training after
an SQF finding by CCRB with a more severe recommendation. For example, in 2019 the Police
Commissioner imposed Training as the “discipline” after a substantiated SQF finding by CCRB
in 39 of 96 cases. In 24 of those 39 cases, CCRB had recommended Training and the Police
Commissioner agreed. In another 15 cases, CCRB recommended something other than training
but the Police Commissioner imposed Training nonetheless.1210 If CCRB had had access to an
unredacted CPI and PEPR report, CCRB (and outside observers) would have been able to look at
the prior history of Training to see whether Training made sense in each case.
Take as a relatively benign example the case of Sergeant
. Sergeant
has
been with the Department for eight years. He was promoted to Sergeant in October 2019. During
his time with the Department, he has been the subject of nine CCRB complaints. Two were
substantiated - an unlawful frisk in 2016 and an unlawful questioning in 2019. (His promotion to
Sergeant was three months after a Stop/Question/Frisk/Search complaint was filed.) In both
substantiated cases, CCRB recommended, and the Police Commissioner accepted, a disposition of
Training.
What was to be gained by ordering Training for a second time? If CCRB had had access to
Sergeant
’s complete personnel file, they would have known that the sergeant has attended
approximately 120 Training sessions in his eight-year career. Six of the training sessions were for
“Investigative Encounters.” One such session was in January 2020, shortly after the 2019 finding.
Another was in 2016, shortly after the 2016 finding. Both sessions, as listed in his Officer Profile,
were simply a viewing of the same video: “Terry Stops and Reasonable Suspicion.”1211 Would
CCRB have recommended nothing more than a second viewing of the same video for a second
offense if it had known? Was the second “discipline” nothing more than another one in a series of
120 Training sessions he was required to take in the normal course, as if he had never committed
an SQF offense at all?
Was the panel’s decision to simply repeat the same Training class made with all the
information that it should have had? Aside from his extensive “Training” history, there are a
number of other factors which might have been of value to CCRB if the panel had full access to
relevant information in NYPD’s personnel files, including his internal NYPD disciplinary history
and his history as a subject officer in multiple lawsuits.
In the time period 2017-2019, Sergeant
was the subject of eight internal investigations
at NYPD. They included allegations of excessive force, profiling, failure to provide medical care,
1210
Federal Monitor SQFSTA report provided by NYPD.
1211
The video had the same title. While it is possible that the video was updated in the interval between screenings,
there is no indication of such in the Officer Profile.
268
stops, searches, and use of a taser. Some were substantiated, some were partially substantiated,
some were unsubstantiated, and some ended in exoneration.
Also, partially referenced in the personnel file, but not available to CCRB when it
recommended Training for illegal questioning in 2019, was the fact that Sergeant
was named
in six civil lawsuits. Three were settled for amounts of $75,000, $15,000 and $10,000. Another
was settled for an undisclosed amount and two are still open. Three of the lawsuits arose out of
incidents occurring in 2018-2019, around the time of his second substantiated CCRB misconduct
finding and promotion.
The point of this recitation—looking at the Sergeant’s history of attending many, many,
Training classes, being the subject of internal investigations not known to CCRB and being named
in multiple lawsuits—is merely to question CCRB’s limited access to a complete file when a panel
makes a recommendation after a non-APU SQF misconduct finding. It is non-sensical that CCRB
is denied a full and complete picture when recommending discipline. A rote imposition of
“Training” without deeper analysis looks foolish and sends the wrong message to officers and the
public alike.
Complaints about problems with access to information is not limited to investigative staff.
Unavailability of the full disciplinary history of officers was raised at a recent public CCRB
meeting by a Board Member, who complained that lack of access to NYPD disciplinary history
interferes with panel decision-making.1212
With the adoption of the Disciplinary Guidelines, the Department and CCRB entered into
a new, supplementary MOU (Matrix-MOU).1213 Given the Guidelines’ promise of progressive
discipline and assessments of aggravating and mitigating circumstances, an understanding of an
officer’s complete disciplinary history is needed if CCRB is to apply the matrix as promised.
Accordingly, the Matrix-MOU promises access to an officer’s employment history in all cases.
Regarding non-APU cases, the Matrix-MOU specifies that CCRB’s penalty recommendations
shall take into account “the NYPD employment history and any other relevant information.”1214
Under the MOU, CCRB must wait until after a panel has substantiated a complaint before
it may ask for the employment history. At that point, an email request is sent to NYPD and the
Department strives to reply within 20 business days. In a change from past practice, the
Department agrees not to refuse or delay disclosure on the ground that it is conducting a concurrent
or parallel investigation. At this point in time, it is too early to know if the MOU provision is
intended to obviate the Patrol Guide restrictions on access to meaningful employment histories.
The Matrix-MOU specifically prohibits CCRB from disclosing “any NYPD employment
history to any person, organization or agency without first notifying the NYPD’s Legal Bureau”
1212
Board Member Erica Bond, CCRB public meeting (Dec. 9, 2020).
1213
Memorandum Of Understanding Between The New York City Police Department And The New York City
Civilian Complaint Review Board Concerning The NYPD Discipline Matrix (Feb. 4, 2021),
https://www1.nyc.gov/site/nypd/about/about-nypd/mous-nyc-rules.page. The matrix MOU supplements the earlier
APU-MOU. “Nothing [in the matrix MOU] intends to replace or supersede [the] previous MOU . . . .” N 1, at 3.
1214
Id. ¶ 3.
269
in order to provide “an opportunity to assert any applicable legal exemptions.”1215 With the repeal
of Civil Rights Law § 50-a, it is unclear if this limitation is confined to Public Officer’s Law §§
86 (6-9), which exempts certain law enforcement records from FOIL as a matter of personal
privacy. It may well be that NYPD will continue to deny access to all the items previously
withheld under PG § 211-14.1216
The interplay between the non-disclosure clause in the Matrix-MOU, barring public
disclosure or redaction of personal items, and paragraph 6 of the Matrix-MOU requiring public
availability of departures from the Guidelines may lead to some confusion in the future. If a
departure finds aggravating or mitigating factors based on information not disclosed, public
skepticism is likely to ensue.
M.
Access to Files Sealed by CPL 160.50
Patrol Guide § 211-14 provides that records concerning a case that has been sealed pursuant
to Criminal Procedure Law 160.50 may not be released to the CCRB.1217 CCRB’s ability to
investigate officer misconduct is significantly hampered when it is denied access to police files in
cases where the police mistakenly or wrongfully arrested a person whose case was subsequently
dismissed or voided.1218
It is widely recognized that a vast number of arrests result in dismissal or, in the words of
CPL § 160.50, the accused receives a “favorable termination.”1219 In such cases, Section 160.50
requires that all records maintained of the arrest be sealed. Recently, in R.C. v. City of New York,1220
1215
Id. at 11.
1216
Records concerning a case that has been sealed pursuant to Criminal Procedure Law 160.50, Records of sex crimes
per Civil Rights Law 50-b.
Psychiatric records (without patient consent).
Alcohol counseling records (without patient consent).
Medical records (without patient consent).
P.G. 206-13, “Interrogation of Members of the Service” interviews (without permission. Of Deputy Commissioner –
Legal Matters).
Personnel records of police officers as per Public Officers Law § 86.
Juvenile records as per Family Court Act 381.3.
1217
The Patrol Guide only references CPL 160.50, but presumably the same holds true for §§ 160.55 and 160.58.
1218
The self-evident need for disclosure in investigation of potential police misconduct was the very reason that this
Court authorized NYPD to share sealed records with the Monitor Team in its examinations. Floyd, 1:08-cv-1034 ECF
Doc No. 559 (July 17, 2017).
1219
Discovery in the R.C. case showed that the Domain Awareness System (DAS) installed on phones with Microsoft
K, contain 6,908,699 sealed arrest reports of 3,576,113 individuals as of Nov. 20, 2019. “The NYPD Can See Millions
of Arrest Records That Were Supposed to be Sealed,” Huff Post (July 27, 2020), available at
https://www huffpost.com/entry/nypd-police-sealed-records_n_5f1add79c5b6296fbf417b71?ncid=newsltushpmgne
ws.
1220
R.C. v. City of New York, 64 Misc. 3d 368 (Sup. Ct. N.Y. Cty, 2019).
270
a class action against NYPD was brought seeking to prevent NYPD’s practice of maintaining and
accessing sealed records for investigation of criminal activity.
In the normal course, aside from records kept at the precinct of arrest, entries of sealed
events will be kept on a central digitized report that compiles various documents into one easily
accessible and readable document, an ENTITY - EXTENDED REPORT in the Domain Awareness
System. It combines ICADs prepared at the precinct, complaint reports, and interviews by the
Criminal Justice Agency (“CJA”)1221 which makes bail recommendations to the courts, etc.
Despite a sealing order, the listings will continue to make available arrest dates, the NYSID
number assigned, the location of the arrest, the “Top Charge,” the complaint number, a recitation
of the facts in the complaint, the home address given, the arrestee’s phone number, and a summary
of the personal information given in the CJA interview.
In R.C. v. City of New York, it was alleged that “in the three-year period between 2014 and
2016, the NYPD collected and catalogued information from records of over 400,000 arrests that
are required to be sealed under Section 160.50 alone.”1222 It was further alleged that “more than
330,000 of those arrests were of Black and Latino people.”1223 Many, if not most of these records
involved misdemeanor or lesser charges which did not result in a conviction if not outright
exoneration. In response, the Department argued that the statute permitted internal use of its own
records; it was claimed that the statute’s sole prohibition was against disclosure to third parties. In
denying the City’s motion to dismiss, Judge Alexander Tisch rejected that argument and held that
the complaint’s allegation against “NYPD’s own use of sealed arrest information . . . sufficiently
alleges a statutory violation . . . .”1224 On September 27, 2021, Judge Lyle Frank granted a motion
for a preliminary injunction ordering that “NYPD personnel may not access sealed arrest
information without a court order” and that there must be a “cessation of use of sealed records for
investigatory purpose unless an unsealing order has been obtained from a Court of competent
jurisdiction or an exception to the sealing statutes applies.”1225 The Respondents had until April 1,
2022 to comply with the Order.1226 Since then, the parties are negotiating “a plan to comply with
this order . . . .” And filing of a Note of Issue was delayed to July 15, 2022.1227
1221
Notwithstanding an assertion of the Miranda right to remain silent or a request to see an attorney, arrestees are
required to answer personal questions put by a CJA interviewer before counsel is assigned if they want the agency to
make a bail/release recommendation to the court. A refusal to answer personal questions can be cause for a prosecutor
to recommend or a court to order confinement without bail.
1222
R.C., Index 153739/2018, NYSCEF Doc. No. 2, at 2.
1223
Id. at 5.
1224
R.C. at 379.
1225
R.C., Index 153739/2018, NYSCEF Doc No. 200, at 4.
1226
NYSCEF Doc. No. 208
1227
NYSCEF Doc. No. 210.
271
Plaintiffs in R.C. have indicated, by way of letter-memorandum to the court that they are
amenable to use of de-identified sealed records by DAO, IAB, and CCRB. There is difficulty in
describing de-identified records and in assessing their utility.1228
Further exacerbating difficulties that CCRB has in obtaining information necessary to an
investigation, the Department of Law has taken the position in R.C. that NYPD should be permitted
to look at sealed records when making disciplinary decisions, but at the same time, opposes
availability of sealed records to CCRB.1229 The trial court issued an order implementing a
Preliminary Injunction Order which adopted the plan proposed by plaintiffs.
On June 6, 2024, the Appellate Division reversed and vacated the preliminary injunction.
The Court held that the decision was premature and overbroad.1230 On remand, the Appellate Court
required a “detailed fact-finding” with relief to be confined to remedying violations of the sealing
statutes.
In particular, the Appellate Division found the requirement that files be “de-identified”
(redacting identifying information of arrestees) prior to use in disciplinary proceedings was not
necessary. “Plaintiffs sought an order prohibiting the NYPD from providing its personnel with
access to sealed arrest information for law enforcement purpose.” The relief granted in the
injunction went beyond. The lower court “lacked the authority to order a plan that addresses what
other purposes the sealed records can be used for, such as . . . accessing sealed records to address
officer misconduct.”
Not discussed in the opinion is the question of CCRB access to the same records. It would
be an unfortunate outcome of the litigation if access were limited to the Department without
disclosure to CCRB.
CCRB has reported that when investigating complaints of police misconduct, it frequently
encounters significant obstacles in obtaining necessary information in the possession of NYPD
that is otherwise sealed. This makes necessary reviews of BWC videos doubly difficult since IAB
must first review the videos to mask or redact images of witnesses in cases where witnesses to, or
participants in, an encounter were arrested but subsequently had their case dismissed or
prosecution was declined. Section 160.50 does permit a complainant to sign a waiver permitting
CCRB access to sealed materials in NYPD’s possession, but in the many cases where persons
other than the complainant had their records sealed or may in the future have them sealed,
obtaining waivers is not easily accomplished. As noted in CCRB’s recent report on BWC usage
in investigations,1231 “[w]hile the CCRB hopes that the BWC MOU and its adoption of verbal and
written waiver/consent procedures will largely alleviate issues associated with obtaining BWC
footage related to sealed cases, investigating these cases without the improved level of review
1228
1229
1230
NYSCEF Doc. No. 214 (May 20, 2022), at 7.
Letter/Correspondence to Judge. NYSCEF Doc. No. 273 at 3.
R.C. v. City of New York, 2024 N.Y. App. Div. LEXIS 3062 (1st Dep’t 2024).
1231
“Strengthening Accountability: The Impact of the NYPD’s Body-Worn Camera Program on CCRB
Investigations,” Feb. 2020, available at https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/issue_based/20
200227_BWCReport.pdf.
272
provided by BWC footage would be a disservice to both the complainants and officers
involved.”1232
The purpose of Section 160.50 was not to prohibit an examination of misconduct by an
officer after a wrongful arrest. Rather, “the Legislature’s objective in enacting CPL §160.50 . . .
was to ensure that the protections provided be consistent with the presumption of innocence, which
simply means that no individual should suffer adverse consequences merely on the basis of an
accusation, unless the charges were ultimately sustained in a court of law . . . . Indeed, the overall scheme of the enactments demonstrates that the legislative objective was to remove any
stigma.”1233 When the NYPD denies access to sealed records in a CCRB investigation of
misconduct by an officer, the Department is not protecting the innocent civilian, who in many
cases, ironically, may be the victim, complainant, or witness to police misconduct. The
Department is not preventing “stigmatization” of the civilian and is not preserving the witness’
presumption of innocence.
The Patrol Guide directive in PG 211-14 to IAB to withhold information turned the
civilian’s right to sealing into a shield against investigation of the officer of the violations which
may have led to the civilian’s voided arrest or prosecution. Arrests that are voided and dismissed
are the very cases where the officer’s conduct should undergo heightened scrutiny. Protecting the
officer who makes a bad arrest was not the intent of the Legislature in enacting CPL 160.50 or of
the plaintiffs who sought to protect the presumption of innocence in R.C. v. City of New York.
The Court of Appeals has recognized exceptions to CPL §160.50 in the case of attorney
disciplinary proceedings,1234 and in the case of judicial disciplinary proceedings.1235 In both cases,
the Court recognized that the statute was not “absolute.” Access might be granted to preserve
“inherent authority over records and disciplinary powers.” More importantly, access was granted
in Matter of Dondi and Matter of NYS Commission on Judicial Conduct v. Rubenstein despite the
fact that the subject of the investigation objected to use of the sealed materials against himself
because he had received a favorable termination in a criminal case. Here, in CCRB investigations
of the officer, not the arrestee, the facts are inapposite. The wrongfully arrested civilian is not
suing to cloak the matter and the statute is not invoked to protect the civilian against future misuse
or adverse consequences. Where the civilian who received the favorable termination is not
connected to the subject of the investigation, the rationale for going beyond the literal language of
the statute to allow use in a disciplinary proceeding is even stronger than that in Dondi and
Rubenstein.
In a case where unsealing was sought by the NY State Police to investigate a disciplinary
matter involving a Trooper, the Appellate Division, Third Department wrote,
There is no question that County Court had inherent authority to unseal the criminal
records upon a showing that the material was essential to petitioner's investigation
1232
Id. at 11.
1233
People v. Patterson, 78 N.Y.2d 711, 716 (1991).
1234
Matter of Dondi, 63 N.Y.2d 331 (1984).
1235
Matter of NYS Commission on Judicial Conduct v. Rubenstein, 23 N.Y.3d 570 (2014).
273
and prosecution of the disciplinary charges against respondent. Nonetheless, such
authority “should be exercised rarely and only in extraordinary circumstances.
Notably, such discretionary power may not be invoked in the absence of a
compelling demonstration, by affirmation, that without an unsealing of criminal
records, the ends of protecting the public through investigation and possible
discipline of [a police officer] cannot be accomplished.”1236
In that case, the court held that there was an insufficient demonstration of need supported
only by “conclusory allegations.” However, in dicta, the court opined that evidence material to
the investigation could be unsealed if necessary witnesses were unavailable.
The statute does not create a broad, substantive, privacy right to be enforced in the
abstract.1237 Generally, by enacting CPL §160.50, the Legislature sought to afford “protection to
the accused in pursuit of employment, education, professional licensing and insurance
opportunities.”1238 Thus, NYPD should not vicariously assert a privacy interest on behalf of a
citizen witness to protect the misconduct of a third person. To its credit, NYPD made this very
argument before Judge Tisch, but lost.
To be sure, the statute creates a permissible private right of action to guard against the “risk
of public disclosure.”1239 But CCRB and IAB investigations are internal personnel actions which
prevent public disclosure.1240 NYPD and CCRB can ensure that the record of any criminal
proceeding that was favorably terminated will be sealed or redacted against any public disclosure
beyond that needed internally for investigation of a complaint. CCRB currently redacts identifying
information of witnesses and victims in its public reports and can continue to do so.
The only exception should be in the rare case where the officer who is the subject of the
misconduct investigation is also the same person who was criminally charged and subsequently
acquitted. In that case, the Department is not entitled to unseal the criminal court record.1241 That
is because, in that instance, the Department is acting as a public employer and not as an
investigatory body and the statute’s purpose, to protect against adverse employment consequences,
is fulfilled by sealing. This is not the case when the sealed record is of an arrest of someone other
than an officer facing a misconduct charge.
As argued by the City in R.C. v. City of NY,
[W]hen a police officer is investigated for performing an improper arrest, the police
officer is not the individual who was intended to be protected by §160.50, and there
1236
NY State Police v. Charles Q, 192 A.D.2d 142, 145 (3d Dep’t 1993), aff’d on other grounds, 85 N.Y.2d 571 (1995)
(internal citations and quotation marks omitted.)
1237
People v. Patterson, 78 N.Y.2d 711 (1991).
1238
Grandal v. City of NY, 966 F. Supp. 197 (S.D.N.Y. 1997, J. Scheindlin) (internal citation omitted).
1239
Lino v. City of New York, 101 A.D.3d 552 (1st Dep’t 2012) (emphasis in the original).
1240
Hughes, Hubbard & Reed v. CCRB, 171 A.D.3d 1064 (2d Dep’t 2019); People v. Chimborazo, CR-007578-23BX
(Crim. Ct. Bx. Cnty. Oct. 17, 2023).
1241
NYS Police v. Charles Q, 85 N.Y.2d 571 (1995).
274
is virtually zero chance that the individual who is intended to be protected by the
statute – the arrested member of the public who has not been convicted – will be
stigmatized by the police department investigating the arresting officer’s
conduct.1242
Unfortunately, the Court in R.C. v. City of NY rejected the City’s argument by reference to
Lino (a case where arrestees with favorable terminations faced a risk of stigma) and Charles Q. (a
case where the officer sought to protect himself from stigma and adverse consequences following
an acquittal).1243 The Court extended the reasoning in those cases to disciplinary inquiries into
police misconduct, where stigma of, or adverse consequences to, the wrongfully accused civilian
is not an issue. The Court invoked the “clear language” of the statute, while, in fact the statute
does not directly address this situation, as reason to avoid looking at the statute’s history and
purpose – to protect against adverse consequences which might be visited upon an arrestee.1244 The
purpose of the sealing statute is to preserve anonymity for the wrongfully accused defendant, not
to shroud the officer’s misconduct in darkness.
Ironically, if not perversely, the extension by the court in R.C. v. City of NY of sealing
provisions to protect the arresting officer’s misconduct went even beyond the relief sought by the
Plaintiffs. In response to the City’s motion to dismiss on the grounds that internal use of sealed
matters was necessary for disciplinary investigations, Plaintiff’s argued,
[M]ost of Defendants’ hypotheticals [citing a need for use in disciplinary
proceedings] concern the use of sealed records in the context of public safety or
internal officer discipline matters that have nothing to do with the use of sealed
records in the course of routine investigations at issue here. The issue on this
motion is the internal use and disclosure of sealed records, which results in the
stigmatization and further scrutiny of individuals whose records should be
sealed.1245
The City has appealed the ruling in R.C. v. City of NY, and while the case continues, Patrol
Guide 211-14 remains in place.1246 The Court denied a Motion to Dismiss made by the City. The
Court also enjoined the City to the extent the “the defendants [are] to abide by the sealing statutes
as such statutes have been interpreted through relevant case law.”1247 It is unclear whether NYPD
continues to utilize CPL 160.50 material in internal disciplinary investigations.
When asked in a recent court filing, the City has sought to distinguish “official records and
papers,” which are sealed under the statute1248 from “information” which may be derived from
1242
64 Misc. 3d 368 (Sup. Ct. N.Y. County, 2019) (NYSCEF Index No. 153739/2018, Doc. No. 38 at 16).
1243
R.C. v. City of New York, 64 Misc. 3d 368, 375–76 (Sup. Ct. N.Y. County, 2019).
1244
Id. at 375.
1245
Index No. 153739/2018, NYSCEF Doc. No. 41 at 28.
1246
Index No. 153739/2018, NYSCEF Doc. No. 294.
1247
Id. Doc. No. 200 (Sept. 27, 2021).
1248
CPL 160.50 (1)(c).
275
independent of the records.1249 It is difficult to understand a position which would permit reading,
copying, using, and distributing information about a favorably terminated prosecution when the
statute calls for sealing of all the records regarding the arrest and prosecution.
More recently, the City proposed a “Preliminary Injunction Compliance Plan.”1250 The Plan
limits use of sealed records “for investigatory purposes.” Access will be available for “noninvestigatory functions, such as internal oversight and police officer accountability.”1251 Under this
Plan, if approved by the Court, IAB will have access to sealed records when the investigation does
not “involve suspicion of criminal activity.”1252 IAB should, under the Plan, be able to fully
investigate misconduct allegations notwithstanding CPL 160.50.
Plaintiffs expressed concern that overlap may occur when a supervising officer uses
records for “oversight and accountability” but then continues to have the records available for
criminal investigations. 1253 Plaintiff have agreed to a directive that the Department “will limit
access to sealed records solely to personnel whose assignments have a statutory exception under
the law or require access to perform non-investigatory functions.”1254
Along that line, Plaintiffs have agreed to allow “De-Identified Sealed Records” for “police
oversight and accountability purposes.” Those are records “from which the name, date of birth,
address, NYSID, and any other unique identifiers that can be used to connect the records to an
individual are removed. The final implementation plan should define the personnel who will be
given such access. . . .”1255
In the interim, the Court has approved issuance of a “Finest Message” to be sent to all
officers by the Deputy Commissioner, Legal Matters advising them that “sealed records may not
be used for investigatory purposes” without a court order.1256
An important omission in the proposed resolution is access by CCRB and the APU. As of
this writing it is unknown if CCRB or APU will have similar access for misconduct
investigations.1257
Some IAB investigations look into misconduct along with criminal activity. How cases of
potential mixed purpose will be handled is an open question. Importantly, however, if CCRB and
NYPD are to have a meaningful exchange of disciplinary recommendations and a mutual
1249
R.C. v. City of NY, NYSCEF Doc. No. 187 at 11.
1250
NYSCEF Doc. No. 215 (May 20, 2022).
1251
Id. at 8.
1252
Id. at 9.
1253
Letter/Correspondence to Judge, Doc No. 214 (May 20, 2022).
1254
Plaintiffs’ Proposed Edits to Defendants’ FINEST MESSAGE Proposal, Draft 5.9.2022, NYSCEF Doc. No. 217.
1255
Plaintiffs’ Modifications to Defendants’ Proposed Plan, Exhibit A, NYSCEF Doc. No. 2115 (May 20, 2022).
1256
Decision + Order on Motion, Doc. No. 233 (July 27, 2022).
1257
Neither Corporation Counsel nor CCRB have responded to inquiries about the impact of the court’s order upon
access to records by CCRB.
276
understanding of misconduct allegations, they both should have equal access to information
needed for that purpose. To the extent that IAB or DAO continue to look at information derived
from events where the record was sealed by § 160.50, that same information should be available
to CCRB.
It may be that a compromise will be accepted and implemented. It may also follow that
the statute itself will be modified. In the “Collaborative Plan” submitted by the City to the
Governor declared that the City “supports a State law change that would broaden access to sealed
records for specified entities, including CCRB, charged with investigating police misconduct,
especially biased-policing investigations.”1258 As of June 12, 2023, a proposed order is under
consideration by the parties and the Court that permits access to “De-identified” records (personal
address, social security, etc.) “for the purposes of assessing the lawfulness of officer conduct or
investigating officer misconduct.” The order does not mention access by CCRB. 1259
Update: On June 6, 2024, the Appellate Division reversed and vacated the preliminary
injunction. R.C. v. City of New York, 2024 N.Y. App. Div. LEXIS 3062 (1st Dep’t 2024). The
Court held that the decision was premature and overbroad. On remand, the Appellate Court
required a “detailed fact-finding” with relief to be confined to remedying violations of the sealing
statutes.
In particular, the Appellate Court found the requirement that files be “de-identified”
(redacting identifying information of arrestees) prior to use in disciplinary proceedings was not
necessary. “Plaintiffs sought an order prohibiting the NYPD from providing its personnel with
access to sealed arrest information for law enforcement purpose.” The relief granted in the
injunction went beyond. The lower court “lacked the authority to order a plan that addresses what
other purposes the sealed records can be used for, such as . . . accessing sealed records to address
officer misconduct.”
Not discussed in the opinion is the question of CCRB access to the same records. It would
be an unfortunate outcome of the litigation if access were limited to the Department without
disclosure to CCRB.
N.
Access to Sealed or Expunged Substantiated Disciplinary Cases
The Patrol Guide sets forth a process by which disciplinary charges against an officer may
be sealed or expunged from the member’s CPI, the DAO’s Disciplinary Record System database,
the Command Discipline Log and the Citywide Command Discipline System.1260 The records,
once sealed or expunged, are not available to CCRB panels or APU, as well as to Departmental
personnel, including Trial Commissioners.
Disciplinary history is reviewed in several settings and in each setting, there is no good
reason for blindfolding substantiated misconduct. For example, the Command Discipline Log is
1258
NYC Police Reform and Reinvention Collaborative Plan at 8. Adopted by the City Council Mar. 25, 2021, Intro.
Res. 1584/2021. See Assembly Bill 370, Senate Bill 6267, awaiting a home rule message from the City.
1259
Doc. No. 306.
1260
Patrol Guide §§ 206-02, 206-14, 206-15. Now Administrative Guide § 318-02.
277
examined as part of the performance evaluation process.1261 In the event of a new allegation of
misconduct, the CO is required to “consider” the subject officer’s disciplinary history over the
previous 12 months.1262
Schedule A command discipline records are automatically removed from an officer’s
personnel files and destroyed on the first anniversary date if the officer has no subsequent
disciplinary record within that year.1263 Otherwise, destruction is delayed until the officer has
completed a full year without a “subsequent disciplinary violation.” The Guide is not clear as to
what qualifies as a subsequent disciplinary violation. If formal discipline is intended, then
expungement will be automatic unless Charges are brought for a new offense in the year following
the A-CD.1264
Schedule B command discipline may be sealed in the officer’s CPI. To do so, the member
must prepare a formal request to the commanding officer on the third anniversary from the date
the command discipline was issued. The commanding officer is required to expunge the
disciplinary record from the member’s command folder, endorse the original request, and forward
it to the Human Capital Division, so long as there have been no additional violations. If there have
been additional Schedule B disciplines or Charges and Specifications, the member can resubmit a
request three years after the disposition of the most recent disciplinary violation.1265
Any M or C cases which result in a final disposition of exoneration or unfounded are also
sealed in the member’s CPI; however, such records remain available to IAB, the Legal Bureau,
and the Employee Assistance Unit for limited purposes.1266 For example, the records can be used
for statistical evaluations and internal investigations.1267 The Patrol Guide does not specify what
records are kept of unsubstantiated profiling allegations.
Once records of substantiated B-CD offenses or unfounded/exonerated M or C cases have
been sealed, the information is “suppressed” whenever background inquiry is made, including
promotion and transfer requests.1268
When an officer has had Charges and Specifications lodged against him or her which
resulted in a “Not Guilty” determination, the member can prepare a request to seal the charges no
sooner than two years following a final decision by the Police Commissioner after trial. The
1261
Patrol Guide § 205-48; AG § 329-09.
1262
Patrol Guide § 206-02.
1263
Patrol Guide § 206-02.
1264
Id. The Guide also directs removal and destruction of all unsubstantiated command disciplines from the Command
Discipline Log kept at the precinct by the Commanding Officer and the Integrity Control Officer, but not until the
anniversary date. The record of a precinct investigation by the ICO or CO in a logbook, but not a digital database, is
kept at the precinct and destroyed after one year.
1265
Patrol Guide § 206-14. Now Administrative Guide § 318.12.
1266
Id.
1267
Id.
1268
Id.
278
commanding officer then reviews the request and makes a sealing recommendation to the Police
Commissioner. The Deputy Commissioner and DAO also review the request and make their own
recommendations as to sealing. If the Police Commissioner approves the sealing request, he
forwards it to the commanding officer and DAO.1269
After approval, Charges are sealed in the CPI, the DAO Disciplinary Record System
database, and “any other folder/files where disciplinary charges are maintained.” As well, the
disciplinary record is “deleted” from folders and files maintained in command.1270 Once a record
is sealed it may not be referred to when a member is being promoted, transferred or being
considered for a detail assignment, but DAO may keep copies for “informational purposes as
necessary.”
While Charges which resulted in a “Not Guilty” determination generally require the Police
Commissioner’s approval prior to sealing, the Patrol Guide requires DAO to prepare a dismissal
memorandum which will ensure that sealing will occur if the dismissal occurred because: (a) a
violation did not occur; or (b) the charges were based on mistaken identification.1271
The question arises as to what consequence or record is kept in a case where the CCRB has
substantiated an allegation of misconduct, but the Police Commissioner determines that no
disciplinary action should be taken. CCRB retains the record as substantiated by the Board with a
notation regarding subsequent action by the Department. The practice was challenged in 2006 by
an officer who sought a court order directing CCRB to expunge certain findings in its records.
CCRB had substantiated two complaints against the officer: excessive force and abuse of
authority. The Police Commissioner ordered no disciplinary action for the excessive force
complaint but ordered Training for the abuse complaint. The Appellate Division denied the request
to expunge CCRB’s records. It held that “this is a matter within the discretion of the Police
Commissioner. The determination as to whether a substantiated CCRB complaint should be
expunged or retained, and if retained, whether it should be utilized in personnel decisions, are
policy matters entailing the exercise of the Police Commissioner's discretion.”1272
Whether records are sealed or expunged and whether done automatically or in the Police
Commissioner’s discretion, the records should still be available to CCRB and should, in the
discretion of CCRB, be taken into consideration by CCRB panels when appropriate. This is
especially true for substantiated wrongdoing. Substantiated A-CDs, B-CDs and Charges as recent
as one to three years old can play a significant role in penalty recommendations now that the
Department has agreed to the concept of progressive discipline in applying the Disciplinary
Guidelines. Aside from penalty assessments, there is no question that prior findings may play a
significant role in deciding whether to substantiate an allegation. One can argue, as discussed
1269
Patrol Guide § 206-15. Now Administrative Guide § 318.12.
1270
Id.
1271
Id.
1272
Matter of
v. CCRB, 30 A.D.3d 201 (1st Dep’t 2006). Discussion at 12 City Law 104, available at
https://advance.lexis.com/document/teaserdocument/?pdmfid=1000516&crid=1f2d81eb-725c-445e-824ace577cac1008&pddocfullpath=%2Fshared%2Fdocument%2Fanalyticalmaterials%2Furn%3AcontentItem%3A4M9G-WVY0-00CV-400T-0000000&pdcomponentid=156233&ecomp=rzhdk&earg=sr0&prid=2236e23c-c51a-4eed-a7a0-aea82ae88f80.
279
below, whether unsubstantiated misconduct should be considered even when pertinent and
material. Due process plays a role in deciding whether unfounded or exonerated allegations should
be looked at when a new charge arises, but it is hard to understand why the same principle should
apply to prior substantiated misconduct.
Recently the Monitor team put to the Department the proposition that,
“The CCRB should obtain a complete record of any prior disciplinary actions by
the Department including disciplinary probation, whether or not the prior
investigation came through CCRB. This may include PEPR, CRAFT or CORD
reports as well. This should include prior discipline which came through
Command, FID, DAO, BIU, IAB, DCT or OCD.”
The response was,
“[A]bsolutely not. It’s not relevant to their determination, runs counter to the goals
of discipline, management of a command, established policy, collective bargaining
and due process. For the more serious or non-technical 206-03 violations, these
generally go through DAO. If there are specific examples, I’m happy to discuss.
“Section 8 of the collective bargaining agreements applies to sealing certain
schedule “A” CD incidents. This is still being litigated in the UFOA case and there
is pending action re the TRO. The city has taken the position that such “A” CDs
for technical violations, as that term is defined in the Public Officers’ Law, should
not be disclosed but that others (CCRB FADOs) could be published.”1273
There are a few problems with this response:
Prior misconduct is of value in many cases where motive, intent, mistake, identity or
participation in an overall scheme or plan is at issue. The Disciplinary Guidelines look
at good faith, mistake, lack of intent, not only in assessing guilt but also in mitigating
penalties. If CCRB is to apply the Matrix, it must have a complete record of prior
misconduct.
Prior misconduct is of value in weighing credibility. As observed by Judge Scheindlin,
many cases come down to a swearing contest between the officer and the complainant.
Prior misconduct of any kind tends to show that the officer is willing to put his interests
ahead of his duties, and more so if the prior misconduct tended to show that the officer
was untruthful, misleading, lacking in candor, or outright lying, in previous interviews.
The Guidelines mitigate cases where the officer is forthcoming. This cannot be
assessed without a full record of prior explanations or excuses for similar misconduct,
which, if successful, tend to be repeated.
Respectfully, but contrary to the response, the “goals of discipline” are not advanced
by covering up prior proven misconduct. Even more so if one subscribes to the promise
of progressive discipline as the Department intends.
1273
Email exchange, Monitor Team and Matthew Pontillo, Assistant Chief and Commanding Officer, Office of the
First Deputy Commissioner (Mar. 18, 2021).
280
Section 8 of the collective bargaining agreement says nothing about CCRB use of prior
substantiated misconduct or of sealing substantiated cases. It applies only to cases
which were not substantiated and provides,
Where an employee has been charged with a “Schedule A”
violation . . . and such case is heard in the Trial Room and disposition of the
charge at trial or on review or appeal therefrom is other than “guilty”, the
employee concerned may, after 2 years from such disposition, petition the
Police Commissioner for a review for the purpose of expunging the record
of the case.1274
The City’s litigation posture in UFOA has nothing to do with CCRB access to records
of prior misconduct. That case revolves around public access through FOIL under the
Public Officers Law. The Public Officers Law permits the Department to withhold
from FOIL demands by the public for minor technical infractions in a disciplinary
history. It says nothing about disclosure to CCRB or CCRB’s use of the information.
In any event, since A-CD is a common disposition for SQF misconduct, it is critical
that FADO findings (not derived from CCRB investigations) and OMN findings such
as stop report failures and BWC infractions, be fully disclosed to CCRB.
The City advised the Court in UFOA that the CBA did not prevent the use of sealed
information in future investigations. “It is the City’s position that discretionary
removal from the officer’s personnel file [under the CBA] does not create an
entitlement to remove the investigative reports or the actual complaint and allegation
from [NYPD’s or CCRB’s] own records in toto, much less from the public domain.”1275
The letter response cites a contract provision which expunges findings “other than
guilty.” That has nothing to do with sealing or expungement of substantiated A-CD’s.
In a closely parallel, but not identical situation, former Commissioner Shea wrote an OpEd piece in the New York Daily News complaining about sealing of records.1276 He contended that
records of acquittals or dismissals lodged against innocent civilians should be available for use by
detectives as they investigate a new case. He argued that sealed, “records could become
completely invisible to police. We wouldn’t even be able to know they exist. We would be
meeting ‘the perpetual first offender’ because NYPD’s own records . . . will not show up in our
systems.” 1277
Even though the Police Commissioner was talking only about cases where arrestees were
found not guilty, nonetheless he saw the value in looking at records of prior dismissals. Here, the
1274
Collective Bargaining Agreement, Art XVI, § 7, available at UFO v. de Blasio, 20 Civ. 5441 (S.D.N.Y. Sept. 4,
2020), ECF Doc. No. 220, at 21.
1275
UFO v. de Blasio, 20 Civ. 5441 (S.D.N.Y. Sept. 4, 2020), ECF Doc. No. 220, at 21.
1276
Writing in reference to the R.C. case.
1277
Dermot Shea, “Don’t Put Blindfolds on NYPD’s Cops,” NY Daily News (Sept. 27, 2021), available at
https://www.nydailynews.com/opinion/ny-oped-making-cops-work-blindfolded-20210927oh4zbh3wtfeadalaf4475iwdii-story html.
281
case against sealing, and the need to lift the blindfold, is more compelling, since the records that
become “invisible” under the Patrol Guide are records of substantiated misconduct.
The recently adopted Disciplinary Guidelines promise progressive discipline when an
officer has a history of misconduct. Histories will be used to elevate penalties dependent upon the
seriousness of the prior substantiated misconduct and the length of intervening time. Some prior
events will be considered in perpetuity. Remembering that a large number of FADO investigations
are accomplished by IAB or BIU, all FADO findings within the Department should be made
available to CCRB in calculating discipline for any new FADO finding by the Board. Also, if a
prior finding of excessive force, profiling, false statements, intentional refusal to take a complaint
or file a report, failure to supervise, or any of a myriad of substantiated misconduct related to
FADO, was previously found by IAB or BIU, that is necessary information for CCRB since each
of those findings of wrongful public interaction are material to CCRB’s understanding of a new
citizen complaint.
O.
Unsubstantiated Findings - the “Sole Basis” Rule
The Charter directs, “nor shall prior unsubstantiated, unfounded or withdrawn complaints
be the basis for any . . . finding or recommendation.”1278 A good argument could be made that the
language in the Charter may be overbroad in that prior complaints, especially unsubstantiated cases
where evidence is equivocal, should not be disregarded.
Far and away the most common finding by CCRB is that an allegation was
“unsubstantiated.” A review of all findings by CCRB from 2010 through 2019 found that 8,775
of 17,325 (50.6%) complaints went unsubstantiated.1279
The substantiation rate for Stop, Question, Frisk, and Search of Person allegations is very
low. From 2014 through 2019, of 5,581 SQF allegations that were fully investigated, i.e., not
withdrawn, truncated, or mediated, only 1,424 (25.5%) were substantiated. 2,062 (36.9%) went
unfounded or exonerated. In 2,095 of the 5,581 (37.5%) the available evidence was mixed and
ended up being unsubstantiated.
The Charter language is broad and includes in its sweep cases which are “withdrawn” along
with unsubstantiated cases. “Withdrawn” includes truncations and mediations. How many prior
complaints are excluded from consideration by the Charter when a new complaint is filed? If all
cases, other than those that are substantiated are deemed to be beyond consideration by CCRB, we
have the following for the three-year period 2017 to 2019:
A sum of 12,878 FADO complaints were “closed:”1280
1278
Charter 440(c)(1) (emphasis added).
1279
David Cruz, Why the Majority of NYPD Misconduct Complaints End up ‘Unsubstantiated, THE GOTHAMIST (Aug.
18, 2020). See also CCRB 2018 Statistical Appendix, indicating that from 2014–2018, 93% of 23,079 closed
complaints went without substantiation. This includes cases that were “unfounded,” “withdrawn,” “closed pending
litigation,” of not fully investigated.
1280
The number here is of complaints, not allegations.
282
1,827 unsubstantiated
309 unfounded
796 exonerated
623 mediated
684 attempt mediation
7,475 truncations
310 officer unidentified
Of the total of 12,878 cases, 12,024 were closed without substantiation, which, if the Charter is
mechanically applied, cannot be “the basis” for any new findings.
This would imply that 93% of past FADO complaints which, after screening, sufficiently
allege wrongdoing by a uniformed officer to justify retention by CCRB, cannot be taken into
account or considered in the future whenever a new complaint is brought against the same officer.
Some of those cases might well contain useful information, leads, or warnings about precinct
problems or patterns of misconduct - either individually or within a squad. Turning a blind eye to
the past is illogical and contrary to investigations conducted in any other context, whether it be in
civil proceedings, administrative proceedings, criminal proceedings, or even in internal
organizational handling of complaints.
If an officer has a lengthy history of force, threat or retaliation cases that are truncated, is
it wise to ignore that history when a new charge of threat or retaliation is levelled? If an officer
avoids discipline on multiple cases upon a claim of good faith mistake of law, should that history
be considered or re-examined if, upon a new charge, he again claims a similar “mistake?” If an
officer, time and again, is excused for seizing the wrong person by mistake, does there come a
point in time when one can question his claim of good faith mistaken identification? How many
times may a similar mistake be made without questioning the sincerity of the claim? If several
officers have a history of unsubstantiated complaints where they had been joined as subjects,
should their history of concerted action be considered even if not substantiated? Cases have been
cited in this Report where the same two officers have been accused of similar misconduct on more
than one occasion when acting together. Should that be considered if the joint conduct is alleged
to repeat itself? It is not uncommon for an officer, during an inquiry, to say he did not see or was
unaware of the actions of a fellow officer at the time. That is reasonable and plausible, but does it
remain so as an excuse if ventured repeatedly?
For the moment, putting aside exonerations, truncations and unfounded cases, a necessary
question to be asked is, “Should a series of unsubstantiated complaints against an officer be
disregarded in all circumstances?” Remembering that an unsubstantiation often means there was
evidence linking the officer to misconduct, but that the evidence is equivocal or short of
convincing, is the evidence in every such case meaningless when weighing a new charge against
the same officer? Or when considering his disciplinary history, his credibility, or an asserted
defense? Is there a good faith basis for opening the file?1281
1281
Unsubstantiated findings must be disclosed in criminal proceedings for use as impeachment, Giglio or Molineux
material. See People v. Alvia, 2022 NY Misc. LEXIS 3212 (Bx. Crim. Ct. Aug. 1, 2022) (“This Court and many
283
In 2018, the Board sensibly amended Rule 1-33(a) to permit a look into prior cases by
adding the words “sole” to the existing regulation that had been patterned after the Charter.
(a) Pursuant to Chapter 18-A § 440(c)(1) of the New York City Charter, no finding
or recommendation shall be based solely upon an unsworn complaint or statement,
nor shall prior unsubstantiated, unfounded or withdrawn complains be the sole basis
for any such finding or recommendation.”
The intent was to look at a prior case “if it has special relevance, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.”1282 Obviously a history of allegations, in and of itself, is insufficient to justify a new
finding - and the regulation acknowledged that self-evident truth.
CCRB’s approach in drafting the new Rule was ham-handed in that it sought to deal with
unsubstantiated, unfounded, and withdrawn complaints as one grouping, without acknowledging
that each category might require an individualized and more discerning approach. Simply
inserting the word “sole” into a regulation that otherwise parroted the Charter, left the amendment
wide open to claims of unsupported alteration of the Charter and potential abuse, which is exactly
what the PBA presented in a court challenge.1283
The NYCLU, in an amicus filing, joined the PBA in objecting to the amendment,
This is an area ripe for nuanced treatment, depending on the circumstances
presented. For example, prior uncontested parts of unsubstantiated or unfounded
complaints could properly be considered in a current investigation without
undermining the rights of the accused. Similarly, the fact of prior false statements
by a police officer in an unfounded case could be considered in evaluating the same
officers’ testimony in an open case. . . . By amending this rule with a single word,
the CCRB has elided important distinctions between the three dispositions that it
governs, as well as the very different consideration that should apply to different
types of information drawn from past complaints. This broad-bus approach risks
violating officers’ right to due process. This Court should construe Rule § 1-33
more narrowly in order to avoid this Constitutional concern.1284
others have explained that the statute’s [Article 240 of the CPL] command includes ‘unsubstantiated’ allegations – a
technical term that simply means no factual determination was made.”) (citing, e.g., People v. Spaulding, 75 Misc. 3d
1219[A], 2022 NY Slip Op 50544[U] at *2 [Crim. Ct. Bronx County 2022] [Licitra, J.]; People v. Martinez, 168
N.Y.S.3d 679, 75 Misc. 3d 1212[A], 2022 NY Slip Op 50476[U] [Crim. Ct., NY County 2022] [Rosenthal, J.]; People
v. Edwards, 74 Misc. 3d 433, 160 N.Y.S.3d 532 [Crim. Ct., NY County 2021] [Weiner, J.]; People v. Barralaga, 73
Misc. 3d 510, 153 N.Y.S.3d 808 [Crim. Ct., NY County 2021] [McDonnell, J.]; People v. Kelly, 71 Misc. 3d 1202[A],
142 N.Y.S.3d 788, 2021 NY Slip Op 50264[U] [Crim. Ct., NY County 2021] [Gaffey, J .]; People v. Perez, 71 Misc.
3d 1214[A], 144 N.Y.S.3d 332, 2021 NY Slip Op 50374[U] [Crim. Ct., Bronx County 2021] [Johnson, J.]).)
1282
Lynch v. CCRB, Memorandum of Law, Index 152235/2018, NYSCEF Doc. No. 58, at 25.
1283
Lynch, supra.
1284
Lynch v. New York City Civilian Complaint Rv. Bd., Index 152235/2018, NYSCEF Doc. No. 68, at 26 (Aug. 2,
2018).
284
The lower court bypassed the invitation to narrowly construe the language, merely cherrypicking one portion of NYCLU’s objection. The court struck the amendment in its entirety on the
grounds that it “puts officers’ due process rights at risk” and “lacks the necessary detail to protect
a Police Officers’ due process rights.” Unfortunately, the Appellate Division agreed, but then took
the argument one step further, finding the Charter contained a “directive that prior unsubstantiated
complaints play no role in subsequent findings.”1285 That clearly overstates the breadth of the
Charter prohibition.
While the language in the appellate decision will be read by some to bar any future attempts
to refine the language in the proposed regulation, absent amendment to the Charter, the issue is
important enough that it should not continue unaddressed. NYCLU’s invitation to re-draft the
revision with “nuanced treatment” should be accepted.
A string of similar unsubstantiated cases which demonstrate a pattern, a misapplication of
the law, or prejudicial behavior can be useful in investigating misconduct. It may also be used to
help identify an officer. For one, CCRB could attempt to distinguish unsubstantiated cases from
those that are unfounded or exonerated.
As found by federal District Court Judge Raymond Dearie,
The inadequacy of the investigations in this case is particularly relevant given the
evidence [the Defendant] proffered showing that the NYPD routinely treats
complaints that have not been substantiated as though the officer has been
exonerated from any wrongdoing . . . a reasonable jury could find that a monitoring
and disciplinary system that disregards any complaint or series of similar
complaints because they are unsubstantiated does not demonstrate a ‘meaningful
attempt on the part of [the City] to . . . forestall further incidents,’ and it may
reasonably be inferred that such a system encourages similar excesses.1286
The well-known evidentiary rules in People v. Molineux,1287 and FRE 404 should apply
with equal force in disciplinary proceedings. Motive, intent, scheme or plan, identity, opportunity,
absence of mistake are all issues which commonly arise in disciplinary investigations. When the
issue is advanced, a close look at related allegations in the past deserve consideration.
In addition, prior misconduct that speaks to credibility or candor of a witness, needs to be
taken into account in weighing current testimony when, as often happens in SQF cases, the matter
comes down to one witness’ word against another. At training sessions with investigators, the
Monitor team was advised that NYPD looks at prior misconduct of the complainant and looks at
1285
Lynch, 18 A.D.3d 512, 517 (1st Dep’t 2020).
1286
Jenkins v. City of NY, 388 F. Supp. 3d 179, 193 (E.D.N.Y. 2019) (internal citation omitted).
1287
168 N.Y. 264 (1901).
285
whether the witness has a history of multiple claims against the police.1288 Why should a civilian’s
past be considered while an officer’s past is ignored?1289
In a recent decision, People v. Rouse,1290 the Court of Appeals reversed a conviction where
the trial court had limited inquiry into prior matters in which the testifying police officers’
credibility had been assailed. The trial court had acknowledged the well-known rule that prior bad
acts may be used to question credibility when they demonstrate an untruthful bent or a willingness
to place advancement of self-interest ahead of principle or of the interests of society. However,
the lower court had denied use of prior negative assessments, claiming there was no “good faith
basis” to use the negative priors, absent a formal charge or proof that the officer had previously
been “administratively sanctioned,” i.e., a substantiated charge by NYPD. The Court of Appeals
held that this was an abuse of discretion as a matter of law. Instead of a prior administrative
substantiation, all that was necessary to allow consideration of the prior misconduct in weighing
credibility was “some reasonable basis” to support the inference.1291 The same rule should apply
here as well.
In the context of SQF investigations, repeated and similar unsubstantiated allegations of
misbehavior should be looked at in assessing respondents’ defenses of “good faith” or “lack of
intent” or “mistake” or “objective reasonableness.”1292 It would defy logic for the Department to
apply those principles to excuse or mitigate charges in its Disciplinary Guidelines, as it declares it
will, without taking multiple prior misconduct allegations into account. How many times can a
person make the same good faith mistake?
As discussed later, the recently adopted Disciplinary System Penalty Guidelines (Matrix)
mitigates penalties if the officer has had a “limited or lack of knowledge, training and experience
. . . that is germane to the incident.” A history of complaints, interviews, litigation, and
unsubstantiated investigations in cases of similar allegations or a pattern of misconduct should be
just as relevant.
Examination of a series of related unsubstantiated cases would also be useful in identifying
a wider pattern of misbehavior in a squad or precinct, including failures to supervise adequately.
1288
IAB and BIU pull up the DAS report on victims which contains an entire history of prior police contacts including
sealed events.
1289
During litigation in Mullins v. City of New York, 634 F. Supp. 2d 373, n.56 (2009), the Court was advised that
false statement allegations, while still open but not yet substantiated, may be considered by supervisors in the
Department when the subject officer seeks a favorable transfer or promotion.
1290
34 N.Y.3d 269 (2019).
1291
Unsubstantiated cases provide a good faith basis for further inquiry. People v. Randolph, 69 Misc. 3d 770 (Suffolk
Cty. Ct. 2020); People v. Porter, 71 Misc 3d 187 (Crim. Ct. Bx. Cty. 2020); People v. McKinney, 2021 NY Misc.
LEXIS 2581 (Kings Cty. Crim. Ct. 2021).
1292
See, e.g., People v. Rouse, 34 N.Y.3d 269 (2019), permitting a good faith basis inquiry of law enforcement
witnesses even where the officer was not administratively sanctioned. See also People v. Molineux, 168 N.Y. 264
(1901) and FRE 404(b) which permits use of prior acts to prove: motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
286
person were substantiated against PO
Specifications for both officers.
as well. The board recommended Charges and
The case was subject of a civil lawsuit, which resulted in a $17,500 settlement.
Complaints against PO
included nine excessive force allegations (including
wrongful use of a baton, another with an unidentified “inanimate object”), refusal to obtain medical
treatment, 24 allegations of illegal stops, frisks and searches, and seven complaints of discourtesy
or slurs.
In 2015, CCRB did substantiate a stop complaint, but the Police Commissioner elected to
DUP-NDA the case, in effect negating any recommendation for discipline.
Until the final charge in his career, some of the earlier allegations (6) ended with
exoneration. The rest were unsubstantiated, unfounded or withdrawn. In addition to complaints
investigated by CCRB, PO
failed to file a stop reports or to note encounters in his memo
book. He was charged with that particular oversight at least six times.
The CCRB investigator, in the writeup of the most recent case, nonetheless wrote that there
was “no pattern applicable” to his most recent misconduct. There is no mention in the report of
whether the investigator reviewed all the prior complaints and came to the conclusion based upon
that review. If it was not conducted, it should have been.
Separately, seven lawsuits were filed against PO
for wrongful police action, four of
which settled for $7,500, $35,000, $52,500 and $17,500, while the others remain open.
P.
CCRB Complaints and Allegations - All FADO
For the period 2017–2019, of 31,907 complaints that were screened at intake, 14,092 were
retained for action by CCRB. The majority of the complaints that were retained did not result in
a finding by the Board.1295 Most complaints were diverted as a result of truncation, mediation,1296
or an inability to identify the officers involved. In the end, over the three-year period, 3,786 of
complaints (29.4% of all retained cases) were fully investigated by CCRB and voted upon by a
panel, resulting in a finding for or against a complaint against an identified officer.1297
1295
Generally, when dealing with aggregate numbers, this Report will use statistics in the 2017 to 2019 range.
Updating to include 2020 would skew any analysis due to the pandemic, social isolation, and singular changes in
police activity, reporting by civilians, and processing by CCRB. As well, police interactions with Black Lives Matters
protesters resulted in an influx of complaints which, for a variety of reasons, were not disposed of by CCRB. There
were 8,414 complaints filed in 2020 with CCRB, of which CCRB retained 3,872.
1296
Mediation numbers include “Mediation attempted” which designates that the officer and civilian agreed to
mediate, but the civilian failed to appear and does not request that the case continue. CCRB Semi-Annual Report
2019, at 31, accessed at https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2019_semiannual.pdf.
1297
Throughout this Report there is reliance upon data from 2017 to 2019. This is the product of several factors: delay
and lag time in closing cases sufficient to capture a full set of data; the pandemic; delay in obtaining reports or data
from official sources, to name a few. In response to a draft of this Report, CCRB points out, rightly, that much of the
289
In that three-year period, 2017-2019, 23.1 percent of FADO allegations were for excessive
force.
Another 63.1 percent of the allegations were for abuse of authority.1299 Overall SQF
misconduct (which falls within the abuse category) constitutes only about 13.7 percent of all
allegations considered by CCRB.1300
1298
A complaint will often carry multiple allegations. More than one civilian-victim/witness
may have been aggrieved during the encounter. Several separate acts of misconduct during the
encounter by the officer(s) may have been alleged - all of which are combined within one
complaint. CCRB usually categorizes a complaint by what it considers to be the most serious
allegation within a complaint. Another way to measure civilian complaints is to look at the number
of and types of allegations made rather than complaints made. There are, on average, over three
allegations of misconduct in each complaint.
COMPLAINTS
All Complaints to CCRB
Complaints Kept at CCRB
2017
2018
2019
3-year total
10,579
4,486
10,660
4,645
10,668
4,961
31,907
14,092
TYPE OF COMPLAINTS KEPT AT CCRB
Force
3,421
3,795
Abuse
8,751
10,431
Discourtesy
2,033
1,844
Off. Lang.
462
416
4,205
12,031
1,584
371
11,421
31,213
5,461
1,249
%
23.1%
63.1%
11.0%
2.5%
Within the 14,092 complaints retained by CCRB, in the same three-year period, there were
49,244 allegations of FADO misconduct.
Allegation Type
Force
Abuse
Discourtesy
Offensive Lang.
TOTAL ALLEGATIONS
2017
3,421
8,751
2,033
462
14,667
2018
3,795
10,531
1,844
416
16,586
2019
4,205
12,031
1,584
371
18,191
3-year Total
11,421
(23.2%)
31,113
(63.2%)
5,461
(11.1%)
1,249
(2.5%)
49,2441301
data on CCRB’s substantiation rates were “pre-BWC.” The availability of video evidence undoubtedly has
substantially impacted its substantiation rate. A true assessment of those numbers would necessarily entail another
study – which is beyond the scope of this Report. (Item 520, City 09.02.23 Feedback to Yates Discipline Report.)
1298
Defined in Patrol Guide § 221-01 (Force Guidelines).
1299
Until 2021, abuse of authority went undefined, but CCRB listed 45 categories of misconduct as abuse of authority.
CCRB Semi-Annual Report 2019 at 22. 38-A RCNY § 1-01 now defines Abuse of Authority.
1300
In 2022, 528 complaints received contained a SQFS allegation (CCRB Annual Report – 2022 at 19) out of a total
of 3,724 complaints (CCRB Monthly Statistical Report – January 2023, at 8). This is 14.2 %.
1301
In 2020, the pandemic year, there were 2,813 force allegations + 7,114 abuse allegations + 1,078 discourtesy
allegations.
290
Within the 14,092 complaints and 49,244 allegations of FADO misconduct, how many are
for stop and frisk misbehavior?
i.
Complaints of Stop, Question, Frisk Misconduct
Over time, the number of reported stops has decreased. Whether this is an accurate
measure of stop activity, merely a drop in reports, or some combination of the two is an open
question. During the period of the Monitorship:1302
2014
2015
2016
2017
2018
2019
Reported Stops
45,788
22,565
12,404
11,629
11,008
13,459
SQF Complaints
1,003
886
869
890
839
863
% of Stops1303
2.2%
3.9%
7.0 %
7.7%
7.6%
6.4%
In recent years, the percentage of stops which led to a civilian complaint has leveled off in
the seven percent range,1304 but that percentage is significantly higher than the percent of stops
leading to a civilian complaint in earlier years. The number of stop complaints as a percentage of
the number of reported stops is not, in and of itself, a reliable measure of lawful or unlawful stops
behavior. The two may not correlate for a number of reasons.
ii.
SQF Misconduct by Allegation
Another way to look at SQF complaints retained by CCRB is to look at the allegations
within the complaints. How many complaints retained by CCRB after screening at intake
contained an allegation of a wrongful stop, question, frisk or search of person? Again, looking at
2017-2019:
Allegation
Stop
Question
Frisk
Search
Person
TOTAL
2017
851
207
497
659
2018
855
280
466
614
2019
902
310
491
620
3-year Total
2,608
797
1,454
1,893
2,214
2,215
2,323
6,752
%
38.6%
11.8%
21.5%
28.0%
1302
Reported stops in 2020 dropped to 9544 and SQF complaints in 2020 dropped to 696, but given the many issues
associated with reports in the pandemic COVID year the numbers may be an aberration.
1303
This percentage does not assume that the complaints were for reported stops. Many complaints are for encounters
that were not reported. See Stop Report Failure discussion below.
1304
In 2020, there were 696 SQF complaints out of 9,544 reported stops (7.3%). In 2022, there were 15102 reported
stops (NYPD Stop, Question and Frisk Data, available at https://www nyc.gov/site/nypd/stats/reportsanalysis/stopfrisk.page) with only 528 complaints received containing a stop, question, frisk, or search of person
allegation. (CCRB Annual Report 2022, at 19). This is 3.5 % of reported stops.
291
The “total” line in the table requires closer analysis; the allegations should not simply be
added together with the assumption that there were 6,752 police-civilian encounters in that time
period that were the subject of an investigation by CCRB. There is overlap in the numbers. For
example, some complaints may allege all four actions (stop, question, frisk, search of person) and
be listed in each line of a column.
It is interesting that there were many more allegations of an illegal search than allegations
of illegal questioning or frisks. Were those searches not preceded by a question or a frisk? Some
may have been preceded by a frisk but the complainant only complained of the search. In those
cases, depending on the complaint, an investigation by CCRB into a stop and search could, but
may not, look into the propriety of the question or frisk as well
Q.
CCRB Findings
For 2017–2019, only 3,786 of the 14,092 FADO complaints retained by CCRB reached
the point of a finding by a CCRB panel. The rest were truncated, mediation was attempted or
completed, or withdrawn for other reasons. The first table below measures findings and outcomes
by “complaint.” In addition to looking at complaint numbers, one can look at individual
allegations of misconduct within a complaint, or one can look at the number of cases (each
complaint against an officer is handled as a separate “case”).1305
CCRB forwards a discipline recommendation to DAO for each substantiated allegation.
Until implementation of the Disciplinary Guidelines, the Police Commissioner had imposed one
penalty for an entire case, regardless of the number of allegations substantiated by CCRB. If there
was a separate finding in a related case by IAB or one of the other internal investigation units (BIU
or FID), the Police Commissioner assessed one penalty for that case.1306 In some cases, the Police
Commissioner would close a CCRB case, usually after a substantiated finding, and combine it
with the penalty assessed in the internal Departmental investigation. This has been modified to
some extent by adoption of the Disciplinary Matrix as established by the Police Commissioner in
2021, which provides,
“Separate presumptive penalties, adjusted for relevant aggravating and mitigating
factors, are applied to each substantiated act of misconduct for which there has been
a finding or acceptance of guilt. These presumptive penalties are then aggregated
to address each distinct act of misconduct.”1307
1305
When Charges and Specifications are voted by a panel, the case is passed to the Administrative Prosecution Unit
(APU) of CCRB for potential trial before a trial commissioner within the Department (discussed later in this Report).
APU treats each officer as a separate “case” for statistical purposes. See CCRB Semi-Annual Report 2019 at 47,
available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2019_semi-annual.pdf.
1306
DAO or the Police Commissioner will commonly combine two open parallel investigations by administratively
closing one or assessing one penalty for the IAB and CCRB findings. This is particularly true in false statement cases
substantiated by IAB where CCRB has a related finding.
1307
Disciplinary Guidelines at 12.
292
Comparing reports and statistics of outcomes at CCRB with those of NYPD can be
deceptive since they report complaint outcomes differently when a complaint contains a mix of
findings among a cluster of allegations. CCRB reports complaint outcomes as follows:
A complaint is “substantiated” if any one allegation within the complaint is
substantiated. (This differs from IAB, which declares a case to be “partially
substantiated” of only one or some of the allegations are substantiated, but not all of
them.)1308
Now that CCRB has revised its description of case dispositions, comparison is
impossible since it no longer matches with NYPD’s description of outcomes.1309
A complaint is exonerated if all the allegations made against identified officers are
exonerated.1310
A complaint is unfounded if there are no substantiated or unsubstantiated allegations
and there is at least one unfounded allegation.1311
A complaint is unsubstantiated if there are no substantiated allegations and there is at
least one unsubstantiated allegation.1312
For this reason, it is useful to look at both complaint processing and allegation processing
when attempting to assess outcomes at CCRB and NYPD. Allegation outcomes alone do not paint
a complete picture.
i.
UMOS With Substantiated Complaints1313
Also, since multiple officers may be involved in one incident, the number of officers found
to have engaged in wrongdoing (i.e., substantiated cases) is greater than the number of
substantiated complaints.1314 Of all complaints received, CCRB substantiates allegations against a
relatively small number of the approximately 35,000 uniformed officers. Looking at substantiated
cases (not complaints) we have the following numbers:
1308
Commission to Combat Police Corruption (“CCPC”) 18th Annual Report, at 18.
1309
Compare CCRB “case dispositions” 38-A RCNY§ 1-33, amended effective October 22, 2022, with NYPD Admin.
Guide § 322-11 (effective June 23, 2020).
1310
Id. at 19.
1311
Id. at 19.
1312
CCRB James Blake Fellow Report, 2020, at 7, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/pol
icy_pdf/issue_based/CCRB_BlakeFellow_Report.pdf.
1313
UMOS are “Uniformed Members of the Service,” AG 322-11, as opposed to “Members of the Police Department,”
NY City Charter § 440(c)(1). More than one officer may be charged in one complaint.
1314
The number of officers listed for 2017 and 2018 comes from the CCRB 2018 Annual Report at 34. The 2019
number comes from CCRB Executive Director’s Monthly Report (Jan. 2020), at 24, available at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2020/20200909_monthlystats.pdf.
Slightly different numbers appear in the Statistical Appendix at 113, wherein the UMOS number is 374 for 2017 and
340 for 2018.
Appendix - CCRB Complaint Data (2018), at 113, available at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2018_annual-appendix.pdf.
293
2014
467
2015
773
2016
515
2017
355
2018
326
2019
536
As of December 31, 2020, 21,186 active uniformed members had been the subject, at one
time in their history, of at least one CCRB complaint. That is 61.2% of 34,588 active members.
13,592 (39.2%) had been the subject of two or more complaints.
Eighty-nine percent of officers (30,674) officers have had zero substantiated complaints
against them. Only 804 (2.3 %) have two or more substantiated complaints in their history.1315
There is no available data on how many officers have been the subject of a SQF complaint, which
would be worth obtaining.1316
The numbers support an argument not only for rigorous progressive discipline, but for
consideration of relevant and material evidence of repeated behavior even where allegations are
not substantiated. (See discussion above on the “sole basis” rule.) A small proportion of officers
have repeat violations. Disciplinary efforts should concentrate on them. The majority of officers
in the Department are unfairly tarnished by the wrongful conduct of the few. In other contexts,
for example crime prevention, an accepted strategy is to concentrate on repeat offenders, whether
convicted previously or not.1317 So too, here, misconduct could best be addressed by focusing
attention on the 6,388 officers (18.4%) of officers who have been the subject of more than three
complaints or the 804 officers who have been the subject of more than one substantiated complaint.
Early intervention and risk management is one avenue, but the knowledge that an investigation
will be thorough, a substantiation will not be lightly disregarded, and that discipline is certain for
repeat subjects is important as well. Later in this Report a few examples of multiple officers with
seven or more prior complaints, all going without discipline, will be examined.
ii.
CCRB Findings – All FADO Complaints1318
2017
FADO FINDINGS
Substantiated
Unsubstantiated
Unfounded
1315
258
653
87
2018
226
578
92
2019
370
596
130
3 YR
TOTAL
854
1827
309
% OF FINDINGS
22.6%
48.3%
8.2%
CCRB Annual Report 2018 at 22.
1316
Once CCRB begins to investigate profiling complaints, a dataset on outcomes in that area would become
important. As of now, even without any substantiated profiling cases, there is a listing by IAB of MOS who have
been the subject of three or more profiling cases. As of April 17, 2021, there were 74 officers who had been named
in three or more profiling complaints. Two had been named seven times.
1317
See, e.g., Police Commissioner’s comment that “[w]e are not helping these kids by putting them back on the
street,” referring to accused teens who have long rap sheets (available at https://pix11.com/news/local-news/nypdcommissioner-bail-change-rikers-teen-shootings-school-safety-officers/).
1318
The rate of substantiation in 2020 rose to 30% (293 of 981) but the many issues surrounding police action and
CCRB investigation in the pandemic year make the numbers a possible aberration. This is the substantiation rate for
fully investigated complaints and not all complaints.
294
Exonerated
TOTAL
FINDINGS1319
240
218
338
796
21.0%
1,238
1,114
1,434
3,786
100%
OTHER
COMPLAINT
CLOSURES
Off. Unidentified
Mediated
Attempt Mediation
Truncations/Other1320
TOTAL CLOSED
W/O FINDINGS
TOTAL
CLOSURES1321
110
204
213
2,286
2,813
94
232
231
2,334
2,891
106
187
240
2,855
3,388
310
623
684
7,475
9,092
4,051
4,005
4,822
12,878
% OF ALL
CLOSURES
2.4%
4.8%
5.3%
58.0%
Comparing findings in an earlier three-year period (2014-2016):
COMPLAINTS
FADO FINDINGS
2014
2015
2016
3-YR
TOTAL
Substant.
Unsub.
Unfounded
Exonerated
313
1,024
147
265
519
1,050
150
296
342
678
139
257
1,174
2,752
436
818
Total Findings
1,749
2,015
1,416
5,180
%
22.7%
53.1%
8.4%
15.8%
Although the raw numbers vary over time, the rate of findings in each 3-year period
measured by category are roughly equivalent. However, there is a five percent drop in
unsubstantiated cases in the later period. There is a five percent increase in exonerations in the
1319
Unlike tables in the Annual Reports filed by CCRB, this Report does not include “Officer Unidentified” in the
“findings” category. A recent article in the Gothamist (https://gothamist.com/news/why-the-majority-of-nypdmisconduct-complaints-end-up-unsubstantiated) looked at 17,325 complaints decided by CCRB from 2010 to 2019
and found that 8,775 were unsubstantiated, 1.525 were unfounded, 2.939 were exonerated, 1.153 were officer
unidentified and only 2.933 (16.9%) were substantiated. During that same period 49% of filed cases were truncated.
1320
Includes “Complaint withdrawn,” “victim/witness unavailable,” “victim/witness uncooperative,” “closed pending
litigation.” As previously noted, CCRB has re-defined categories of case dispositions, making it impossible to compare
numbers in this table with more current dispositions. See, e.g., Executive Director’s Monthly Report for August 2023,
available
at
https://www.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2023/08092023monthlystats.pdf.
1321
Total retained (14,092) and total closed (12,878) are not equal—all cases retained for investigation in a given year
are not necessarily resolved or closed in that same calendar year.
295
same period. Does this mean that some number of cases which were ambiguous and went
unsubstantiated are now more likely to result in exonerations? Without further statistical analysis,
a reliable conclusion cannot be drawn from this comparison. It could be that increased availability
of video evidence, from BWC, witness cell phones, and video surveillance cameras, has an impact
here, but that would require further careful analysis. In more recent years, CCRB has been able to
receive BWC footage in as much as 50% of all cases.1322 CCRB has begun to measure and report
upon “The Impact of BWC and Other Video Evidence.”1323
Substantiated Complaint Findings All-FADO Year by Year
Year
2014
2015
2016
2017
2018
2019
Number of Complaints Substantiated
313 of 1,749
519 of 2,015
342 of 1,416
258 of 1,238
226 of 1,114
370 of 1,434
Rate of Substantiation
17.9%
25.8%
24.2%
20.8%
20.3%
25.8 %
Again, the range, from a low of 17.9 percent to a high of 25.8 percent, without deeper
analysis is not significant enough to draw any firm conclusions.
iii.
CCRB Findings – All FADO Allegations
Below is a table grouping complaints into allegations to get a closer look at CCRB
dispositions:
CCRB PANEL FINDINGS ON INDIVIDUAL ALLEGATIONS - 2017-2019
2017
2018
2019
3 Year Total
3-year %
FADO
Substantiated
Unsubstantiated
Unfounded
Exonerated
TOTAL
655
2,383
477
1,721
5,236
545
2,190
463
1,716
4,914
872
2,379
627
2,463
6,341
2,072
6,952
1,567
5,900
16,491
12.6%
42.2%
9.5%
35.8%
FORCE
Substantiated
Unsubstantiated
Unfounded
Exonerated
TOTAL FORCE
83
449
213
518
1,263
73
408
168
429
1,078
98
430
209
561
1,298
254
1,287
590
1,508
3,639
7.0%
35.4%
16.2%
41.4%
1322
CCRB Annual Report 2022, at 3.
1323
Id. at 51.
296
ABUSE
Substantiated
Unsubstantiated
Unfounded
Exonerated
TOTAL ABUSE
489
1,226
158
1,173
3,046
394
1,264
183
1,263
3,104
574
1,476
280
1,817
4,147
1,457
3,966
621
4,253
10,297
14.1%
38.5%
6.0%
41.3%
DISCOURTESY
Substantiated
Unsubstantiated
Unfounded
Exonerated
TOTAL
DISCOURTESY
69
585
73
30
69
424
74
24
175
379
104
83
313
1,388
251
137
15.0%
66.4%
12.0%
6.6%
757
591
741
2,089
OFFENSIVE
LANG.
Substantiated
Unsubstantiated
Unfounded
Exonerated
TOTAL OFF.
LANG.
14
123
33
0
9
94
38
0
25
94
34
2
48
311
105
2
170
141
155
466
10.3%
66.7%
22.5%
0.4%
The substantiation rate for FADO allegations retained by CCRB, overall, for the three-year
period, 2017-2019, is 12.6 percent. Force allegations have the lowest substantiation rate, 7.0
percent. Some force complaints are handled concurrently with NYPD investigative units. Some
are passed off from NYPD to CCRB and some are handled by NYPD without CCRB
investigations.
Rate of Substantiation for all FADO Findings by CCRB Panels – Allegations 2014-2019
2014
2015
2016
2017
2018
2019
Substant’d
Unsubst’d
Unfounded
Exonerated
720
3,303
600
1703
1267
3,819
786
2038
855
2,687
628
1862
655
2,383
477
1721
545
21,90
463
1716
872
2,379
627
2,463
Total
6,326
7,910
6,032
5236
4,914
6,341
297
Rate %
Substant’d
Unsubst’d
Unfounded
Exonerated
11.4%
52.2%
9.5%
26.9%
16.0%
48.3%
9.9%
25.8%
14.2%
44.5%
10.4%
30.9%
12.5%
45.5%
9.1%
32.9%
11.1%
44.6%
9.4%
34.9%
13.8%
37.5%
9.9%
38.8%
Overall, the substantiation rate for FADO allegations was relatively stable. The most
noticeable trend was the decrease in unsubstantiations and a corresponding increase in
exonerations. One explanation, going forward and offered by CCRB, is the increased availability
of video evidence.
Video evidence, which may lend clarity to contrasting claims, would logically explain a
shift from unsubstantiated (where the evidence is not conclusive enough to support a clear finding)
to one of the other fact-based outcomes (where the evidence, after viewing a video, is conclusive
enough to resolve factual conflicts between substantiated and unfounded).
More current numbers, reflecting in part availability of video evidence are:
Substantiated
Unsubstantiated
Unfounded
Exonerated
2021
24.6%
30.1%
11.8%
32.7%
2022
24.0%
27.2%
14.0%
34.8%
Over the last eight years, the most dramatic shift is in the rate of substantiations – rising
from the low teens to the mid-twenties. This is reflected in a corresponding drop in
unsubstantiations from about 50% to 27%. As well, there is an increase in exonerations, over time,
rising from mid-twenties to upper thirties. A number of factors could be involved here. Video
availability certainly helps, but anyone who has looked at BWC evidence becomes painfully aware
that the shots are discontinuous, spotty, and inconsistent – all through no fault of the officers. It’s
merely a by-product of fast moving action shots taken from the point of view of multiple officers.
As well, BWC activation may be subject to variables. Finally, the change in definitions of
outcomes makes it unwise to compare dispositions over the most recent years. “Within guidelines”
is not the same as “Exonerated,” and “Unable to Determine” includes dispositions which may not
have been denominated “Unsubstantiate” in earlier years.
iv.
CCRB Findings – Stop/Frisk/Search Complaints
The number and percentage of complaints involving a stop, question, frisk, and/or search
of person where a panel substantiates at least one SQF misconduct allegation has dropped
significantly in recent years.
COMPL. SQF 2014
2015
2016
2017
2018
2019
SUBST’D
PERCENT
268
30.2%
212
24.4%
102
11.5%
88
10.5%
96
11.1%
179
17.8%
298
v.
CCRB Findings – Stop/Frisk/Search Allegations
Allegations of SQF misconduct adjudicated by CCRB have remained relatively constant
over the last six years - ranging roughly between 700 and 1,300, despite a drop in reported stops
by 75 percent.
SQF
2014
2015
2016
2017
2018
2019
Stops
45,788
22,565
12,404
11,629
11,008
13,459
Allegations
Adjudicated
1,099
1,311
995
693
693
790
But, as with complaints, fewer allegations of stop and frisk misbehavior are substantiated
in the three years 2017-2019 than in the three-year period 2014-2016.
CCRB PANEL FINDINGS OF STOP, QUESTION, FRISK, SEARCH OF PERSON
ALLEGATIONS
2014
2015
2016
2017
2018
2019
6 year
Total
Substantiated
99
131
146
63
39
50
528
28.3%
18.8%
Unsub.
168
149
65
65
81
74
602
28.8%
27.3%
Unfounded
4
2
7
3
6
9
31
1.0%
2.2%
Exonerated
135
216
205
156
129
132
973
41.9%
51.7%
TOTAL STOP
406
498
423
287
255
265
2,134
Substantiated
91
148
102
69
59
43
512
38.9%
30.6%
Unsub.
126
120
72
62
80
73
533
36.3%
38.5%
Unfounded
3
7
2
3
7
11
33
1.4%
3.8%
Exonerated
64
77
64
67
55
96
423
23.4%
39.1%
TOTAL FRISK
284
352
240
134
201
223
1,434
Substantiated
13
19
19
9
6
11
77
19.0%
12.0%
Unsub.
24
36
24
26
25
33
168
31.3%
38.7%
Unfounded
2
2
1
0
4
2
11
1.9%
2.5%
Exonerated
TOTAL
QUESTION
34
57
37
32
16
53
229
47.8%
46.5%
73
114
81
67
51
99
485
ALLEGATION
20142016
20172019
STOP
FRISK
QUESTION
299
SEARCH
Substantiated
57
86
59
42
36
27
307
21.6%
12.0%
Unsub.
237
200
61
101
101
92
792
53.3%
38.7%
Unfounded
7
8
5
3
5
4
32
2.1%
2.8%
Exonerated
TOTAL
SEARCH
35
53
126
59
44
80
397
22.9%
46.5%
336
347
251
205
186
203
1,528
260
384
326
183
140
131
1,424
1,099
1,311
995
693
693
790
5,581
TOTAL
SUBST’D
TOTAL SQF
ALLEGATION
FINDINGS
vi.
28.5%
20.9%
Substantiation
We see from earlier tables that Abuse of Authority allegations overall are substantiated at
a 14.1 percent rate for the three-year period, 2017-2019. Stop, Question, Frisk, Search of Person
(SQF) allegations for the same three-year period are substantiated at a 20.9 percent rate
(454/2,176). CCRB’s substantiation rate for stop and frisk allegations has dropped in recent years.
The earlier three-year period (2014-2016) is compared to the succeeding three-year period (20172019) in the above table to look for trends in the rate of substantiation for stop and frisk allegations
over time. For the three-year period 2014-2016, the SQF rate of substantiation was 28.5 percent
(970/3,405). For the three-year period 2017-2019, the SQF rate of substantiation was 20.9 percent.
If one looks at 2019 alone, the overall substantiation rate for SQF findings has dropped further and
dramatically to 16.5 percent. (131/790).
Again, explanations for the fall-off in substantiations are theoretical. It could be that more
people are complaining about stops but more officers are complying with SQF law and rules. That
would explain the increase in exonerations. On the other hand, substantiation fall-off could be a
symptom of a change in Board philosophy or membership. It could be any of a variety of other
factors, but, nonetheless, the trend is noticeable. In particular, comparing 2014-2016 to 20172019, the rate of substantiation for stop allegations has dropped from 28.3 percent to 18.8 percent.
(1)
Fewer SQF Substantiations, More Exonerations - Why?
As with all FADO findings, a trend in SQF investigations toward more exonerations is
evident. In 2014-2016, 32.4 percent (1,103/3,405) of SQF allegations were exonerated. In 20172019, 41.0 percent (919/2,243) of SQF allegations were exonerated. Looking at stop allegations
alone, in 2014-2016, 41.9 percent (556/1,327) of stop allegations were exonerated. In 2017-2019,
51.7 percent (417/807) of stop allegations were exonerated.
As discussed above, when looking at all-SQF trends (again comparing 2014-2016 to 20172019), one might theorize that a decrease in the rate of substantiation (28.3% to 18.8%) might be
offset by an increase in unsubstantiated allegations as the balance of persuasive evidence shifted.
300
In theory the drop in substantiations could arise from uncertainty in the evidence which would be
reflected in an increase in unsubstantiations. But the rate of unsubstantiations held constant. The
rate of unsubstantiation for all SQF cases went from 37.7 percent (12,82/3,405) in 2014-2016 to
36.2 percent (813/2,243) in 2017-2019. For stop allegations alone, the rate of unsubstantiation
was 28.8 percent (382/1327) and in 2017-2019 the unsubstantiation rate was 27.2 percent
(220/807).
Over the six-year period (2014-2019), the rate of unsubstantiations for stops and for SQF
allegations is relatively constant, while there is an increase in exonerations and a decrease in
substantiations. However, year to year, as the table below shows, in the three years from 20172019, the unsubstantiation rate and the exoneration rate have both levelled off and remain fairly
stable while the substantiation rate dropped.
In 2019 there was a significant increase in BWC availability, for that reason, an increase
in substantiations, rather than a decrease, might have been expected, but did not occur. If anything,
substantiations decreased as BWC footage in CCRB investigations rose from zero in 2017, to 11
percent of the cases in 2018, to 36 percent in 2019.
Including video from other sources (surveillance, cellphones), the number of investigations
where video footage was available rose from 33 percent in 2017 to 43 percent in 2018 to 57 percent
of the fully investigated cases in 2019.
What impact did this have on SQF misconduct investigations? Comparing panel findings
for SQF allegations year-to-year from 2017 to 2018 to 2019 as video footage was increasingly
available:
ALLEGATION
2017
2018
2019
2017 %
2018 %
2019 %
STOP
Substantiated
Unsub.
Unfounded
Exonerated
TOTAL STOP
63
65
3
156
287
39
81
6
129
255
50
74
9
132
265
22.0%
22.6%
1.0%
54.4%
15.3%
31.8%
2.4%
50.6%
18.9%
27.9%
3.4%
49.8%
FRISK
Substantiated
Unsub.
Unfounded
Exonerated
TOTAL FRISK
69
62
3
67
201
59
80
7
55
201
43
73
11
96
223
34.3%
30.8%
1.4%
33.3%
29.4%
59.7%
3.5%
27.4%
19.3%
32.7%
4.9%
43.0%
9
6
11
13.4%
11.8%
11.1%
QUESTION
Substantiated
301
Unsub.
Unfounded
Exonerated
TOTAL QUEST.
26
0
32
67
25
4
16
51
33
2
53
99
38.8%
0.0%
47.8%
49.0%
7.8%
31.4%
33.3%
2.0%
53.5%
SEARCH
Substantiated
Unsub.
Unfounded
Exonerated
TOTAL SEARCH
42
101
3
59
205
36
101
5
44
186
27
92
4
80
203
20.5%
49.3%
1.5%
28.8%
19.4%
54.3%
2.7%
23.7%
13.3%
45.3%
2.0%
39.4%
26.4%
36.7%
1.3%
45.3%
20.2%
41.3%
3.8%
35.2%
16.6%
34.4%
3.3%
45.7%
ALL SQF
Substantiation Rate
Unsub Rate
Unfounded Rate
Exoneration Rate
While there are no dramatic shifts in rates overall with increased use of video from 2017
to 2019, some numbers are worth noting:
SQF substantiations overall dropped from 26.4 percent to 16.6 percent.
Substantiation of frisk allegations dropped from 34.3 percent to 19.3 percent.
Substantiation of search of person allegations dropped from 20.5 percent to 13.3
percent.
Exoneration of search of person allegations rose from 28.8 percent to 39.4 percent.
The SQF Unfounded rate increased over those three years, from 1.3 percent to 3.3
percent.
CCRB writes in its Annual Reports that for other misconduct allegations the availability of
videos leads to greater substantiation. (Although Force substantiations remained relatively stable
going from 5.7 percent to 5.9 percent to 6.8 percent.) Perhaps no hard correlation, up or down,
can be drawn directly from video availability to outcomes. It could be simply a matter of engaging
in the “post hoc ergo propter hoc” fallacy, without taking other causes into account.
In any event, a trend toward fewer substantiations and more unsubstantiations or
exonerations in SQF cases is a matter of import which needs further watching or exploration.
With reference to the earlier discussion in this Report, regarding designation of the various
kinds of findings (substantiated, unsubstantiated, etc.), the very high number of exonerations
compared to the very low number of unfounded cases is worth reflection. Could it be that in 45
percent of the cases the officer engaged in the conduct alleged but, despite the claim of abuse, the
conduct was proper, while in only 2 percent of the cases the evidence shows the officer never
engaged in the conduct at all?
302
Does this mean that evaluators exonerate officers not only on the law (“the officer did it,
but it was proper”), but also based on the facts (“the officer didn’t do it”)?
Exonerations have precedential value. One of the aims of a disciplinary system is to
establish norms and to plant guardrails for future conduct. An exoneration tells the officer, and
others who learn of the result, that actions which led to a complaint were proper and can be
repeated. If a substantial number of the exonerations listed above were cases where the officer in
fact did what was alleged, but the Police Commissioner believes what the officer did was entirely
proper, then that is a teaching moment which tells us it may be repeated.
For that reason, in the SQF area it is important that bad stops, frisks or searches not be
exonerated when the Fourth or Fourteenth Amendment are violated but the officer, for example,
acted in good faith or the officer was inexperienced, and the law was complex.
R.
CCRB Recommendations to the Police Commissioner
At the close of a CCRB investigation, the investigator prepares a closing report and a
“CCRB Investigative Recommendation,” which is reviewed by a Squad Leader. The
recommendation includes a “Case Summary,” and histories of both the subject officer and the
civilian complainant. The history of the officer is that of prior CCRB dispositions. The history of
the civilian will include a report on civil claims made, attempts at mediation, and prior arrests and
convictions of the complainant. A factual summary will accompany each allegation. The closing
report by the investigator will include summaries of interview notes, activity logs, and other
relevant documents.
After a CCRB panel makes a decision, the Case Management Unit generates a “disposition
letter” which is sent to the complainant, the victim, and the subject officer informing them of the
Board’s findings.1324 The CMU also sends the Police Commissioner a memorandum detailing the
Board’s findings.1325 Pursuant to a Memorandum of Understanding, signed February 4, 2021,
CCRB has agreed to share with NYPD an analysis describing with particularity the basis for the
recommended penalty, any aggravating and/or mitigating factors applied and a description of how
those factors were applied.1326
A disposition letter to a complainant briefly itemizes the allegations and the Board’s
findings. It will also list the CCRB’s disciplinary recommendation to the Police Commissioner.
Any witness who testified is sent a letter merely advising that the matter is closed.
If an allegation is substantiated, the complainant or victim is reminded that the CCRB’s
authority is limited to investigating instances of police misconduct, and it is up to the Police
1324
INVESTIGATIVE MANUAL, at 21.
1325
See Heather Cooks, Senior Counsel, CCRB, CCRB: The Life of a Case, at “Closing the Case” (on file with
author).
1326
Matrix MOU, I (2).
303
Commissioner, who receives a copy of the CCRB’s findings, to determine what disciplinary action
is ultimately taken against the officer.1327
After investigation and review of the investigator’s recommendation, the panel will
“recommend action” upon substantiated complaints.1328 In the past, that recommended action, was
only of the category of discipline or guidance recommendation, i.e., A-CD, B-CD, Charges and
Specifications, Training, Instructions, or Warnings.1329 With adoption of the Disciplinary
Guidelines and the accompanying Matrix-MOU, CCRB recommendations will require a written
analysis “describing with particularity the basis for the recommended penalty.” However,
recommendations for each allegation will remain the same, i.e., each substantiated allegation will
receive a recommendation for guidance, command discipline (either A-CD or B-CD), or Charges
and Specifications. CCRB will continue its practice of not recommending a specific penalty (hours
forfeited, penalty days assessed, reprimand or disciplinary probation), which will remain under the
purview of the DAO and the Police Commissioner. Prior to the issuance of the Disciplinary
Guidelines, CCRB would not aggregate separate findings of SQF allegations (e.g., three
substantiations, with each prompting a command discipline recommendation) to recommend
Charges. The Police Commissioner could aggregate command discipline recommendations and
approve the filing of Charges. Under the Disciplinary Guidelines recently put in place, CCRB has
begun to “add up” allegations and recommend Charges where, in the past, multiple SQF
allegations would only lead to informal discipline recommendations. It is unknown at this time
whether the Police Commissioner will accept or decline to follow these recommendations.1330
Without further specificity by CCRB, DAO or a Commanding Officer have considerable
latitude in disposing of command discipline recommendations. The distinction between an A-CD
and a B-CD is meaningful if there is an associated penalty imposed by DAO or a CO; otherwise,
the recommendation by CCRB alone carries little direct consequence. As longtime Board Member
John Siegal succinctly put it, “I will tell you, the difference between Command Discipline B and
A is a complete mystery to me.”1331
1327
E.g., Letter from Jonathan Darche, Acting Executive Director, CCRB (Jan. 20, 2017); Letter from Mina Q. Malik,
Executive Director, CCRB (Feb. 11, 2016) (on file with author).
1328
NY City Charter § 440(c)(1).
1329
E.g., Letter from Jonathan Darche, Acting Executive Director, CCRB (Jan. 20, 2017); Letter from Mina Q. Malik,
Executive Director, CCRB (Feb. 11, 2016) (on file with author).
1330
“Prior to the CCRB's adoption of the NYPD's Disciplinary Matrix on Mar. 15, 2021, the Board Discipline
Recommendation for each officer was determined by the most severe disposition of the allegation(s) substantiated
against the officer, with the order of severity as follows: 1. Charges 2. Command Discipline B 3. Command Discipline
A 4. Formalized Training 5. Instructions.
Following the adoption of the NYPD Disciplinary [sic] Matrix on Mar. 15, 2021, the Board Discipline
Recommendation for each officer is determined by the sum of the Matrix penalty days associated with the allegation(s)
substantiated against the officer as follows: 1. Charges (penalty days >= 11) 2. Command Discipline B (6 <= penalty
days <= 10) 3. Command Discipline A (1 <= penalty days <= 5) 4. Formalized Training (0 < penalty days < 1). CCRB
Monthly Statistical Report, January 2023, at 25, available at https://www.nyc.gov/assets/ccrb/downloads/pdf/policy_
pdf/monthly_stats/2023/01112023_monthlystats.pdf.
1331
CCRB Board Minutes, August 8, 2018, at 45:6-8.
304
If the Police Commissioner concurs with a CCRB finding, Command Discipline may be
followed by a penalty, i.e., loss or forfeiture of vacation days or accrued time, with discretion left
to the Department. As noted earlier the Report, when Command Discipline is imposed, more often
than not the penalty decision is sent to the local Commanding Officer (CO) without explicit
direction from the Police Commissioner or DAO. An A-CD, if the recommendation is endorsed
by the Department, permits loss up to five days of accrued vacation time or penalty days. A BCD is capped at ten penalty days.1332 The CO may, but is not required to, impose any of those
penalties.
Prior to implementation of the Matrix there had been a significant shift in the
recommendations by CCRB away from Charges and toward guidance. The following charts look
at “cases,” i.e., recommended action for each officer with a substantiated allegation, not
complaints.
ALL-FADO CCRB Recommended Discipline/Guidance
Charges
B-CD
2014
2015
2016
2017
2018
2019
2020
254
190
59
38
71
82
35
1121333
334
96
58
60
90
53
125
120
68
100
97
A-CD
Training
15
230
203
79
57
128
106
Instructions
82
15
29
60
70
134
152
Total Cases
463
769
512
355
326
534
443
Taking the same numbers, by percentage of recommendations overall:
2014
2015
2016
2017
2018
2019
2020
Charges
54.9%
24.7%
11.5%
10.7%
21.8%
15.4%
7.9%
B-CD
24.2%
43.4%
18.8%
16.3%
18.4%
16.9%
12.0%
24.4%
33.8%
20.9%
18.7%
21.9%
A-CD
Training
3.2%
29.9%
39.6%
22.3%
17.5%
24.0%
23.9%
Instruct.
17.7%
2.0%
5.7%
16.9%
21.5%
25.1%
34.3%
1332
Patrol Guide § 206-04.
1333
In earlier reports by CCRB, no distinction was made between recommendations for A-CD or B-CD. The number
here is for the two recommendations combined.
305
administrative closures, retention, NDA/DUP, SOL, or other dispositions, the vast majority of
cases where CCRB recommends Charges and Specifications do not receive discipline.
In 2022, APU only closed 21 cases where discipline was imposed. Five of those cases
ended with a trial/guilty verdict and imposition of penalty days. Twenty cases ended with a plea
where penalty days were imposed. Only seven of those cases resulted in the imposition of ten or
more penalty days. One case resulted in a plea and suspension.1337 In sum, for closed cases by
APU in 2022, seven cases received a penalty of ten or more days, and one case received a
suspension.
While it is true that CCRB, in 2022, recommended Charges in 534 cases and only 7
received a penalty of more than 10 days, those numbers cannot be matched exactly. They don’t
entirely overlap. Cases charged in 2022 are not necessarily finalized in 2022. Some dispositions
reported in 2022 were for cases charged in earlier years.
Even so, most referred cases do not reach the point of closure by verdict or plea (29 in
2022)1338—they are diverted without discipline for one reason or another. For example, in 2022
the Police Commissioner administratively dismissed 343 cases, claiming there was insufficient
time for the Department to decide upon a final disposition because the referral was approaching
the Statute of Limitations deadline.1339
Nonetheless, of 74 closures of APU cases by trial, plea, retention or “other,” in 2022 seven
cases received a penalty of 10 or more days.1340
CCRB RECOMMENDATIONS (INFORMAL) WITH THE MATRIX
More recently, implementation of the Disciplinary Matrix has impacted CCRB’s informal
(non-Charges) recommendations as well. Of 1,608 case recommendations against officers in 2022,
(excluding Charges discussed above) there were:1341
381 (24%) recommendations for B-CD
572 (36%) recommendations for A-CD
120 (7%) recommendations for Guidance
The dramatic elevation in recommendations in the two-year period from 2020 to 2022 is
most likely attributable to the Matrix. In particular, notice that Guidance dropped from 58% of
1337
CCRB Annual Report 2022, Figure 34: Case Outcomes.
1338
Id.
1339
Id., Figure 32. CCRB did not report on how many of the 343 cases closed for SOL reasons were cases where the
Board had recommended Charges and Specifications.
1340
This does not include the one suspension, which is a serious penalty. It also does not include 5 cases where APU
reported that some number of days were imposed, without reporting the actual penalty imposed.
1341
CCRB Annual Report 2022, Figure 28.
307
the recommendations to 7% in that two year period, while recommendations for command
discipline or charges rose concomitantly.1342
Once again, it is difficult to match the CCRB recommendations in 2022 with the NYPD
outcomes in 2022, since they do not overlap. There were only 52 B-CDs meted out by the Police
Commissioner for CCRB referred cases in 2022. There were only 207 A-CDs imposed by the
Police Commissioner for CCRB cases. Since some of those dispositions were for cases referred
in 2020 or 2021, and given that there were far fewer referrals in those years, the percentage of
referrals receiving a given penalty cannot be measured by these raw numbers. Internally, however,
the penalty assessed by the Police Commissioner in 2022 upon issuance of a B-CD or A-CD by
the Police Commissioner can be measured. It appears that 48 of the 52 B-CD dispositions finalized
received penalty days as part of the discipline. It appears that 42 of the 207 A-CD dispositions
received penalty days as part of the discipline imposed. Another 165 A-CDs received as a final
disposition do not report an assessment of penalty days.1343 Since A-CDs referred from CCRB are
commonly sent to the precinct for action or are “accepted” by DAO without penalty, it should not
be assumed, absent accurate follow-up and reporting by NYPD, that many or any of the 165 ACDs in this category received discipline.
CCRB only recommends an A-CD when the Matrix calls for 1 to 5 penalty days.1344 It
seems that an A-CD which ends with the officer receiving guidance or an A-CD accepted, without
a loss of vacation days from the Police Commissioner or the precinct commander is a case where
the NYPD has “imposed a penalty or level of discipline that is lower than that recommended by
the board . . .” as described in the Section 440 (d)(1) of the Charter. If so, a written explanation of
how the final disciplinary outcome was determined, including each factor the Police Commissioner
considered in making his or her decision” is required. Under current practice, when the Board
recommends and A-CD, but NYPD imposes training for the A-CD or accepts the A-CD without
penalty, it appears that departure letters are not written because the level of discipline (A-CD) is
the same. While this may be an expedient way of reconciling CCRB’s recommendation of 1-5
penalty days with NYPD’s avoidance of a penalty day assessment, the apparent dissonance might,
in the future lead to litigation over whether there is compliance with the Charter. Simply put,
CCRB only recommends an A-CD when it is recommending a penalty of 1 to 5 vacation days, and
NYPD often imposes no penalty.
SQF - CCRB Recommended Discipline/Guidance
The charts below examines whether there is a parallel drift in regard to disciplinary
recommendations by CCRB for substantiated SQF complaints:
SQF
2014
2015
2016
2017
2018
2019
2020
Charges
102
48
23
19
15
13
3
1342
Along with an elevation in level of penalties recommended, it should be noted that CCRB quadrupled the number
of cases it decided and referred to NYPD in previous periods. (2018 = 326) (2019 = 534) (2020 = 443) (2021 = 348)
for an average of 413 per year vs. (2022 = 1607). CCRB Annual Report 2022, Figure 28.
1343
CCRB Annual Report 2022, Figure 30.
1344
CCRB Annual Report 2022, at 34.
308
B-CD
51
74
44
16
27
37
12
A-CD
4
65
72
41
15
16
17
Training
1
26
69
22
14
24
18
Instructions
20
59
4
4
15
6
8
TOTAL
178
272
212
102
86
96
58
SQF
2014
2015
2016
2017
2018
2019
2020
Charges
57.3%
17.6%
10.8%
18.6%
17.4%
13.5%
5.2%
B-CD
28.7%
27.2%
20.8%
15.7%
31.4%
38.5%
20.7%
A-CD
2.2%
23.9%
34.0%
40.2%
17.4%
16.7%
29.3%
Training
0.6%
9.6%
32.5%
21.6%
16.3%
25.0%
31.0%
Instructions
11.2%
21.7%
1.9%
3.9%
17.4%
6.3%
13.8%
There was an unmistakable trend toward less severe CCRB recommendations for stop and frisk
misbehavior through 2020.
Separating discipline from guidance, in how many SQF substantiated misconduct cases did
CCRB recommend discipline? As discussed earlier, an “A-CD accepted” without penalty is not
discipline. During 2014-2020, there were 220 SQF cases where CCRB recommended an A-CD.
Of those, a total of eight cases resulted in the loss of one or more penalty days.1345 The rest received
no penalty and were not disciplined. Thus, it is clear that the anticipated and highly probable
outcome when an A-CD is recommended by CCRB for SQF misconduct is a limited record entry
within the Department, with no penalty attached. It may be that CCRB intended that discipline
with a penalty flow from an A-CD recommendation. But since time has shown that penalties do
not flow from their A-CD recommendations, it is difficult to claim that the result was unexpected.
Once again, it appears that the Matrix has an impact upon CCRB penalty recommendations
to the Police Commissioner for SQF substantiations.
Charges
B-CD
A-CD
Training
Instructions
2021
57.5%
10.6%
25.5%
6.4%
0.0%
2022
43.6%
28.0%
26.1%
2.4%
0.0%
Looking at cases which included a substantiated stop/frisk/search finding among the
allegations within a complaint, it appears that, in 2022, 92 of 254 substantiated cases were sent
1345
Numbers of officers forfeiting a penalty day after CCRB recommended an A-CD: (2014 = 0) (2015 = 0) (2016 =
3) (2017 = 1) (2018 = 2) 2019 = 0) (2020 = 2). Final Federal – SQFSTA – 2023 Q1, Q2 provided by NYPD to the
Monitor.
309
from CCRB with a Charges and Specifications recommendation. As of the latest matrix1346 sent to
the Monitor, 27 of the 92 cases had closed. Only two of the 27 closed SQF cases where charges
had been recommended resulted in imposition of penalty days – one was reduced to an A-CD with
3 days imposed and the other ended as a B-CD with a 10-day penalty.1347
Later in this Report there is further discussion of what happens to recommendations made
by CCRB once they are forwarded to the Police Commissioner. But at this point, it is worth noting
the “funnel” within CCRB -- that is, the series of filters that combine to screen cases from the point
of civilian complaint to recommendation for discipline to the Police Commissioner.
S.
A Larger Perspective - the “Funnel” for Civilian Complaints
Putting aside yearly fluctuations and simply reviewing at the process overall, statistically,
what happens from the time a civilian is concerned and energized enough to file a complaint
against police conduct to the time CCRB recommends discipline in the form of some penalty, large
or small, to the Police Commissioner?
On average, over 10,000 complaints arrive at CCRB’s doorstep each year. CCRB opens
the door for approximately 4,500, screening out the rest for a variety of jurisdictional reasons.
Some are weeded out for reasons of personal jurisdiction, and thus cannot be counted as complaints
of “police” misconduct—the complaint is against others than UMOS. But many are complaints
against police officers that are weeded out due to CCRB’s subject matter jurisdictional limits. Of
the remaining 4,500, approximately 1,100 to 1,500 are “fully investigated” and presented to panels
for consideration. Of those, about 25 percent (approximately 350 complaints related to
approximately 450 officers), contain an allegation which is substantiated. Finally, in the last three
years, discipline is recommended by CCRB to the Police Commissioner in about 130 cases per
year. About one-half (related to approximately 65 officers) face formal discipline, the other half
are recommendations for informal discipline.
The following graphic does not represent any particular year but is an approximated
summary of years 2017-2019 for the purpose of demonstrating a sense of case-flow through the
CCRB “filter.”1348
1346
Final Federal Monitor – SQFSTA – 2023 Q1, Q2 final copy.
1347
Final Federal – SQFSTA – 2023 Q1, Q2 provided by NYPD to the Monitor.
1348
The discussion here approximates case flow from year to year. For more precise numbers, 2019 can serve as a
typical example. In that year, CCRB received 10,084 citizen complaints. After initial screening CCRB accepted for
potential investigation 4,961 FADO complaints. In that same year, it fully investigated 1,540 of the complaints. Only
370 of the complaints were substantiated. Of the 370, the Board recommended formal discipline (Charges and
Specifications) for only 55. The Board recommended informal discipline or guidance for the remaining 315
substantiated cases.
310
As demonstrated by tables above, a similar “funnel” can be found for SQF complaints. In
recent years, on average almost 900 SQF complaints are received each year. Approximately 100
of them have one or more SQF allegations substantiated. Roughly 40 or so are recommended for
discipline (Charges or B-CD).1349
VIII. NYPD Disposition of CCRB Substantiated Misconduct - FADO
After a CCRB panel makes a finding and recommendation it is forwarded to DAO. Here,
two roads diverge. If the panel recommendation is for informal action—command discipline or
guidance—then an attorney in the Department Advocate’s office will review it and either request
reconsideration from CCRB or forward the CCRB report along with a “DAO Recommendation
and Analysis” (known as a CAR memo) to the Police Commissioner. It is not uncommon for
DAO’s analysis to differ from CCRB’s recommendation whether or not reconsideration was
proposed.
If the panel recommends Charges and Specifications with formal discipline, the CCRB’s
APU will draw up specifications for DAO to review. In the end, both roads converge at the Police
Commissioner’s desk with Charges being the road less traveled.
The interplay between CCRB and DAO often focuses on the “concurrence rate,” i.e., how
often the Police Commissioner accepts CCRB’s disciplinary recommendation.
While the focus of this Report is on SQF conduct and not upon force allegations,
concurrence rates are a matter of sensitivity and import for the public. For comparison purposes,
note a 2020 study by the New York State Office of the Attorney General which concluded,
Over the five-year period between 2014 and 2018 (the last year for which full data
is available), CCRB received more than 55,000 complaints from the public,
including nearly 20,000 individual misconduct allegations for excessive force. The
1349
The reference here is limited to Charges and B-CDs because so few A-CDs can be expected to end with a penalty.
311
CCRB fully investigated and substantiated more than 4,000 individual allegations
of misconduct, and recommended discipline for nearly 2,500 officers, including
recommending more than 600 officers be suspended or terminated. Yet, not once
in those five years did the NYPD Commissioner fire an officer following CCRB’s
recommendation. In only eight cases over those five years did the NYPD
Commissioner determine that the next most serious penalty—a suspension of
longer than one month and/or dismissal probation—was merited. Even suspensions
of more than ten days only happened a handful of times a year, on average.1350
For the three-year period 2017-2019, looking at all substantiated FADO cases, CCRB
recommended a command discipline 496 times (208 B-CD and 288 A-CD).1351 The Police
Commissioner imposed command discipline 262 times, or 52.8 percent of the time. For the
remaining 234 cases (47%), guidance or no discipline resulted.
Even then, within the 262 cases where the Police Commissioner pursued command
discipline, it cannot be said that discipline was imposed at the level recommended by CCRB or,
indeed, that any penalty at all was imposed. An unknown number of the cases were resolved
simply as “A-CD accepted,” without penalty or even a notation in the CPI. Additionally, an
unknown number of those cases were reduced from a B-CD recommendation to an A-CD as a final
disposition. In 208 of the 496 cases, CCRB recommended a B-CD. The tables in the CCRB’s
2020 Annual Report do not record how many of those B-CDs were reduced to an A-CD.1352 We
know, for comparison, that of 27 recommended B-CD’s by CCRB in SQF cases, only three were
maintained as B-CDs. The rest were reduced to an A-CD or otherwise disposed of. Although we
may not assume a similar 90% downward departure for all 208 B-CD recommendations by CCRB,
whatever number of cases where a B-CD was reduced to an A-CD, it should not be counted as a
concurrence.
A.
NYPD Disposition of CCRB Substantiated SQF Misconduct
Once CCRB adjudicates a complaint with a substantiated SQF allegation, it is forwarded
to DAO for review and possible recommendation to the Police Commissioner. The Monitor team
is provided with a matrix that lists complaints containing one or more substantiated allegations of
Stop, Question, Frisk, Search, Trespass Arrest (SQFSTA) misconduct.
Disciplinary
recommendations by CCRB and dispositions by the Police Commissioner are detailed within the
matrix. If penalty days or hours are assessed, they also are detailed in the matrix.
1350
New York State Office of the Attorney General, “Preliminary Report on the New York City Police Department’s
Response to Demonstrations Following the Death of George Floyd,” at 41 (July 2020), available at
https://ag.ny.gov/sites/default/files/2020-nypd-report.pdf (internal citations deleted).
1351
Disposition of formal Charges is discussed later in this Report. The focus here is on informal discipline since
Charges for SQF misconduct is rare.
1352
Figure 36 in the 2020 Annual Report shows a “Discipline Difference” of 296 cases in that period, but this total
combines multiple downward departures and is not a measure of how many B-CDs were reduced to A-CDs.
312
The SQFSTA matrix is useful to a point in gauging discipline and penalties proposed and
imposed for stop and frisk misbehavior. However, it cannot be relied upon completely as a
measure of discipline for SQF misconduct for a variety of reasons.
Penalties, heretofore, have been imposed by the Police Commissioner on a “case” basis
and not on an “allegation” basis; thus, it can be deceiving to look at a penalty for a case which
contains a substantiated SQF allegation and assume that the penalty imposed in the case was solely
for SQF misconduct. If, for example, an officer stops a victim illegally and strikes the civilian
wrongfully with a baton and then lies about the incident in an interview, a stringent penalty
displayed in the matrix for the case would likely be due to the force violation more so than from
the illegal stop. It would be reasonable for the penalties to be combined. If an officer has two or
three cases pending at the same time, a stiff penalty may reflect a combination of factors beyond
the isolated SQF misconduct. These are problems which, going forward, may resolve themselves
because the Disciplinary Guidelines promise an assessed penalty for each substantiated allegation
within a complaint. If penalty assessments are explained for each allegation substantiated,
understanding discipline for SQF misconduct going forward may become simpler. But for now,
summary descriptions of penalties imposed for SQF misbehavior need to be read with an eye
towards multiple substantiated allegations as well as investigations stemming from both CCRB
and in the Department, which are resolved contemporaneously.
The Inspector General for NYPD (OIG-NYPD) had recommended that penalties should be
assessed separately for substantiated allegations. That may become the practice with adoption of
the Disciplinary Guidelines, but how well that will be followed is yet undetermined. At this
moment, NYPD has under review proposed modifications to the Matrix which, if adopted, would
significantly expand the number of allegations which would be deemed to run concurrently if
substantiated.1353 In a 2015 review of disciplinary practices in connection with use of force, the
OIG-NYPD wrote:
It is currently impossible for OIG-NYPD to determine how much an officer is
punished when there are multiple allegations against the officer. For example, in
one case . . . an officer faced one count for punching a complainant, four counts for
unlawful stops, and one count for an unlawful arrest. The officer . . . received a
penalty of 30 vacation days. In the case file . . . it is impossible to determine how
many days were levied specifically for the punch . . . failing to make clear the
weight of a particular instance of misconduct . . . actively hampers the ability of
officers to understand the cost breakdown of particular instance of misconduct. . . .
OIG-NYPD therefore believes that . . . each allegation should have its specific
penalty set forth in NYPD documents so that every individual instance of
misconduct can be measured.1354
1353
“Policies,” NYPD, available at https://www nyc.gov/site/nypd/about/about-nypd/public-comment.page (last
viewed Sept. 17, 2024).
1354
Police Use of Force in New York City, NYC Department of Investigation, Office of the Inspector General for the
NYPD, October 1, 2015, at 54, available at https://www1.nyc.gov/assets/oignypd/downloads/pdf/oig_nypd_use_of_
force_report_-_oct_1_2015.pdf. On November 14, 2016, the United States Department of Justice, Civil Rights
Division, U.S. Attorney’s Office, SDNY, the City of Yonkers and the Yonkers Police Department (YPD) entered into
313
At the time, the Department rejected OIG’s suggestion, claiming that,
The Department examines the totality of the actions of each Officer in a given
situation to determine the appropriate penalty. Other factors also weigh into the
assessment of a penalty, including but not limited to the Officer’s prior disciplinary
history, prior evaluations and CCRB history.1355
With that caveat, the following chart demonstrates the dispositions for SQF complaints
decided by the Police Commissioner in years 2016-2019. The complaints, in many cases were
brought the year or two prior. Allowing for investigation and disposition in CCRB followed by
negotiation with DAO and determination by the Police Commissioner, there is typically a
considerable lag between incident and final disposition.
The chart shows the recommended penalty by CCRB with an arrow indicating the final
outcome for closed cases. For example, “B > A w/penalty” represents a recommended B-CD by
CCRB that ended with an “A-CD accepted” and a penalty (hours or days forfeited) was imposed.
“B > A no penalty” indicates that the officer “accepted” an A-CD and no penalty was imposed.
This would include cases where CCRB recommended a B-CD, the officer accepted an A-CD with
or without “Training” or “Instructions.” In most cases, when an A-CD is accepted, there is neither
a penalty nor guidance. “B > Guidance” means the CCRB recommended a B-CD and the Police
Commissioner decided against command discipline of any kind, merely directing Instructions or
Training be given.
“Admin filed” covers a variety of outcomes, none of which involved imposition of
discipline. It could be the case was dropped (“Discipline - Unable to Prosecute,” “DUP”) for
administrative reasons including a problem with the statute of limitations. It can also include cases
where the officer decided to resign or retire, with benefits, prior to final disposition. On occasion,
in non-SQF cases, a retirement may be “forced” but even then, the officer retires with any accrued
benefits.1356 “NG” is not guilty, and “NDA” is No Disciplinary Action.1357 “CS” is Charges and
Specification. “Guidance” combines “Instructions” and “Training.” “No disposition” are mostly
APU decisions which are pending.
an Agreement, requiring that YPD adopt a misconduct-investigation policy with a separate investigative finding for
each allegation. There is no specific reference to penalty assessments. See Yonkers Police Department – Agreement
– November 11, 2016, available at https://www.justice.gov/crt/case-document/file/923196/download.
1355
Letter from New York City Police Department to Mayor Bill de Blasio, Speaker Melissa Mark-Viverito,
Commissioner Mark G. Peters, and Inspector General Phil Eure December 30, 2015, at 25, available at
https://www1.nyc.gov/assets/doi/oignypd/response/NYPD-response-to-use-of-force-report-dec-2015.pdf.
1356
“NG” is not guilty. “Guidance” combines “Instructions” and “Training.” “No disposition” is mostly accounted
for by APU decisions still pending.
1357
A not guilty disposition could be based upon a finding by the Trial Commissioner or upon a determination by the
Police Commissioner.
314
SQFSTA
CCRB Recommendation > Ultimate Police Commissioner Decision
2014
2015
2016
2017
2018
2019
CS > CS w/penalty
50
29
12
12
9
1
CS > CD no penalty
5
0
1
0
1
2
CS > Guidance
26
4
5
1
1
0
CS > NDA or NG
19
10
1
1
2
0
CS > Admin filed
2
6
4
4
2
1
CS > No Disposition
9
B>B
5
16
6
2
3
10
B > A w/penalty
1
1
5
1
3
0
B > A no penalty
11
23
21
3
7
11
B > Guidance
24
27
11
7
11
10
B > NDA or NG
6
6
3
1
4
3
B > Admin filed
4
2
2
3
1
2
B > No Disposition
1
A > A w/penalty
0
6
5
3
0
0
A > A no penalty
1
32
21
15
3
8
A > Guidance
2
26
29
20
6
4
A > NDA or NG
2
3
13
2
1
1
A > Admin filed
0
1
2
1
5
2
A > No Disposition
Guidance > Guidance
1
19
71
65
23
26
28
Guidance > NDA
2
2
7
3
3
2
Guidance> Admin filed
0
1
1
0
0
0
179
266
214
102
88
96
Guidance > No disposition
TOTAL
315
A few observations can be made from the chart. First, there is a significant drop in the
number of substantiated SQF cases sent to the Police Commissioner, even accounting for the nine
cases from 2019 that remained open. Earlier charts in this Report showed the number of SQF
complaints retained for investigation by CCRB had remained steady, hovering in the 850 to 900
range each year from 2015 forward. However, after processing at CCRB, substantiated SQF cases
sent to the Police Commissioner decreased noticeably after 2016.
Prior to adoption of the Disciplinary Guidelines, the level of discipline recommended by
CCRB following a finding of SQF misconduct had decreased significantly. In 2014, CCRB
recommended Charges and Specifications for 57 percent (102 of 179) of the cases with an SQF
substantiated finding. In 2019, CCRB recommended Charges and Specifications for three percent
(3 of 96) of the cases with an SQF substantiated finding. In 2020, of 60 closed cases, CCRB had
not recommended Charges for any of the SQF substantiated complaints
Later in this Report, the “Framework” adopted by CCRB and the Discipline Guidelines are
discussed. Both grids recommend against formal discipline for a single substantiated
stop/question/frisk misconduct complaint.
The new Discipline Guidelines do give CCRB the discretion to combine multiple SQF
violations to arrive at an aggregate score resulting in Charges being recommended. A finding of
“aggravated circumstances” may allow for a recommendation of Charges under the Matrix as well.
When utilizing the Matrix, CCRB assigns a penalty day value to each substantiated allegation –
deciding whether to mitigate, aggravate, depart, or apply the presumptive penalty. The penalties
for a case are added up to arrive at a sum. At that point if the sum is:
less than 1 day: Training is recommended
from 1-5 days: an A-CD is recommended
from 6-10 days: a B-CD is recommended
11 or more days: Charges and Specifications are recommended.1358
This may explain a rise in 2021 recommendations for formal discipline. In quite a
turnabout, in 2021, CCRB recommended Charges for 25 percent (27 of 107) of substantiated SQF
cases. None of these cases have proceeded to trial or plea. Two have been closed due to
resignation or retirement. It remains to be seen what impact the Guidelines will have on the
ultimate disposition in those cases, including whether formal disciplinary proceedings will actually
follow. The Monitor team has not reviewed open files in CCRB cases, so analysis or an
explanation cannot proceed at this time.
The few cases where CCRB had recommended Charges after 2018 and prior to utilization
of the Matrix often included other misconduct such as use of force, a strip search, a denial of
necessary medical treatment or intentional entry into premises.1359 In 2020, the last full year in
1358
CCRB Annual Report 2022, at 34.
1359
There is one case,
, where a complaint was filed alleging, along with an illegal stop, two
wrongful use of force actions along with discourtesy and an illegal search. CCRB only substantiated the stop
allegation, but recommended Charges. PO
had 15 CCRB complaints with 19 allegations of illegal Stop, Frisk,
316
which Charges were recommended prior to the Matrix, of 13 cases where formal discipline was
recommended, seven involved incidents where force was used, a gun was drawn, or a strip search
ensued. One case has resulted in a negotiated plea for five penalty days forfeited.1360
Imposition of a penalty (deducted days or hours) by the Police Commissioner even in cases
where CCRB recommends discipline is rare. In conversations with the Executive Director of
CCRB, the Monitor team was advised that CCRB, when applying the Guidelines, assumes that
officers accepting an A-CD or B-CD will forfeit some penalty days (up to 5 and 10 respectively)
upon acceptance of the CD. But records show that no more than 6 out of 53 officers, where CCRB
recommended command discipline, received any penalty in 2019. (three forfeited a few days,
three forfeited a few hours). The rest received “guidance,” a “warning,” or nothing at all.
Even if one considers a B-CD mark entered into the CPI to be a “penalty,” whether or not
time or days are forfeited, CCRB recommended a B-CD for stop and frisk misconduct 82 times in
the years 2017-2019.1361 A B-CD was upheld by the Police Commissioner in only 14 of those 82—
the rest were downgraded. It may be said that SQF B-CD recommendations have a concurrence
rate of 17.1 percent if one counts an accepted B-CD as a concurrence when no penalty is imposed,
simply because B-CDs are entered into the CPI.
As noted earlier, CCRB frequently recommends guidance in lieu of discipline. But for the
years 2017-2019, CCRB recommended command discipline or Charges in 201 of 487
substantiated SQF cases. In other words, in roughly 50 percent of the SQF decided cases, the
Police Commissioner was presented CCRB findings with a request to impose discipline by way of
penalty days or hours for an A-CD, a B-CD or allowing formal discipline to proceed. The Police
Commissioner imposed discipline (either a forfeit of days or hours, or entry of a B-CD in the CPI
even without loss of time) in just 41 of those cases (8.4%). The remaining 446 substantiated SQF
findings went without a permanent record in the personnel file and without penalty.
i.
Case Study: A Recommended B-CD for an SOF Violation Reduced to
Training by DAO
Numerically, the most common final outcome for a B-CD recommendation by CCRB on
a stop and frisk case is for the Police Commissioner to decline command discipline and to impose
Training. The following case is more representative than atypical.
Detective #1
and Lieutenant #2
As determined by CCRB, on May 6, 2018, PO #1
, an officer with five
years’ experience on the force, improperly stopped and frisked the complainant who had an
“undefined bulge” in his pocket. The bulge was a cellphone. CCRB recommended a B-CD. A
Question, or Search of Person (SQFS) misconduct, four of which were substantiated. The case went to trial and
was found Not Guilty.
1360
Sgt.
1361
CCRB recommended a B-CD 82 times, but six are still open.
, whose case is discussed more fully elsewhere in this Report.
317
reconsideration request by DAO for Training was declined. Nonetheless, the Police Commissioner
imposed Training as the only discipline.
The complainant swore that three officers jumped out of an unmarked car. One, Officer
, grabbed him by the neck and arm, while another “checked” his body and pockets. They
then got back in the car and drove away. Allegations of slurs and refusal to identify were not
substantiated.
Officer #1’s
stop report described a “bulge in his front hoodie pocket that appeared
to be a weapon.” When the officer yelled, “Stop!” the complainant continued walking saying, “I
don’t have to stop for you,” which, according to the officer, caused him “to fear for his safety as
well as the safety of others,”
Sgt. #2
, the supervising officer, “approved” the stop report as “Accurate and
Complete,” writing that it provided a “Sufficient Basis” for both the stop and the frisk. However,
DAO, by its assessment found the stop report did not provide sufficient reasons to justify the stop
or the frisk. Sgt. #2
(now Lieutenant
) was the subject of another incident occurring
thirteen days later. That case and his background are discussed extensively in the Appendix.
CCRB recommended a B-CD for Officer #1
. On November 11, 2018, DAO
requested Training by way of reconsideration. DAO asserted that PO #1
had no prior
formal disciplinary history and that there was no pattern of similar misconduct in his background.
CCRB denied the request, by a vote of 2-1, on April 24, 2019.
Officer #1
was the subject of five total complaints involving improper citizen
encounters. Four of the five involved allegations of excessive force, one with a gun drawn and
another leading to litigation. The complaints are all of recent activity. Three were lodged in 2018
alone, just prior to DAO’s recommendation of a reduced penalty and its assertion that there was
no pattern of misconduct. They may have been resolved separately prior to the reconsideration
request, but there is no indication of such in the paperwork, so it would be speculative to offer an
explanation.
It is questionable how much value flowed from the Police Commissioner’s decision to
impose Training in lieu of discipline. Officer #1
has attended 260 Training classes in his
career, seven of which in “Investigative Encounters.” All of those were taken before the Police
Commissioner’s decision in this case.
has not attended a class in investigative encounters
subsequently, despite the Police Commissioner’s mandate. Since this case, he has received two
new excessive force complaints and been promoted to Detective.
IX.
THE ADMINISTRATIVE PROSECUTION UNIT
There is a bifurcated system for prosecution of cases through formal discipline. CCRB
panels may recommend that formal discipline ensue after a substantiated finding of misconduct.
As well, IAB, OCD of BIU may recommend to DAO that formal discipline be imposed after their
own investigations. Generally speaking, DAO will prosecute cases brought by NYPD units and
CCRB’s APU will advance FADO cases recommended by CCRB panels. In either event,
prosecutions commence with service and filing of Charges and Specifications. If the Police
318
Commissioner permits a case to go forward, it may be resolved by trial or plea before a Deputy
Trial Commissioner.
Following the 2003 decision in Giuliani, forbidding an independent trial forum for
discipline, there were persistent efforts by reformers to push for prosecution of civilian complaints
by investigators independent of the Department. For one thing, Unconsolidated Law § 891 makes
no mention of who may conduct an investigation or prosecution; its prohibition is limited solely
to the question of who may preside at a hearing. The decision in Giuliani, barring independent
trial or hearing officers, did not strip away CCRB’s ability to investigate or prosecute a disciplinary
matter.
Nevertheless, after the decision, DAO re-assumed the role of prosecuting disciplinary
hearings it had held before the CCPC 2000 report. From 2007 to 2011, CCRB substantiated about
200 cases a year, recommending Charges and Specifications for 140 of them.1362 During those
years, DAO would then assume the case and decide whether to prosecute. DAO had a history of
reluctance to prosecute case presented by CCRB. “In the 18 months prior to the APU’s existence,
the Department hadn’t held a single trial for any CCRB case for which the Board had
recommended Charges and Specifications.”1363
Beginning in 2010, a pilot program was instigated, with a CCRB attorney acting as a lead
prosecutor. An Administrative Prosecutions Unit was permitted, in cases substantiated by CCRB,
to prosecute “a small portion of the misconduct cases that went to administrative trial at the police
department.”1364 The pilot project, funded by the City Council, was given permanent status and
funding in November 2011. According to CCRB: “This was the first time that a civilian oversight
agency in the United States had been given prosecutorial power.”1365 The pilot was deemed to be
a success.
During the pilot program one of the benefits that emerged was the ability of the
CCRB to get cooperation and trial testimony from victims and civilian witnesses
who felt more comfortable with an employee of the independent agency with whom
they had an established relationship, rather than police department lawyers.
Another advantage held by CCRB attorneys is their familiarity with the intricacies
of the agency’s investigative process and their ability to give trial judges insight
into the nature of these investigations. This can affect how judges weigh particular
evidence and arguments, increasing the likelihood of a guilty finding.1366
1362
CCRB MOU Announcement, “The CCRB Announces Historic Agreement with the NYPD for Expanded
Prosecutorial Authority” (Mar. 28, 2012), available at https://www1.nyc.gov/assets/ccrb/downloads/pdf/CCRB_AP
U_announcement.pdf.
1363
Fred Davie, Chair, “Changes to Chapter 18-A of the New York City Charter,” May 23, 2018.
1364
Id.
1365
Status Report For the CCRB’s Administrative Prosecution Unit First Quarter of 2014 at 1. (Available here:
https://www1.nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/apu-2014q1.pdf).
1366
CCRB MOU Announcement, “The CCRB Announces Historic Agreement with the NYPD for Expanded
Prosecutorial Authority” March 28, 2012, available at https://www1.nyc.gov/assets/ccrb/downloads/pdf/CCRB_AP
U_announcement.pdf.
319
Today, in the main, APU handles the cases where FADO allegations are substantiated and
the CCRB recommends Charges and Specifications.1367 There are exceptions, however, when a
case will be handled by DAO instead, in particular when a case is “retained” by the Police
Commissioner, force cases and SQF allegations that are subsumed within a force investigation.
On April 2, 2012, a Memorandum of Understanding (MOU) was signed between the Police
Commissioner and the Chair of CCRB.1368 The APU-MOU permits the APU to “undertake the
administrative prosecution of all civilian complaints against NYPD uniformed officers which have
been substantiated by CCRB and in which CCRB has recommended that Charges and
Specifications be preferred [after the effective date1369].”1370 DAO continues to prosecute charges
drawn within the Department after investigation by IAB or other internal entities. The APU-MOU
lays out many of the procedural aspects of prosecutions by CCRB. The MOU required adoption
and amendment of the “respective chapters of the Rules of the City of New York . . . to implement
this MOU.”1371 Accordingly, a new Subchapter E of Title 38-A of the Rules of the CCRB, was
adopted which replaced the previous Subchapter E.
In 2013, the APU was comprised of 12 APU lawyers, all of whom were former local or
federal prosecutors; there was also an investigative staff of four investigators with CCRB
investigative experience.1372 Currently the APU consists of a Chief Prosecutor, two Deputy Chief
Prosecutors, ten prosecutors, four trial preparation assistants and an administrative assistant.1373
To place the APU-MOU and the Rules in context, at the end of a prosecution and trial or
settlement, the final decision still resides and remains with the Police Commissioner.1374 The Police
Commissioner may set aside a finding and can modify any penalty. The MOU acknowledges this
in paragraph 8: “The Police Commissioner shall retain in all respects the authority and discretion
to make final disciplinary determinations.”1375 All trial decisions and negotiated pleas are subject
to approval by the Police Commissioner.1376
1367
In 2022, CCRB began to handle cases in which it recommended command discipline, but the officer refused to
accept a CD offered by DAO. (Item 575, City 09.01.23 Feedback to Yates Discipline Report.)
1368
Memorandum of Understanding Between the Civilian Complaint Review Board (CCRB) and the Police
Department NYPD of the City of New York Concerning the Processing of Substantiated Complaints (Apr. 2, 2012),
hereinafter “MOU,” available at https://www nyc.gov/assets/ccrb/downloads/pdf/about_pdf/apu_mou.pdf.
1369
April 11, 2013.
1370
MOU ¶ 1.
1371
MOU ¶ 27.
1372
Status Report For the CCRB’s Administrative Prosecution Unit First Quarter of 2014 at 1–2, available at
https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/apu-2014q1.pdf.
1373
Item 580, City 09.01.23 Feedback to Yates Discipline Report.
1374
NY City Charter § 434, NYC Admin. Code § 14-115.
1375
MOU ¶ 8.
1376
Id. ¶ 21.
320
When they were first adopted in 2012, the APU-MOU and Subchapter E of the Rules1377
largely contained consistent language. There are three observations worth noting.
First, the MOU and Subchapter E are only applicable to prosecutions of Charges and
Specifications by way of a formal disciplinary process. Unless the Disciplinary Guidelines alter
the landscape, the APU-MOU is generally inapplicable to SQF allegations for which Charges and
Specifications are not recommended.1378
Second, the Rules were amended significantly in 2018, whereas the MOU was not at the
time and has not been amended since. Inconsistencies between the amended Rules and MOU will
persist until the MOU is re-drafted.1379
Finally, recent amendments to the Charter and state law will require further amendments
to the Rules and the MOU, as there are changes regarding jurisdiction, confidentiality, and access
to information which are not reflected in the Rules or the MOU. The MOU is outdated and in need
of revision.
The APU-MOU is not mandated by law. It is a voluntary accord of potentially limited
duration. Provision 29 of the MOU recognizes that “[e]ither party hereto may terminate this MOU
upon written notice.”1380 38-A RCNY § 1-02 concedes that “[]the jurisdiction of the Board includes
the prosecution of certain substantiated civilian complaints pursuant to a Memorandum of
Understanding (MOU) executed by the Board and the Police Department on April 2, 2012 (as from
time to time amended) during the period that such MOU is in effect.”1381
1377
Title 38-A of the Rules of the Civilian Complaint Review Board.
1378
See, e.g., CCRB’s “Disciplinary Framework” which does not call for charges based upon an SQF violation. In a
review of this report by representatives of Communities United for Police Reform (CPR), The Justice Committee &
CPR, and VOCAL-NY & CPR (hereinafter jointly referred to as “CPR”), dated July 12, 2024, the recommendation
was made that “formal charges and discipline be pursued for any officer for the 2nd improper stop, and first if
aggravated.” This would mean that CCRB would be required to recommend Charges and Specifications, that APU
would draft specifications, that NYPD would formally serve the officer, and that the matter would be presented to a
Trial Commissioner. It seems unlikely that a requirement that Charges and Specifications be served and filed for SQF
cases would result in greater discipline, since the final disposition still rests with the Police Commissioner, guided by
the Disciplinary Guidelines Matrix. A move to requisite formality would lend some transparency to the process in
cases which actually went to trial, since trials are public. However, it is doubtful that some or any cases would actually
proceed to trial for SQF violations (absent concomitant aggravating misbehavior such as demonstrated bias, false
statements, or wrongful use of force). The probable outcome would be a disposition negotiated between APU, DAO,
and the subject officers. Absent a change in the Disciplinary Guidelines or a dramatic change in practice by CCRB
and the Department, there is little reason to believe that negotiated settlements would be any different if service of
Charges and commencement of formal proceedings were added as a prerequisite to substantiation. At the same time,
formality in the process would be expensive, burdensome to APU, Trial Commissioners and NYPD, delay
commencement of proceedings, and extend the time between complaint and final disposition.
1379
See, for example, handling of OPMN and exclusion of authority to review supervisory failures, both discussed
earlier, and revisions to the Rules permitting amendments to CCRB panel recommendations for Charges.
1380
MOU ¶ 29.
1381
38-A RCNY § 1-02.
321
During the review process conducted by the New York City Charter Revision Commission,
the CCRB requested “Codification of the APU.”1382 In support of that proposal, Chair Davie wrote:
Amending the City Charter to codify the APU will ensure that the effective
administrative prosecution procedures developed by the CCRB and the NYPD over
the past few years continue, regardless of leadership changes at either agency. Such
action by the Charter Revision Commission will further demonstrate the City’s
commitment to providing fairness and safety to the public by ensuring that there is
an independent, proven, and secure process for holding NYPD officers accountable
for misconduct.
In the Preliminary Staff Report to the Charter Commission, staff noted that codification
was supported by Citizens Union, the NYCLU and Communities United for Police Reform.1383
Neither the Staff Report nor the Final Report1384 adopted the proposal for codification. The
Commission concluded that, while “the 2012 MOU is terminable at will by either the NYPD or
the CCRB, the Commission has no reason to believe this agreement will be terminated.”1385
In the end, the APU-MOU was not codified. CCRB’s ability to prosecute cases formally
is left to the discretion of the Police Commissioner, who may terminate the MOU at will.
A.
APU - Process
In order to formally commence a prosecution, Charges and Specifications are drafted by
CCRB and then served upon the subject officer by NYPD, at DAO’s direction, on behalf of CCRB.
Charges and Specifications include,
[A] brief statement of the disciplinary matters to be adjudicated, including the
activity, behavior or incident which is the subject of the disciplinary action and,
where appropriate, the date, time and place of occurrence. Additionally, the
Charges and Specifications shall identify the contract provision, law, policy,
regulation or rule that was allegedly violated.1386
After the CCRB notifies the Police Commissioner and DAO of its recommendation, the
Department Advocate makes an initial determination regarding whether an “expedited
prosecution” is necessary “for example, where the subject officer has filed for vested or service
retirement or is scheduled for imminent promotion.”1387
1382
Fred Davie, Chair, “Changes to Chapter 18-A of the New York City Charter,” May 23, 2018.
1383
Charter 2019 NYC, Preliminary Staff Report, April 2019, at 17.
1384
Final Report of the 2019 New York City Charter Revision Commission, August 2, 2019.
1385
Id. at 53.
1386
38 RCNY § 15-03(a).
1387
MOU ¶ 14.
322
One explanation for the lengthy plea discussions in APU cases may be that DAO has more
flexibility in reviewing or amending specifications during the course of negotiations. Plea
discussions occur after the panel has voted. During the course of those discussions, new evidence
may be discovered, either in aggravation or mitigation after the initial drafting of the charges. The
Rules of the Police Department, but not the MOU, explicitly allow that “Charges and
Specifications may be amended upon notice to all parties.”1396 This makes practical sense for all
concerned. For this reason, APU sought comparable authority to amend Charges and
Specifications. CCRB amended its Rules1397 in 2018 to parallel the Department’s Rules. This
would have allowed CCRB’s Chief Prosecutor or Executive Director to ask the panel to add
allegations, or to reconsider previously unsubstantiated allegations upon written notice to the
parties.1398
Before the 2018 amendment to the Rules could take effect, the Appellate Division, First
Department struck the provision, declaring,
Among other things, the CCRB can recommend to the Police Commissioner that
charges and specifications be brought and the Police Commissioner can accept or
reject this recommendation. The MOU provides a mechanism for delegating to the
APU prosecution of CCRB-recommended charges and specifications accepted by
the Commissioner. Amended charges and specifications, being in effect, new
charges, would have to be submitted to the Commissioner as recommendations.
This is a limitation imposed by the Charter. Since neither the CCRB nor the NYPD
has the power to override the Charter, the two agencies’ MOU cannot do so either.
The mistaken assumption underlying the Appellate Division’s decision was that
amendments to a panel’s list of charges would unlawfully circumvent approval by the Police
Commissioner. DAO attorneys ask panels to reconsider their decisions before proceeding. It is
unclear why APU prosecutors, deputized to stand in the shoes of DAO prosecutors, could not do
the same. In any event the Police Commissioner still holds the same power to retain a case even
after amendment, and to accept, reject or modify any finding by a Trial Commissioner or any
proffered plea. The MOU and the Rules are clear that:
In all instances the Police Commissioner may accept, reject, or modify the
recommendation presented, or may ask CCRB for additional investigative or
background information in its possession. He may also request further
investigation or development of the record in the case to enable him to make a final
disciplinary determination. If CCRB’s recommendation is rejected or modified,
CCRB will then be responsible for taking any appropriate follow-up action, such
as proceeding with prosecution of the subject officer, engaging in additional
investigation, or further developing the record in the case.1399
1396
38 RCNY § 15-03(a).
1397
38-A RCNY 1-42(h).
1398
38-A RCNY § 1-42(h).
1399
MOU ¶ 20; see also 38 RCNY § 15-17; 38-A RCNY § 1-46(c).
324
And “[t]he Police Commissioner retains in all respects the authority and discretion to make final
disciplinary determinations.”1400
CCRB has not appealed the court’s ruling on this issue. The most recent proposed set of
amendments to Title 38-A delete paragraph 1-42(h) in its entirety, thereby eliminating the
authorization for the APU prosecutor to seek amendments from a panel after commencement of
the proceedings.1401
ii.
Pleas and Final Approval of Pleas by the Police Commissioner
After the officer is served with notice of the Charges and Specifications, proof of service
is returned to the APU. At that point, APU requests the Summary of Employment History (a
redacted portion of the CPI for that officer) and a CORD report (Commanding Officer’s Review),
which will list prior A-CDs within the last 12 months along with the most recent Employment
Evaluation and Departmental Recognition of medals.1402 During preparation of this Report, the
following proposition was put to RMB by the Monitor Team:
The CCRB should obtain a complete record of any prior disciplinary actions by the
Department, including disciplinary probation, whether or not the prior investigation
came through CCRB. This may include PEPR, CRAFT or CORD reports as well.
This should include prior discipline which came through Command, FID, DAO,
BIU, IAB, DCT or OCD.1403
The response from RMB was:
[A]bsolutely not. It’s not relevant to their determination, runs counter to the goals
of discipline, management of a command, established policy, collective bargaining
and due process. For the more serious or non-technical 206-03 violations, these
generally go through DAO.1404
APU does not have access to the full CPI for the officer.1405 The disciplinary history does
not include A-CDs that are more than one-year old; they are removed and expunged from precinct
1400
38-A RCNY § 1-45(a).
1401
Miscellaneous Rule Amendments, CCRB-4, certified November 5, 2020. Rules proposal available for public
comment on December 9, 2020, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/about_pdf/CCRB%20
Proposed%20Rules_11092020.pdf.
1402
PD 468-153. The Commanding Officer describes a subject officer’s assignments and rates the officer’s overall
performance.
1403
Matthew Pontillo, RMB, February 26, 2021, correspondence.
1404
Id.
1405
On February 26. 2021, in response to inquiry by the Monitor team concerning APU access to background
information, RMB wrote: “The ‘Summary of Employment’ document that the NYPD provides to CCRB contains all
of the information that they have asked for. It includes C&S, Sch. “C” and “B” CDs, and Dismissal Probation and
includes all of the information considered by the NYPD when evaluating a case. Schedule “A” CDs for commandlevel violations are not considered nor should they be. The list of 36 violations enumerated in PG 206-03 identifies
technical and administrative violations and delegates the authority to the commanding officer to address those issues
325
records. A history of B-CDs may be available, although they are subject to discretionary sealing
after three years. Unsubstantiated, unfounded, or exonerated cases will not be included. Pending
complaints which have not been resolved are not disclosed. This full history would be necessary
for APU’s assessment of the appropriate plea to propose. A complete personnel history, listing all
Training and all prior investigations, would also be desirable.
The Matrix-MOU, signed February 4, 2021, requires the CCRB investigator to “email a
NYPD employment history request form” after CCRB has substantiated a complaint against the
officer. That background information is not, according to the MOU, available during the
investigation.1406 Absent exceptional circumstances, NYPD has twenty days to respond to the
request.1407 NYPD may redact information that is not available under FOIL and CCRB may not
disclose the employment or disciplinary history provided.1408
Typically, the APU attorney will schedule an initial conference with the subject officer and
the officer’s attorney. A plea offer is made and, if accepted, forwarded to the Office of the Deputy
Commissioner of Trials. If no plea is taken, the case is calendared by DCT for trial. The proposed
plea agreement, if approved by the Trial Commissioner will be held in abeyance and sent to the
First Deputy Commissioner and the Police Commissioner for approval.
Under the Matrix-MOU, if there is a plea, APU is to present a written analysis “describing
with particularity the basis for the recommended penalty, any aggravating and or mitigating factors
applied and a description of how those factors were applied.”1409
Under the 2018 Rules amendments, APU can negotiate a plea and hold off on final
agreement until the Police Commissioner has a chance to accept, reject or modify the proposed
plea.1410 Prior to the Rule change, the parties would enter into an agreement and, on occasion, find
the agreement subject to subsequent modification by the Commissioner. Under the revised Rule,
by accepting the agreement, the Commissioner approves or modifies the discipline to be imposed
prior to the entry of the plea.1411
locally and manage their command. The whole point here is to empower commanders and address low-level issues
through non-judicial means. Expungement is an important part of this process since it fulfils the goals of a disciplinary
system which include rehabilitation and education and strikes the right balance with respect to proportionality and
fairness. These sch. “A” CDs are not relevant to CCRB cases with regard to content or penalty. CCRB already knows
the outcome of their own cases related to their FADO jurisdiction including CDs. Until now, CCRB has not asked
for the penalty imposed by the PC – only the method of imposing the penalty (i.e., “A” CD, “B” CD, etc.).”
1406
Matrix-MOU, § V, ¶ 10.
1407
Id. ¶ 12.
1408
Id. ¶ 11.
1409
1410
Matrix-MOU, Sec. III, ¶ 4.
38-A RCNY § 1-46(d).
1411
In Lynch v. New York City Civilian Complaint Rev. Bd., 64 Misc. 3d 315, 334 (N.Y. Sup. Ct. 2019), the court
found that the revised Rule still gives the Commissioner final say in any proposed plea, as the Rule still explicitly
states that “the Police Commissioner will be informed of any proposed plea, and it will be held in abeyance until
approved by the Police Commissioner.” (Emphasis in original).
326
The PBA opposed this, arguing that holding a plea “in abeyance” would deprive the Police
Commissioner of the right to make a final determination. They denominated the amendment as
the “Undermine Plea Authority Rule.” The lower court rejected this argument, concluding that
“the Commissioner still has the final say.”1412 The Rule also provides:
In all Prosecution in which the Police Commissioner rejects a negotiated plea, the
CCRB will be responsible for implementing the Police Commissioner’s decision,
including further negotiating the Prosecution in a manner consistent with the Police
Commissioner’s determination or proceeding with the prosecution.
The PBA did not appeal the ruling and Revised Rule 1-46(d) remains in effect.
Plea discussions after charges are filed often result in modification or reduction of the
charges voted upon by the CCRB panel. An analysis conducted during Commissioner O’Neill’s
term in office (2nd Quarter of 2016 through 3rd Quarter of 2019) listed 152 pleas in cases
prosecuted by APU. Of 152 pleas presented to the Commissioner, 103 were approved and 49 were
closed at a discipline level below APU’s recommendation.1413 The most common discipline
imposed in plea agreements was forfeiture of vacation days.1414
After the decisions in Lynch v. CCRB, pleas are agreed to, approved by the DCT, but held
in abeyance subject to the Police Commissioner’s approval. The Police Commissioner is free to
continue the frequent practice of disapproval of a plea, requiring the parties to accept a change or
re-negotiate. It seems counter-productive if the Police Commissioner were to downgrade a
negotiated plea that are within the Disciplinary Guidelines except under exceptional
circumstances. If officers know they will get two bites at the apple they can readily forestall a
public trial and full examination by trial, and then work out a plea with the Police Commissioner.
Under the Disciplinary Matrix, however, the Police Commissioner is required to write a detailed
explanation for departure from the recommended penalty. This assumes that the Deputy
Commissioner for Trials has approved and recommended the plea agreement. The Charter
requires the Police Commissioner to write a report which:
[S]hall include a detailed explanation of the reasons for deviating from the board’s
recommendation or the recommendation of the deputy commissioner responsible for
making disciplinary recommendations and, in cases in which the police commissioner
intends to impose or has imposed a penalty or level of discipline that is lower than that
recommended by the board or such deputy commissioner, shall also include an explanation
1412
Id.
1413
CCRB, Report on the Administrative Prosecution Unit (“APU”): Second and Third Quarters of 2019 at 10,
available
at
https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/20200605_APU_2Q3Q19.pdf.
1414
See, e.g., JONATHAN DARCHE, REPORT ON THE ADMINISTRATIVE PROSECUTION UNIT FIRST QUARTER OF 2018, at
5 (2019); JONATHAN DARCHE, REPORT ON THE ADMINISTRATIVE PROSECUTION UNIT FIRST QUARTER OF 2018, at 6–8
(2018); JONATHAN DARCHE, REPORT ON THE ADMINISTRATIVE PROSECUTION UNIT THIRD QUARTER OF 2016 –
FOURTH QUARTER OF 2017, at 8–15 (2018); see also Heather Cooks, Senior Counsel, CCRB, CCRB: The Life of a
Case, at “APU Plea Offers” (on file with author).
327
of how the final disciplinary outcome was determined, including each factor the police
commissioner considered in making his or her decision.1415
The quarterly reports by APU to the Police Commissioner provide brief descriptions of
departures from APU recommendations. More recently, following the repeal of Civil Rights Law
§ 50-a, the quarterly reports provide links to CCRB’s closing report, prepared by a CCRB
investigator which describes the allegations and recommends a disposition, but not a penalty. They
are very helpful in understanding the process and the outcome. But the reports are heavily redacted
such that a complete understanding of the case can be difficult when there are multiple officers or
civilians involved.
It is not uncommon for the Police Commissioner to set aside plea agreements to dismiss
the charges or reduce the penalty. In the first half of 2023 alone, 26 pleas were presented to the
Police Commissioner after negotiations between the officer and APU and after approval by the
deputy trial commissioner, the Police Commissioner disapproved 13 of those pleas, either
dismissing the charges or imposing no penalty.1416
Although not fully representative of the entire class, the reports do add context to the
process. In one case, for example, a Black male and a Hispanic male were stopped by five officers
in plainclothes and unmarked vehicles.1417 They were found to have frisked and searched the men
without cause. The Respondent, who was on the scene and supervised the misconduct, had
accepted a plea with a forfeiture of ten penalty days. The Police Commissioner set aside the
negotiated plea and imposed four days forfeiture because it was “more consistent with penalties
previously imposed for similar misconduct.”1418
Another case of a plea which was downgraded involved an Anti-Crime officer who frisked
and searched two individuals. He refused to identify himself, ultimately pushing his shield toward
the face of one and, when questioned, falsely denied the frisks and searches.1419 No stop report was
filed. Video evidence substantiated the complaints. Charges of wrongful frisks and searches and
discourtesy were part of a plea agreement for twenty-five days forfeited for one of the complaints
and twelve vacation days for the other. The Commissioner called the pleas excessive. One was
renegotiated to ten days and the Police Commissioner reduced the penalty to five days for the
other. This case is an example of the need to keep charges together instead of splitting off the false
testimony allegation and stop report failures; there is no indication as to how referrals for the failure
to file stop reports were resolved.1420 Without exploration of the truthfulness of the officer’s
testimony or consideration of the missing paperwork, a narrow examination of the frisks and
searches in isolation, without considering the rest of evidence, would not do justice to the inquiry.
1415
N.Y. City Charter § 440(d)(3).
1416
CCRB, Report on the Administrative Prosecution Unit (“APU”): First and Second Quarters of 2023.
1417
CCRB, Report on the Administrative Prosecution Unit (“APU”): Second and Third Quarters of 2019, at 10.
1418
Id. at 10-11.
1419
Id. at 11.
1420
Id.
328
But for the video evidence, this matter may well have resulted in a simple contest of credibility
without a satisfactory resolution.
iii.
APU Prosecutions - Numbers
CCRB panels substantiate charges and recommend formal proceedings when the panel
believes the officer should receive a more serious penalty than an A-CD or B-CD. While a
Schedule C-CD is a discipline level available to the Police Commissioner, allowing imposition of
20 penalty days, the Board cannot recommend that level of discipline.1421
The panel does not draw up the specifications itself. Instead, when a panel recommends
Charges and Specifications, the Case Management Unit notifies APU attorneys, who prepare the
specifications, submit them to the panel for review and approval, and then forward them to DAO,
usually within four weeks.1422 At that point, upon review, a case may be sent back for
reconsideration, retained by the Department, or permitted to proceed once the Department serves
the papers upon the subject officer.
Since 2013, the APU has closed more than 400 cases, tried more than 250 members of the
NYPD, and taken pleas from more than 180 members of the NYPD.1423 Board recommendations
calling for filing of Charges and Specifications have fluctuated wildly over the past six years. With
the adoption of the Disciplinary Framework (“Framework”)” by CCRB in 2018, Charges and
Specifications for SQF violations were discouraged. The Framework has been replaced by the
Disciplinary Matrix (“Matrix”) and the numbers may stabilize. It could be that the variations in
the number of cases for which CCRB seeks formal discipline are based on external factors rather
than inconsistency in value judgments made by the panels. If so, the Matrix will not level the
number or the percentage of cases for which a prosecution and trial are sought.
Formal proceedings commenced by CCRB for all FADO, not just SQF, misconduct, are
small in number. Of the many citizen complaints to CCRB, only a handful are punished through
formal proceedings. By the time complaints are screened, investigated, adjudicated, and decided
by the Police Commissioner, the number of cases resulting in discipline is narrowed considerably.
After substantiating FADO misconduct, panels have recommended formal discipline
(Charges and Specifications) as little as 8% of the time and as much as 55% of the time over the
from 2014-2020.1424 Year by year, the number of cases where CCRB called for charges were:
1421
Patrol Guide § 206-05 (“[O]nly the Department Advocate’s Office can direct issuance of a Schedule “C” command
discipline.”).
1422
CCRB, APU Prosecutions and Provision Two of the MOU (CCRB’s Second Response to the Federal Monitor’s
Request for CCRB Documents, encl. 12 (Aug. 23, 2018); on file with author).
1423
The Administrative Prosecution Unit (APU), CCRB (last visited Nov. 3, 2021), available at
https://www1.nyc.gov/site/ccrb/prosecution/administrative-prosecution-unit-apu.page.
1424
After adoption of the Disciplinary System Penalty Guidelines, the number of cases with recommendation for
Charges and Specifications has increased significantly. Since almost none of those cases have resulted in a disposition,
it is too early to know if they will be tried, retained, reduced, or pled.
329
2014:
2015:
2016:
2017:
2018:
2019:
2020:
254 of 463
190 of 769
59 of 513
38 of 355
73 of 326
82 of 536
35 of 443
=
=
=
=
=
=
=
55% of substantiated cases
25%
12%
11%
22%
15%
8%
“Complaints” and “Cases” are distinct measures of activity. A complaint may implicate
more than one officer. The two measures roughly correspond. So, for example, in 2018, the Board
recommended Charges in 46 of 226 (20%) of substantiated complaints. In 2019 panels sought
charges in 55 of 370 (14%) of substantiated complaints.1425 Both numbers are almost identical to
the percentage of cases recommended for Charges.
In the three fiscal years from 2018-2020, looking at cases, there have been 81 trials and 56
plea bargains.1426
Fy 2018: 43 trials and 33 pleas
Fy 2019: 19 trials and 16 pleas
Fy 2020: 39 trials and 7 pleas
Matching statistics of filings with dispositions, given the varying reporting mechanisms
used by NYPD and CCRB and the considerable time-lag between the two events is difficult. The
following chart breaks down APU final results in the Trial Room.
APU Results - Calendar Year (Cases)
2017
2018
2019
2020
Trials
67
12
28
21
Guilty Verdict
PC Reversed to Not Guilty
Not Guilty Verdict
28
4
39
9
1
3
15
1
13
11
3
10
Plea With Discipline Approved
Plea Disapproved/No Discipline
18
6
19
1
10
0
5
0
1425
Executive Director’s Monthly Report – January 2020 (Statistics for December 2019) at 22, available at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2020/20200108_monthlystats.pdf.
1426
CCRB, Preliminary Mayor’s Management Report at 71, available at https://www1.nyc.gov/assets/operations/do
wnloads/pdf/pmmr2021/ccrb.pdf.
330
There is also a time-lag between verdict/plea in the trial room and final decision on a
penalty by the Police Commissioner. For those same years, penalty decisions by the Police
Commissioner were:
Penalty
2017
2018
2019
2020
Penalty Imposed
No Discipline/Penalty Imposed1427
51
57
29
12
25
18
16
20
From the earlier tables, we know that CCRB panels voted to recommend Charges and
Specifications in 226 cases for the four calendar years 2017-2020. Some number of those have
not yet been resolved. But of 228 cases prosecuted by APU which did reach final disposition
during those four years, 121 ended with discipline being imposed and 107, for one reason or
another, went without discipline.1428
In further analyzing the 121 APU guilty/plea cases over that four-year period in which a
penalty was imposed:
1 was terminated (
)
3 were suspended or lost more than 30 days credited time
4 forfeited between 21 to 30 days credited time
28 forfeited between 11 to 20 days credit
5 received a penalty of between 1 to 10 forfeited penalty days.
iv.
Comparing DAO and APU Results in Cases of Formal Prosecution
Section VI.H.iv of this report discussed prosecution by DAO. A significant number of
those cases are disciplined and there are a cognizable number of dismissals, suspensions, and
forfeiture of credited time. By contrast, complaints by civilians substantiated by CCRB and proven
in the Trial Room, are less likely to result in conviction or comparable penalties.
For example, looking at 2019, CCRB-APU had 15 guilty verdicts and 10 pleas out of 51
closures in the Trial Room, for a 50% conviction rate. Of these 25, one officer was terminated
(
), one officer received a loss of more than 30 penalty days, and 23 officers received a
penalty of fewer forfeited days.
In that same year, DAO had 322 guilty verdicts or pleas out of 339 who were charged, for
a 98% conviction rate. While many of those cases were for misconduct unrelated to public
complaints, such as DWI or drug use, assorted Rules Violations, Mishandling of Firearms, or
Domestic Violence, there were 16 officers charged with use of excessive force and 18 officers
charged with Misconduct Involving Public Interaction. All 34 of those officers were found guilty
or pled guilty. All 322 of the officers who pled or were found guilty were penalized with dismissal
1427
This includes cases that did not proceed to discipline for whatever reason, including cases where the Police
Commissioner reduced a proffered penalty to guidance or command discipline without penalty as the final disposition.
It does not include Not Guilty verdicts.
1428
Because of the natural time lag between a panel vote and final disposition, the two totals do not match.
331
person (SQF) violation were sent to the Police Commissioner. Of the 286, CCRB recommended
formal proceedings (Charges and Specifications) in 35 cases. (None were for SQF misconduct
alone; i.e., there were associated other charges.) In the end, 21 of those cases ended with penalty
days forfeited. When penalty days are assessed, the penalty more often than not is in a range
between 1 to 10 accrued vacation days. Of the 286 SQF misconduct cases in that time period, only
3 ended with a penalty in excess of 10 days forfeited.1434 Remembering the Appellate Division’s
overly expansive reading of Unconsolidated Law § 891 in the Giuliani case, to require that all
disciplinary adjudications be kept in-house despite the fact that the plain language of the statute
only requires such for termination cases, it is worth noting that none of the SQF related cases in
the trial room ended in termination or suspension.
B.
Provision Two – Retention by the Police Commissioner
Although the MOU and the Rules provide that the APU is to undertake administrative
prosecution of civilian complaints against officers that the CCRB has found to be substantiated
and for which it has recommended Charges and Specifications, the MOU also allows the Police
Commissioner to intervene and remove the case from the APU. The cases where the Police
Commissioner denies APU the ability to prosecute are commonly known as “Provision Two”
cases, a reference to paragraph 2 of the APU-MOU. The MOU and the Rules authorize the Police
Commissioner to order APU to “refrain” from prosecuting a case in “limited circumstances where
the Police Commissioner determines that [CCRB’s] prosecution of the Charges would be
detrimental to the Police Department’s disciplinary process.” By agreement, this power would be
invoked only in cases where “there are parallel or related criminal investigations, or when, in the
case of an officer with no disciplinary history or prior substantiated CCRB complaints, based on
such officer’s record and disciplinary history the interests of justice would not be served.”1435
Under Provision Two, the Police Commissioner is to write a “detailed explanation” of the
decision to retain a case along with “a statement detailing what discipline if any the Police
Commissioner would pursue.”1436 CCRB then has five business days to object to the decision in
writing, at which point the Police Commissioner then can respond in writing and, if he persists in
removal, CCRB must “refrain from further prosecution.”1437 Again, the denial must be “made in
writing and shall include a detailed response to CCRB’s rebuttal.”1438 In sum, the decision to retain
a case, if opposed by CCRB, requires an exchange of three explanatory writings: two “detailed
explanations” by the Police Commissioner and one “rebuttal” by CCRB.
1434
The surrounding circumstances, which caused heftier penalties, for the three cases—PO
(15 days),
Sgt.
(30 days), and PO
(18 days)—were exceptional. They are discussed individually in
detail later in this Report.
1435
MOU 2; see also 38-A RCNY § 1-42(b).
1436
MOU 2-5; see also 38-A RCNY § 1-42(b) through (e).
1437
Id.
1438
Id.
333
In years 2018-2020, the Police Commissioner retained 17 of 142 cases (12%) where CCRB
had voted that Charges and Specifications to be drawn.1439 This is a six-fold increase from the
previous three-year cycle where Provision Two was used sparingly. In the years 2015-2017, the
Police Commissioner retained only 11 of 544 cases (2%) where CCRB had recommended
Charges.1440
The fluctuation in demands for retention corresponds with the temporary use of
“Reconsiderations” in its place. Under CCRB Rules (38-A RCNY § 1-36) the Department
Advocate may request reconsideration of a panel’s findings or recommendation. The process
commenced in practice in 2015 and was frequently utilized at first. In 2016, there were 74
reconsideration requests of 212 substantiated SQF cases alone. As described by CCRB in 2016,
“[i]t is the Agency’s theory that the reason the Department ceased retaining cases is due to the
implementation of the reconsideration policy[.]”1441 Apparently, with little success in gaining
modifications upon requested reconsiderations, DAO has for the most part abandoned the process,
preferring instead to go directly to the Police Commissioner for reduction of a CCRB finding and
recommendation, or retention, bypassing further dialogue with the panels. Of 610 substantiated
cases sent to DAO after 2015, including some force cases as well as SQF cases, there were 112
requests for reconsideration, of which 97 were declined. Reconsideration was granted with a
change in finding in only four cases and a reduction in recommended discipline in 11 more cases.
In 2018, DAO requested reconsideration of 18 of the 76 closed SQF cases. All of the
reconsideration requests were for a lower penalty than that recommended by CCRB, or for no
penalty at all. In 16 of the reconsideration cases, DAO asked that CCRB replace a disciplinary
recommendation with no discipline: either exoneration, unsubstantiation or Training. CCRB
denied all requests. In 2019 there were only four requests, and none were successful. In 2020 and
2021 there were no requests for reconsideration in SQF cases. Currently, the reconsideration
process for SQF cases is defunct. Reconsideration requests by DAO in other FADO cases dropped
from 152 in 2017 to 14 in 2020.1442
Alternatively, DAO has had considerable success in gaining modifications of CCRB
recommendations by direct recommendation to the Police Commissioner. Of the 97 cases where
DAO requested reconsideration and CCRB declined, the Police Commissioner ended the matter
by a downward departure in finding or penalty in 67 cases.1443 As long as the Police Commissioner
grants a downward departure after a CCRB declination, there is no practical reason for DAO to
1439
Executive Director’s Monthly Report January 2018 (Statistics for December 2017) at 30, available at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2018/20180110_monthlystats.pdf.
1440
As a consequence of a number of external factors, not the least of which was the impact of the Covid pandemic
on case processing, numbers for 2021-2022 are probably not reflective of trends regarding retention of formal
prosecutions. However, in the first two quarters of 2023, the Police Commissioner retained 6 of 45 ( 13.3%) such
cases. (A much larger number were administratively closed due to retirements or due to impending statute of
limitations cutoffs.) APU Quarterly Reports–Q1,Q2 2023.
1441
Report on the Administrative Prosecution Unit - Fourth Quarter 2015, at 3 (May 6, 2016).
1442
CCRB 2020 Annual Report at 55, available at https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annu
al_bi-annual/2020_Annual.pdf. Of 152 requests in 2017, 14 resulted in a modification by CCRB. Of 14 requests in
2020, three resulted in a modification by CCRB. Id.
1443
Federal Monitor SQFSTA reports provided to the Monitor by NYPD.
334
engage in the process with CCRB. In a way, that is disappointing given the process opened the
door for a dialogue and mutual understanding of findings and recommendations.
It may be, in many cases, the Police Commissioner’s decision to reduce a CCRB
recommendation, when based upon information provided by DAO, is justified and explicable.
Unfortunately, memos written to the Police Commissioner by DAO (Case Analysis and
Recommendation – “CAR” memos) are secret under a claim of privilege. This leaves the public
and reviewers without a full explanation of the rationale for bypassing CCRB’s recommendation.
In any event, with the demise of the reconsideration process, it is fair to assume that there
will be more retention demands. It is too early to predict at this time, but with adoption of the
Disciplinary Guidelines, theoretically, more SQF cases will result in a recommendation for
Charges as multiple allegations are aggregated, so more retention cases are likely.1444
If CCRB substantiates a case and recommends Charges and Specifications but the Police
Commissioner exercises his discretion to retain the case, the removal may, and often does, result
in no discipline (NDA). After retention, the Police Commissioner is free to direct DAO to proceed
with the prosecution, to dismiss, or mandate an alternative disposition. If the case does not result
in discipline, a record of the event will remain in DADS and in CCRB’s files. The CPI will reflect
the Charges and the outcome, but there will be no entry in the officer’s “Disciplinary History” in
the online “Officer Profile” posted by the Department.
CCRB reports Provision Two cases as either “retained with discipline” or “retained without
discipline.” CCRB reports a case as retained with discipline when Training, Instructions, or ACDs without penalty are the result. Accordingly, CCRB reports of discipline are much more
extensive than the numbers included in this Report. For 2016-2020 CCRB reported that the Police
Commissioner retained 32 cases with discipline and 10 cases without discipline. However, a
minority of the 32 cases “retained with discipline” received any penalty. Most received Training
or an A-CD with no penalty.
As a typical example, PO
unlawfully frisked a “Black male in his early
twenties [who] was sitting on a stoop . . . smoking[.]”1445 The Police Commissioner retained the
case and directed Training instead of discipline for the officer.1446 CCRB describes the case as
“retained with discipline.” Officer
“disciplinary history” as listed in the online profile
maintained by NYPD lists no events.
1444
See, e.g. CCRB #
, Sgt
and PO
. CCRB found they had wrongfully
stopped five people. With no other charges, the presumptive penalty of three days was applied to each stop and
aggregated, resulting in a request for formal discipline. The matter has not been calendared in the trial room as of this
writing.
1445
Report on the Administrative Prosecution Unit (“APU”) First, Second, Third, and Fourth Quarters of 2020 at 21,
available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/05282021_AP
U2020.pdf).
1446
Officer
has attended 187 Training classes, including seven on investigative encounters and stop/frisk.
335
Similarly, Det.
had an arrest warrant for a person that was seven years
old.
Without current reason to think the suspect was at a residence, he showed the warrant to
an occupant who denied knowing the warrant subject but submitted to a search upon display of the
warrant. He searched the house. CCRB substantiated Charges, determining that there was no true
“consent” to the search. The Police Commissioner retained the case and ordered Training. He did
so on an assertion that no misconduct occurred.1448 Surely the Police Commissioner can order more
training for any officer, even one who has done nothing wrong. But when the Police Commissioner
decides that no misconduct occurred, it is paradoxical to say that discipline was ordered. In any
event, CCRB describes the outcome as retained with discipline. Detective
’s online
“Officer Profile” under “Disciplinary History” states that “[t]his officer does not have any
applicable entries.”1449
1447
A review of 28 cases retained in years 2016-2020 shows that penalty days were assessed
in only four cases.1450 Each of those “penalty” cases involved either force, a chokehold, or multiple
incidents and allegations separately prosecuted by the Department which were “wrapped up” by
combination.1451 Two cases were administratively closed when the officer separated from the
Department. Nine of the retained cases ended with Training. Five of the cases ended with an
“NDA” meaning that no disciplinary action was taken.1452 Four of the cases ended with an A-CD
which was accepted without penalty. All but the first four of the retained cases not only avoided
discipline, but also avoided, according to the disciplinary history in the Department’s online
profile, a record of formal Charges having been sustained by the Police Commissioner. In other
words, while CCRB or NYPD may note the proceedings, there is no disciplinary history for the
officer in the Department’s posted public record.1453
i.
Memo Exchanges Justifying a Retention to Avoid APU Prosecution
Despite the fact that the Rules and the MOU call for detailed explanations justifying
removal from APU prosecution, a review of the letter exchange between the Police Commissioner
and CCRB in 18 of these cases leads to the unfortunate conclusion that the correspondence from
NYPD is far from the detailed writing contemplated by the APU-MOU. A form letter without
analysis or content is the more usual response from the Police Commissioner’s office.
1447
Report on the Administrative Prosecution Unit (“APU”) First, Second, Third, and Fourth Quarters of 2020, at 22,
available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/prosecution_pdf/apu_quarterly_reports/05282021_AP
U2020.pdf.
1448
Id.
1449
NYPD Online, “Officer Profile,” available at https://nypdonline.org/link/2.
1450
Two cases were retained with Training, while receiving penalty days assessed in separate departmental
investigations. Two officers,
and
, separated from the Department when charged.
1451
This is an incomplete listing of outcomes in later years because some matters may still be open and unresolved.
1452
These cases are also written up as “DUP” Department Unable to Prosecute.
1453
In theory, the two officers who left the Department,
and
, should be named in NYS Division of
Criminal Justice Services decertification index. Executive Law § 845, 9 NYCRR 6056.2, available at
https://www.criminaljustice.ny.gov/Officer_Decertification htm.
336
For those who hoped for a meaningful exchange in the demand by the Police Commissioner
to remove a case from APU prosecution, a disheartening example would be the following exchange
in the case of Officer
.
Officer
was charged with violating Patrol Guide rules limiting the use of Tasers.
He was found to have pointed and threatened the use of a taser at a student in a school setting while
the student was already rear-cuffed. He was also charged with pointing and threatening use of the
taser at a group of other students. The Police Commissioner’s initial explanation for reducing
Charges to NDA was the following:
The Police Commissioner has reviewed the Civilian Complaint Review Board’s
recommendation for Charges/Specifications in connection with CCRB Case No.
as it pertains to P.O.
. Having analyzed the facts and
circumstances of this matter, the Police Commissioner has determined that to
pursue Charges/Specifications would be detrimental to the Police Department’s
disciplinary process.
P.O.
has no disciplinary history and no prior substantiated CCRB
complaints. Therefore, as provided for within the Memorandum of Understanding
between the Civilian Complaint Review Board and the Police Department, based
on the interests of justice, the Police Commissioner intends to retain the current
matter within the Police Department and take No Disciplinary Action against P.O.
.
While the form letter repeats the language of the MOU in conclusory terms, it says nothing
about the reasons for blocking CCRB prosecution in the instant case. Nor does it explain why the
Police Commissioner was imposing no discipline at all.
CCRB wrote in reply that Tasers, according to the Patrol Guide, should only be used
against persons who are actively resisting or exhibiting active aggression. In this case the video
footage shows the victim was merely attempting to de-escalate a situation. The response CCRB
received was:
The Police Commissioner has reviewed your letter . . . and considered the issues
you raised concerning the CCRB case involving P.O.
.
Notwithstanding the arguments expressed in your response letter, the Police
Commissioner maintains that it would be detrimental to the Police Department’s
disciplinary process to allow the Civilian Complaint Review Board to pursue
Charges/Specifications against P.O.
.
Therefore, the Police Commissioner affirms his decision to exercise Provision 2 of
the Memorandum of Understanding and to take No Disciplinary Action against
P.O.
regarding the allegations substantiated by the Civilian Complaint
Review Board.
It should be noted that P.O.
had six complaints filed against him from 2014 to
2019. While this case was the only one substantiated, the cluster of similar complaints in a fiveyear time span is troubling. One was for Discourtesy, but the remaining five were for excessive
337
force. All but one of them, including a Chokehold complaint, preceded the Police Commissioner’s
declaration that the officer has no disciplinary history.
The APU-MOU restricts retention to cases where the officer has no disciplinary history
and prosecution would be detrimental to the disciplinary process. Other than a simple rote
repetition of those two standard clauses, neither of the Police Commissioner’s writings comes
close to a “detailed explanation” for no discipline in this case. The failure to meet the expectations
of the MOU is more than a contract failure; it undermines the objective of creating an
understanding between civilians, CCRB, the Department and officers on the force as to why
CCRB’s findings were disregarded.1454
In sum, 15 cases were resolved with no formal discipline, and it remains unknown whether
any penalty was actually imposed in the other cases. It can be fairly said that the decision to retain
a case is, in most instances, likely to remove the case from any disciplinary penalty without the
benefit of an NYPD investigation or trial.1455
The Police Commissioner’s expansive reading of Provision Two manifests itself in several
ways: (1) an overly liberal view of “no disciplinary history”; (2) a disregard for adverse civil
litigation or repeated complaints indicating a pattern of abuse;1456 and (3) an unfortunate
downgrading of SQF violations. Invocation of Provision Two is somewhat puzzling and
unnecessary, since in the final analysis discipline after a DCT hearing or plea is still left to the
Police Commissioner’s unfettered discretion. It seems pointless to pre-judge a matter, by cutting
off a prosecution before all the facts are known and a recommendation has been made, when the
Police Commissioner, in the end, controls the final decision and the record of the proceedings.
Many of the retained cases were quite serious. One involved an officer who struck a
civilian 11 times with a baton while he was on the ground. Another involved the unnecessary
threatening of a group of students in school with a taser. A third case involved brandishing of a
firearm on a subway while seizing a subject for a minor subway infraction as he was seated next
to other passengers.1457 In another case, the officer intentionally deprived an epileptic of his
medication, resulting in a seizure.
The following are three case studies which may be useful in understanding the retention
process:
ii.
Case Study #1 - Sergeant
On September 11, 2015, a person (the “victim”) was removed by police from a subway
train for passing between cars. As he was being held at the platform by one officer, according to
1454
Departure letters may be sent to CCRB, but as explained within this Report, they are cursory at best.
1455
In CCRB’s quarterly reports to the Police Commissioner, a number of cases are listed as “retained with discipline,”
without further elaboration. In fact, almost all of the cases listed as “retained with discipline” were cases where
guidance, in the form of Instructions or Training were the ultimate disposition.
1456
, described earlier, is a useful case study for this purpose.
1457
As explained earlier, unless the firearm is cocked, aimed at the complainant, or there is a spoken threat of use, the
Department does not consider brandishing of a firearm as a use of force.
338
caused by CCRB’s investigation and subsequent review of DAO’s reconsideration request. The
remaining 12 months were the result of DAO’s failure or refusal to serve the Charges on the officer
as requested.
Training was ordered. Officer
attended 84 Training classes in the interval
between the Police Commissioner’s direction to take a Training class in Use of Force and October
23, 2019, when he, for the first time, attended a Training class entitled “Force Policy Update
Video.” None of the intervening classes were in Use of Force.
iii.
Case Study #2 - PO
History”?
: “No Prior Disciplinary
The APU-MOU provides that retention be used to avoid APU prosecutions only in cases
where “there are parallel or related criminal investigations, or when, in the case of an officer with
no disciplinary history or substantiated CCRB complaints, based on such officer’s record and
disciplinary history the interests of justice would not be served.”
One of the cases provided the Monitor Team involved an officer1461 found by CCRB to
have wrongfully used excessive force in March of 2015. In August of 2016, the Police
Commissioner retained the case and imposed no discipline. CCRB objected on the grounds that
the officer had a prior disciplinary history. At that time, the officer had been the subject of 23
prior CCRB complaints.1462 In addition, by 2016, the same officer had been a named defendant in
two federal civil rights actions. One of the cases, pending at the time, ended with a $341,000
judgment. (In all, the officer has been named in three separate federal civil rights lawsuits. One
suit, alleging illegal entry and search, was filed in 2010, ending in a $9,000 settlement in 2012. A
third case, filed in 2018, ended in a $45,000 judgment.)
The Police Commissioner asserted that the officer had no prior substantiated CCRB
complaints and, therefore, no disciplinary history as far as CCRB and the APU-MOU were
concerned. When CCRB pointed out to the Commissioner that the officer did, in fact, have another
complaint that had recently closed with a substantiation by CCRB,1463 the response was that “it is
the Police Commissioner’s position that a substantiation of the earlier allegation that post-dates
the matter at hand cannot be considered as a prior substantiated CCRB complaint within the
meaning of Provision Two of the MOU.”1464 Apparently, the Department’s narrow view of the
MOU and the Rules was that the phrase “no disciplinary history or prior substantiated CCRB
complaints” should be read to mean “no complaints substantiated by CCRB prior to commission
1461
1462
PO
.
New York Civil Liberties Union, “NYPD Misconduct
https://www.nyclu.org/en/campaigns/nypd-misconduct-database.
Complaint
Database,”
available
at
1463
At the time the Police Commissioner pulled the case, CCRB had substantiated an unrelated abuse case for an
illegal frisk in 2014. It apparently was the Commissioner’s position that an illegal frisk in 2014, substantiated in 2015,
could not be considered as a bar to a 2016 retention because the 2015 decision to substantiate occurred two months
after the illegal force misconduct in the instant case.
1464
Aug. 31, 2016 Letter to Ms. Mina Malik, ED CCRB, from Cecil A. Wade, Deputy Chief, Commanding Officer,
Police Commissioner’s Office.
340
of the misconduct charged in the instant case,” in effect erasing all meaning from the phrase “no
disciplinary history.”
This approach—discounting prior substantiated misconduct if the prior adjudication was
not finalized at the time of the later incident—is probably borrowed from the Penal Law, which
defines a second felony offender, for purposes of mandatory sentencing enhancement, as one who
was sentenced for a felony prior to the commission of the more current offense.1465 While that
particular rule of lenity may make sense in the criminal court, it is inappropriate in a disciplinary
structure for police misconduct. If a person has a prior substantiated allegation at the time the
Police Commissioner is considering an appropriate sanction for a second offense, ignoring the
prior substantiation is contrary to one of the stated goals in the City’s Collaborative plan:
“Identifying patterns and problems related to policies, Training, supervision, and institutional
performance rather than mere individual misconduct.”1466
CCRB does not have full access to the prior disciplinary history of an officer. Command
disciplines and IAB/FID/BIU/OCD histories are not shared at the point that the Police
Commissioner decides to retain a case. The fact that an officer might be on disciplinary probation
is not shared unless the case is handled by APU and Charges have been filed. CCRB does not
have access to prior substantiations that may have been sealed. As long as CCRB is forced to rely
solely on its own record of substantiations at CCRB, the promise of no NYPD retentions for
officers with a prior disciplinary history is empty.
iv.
Case Study #3 - PO
Repeated “Training”
- Wrongful Frisk Leads to
In July 2018, Officer
, along with three other officers, approached two
individuals sitting on a stoop in the Bronx. Both individuals were frisked without cause, one by
Officer
. At the time of the encounter, Officer
had been with the force for five
years. A video surveillance camera captured the event. CCRB recommended Charges and
Specifications.
currently has a record of thirteen CCRB complaints. The allegations
range from SQF misconduct to excessive force, to sexual misconduct and slurs, among others.1467
Ten of the complaints preceded the 2018 encounter, although none had been substantiated. A later
complaint of an illegal stop, filed in 2019, was substantiated and resulted in training. Officer
had previously attended five classes in Investigative Encounters.
Officer
was a named defendant in three civil lawsuits alleging false arrest and
wrongful assault/battery. All three were settled, in amounts of $77,500, $80,000, and $109,000,
respectively.
The Police Commissioner concurred with the finding that the frisk was illegal. Over CCRB
objection, the Police Commissioner retained the matter, directing that PO
receive an A1465
New York Consolidated Laws, Penal Law § 70.06.
1466
NYC Police Reform and Reinvention Collaborative Plan at 8. Adopted by the City Council Mar. 25, 2021, Intro.
Res. 1584/2021.
1467
CCRB has investigated ten force allegations, seven SQF/search allegations, and six discourtesy/slur allegations,
among others, made against this officer. Officer
was promoted to Detective on February 9, 2022.
341
CD without penalty, but with an opportunity to be trained in the area of investigative encounters—
for a sixth time.
C.
Charges, Non-APU Cases, Profiling Investigations, and Lawsuits Intertwined
The APU-MOU provides that a case may be retained either because a parallel criminal
investigation is underway or in the interest of the Department when the officer has no prior
disciplinary history. In 28 SQF and force cases reviewed for this Report where the Police
Commissioner retained a case, none were retained due to a pending criminal investigation. There
were three cases where the officer was the subject of multiple investigations both by CCRB and
IAB. In those three cases, it may have made sense for the charges to be combined for a global
settlement or decision. As well, when Charges are recommended, but multiple or concurrent
investigations are “in the air,” it is not unusual for matters to be resolved collectively. As will
discussed later, the interplay between civil litigation and disciplinary proceedings may eventuate
in cases being closed before final adjudication. Cases are not necessarily decided in independent
silos without regard to pending investigations or litigation in alternate forums.
The following is a case study in the inter-relationship between CCRB, IAB, and civil
matters that overlapped and undoubtedly impacted each other.
i.
An Unusual Case: Charges, a Trial, and Penalty Days for an
Unlawful Stop?
Two case histories involving Officer #1
, one describing an incident in 2017
and the other of an incident in 2019, follow for several reasons. Both encounters involve an
unlawful stop followed by wrongful punches to the face of a civilian by PO #1
. Although
separate incidents, to some extent, the processing of the cases overlap and intertwine.
One of the two case histories seems at first blush to be unusual because the two officers
accompanying PO #1
appear to have been penalized with three lost vacation days despite
the fact that the only substantiated allegations against them were for an unlawful stop. However,
these officers also faced allegations of an unlawful chokehold, an unlawful frisk, an unlawful
search, and failures to prepare stop reports. But the only substantiated allegations against PO #2
and PO #3
were the stop allegations. Because the two officers faced
formal disciplinary proceedings and forfeited penalty days for a single stop allegation standing
alone, a deeper dive into the case is worth exploring.
As it turns out, their wagons were hitched to fellow officers in the 75th Precinct. Five
officers in that precinct had a cluster of accusations of misconduct in interactions with civilians in
a concentrated time period. At times, they acted together, and at other times, they acted
independently. It is non-sensical to review one isolated illegal stop without also considering the
many filed complaints and claims for similar wrongdoing in a short time span.
In the four-year period from September 1, 2016, to August 18, 2020, the five officers were
the subject of forty investigations by CCRB, IAB/BIU, or pending lawsuits. In some cases, they
were alleged to have acted together. In others, the lawsuits were the cause of dropped disciplinary
investigations into the same conduct. Two encounters led to recommendations for Charges and
342
Specifications by CCRB. One went to trial and the other was administratively removed (without
a retention letter) by NYPD and settled informally.
Collectively, they had 26 complaints brought to CCRB, with 15 of them alleging wrongful
force, while the remainder were largely for SQF misconduct and discourtesy. There were four
profiling investigations and seven lawsuits for police misconduct, four of which have already
settled for substantial sums. Aside from the two investigations described below where CCRB
recommended Charges, only three allegations have been substantiated and none led to discipline.
Nonetheless, one cannot review the following histories without recognizing that the Department
and the precinct should do more than consider just one officer’s case in isolation
Charges: PO #1
- First Use of Force Substantiation
On Sept 27, 2017, the complainant (CW) was walking home from his job as a security
guard. Police Officer #1
, PO #2
, and PO #3
, in
plainclothes and an unmarked car, made a U-turn, approached CW and “surrounded” him. He was
asked, “What’s going on, what are you doing, where are you going?” CW started to reach into his
pocket to show identification. According to CW, he was grabbed. He “feared for his life” and ran
for one minute, then stopped and sank to his knees. Sgt. #1
caught up to CW and punched
him three times in the face. Officer #3
rear-cuffed him. They took his ID back to their car.
After determining that he was not armed, according to CW, he was told he could go as long as
didn’t “say the 75th Precinct or the police did this to me.” His eye was swollen and bruised.
The officers claim they saw “bulges inside one of his pants pockets.” The officers swore
that the approach at first was cordial, but CW refused to take his hands out of his pockets, shoved
them, then ran before they “collided” and he was brought to the ground and PO #3
handcuffed him. He had marijuana in his pocket. After weighing the evidence, the Trial
Commissioner concluded that the initial stop by all three officers was illegal, that Sgt. #1
did punch CW in the eye after a brief chase, but that Officers #2
and #3
were not
present when that occurred.
APU recommended three forfeited penalty days for PO #2
, seven days for PO #3
, and 18 days for PO #1
(15 days for the force allegation plus 3 days for the illegal
stop). To CCRB’s credit, the closing report acknowledged that prior allegations against PO #1
“reflect a pattern applicable in this case.” The report cited two prior force allegation and
one prior stop allegation, none of which had been substantiated. The 18-day recommendation was
adopted. As to PO #2
and #3
, the Trial Commissioner concluded that “recent
precedent shows that, for an unlawful stop alone, respondent typically forfeit three days” reducing
the time assessed to #3
from seven to three days and recommending three days for #2
as well. On November 21, 2019, Police Commissioner O’Neill approved the recommended
penalties. By the time the Police Commissioner accepted the 18-day penalty for PO #1
,
he had already been charged anew with another and similar Use of Force violation, once again
punching a suspect without cause. It is not certain, but probable, that the Police Commissioner
knew of the later Charges at the time he concurred with the Trial Commissioner’s
recommendation.
343
CCRB generated a spin-off referral to IAB for the claim that PO #4
touched CW2’s
1470
genitals during the strip search.
Discipline for PO #4
for the strip search was combined
with the IAB investigation regarding the wrongful touching of CW2’s genitals.1471
No aggravating or mitigating circumstances were found or cited by CCRB for any of the
three officers. At this point in time, the Charges recommended for PO #4
have not been
served. Instead, they were diverted by DAO as “Closed: previously adjudicated.”1472 As a
consequence of a parallel investigation by IAB, both PO #5
and #4
went
without penalty for FADO misconduct; they were warned and admonished. Charges and
Specifications were recommended for PO #1
, who received, instead, a B-CD and seven
penalty days.
Disciplinary History for PO #1
, #4
, #5
, #3
and #2
PO #1
has been with the Department for eight years. Fifteen CCRB complaints
have been filed against him, including the substantiated cases described above and a third
substantiated wrongful stop in 2020 for which he received an A-CD without further penalty.
Included in his CCRB history are eight separate complaints for wrongful use of force. His other
substantiated case was for discourtesy, for which he received an A-CD without discipline as well.
Yet another force complaint against him was “closed pending litigation,” but it is unclear to which
incident this complaint refers.
Three lawsuits were filed against PO #1
, all alleging wrongful use of force. The
suits have settled for $25,000, $28,500 and $75,000, respectively. The most recent settlement
($75,000) arose out of the CCRB substantiated incident with #5
and #4
, which
is awaiting final disposition by the Police Commissioner.
PO #4
has been with the Department for six years. Six CCRB complaints have
been lodged against him, two of which have been substantiated. In the first case he was given
Instructions for a refusal to identify. The second substantiated complaint is the one described
above.
PO #5
has been with the Department for five years. He has four prior CCRB
complaints in his history, two of which were substantiated. A lawsuit complaining of excessive
force is pending against him in the EDNY arising from an August 2018 incident. A use of force
and discourtesy complaint against him was closed pending litigation. It is unclear if the pending
litigation deferral refers to the pending 2018 EDNY case or if there is yet another case filed against
him.
PO #2
has been a police officer for eight years. Six CCRB complaints have been
filed against him, with one substantiation. Complaints in the past include three claims of excessive
1470
IAB #
.
1471
CCRB investigates strip searches as possible FADO misconduct. IAB investigates wrongful touching of genitalia.
PO #4
received no penalty for the CCRB substantiation. NYPD’s online posting of disciplinary history shows
no “applicable entry” for the portion of the encounter investigated by IAB.
1472
RMB response, “Data Request. New and Outstanding Discipline.nypd.11/1/21” matrix (Nov. 1, 2021).
345
force, including use of a chokehold, illegal frisks and a profiling charge which went
unsubstantiated. In October 2017, he settled a case alleging an illegal seizure and arrest for
$20,000.
PO #3
has been on the Force for nine years. He was promoted to Detective in June
2021. Beyond the illegal stop cited above, his record includes only two other CCRB complaints,
both for excessive force. Both cases were dropped for want of a cooperating witness.
It is worth noting the pattern of similar complaints against these five officers in the 75th
precinct over a brief four-year period. The list below includes just the complaints lodged against
these officers from 2016 to 2020, omitting any complaints outside of this date range, such as four
earlier CCRB cases against PO #1
.1473
9/1/16:
PO #2
o
9/13/16:
PO #2
1/3/17:
PO #2
7/15/17:
PO #3
9/1/17:
PO #4
o
o
o
o
9/7/17:
PO #1
o
9/21/17:
PO #1
o
9/27/17:
PO #1
o
PO # 2
o
PO # 3
o
10/18/17: PO #2
o
4/2/18:
PO #1
o
5/11/18:
PO #4
o
7/31/18:
PO #4
o
: Force, Chokehold
CCRB - unsubstantiated
: Profiling
CCRB - unsubstantiated
: Vehicle Stop, Refusal to Identify
CCRB - no c/w1474
: Force
CCRB - no c/w
: Profiling
IAB/BIU - unsubstantiated
: Force
Lawsuit EDNY - settled $25,000
: Stop, Refusal to Identify
CCRB - no c/w
: Stop, Force
Charges: APU trial - 18 penalty days
: Stop
Charges: APU trial - 3 penalty days
: Stop
Charges: APU trial - 3 penalty days
: False arrest
Lawsuit Kings Cnty. Sup. Ct. settled $20,000
: False arrest 14-year old girl witness
Lawsuit EDNY - settled $28,500
: Vehicle Stop
CCRB - no c/w
: Threaten arrest
CCRB - no c/w
1473
The date of the incident is listed for CCRB complaints and lawsuits, unless the matter was settled, in which case
the date of the settlement is used.
1474
“No c/w” indicates that a victim or necessary witness failed to cooperate, was unavailable, or withdrew a
complaint.
346
8/5/18:
PO #4
o
8/15/18:
PO #5
o
8/31/18:
PO #2
o
o
10/28/18: PO #4
o
o
11/18/18: PO #1
o
1/5/19:
PO #4
o
2/27/19:
PO #1
4/6/19:
PO #1
5/11/19:
PO #4
7/20/19:
PO #1
o
o
o
o
o
PO #2
o
o
7/31/19:
PO #1
o
o
o
PO #4
o
PO #5
o
8/10/19:
PO #1
o
PO #2
o
9/11/19:
PO #3
o
: Illegal entry, search, false arrest
Lawsuit EDNY open
: Lawsuit, Force, False Arrest
Lawsuit open
: Frisk, Question
CCRB - Frisk exonerated
CCRB - Question unsubstantiated
: Stop, RTKA
CCRB - RTKA substantiated Instructions1475
CCRB - Stop exonerated
: Profiling
IAB/BIU - unfounded
: Vehicle Stop
CCRB - unsubstantiated
: Force
CCRB - closed pending litigation
: Stop
CCRB - unsubstantiated
: RTKA, Question
CCRB - exonerated
: 12 allegations: (4 Force, Frisk, 5 discourtesy)
None substantiated except:
CCRB: 1 Discourtesy substantiated = A-CD with no penalty
: 2 Force, 1 Discourtesy
CCRB - unsubstantiated 1 Force, Discourtesy
CCRB - exonerate 1 Force
: 4 Force + 2 Discourtesy Allegations
CCRB - substantiated 1 force + 2 discourtesy
CCRB recommended a B-CD. Under the Guidelines,
Charges should have been drawn.
Police Commissioner has not acted upon the B-CD
recommendation.
: Force, Chokehold unsubstantiated,
CCRB - Stop/Strip Search substantiated
:
Stop substantiated = B-CD > reduced to an A-CD with
warning/admonishment
: Force
CCRB - no c/w
: Force
CCRB - no c/w
: Force
CCRB - no c/w
1475
“RTKA” indicates a failure to offer a business card or identify under the Right to Know Act, NYC Admin. Code
§14-174.
347
10/15/19: PO #5
o
o
1/24/20:
PO #1
o
2/13/20:
PO #1
2/13/20:
PO #1
o
o
PO #5
o
PO #5
o
4/28/20:
PO #5
8/18/20:
PO #1
o
o
10/17/20: PO #1
: Stop, Frisk, Search
CCRB - unsubstantiated
CCRB - RTKA failure substantiated
CCRB recommended A-CD
Police Commissioner departed to NDA.
: Force
CCRB - no c/w
: Vehicle stop, vehicle search
CCRB - no c/w
: Profiling
IAB - unsubstantiated
: Vehicle stop
CCRB - no c/w
: Profiling
IAB/BIU - unfounded
: Force, Discourtesy
CCRB - Closed pending litigation (8/15/18 incident)
& PO #4
:
Lawsuit (Kings Cnty. Sup. Ct.) arising from 7/31/19
incident, settled $75,000
: stop, RTKA - both substantiated - A-CD
Curiously, while the 2017 CCRB closing report identified a pattern of wrongful stops and
use of force, the 2019 CCRB closing report asserts that “PO [#1]
’s CCRB history does not
show a pattern pertinent to this investigation.” From 2014 to 2020, ten civilians have complained
to CCRB alleging PO #1
’s wrongful use of force, and he has been named in three lawsuits
alleging some sort of police misconduct. While it is true that only two force allegations have been
substantiated, none of the rest ended with exoneration or unfounded findings. A lengthy history
of multiple cases that were dropped because a complainant was not available after the complaint
was filed or CCRB investigations that are “closed pending litigation” is by no means a clear record
and should not be taken to indicate that such an officer has not demonstrated a “pattern pertinent
to this investigation.”
X.
DISCIPLINARY SYSTEM PENALTY GUIDELINES (Matrix)
A comprehensive disciplinary matrix “lists all of the various offenses for which a police
officer may be disciplined and then lists potential punishments for each offense, taking into
consideration the police officer’s past disciplinary record.”1476 A matrix has benefits for both the
community and officers. For the community, a matrix promotes transparency in the disciplinary
process and reduces the perception that outcomes are arbitrary. Academic research suggests that
“[a]dministering fair and consistent discipline is an important aspect of organizational justice and
1476
Udi Ofer, Getting it Right: Building Effective Civilian Review Boards to Oversee Police, 46 Seton Hall L. Rev.
1033, 1047 n.49 (2016).
348
citizenship . . . [which works to] reduce real or perceived workplace inequity and
discrimination.”1477
Several other large police departments have adopted a disciplinary matrix, either on their
own or spurred by litigation. Cleveland has guidelines as part of a consent decree with the
Department of Justice.1478 Denver has voluntarily adopted a Discipline Handbook with a matrix
dividing misconduct into six categories and assigning penalties to each.1479 The Los Angeles Police
Department has adopted guidelines by Administrative Order.1480 San Diego has a “Misconduct
Related Discipline Matrix.”1481
During the Joint Remedial Process, the Facilitator noted that multiple participants asked
for discipline guidelines to be drafted and that progressive discipline be imposed as a means of
holding officers accountable.1482 The facilitator was more specific, calling for an enumeration of
ranges of penalties, taking into account degrees of justification, and mitigating and aggravating
factors.1483
At first, the Department did not support the concept.1484 It responded,
[P]ublished discipline guidelines (i.e., a discipline ‘matrix’) are not the proper way
to ensure the equitable imposition of discipline as each case is fact-specific and
discipline relies on the consideration of a number of mitigating or aggravating
factors. Similar matrices in other jurisdictions have faced strong legal opposition
for violating collective bargaining laws and denying officers their due process
rights. Furthermore, the New York City Charter and Administrative Code gives
the Police Commissioner exclusive statutory authority over discipline. To create a
presumptive standard of discipline would divest him of the authority to make
decisions in each case based on the totality of the circumstances and eliminate his
ability to exercise discretion.1485
1477
See, e.g., Jon Shane, Police Employee Disciplinary Matrix: An Emerging Concept, 15(1) Police Quarterly 62, 64
(2012)
1478
United State v. City of Cleveland, No 15-cv-1046 (N.D. Ohio Jan. 10, 2018). The matrix separates discipline from
corrective actions and forbids substituting corrective actions in place of discipline. Instruction and Training are “NonDisciplinary Actions.”
1479
Denver Police Department Discipline Handbook: Conduct Principles and Disciplinary Guidelines 16-17 (May 3,
2018).
1480
LAPD Administrative Order No. 15 (Sept. 15, 2016).
1481
SDPD Misconduct Related Discipline Matrix, available at https://www.sandiego.gov/sites/default/files/miscond
uctrelateddisciplinematrix.pdf.
1482
See, e.g., JRP at 24, 161, 224, ECF Doc. No. 597 (May 15, 2018). .
1483
Id. at 65.
1484
Subsequently the Department has embraced the concept of Guidelines.
1485
The Way Forward - The NYPD’s Response to the Joint Remedial Process Report, ECF Doc. No. 603, at 9 (June
8, 2018).
349
Almost simultaneous with the JRP, CCRB began a pilot program to test a “Disciplinary
Framework.” The Board said that the Framework was “in response to Board member concerns
about having no formal guidelines.” A review of past recommendations showed wide-ranging
variations in CCRB recommendations following substantiation:1486
A.
CCRB’s Framework for Charges and Specification Cases
In 2018, CCRB began a pilot program to test a “Disciplinary Framework.” The Board said
that the Framework was “in response to Board member concerns about having no formal
guidelines” for determining what cases should be recommended for Charges and Specifications.
A review of past recommendations showed wide-ranging variations in CCRB recommendations
following substantiation:1487
The Board tested the Framework in July 2018 and seven months later adopted the plan.
The Framework consisted of three tiers of analysis: First, the panel would look at: (1) “Allegation
Type;” then (2) “MOS History;” and finally (3) “Case Totality.”1488 The main focus of CCRB’s
1486
A Framework for Discipline Recommendations: August 2018 Board Meeting, available at https://www1 nyc.go
v/assets/ccrb/downloads/pdf/about_pdf/board/20180808_disciplineframework_presentation.pdf. The presentation
did not define the category “No Recommendations.”
1487
Id. The presentation did not define the category “No Recommendations.”
1488
Memorandum Accompanying August 8, 2018 Public Presentation of CCRB’s Disciplinary Framework, available
at https://www1.nyc.gov/assets/ccrb/downloads/pdf/about_pdf/board/20180808_disciplinaryframework_memo.pdf.
350
Framework was to standardize the dividing line between formal and informal discipline, i.e., when
should a panel recommend Charges and Specifications.
In assessing Allegation Type, the Framework identified Chokeholds, Strip Searches,
Warrantless Entries, Slurs, Force with Serious Injury and Sexual Misconduct as cases for which
charges would be the presumptive recommendation. If the case was not in one of those categories,
the “next level of analysis” is MOS History. There, CCRB would look at rank, years of service,
Command and prior CCRB allegations of misconduct (e.g., the member had previously been
substantiated for similar misconduct) to assess whether or not the case should be recommended
for charges. The final factor, Case Totality, would look to “egregious” cases to enhance a
recommended punishment, but could also be used to reduce a recommendation.
The Framework had little applicability to SQF misconduct. Since illegal stops, frisks, and
searches were not considered serious enough to be included in the “Allegation Type” category,
and such complaints would only result in charges under the Framework if factors reviewed under
MOS History or Case Totality elevated the discipline recommendation.
B.
Disciplinary System Penalty Guidelines
On July 15, 2020, seven weeks after the death of George Floyd, Mayor de Blasio signed
into law Administrative Code § 14-186, which required a disciplinary matrix to be adopted and
posted for the NYPD.1489 The Department was given six months to develop and publicize the new
guidelines. Commencing in January 2022, an annual report is to be posted on the NYPD website
listing the “number and percentage of instances” when the Police Commissioner deviated from the
matrix.
The Department has posted two tables: one for 2021 and one for 2022. Unfortunately, the
posting lists “cases” and “respondents” without further explanation. Presumably, in a departure
from customary and past practices, “cases” seems to apply to investigations and “respondents”
seems to list individual determinations by officer, or what has hitherto been denominated as a
“case.” In any event, the tables are as follows:1490
In 2021 there were 6 of 431 cases with a deviation, which meant there were 7 of 488
deviations for officers under investigation. In 2022 there were 4 of 417 cases with a deviation,
which meant there were 5 of 491 deviations for officers under investigation.
“Deviations” are to be distinguished from “Departures.” The former refers to cases where
the Police Commissioner went outside the range of penalty permitted by the Matrix. “Departure”
refers to a case where the Police Commissioner has imposed a different level of discipline (usually
a downward departure) from that recommended by CCRB. As of October 10, 2023, CCRB has
posted 206 departure letters received in 2020-2021, but that is not a true measure of the number of
1489
Local Law 69 of 2020.
1490
Available at https://www nyc.gov/assets/nypd/downloads/pdf/public_information/cy-2021-disciplinary-matrixdeviations-by-the-police-commissioner.pdf.
351
cases where a departure may have occurred since there is a time lag between the timing of a
departure and the posting of a letter from the Police Commissioner on the website.
The “internal disciplinary matrix” is to set forth mitigating and aggravating circumstances,
or any other factors considered by the commissioner to be relevant.
On August 30, 2020, a first draft of a Matrix was published for comment. CCRB held a
public hearing on September 9, 2020, eliciting comments on the first draft.1491 Common themes of
criticism were:
Inappropriate Legal Standards: Community members objected to the use of an
“objectively reasonable mistake of fact or law” standard to avoid penalties, since that
standard is regularly associated with qualified immunity. In the area of SQF, it was
argued, this measure would wrongly conflate civil liability protections with misconduct
assessments for Fourth Amendment violations. (This theme is of extreme importance
in SQF hearings, since “good faith” mistakes in law and facts are commonly used to
justify or mitigate wrongful stops.)
Force Analysis: The draft weighted misconduct by the consequent injury to the
complainant. Critics contended that discipline should be based upon the wrongful act
of the subject officer and not graded on the extent of injury.
Aggravating/Mitigating Factors: Members of the public objected that the factors
were too vague and subjective. In particular, they argued that merely being truthful
when interviewed or having no prior disciplinary history should not be grounds for
mitigation from a presumptive penalty. Rather, the presumptive penalty should be for
applied to truthful first offenders.
Compliance with BWC Requirements: It was argued that presumptive penalties for
BWC failures should receive stiffer penalties than proposed and that the lenient
penalties in the proposed Matrix would fail to generate meaningful compliance with
the BWC program.
The CCRB listed other issues which, in the judgment of the Board, would need to be resolved or
were in need of “clarification.”
CCRB will need a “complete employment history” to fully evaluate aggravating and
mitigating factors.
Reasons for why the proposed Matrix discipline for excessive force should not lead to
presumptive termination.
Detailed explanation for when “justification” in the use of force would avoid discipline.
Better recognition of violations of the Right to Know Act and use of “consent” for
searches.
Availability of deviations should be constrained.
“Training” as a penalty should be detailed and specific.
1491
Sept. 9, 2020, CCRB Letter to Police Commissioner Shea, available at https://www1 nyc.gov/assets/ccrb/downlo
ads/pdf/about_pdf/NYPDMatrix_Response_Testimony_09302020.pdf.
352
Clearer specification for when penalties for multiple substantiated allegations will run
concurrently or consecutively.
In addition to comments collected by CCRB, the Department received 439 relevant
comments during the comment period—August 31, 2020, to October 5, 2020. The Department
summarized the comments as follows:1492
Too much discretion rests with the Police Commissioner.
The Guidelines are too confusing and include too many legal principles.
The aggravating and mitigating factors are too subjective, too vague, contain too many
loopholes, perpetuate stereotypes, and can be used to justify any outcome.
Penalties are not severe enough generally or otherwise incongruous (e.g., termination
for marihuana use or petit larceny but not for excessive force).
Penalties are too severe and will discourage cops from doing their job/cause them to
retire.
Termination should be the presumptive penalty for any use of excessive force
(including failing to intervene/report/obtain medical aid) or any prohibited use of force
in the Patrol Guide
Penalties for excessive use of force should be based upon the nature of the misconduct
and not the manner in which the act is carried out and/or the outcome. Consideration
of outcomes (e.g., nature of force used, injury sustained, etc.) should be deferred to the
application of aggravating and mitigating factors.
Termination should be the presumptive penalty for any violation of law (e.g., DWI,
failure to offer a business card under the Right to Know Act, Fourth Amendment
violation, etc.)
The Guidelines are too detailed with respect to distinctions between bad acts.
The Guidelines are not detailed enough, all violations of the Right to Know Act and
specific acts of force (e.g., CEW use) should be listed.
Forfeiting vacation time should not be a penalty. Suspension without pay should be
the penalty unless termination applies.
The penalties for body-worn camera policy violations are too low.
The PBA opposed the entire concept. As one news outlet reported, “Police union head
says new NYPD disciplinary guidelines, which would standardize punishments for misconduct,
have ‘nothing to do with fairness.’”1493
Shortly thereafter, the draft was revised and a set of “Disciplinary System Penalty
Guidelines” were put into effect on January 15, 2021.1494 The Department listed 20 changes from
1492
Available at https://www1 nyc.gov/site/nypd/about/about-nypd/policy/response-to-public-comments.page.
1493
John Annese & Graham Rayman, Police union head says new NYPD disciplinary guidelines, which would
standardize punishments for misconduct, have ‘nothing to do with fairness,’ N.Y. Daily News (Aug. 31, 2020),
available at https://www.nydailynews.com/new-york/nyc-crime/ny-nypd-disciplinary-cases-police-union-202008315nrongs73jd45fzfsu2q3lqdz4-story html.
1494
Available at https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/disciplinary-system-penaltyguidelines-effective-01-15-2021-compete-.pdf.
353
the first draft that were made in response to public comments. Without enumerating all, some
significant changes were made:1495
Detailing a system for calculating progressive discipline, i.e., added available penalties
for repeated misconduct.
Eliminating consideration of an officer’s lack of prior disciplinary history as a
mitigating factor.
Eliminating use of the term “objectively reasonable mistake of fact or law” in
measuring Stop and Frisk misconduct.
Clarifying that deviations from presumptive penalties or departures from the
Guidelines will be explained, listing factors that were considered.
Finally, in recognition that “recent precedent” regarding penalties for FADO had been too
low, the Department increased presumptive penalties for FADO violations “to ensure that penalties
for public contact offenses are commensurate with the penalties for internal rule violations.”
However, it noted that the “increased” penalties were “particularly in the areas of use of excessive
force.”1496
Immediately after publication of the revised Guidelines, CCRB, by resolution, committed
to utilizing the Discipline Matrix beginning February 1, 2021 “on a trial basis, for a period of one
year, as the non-binding framework for its discipline recommendations in all CCRB cases.” On
February 4, 2021, a Matrix-MOU was signed by Rev. Fred Davie, CCRB Chair; and Police
Commissioner Dermot Shea, implementing an agreement for CCRB to abide by the new Matrix.
C.
Explanation of the Guidelines as Adopted January 15, 2021
The Guidelines are contained within a 54-page document.1497 The general design is to fold
all punishable misconduct into ten broadly defined sections:
1495
Id.
1496
Id.
Conduct Constituting a Crime1498
Excessive Force (F)
Abuse, Discourtesy, Offensive Language (ADO)1499
1497
Disciplinary System Penalty Guidelines, available at https://www1 nyc.gov/site/nypd/about/about-nypd/publiccomment.page.
1498
Public Officers Law § 30 requires automatic termination upon conviction of a number of crimes related to holding
of office. As such, the Matrix provides for termination as a presumptive penalty. Forced Separation is allowed, if
mitigated, for theft-related convictions and in cases where no conviction has occurred, but where the Police
. Article V, Section 7 of
Commissioner finds that the officer engaged in criminal conduct nonetheless, e.g.,
the NYS Constitution permits forfeiture of vested pension rights when a public officer is convicted of a felony related
to his office. However, that provision, adopted in 2018, does not apply to NYPD officers beyond the Police
Commissioner. Consequently, unlike most other public officers in the State, neither termination nor forced separation
carries an automatic threat to pension rights for almost all NYPD officers.
1499
Hereinafter, when referring to the Guidelines, the Report will use “ADO,” as used in the Guidelines to distinguish
the Abuse of Authority section of the Guidelines from the Use of Force section of the Guidelines.
354
False, Misleading and Inaccurate Statements
Domestic Violence
Intoxication-Related Misconduct
Firearm-Related Incidents
Controlled Substances
Departmental Rules and Regulations Which are Subject to Formal Discipline1500
Off-Duty Misconduct
Within each section there is a list of acts of misconduct falling within the broader category.
Most relevant to Floyd, the Abuse of Authority column contains 28 subsections describing
misconduct with an associated range of penalties. Pertinent to SQF, among the 28 are:1501
Stop of a Person
Frisk of a Person
Search/Seizure of a Person
Strip Search
Enforcement Action with Abuse of Authority or Discretion
Failure to Process a Civilian Complaint
Retaliatory Action for Making a Complaint
Failure/Refusal to Identify (name or shield)
RTKA Failure/Refusal
Failure to Comply with Consent to Search Requirements
Interference with Recording
Deleting Recording
Discourtesy
Offensive Language (slur)
Local Law 69 requires a semi-annual review of the Guidelines. Some adjustments have
been made in the interim. For example, a change made recently corrected for the absence of any
reference to unconstitutional questioning in the Matrix, by adding a box for “Improper/Wrongful
Stop and Question or Question of a Person.” Illegal questioning will carry the same penalty as an
illegal stop or an illegal stop with questioning. There will not be a separate penalty assessment if
an illegal stop also includes illegal questioning; it will be considered one act of misconduct.1502
1500
While Charges and Specifications may be pursued for items in this category, the determination is left to the DAO.
For example, BWC misconduct is included in this category, but the presumptive penalties range from training to three
penalty days.
1501
Disciplinary System Penalty Guidelines at 25-6. For the sake of brevity, the titles used here are shortened versions
of the description of misconduct contained within the Matrix. All 28 are not listed.
1502
“Proposed Revisions to NYPD Disciplinary System Penalty Guidelines” at 4, available at
https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/nypd-discipline-guidelines-proposedrevisions-public-comments-2021-11-05.pdf. In the only case involving unconstitutional questioning that was
provided to the Monitor since the adoption of the Matrix, an officer was found to have stopped and questioned the
complainant without cause while his partner frisked, searched, handcuffed, threatened arrest, and detained him for ten
minutes. The officer, PO
, had eight previous complaints filed with CCRB, including allegations of
355
For each offense listed there are three columns. There is a “Presumptive Penalty,” a
“Mitigated Penalty,” and an “Aggravated Penalty.” The presumptive penalty for an illegal stop or
frisk is three penalty days. If this, in fact, were imposed, and it would apply to first offenders as
promised, it would be an increase in accountability for SQF misbehavior. The mitigated penalty
for SQF allegations is Training.
The following is an abridged listing of Matrix penalties for misconduct of importance to
Floyd contained in the “ADO” section:
Aggravated
Penalty
Misconduct
Mitigated Penalty
Presumptive Penalty
Stop of Person
Training
3 Penalty Days
Frisk of Person
Training
3 Penalty Days
Search/Seizure of Person
Training
3 Penalty Days
Strip Search (Procedural)
5 Penalty Days
10 Penalty Days
20 Penalty Days
20 Suspension Days
+Dismissal Probation
Termination
10 Penalty Days
20 Penalty Days
Termination
5 Penalty Days
10 Penalty Days
20 Penalty
Days
20 Penalty Days
30 Penalty Days
40 Penalty
Days
Training
3 Penalty Days
5 Penalty Days
Training
3 Penalty Days
5 Penalty Days
Training
3 Penalty Days
5 Penalty Days
20 Penalty Days
30 Penalty Days +
Dismissal Probation
Termination
Strip Search
(unauthorized/unwarranted)
Wrongful Enforcement
Abusive/Unauthorized
Failure to Process a Civilian
Complaint
Retaliatory Action for
Making a Civilian
Complaint
Failure/Refusal to Identify
Shield or Name
Failure/Refusal RTKA1503
Business Card
Failure - Consent to Search
under RTKA
Deletion of Information
from Recording Device
15 Penalty
Days
15 Penalty
Days
15 Penalty
Days
20 Penalty
Days
improper use of pepper spray, force, gun drawn, and discourtesy. None had been substantiated. The Police
Commissioner wrote a Departure Letter (see discussion below) explaining that he would impose discipline of an ACD and forfeiture of three days. The Departure Letter claimed that CCRB had recommended a B-CD. This was
because CCRB had recommended an A-CD for separate allegations: the stop and the question. If a presumptive
penalty of three days each was applied, the aggregate recommendation would be a B-CD with a penalty of six days.
The Police Commissioner departed by consolidating the accusations and imposing a three-day penalty for an A-CD.
The Department viewed the stop and question as part of the same act and thus only justifying one three-day penalty.
1503
Right to Know Act.
356
Interfere with
Recording/Device
10 Penalty Days
20 Penalty Days
Discourtesy
1 Penalty Day
5 Penalty Days
Offensive Language
(Slur)
10 Penalty Days
20 Penalty Days
30 Penalty
Days
10 Penalty
Days
Termination
In theory, the ranges are based on precedent. The ranges permitted by mitigation and
aggravation are so broad in most columns that it is hard to argue with that assertion. But one
significant problem with basing penalty ranges on precedent is that in the past, multiple allegations
in one complaint would be consolidated, with one penalty or guidance or NDA imposed for the
entire complaint. In contrast, the plan for the Matrix is that each substantiated allegation will be
assigned a penalty within the grid unless deviation is called for and explained. For example, in
the past if a wrongful frisk was accompanied by a punch and the officer received a 15-day penalty,
it is not possible to isolate the penalty ascribed to the frisk. As such, ascertaining “precedent”
becomes a murky.
The Matrix consists of a set of value judgments that the Police Commissioner is entitled to
make, regardless of precedent. On the surface, one could still ask why simple Discourtesy (without
Offensive Language) rates a harsher set of penalties than an illegal frisk. Similarly, why is
interference with a recording treated at an order of magnitude with more seriousness than
unconstitutional invasions? The litany of potential questions is limitless, and one must assume
wrinkles will be ironed out over time.
An indicator of the value the Guidelines attach to Fourth Amendment compliance is the
level of available penalties for SQF-related misconduct in comparison to all other offenses. Of
approximately 166 listed acts of on-duty misconduct in the Guidelines, the lowest range of
penalties1504 are reserved for stop/frisk/search related violations. The only violations with lower
penalties are wrongful “removal to a medical facility without consent or public health need” and
unintentional or negligent violations of rules regarding body-worn camera deployment. All other
listed violations have a higher presumptive penalty and/or a higher aggravated penalty. The only
offenses which may be mitigated to Training are the 11 related to stop/frisk/search, unintentional
BWC violations, or Right to Know Act violations.1505 Items such as Misuse of Computer, Email
or Mobile Digital Devices, Using Department Letterhead of Non-Official Purpose, and Failing to
Utilize a Holster, are just a few examples of offenses that carry a higher minimum penalty and/or
a higher presumptive or aggravated penalty than offenses related to search and seizure.1506
1504
As used here, “range of penalties” includes a look at the entire range from mitigation to aggravation.
1505
Portions of the RTKA are incorporated by Court order in Patrol Guide § 212-11. Neither Los Angeles nor Denver
allow training for Detention-related violations, even when mitigated. Both draw a distinction between disciplinary
measures and corrective actions, such as training.
1506
For comparison, “Detaining a person without legal justification” in the Los Angeles matrix requires discipline by
way of an official reprimand or 1 to 5 penalty days at a minimum for first offenders, 11 to 15 days for second offenders
and termination for a third offense. http://lapd-assets.lapdonline.org/assets/pdf/AO_15.pdf.
357
D.
Is the Matrix Consistent with the Court-Approved Patrol Guide?
At least one matter is of immediate concern given the Court’s prior rulings in Floyd. Patrol
Guide § 212.11 provides:
Minor or inadvertent mistakes in documentation or isolated cases of erroneous but
good-faith stops or frisks by members of the service should ordinarily be addressed
through instruction and training. In most instances, instruction and Training should
be accomplished at the command level. The application of the law in this area can
be complicated, and investigative encounters are fluid situations in which one event
or observation can alter the level of suspicion or danger. A single erroneous
judgment will not generally warrant referral to the Legal Bureau for retraining.
However, members of the service who evince a lack of comprehension of the core
concepts of the law governing this procedure should be referred to the Legal
Bureau.1507
In the past, dispositions of Training and Instructions were regularly meted out without
explanation or evidence that the misconduct was isolated, erroneous, or done in good faith. The
Matrix permits a mitigated penalty of Training. The important question to be answered is whether
guidance rather than discipline will be imposed by finding mitigation in a manner which is broader
than the Court-approved Patrol Guide. Will training rather than penalty days be invoked for a
large number of cases, as in the past, where there is no finding that the unconstitutional behavior
was isolated, erroneous, and in good faith as specified by the Court-approved policy?
Thus far, NYPD has posted in its “Deviation Letter Library”1508 some explanations for
imposing lesser discipline than allowed in the Matrix for a wide variety of misconduct, i.e.,
guidance or discipline below an allowable mitigated penalty.1509 Only ten encounters are
explained.1510 One of the letters—that of PO
—is presented below as a case study.
Just as with the penalty departure letters criticized by the Independent Panel, the Deviation letters
are conclusory. They present, in abbreviated terms, the Police Commissioner’s view of the facts—
without discussing prior disciplinary history, the factual findings of CCRB, the factors used in
deviating from the Matrix, and/or precedent upon which the decision was made.
E.
Mitigation and Aggravation
A critical aspect of the Matrix is the deployment of mitigating and aggravating factors. If
either set of factors is routinely used to avoid a presumptive penalty, then the “presumption” carries
little meaning. The Matrix offers “Factors” to be considered in departure from the presumption in
1507
Floyd, No. 08-cv-1034, Doc. No. 527 (Mar. 25, 2016).
1508
Available at https://nypdonline.org/link/1035 (last visited Apr. 14, 2022).
1509
Departure Letters, sent to CCRB when the Police Commissioner imposes a penalty below that recommended by
CCRB, discussed below, are posted at https://www.nyc.gov/site/ccrb/complaints/redacted-departure-letter.page.
1510
One case is posted, that of Sgt.
, is posted without an accompanying letter. See CCRB’s History of
Active NYPD Officers as of Dec. 19, 2021, available at https://www1.nyc.gov/site/ccrb/policy/MOS-records.page.
. The remaining six postings, two with
There were no allegations substantiated by CCRB against Sgt.
multiple officers, describe deviations in a total of four complaints.
358
two places. One set is applicable to the entire grid, and a second set is added for each section
within the Matrix. For example, the Matrix has a generalized listing of 14 “Potential Mitigating
Factors” and 18 “Potential Aggravating Factors” that may be used in any case being reviewed by
CCRB and the Police Commissioner. After that, for the Abuse, Discourtesy, and Offensive
Language section (ADO), the Matrix sets out 7 “Additional Potential Mitigating Factors” and 13
“Additional Potential Aggravating Factors.”
Since training is the allowable “Mitigated Penalty” for all wrongful SQF behavior in the
ADO section,1511 the Police Commissioner has freedom to remain within the Guidelines without
imposing discipline for SQF misconduct. Training is available at all times for these offenses—not
just for isolated errors as described in the Patrol Guide—upon a finding of mitigating factors,
which is broadly defined.
There is no rule of thumb by which the amount or degree of departure is to be calculated.
Any Factor in the list of twenty-one may be cause for reduction of a penalty from presumptive to
the minimum. If the presumed penalty for a bad frisk is three days, that implies that an A-CD will
be the level of discipline. By finding mitigation, the Police Commissioner can impose training
without a command discipline, thereby reducing both the penalty (three days) and the level of
discipline (A-CD). 1512
Nor is there any formula by which mitigating and aggravating factors are to be calculated
or balanced against each other. If the matter implicates a “complex” legal analysis (a mitigating
factor) but resulted in “significant interference” with the complainant (an aggravating factor), how
are the competing factors to be weighed? That is left to the Police Commissioner without requiring
further explication of how he or she resolved the conflict.
The Matrix-MOU requires CCRB to “put in writing . . . any aggravated and or mitigating
factors applied and a description of how those factors were applied .”1513 This is a one-sided
agreement. The Police Commissioner is not required to do the same in the ordinary case. He need
not put in writing the factors he considered as long as he “accepts” CCRB’s recommendation. This
can, and probably will, lead to the same uninformative reports and low level of discipline for SQF
cases as has occurred in the past. For example, CCRB may recommend an A-CD for a bad frisk,
which carries a presumed penalty of three forfeited days. But the Police Commissioner may then
dispose of the case with an “A-CD accepted” but impose no further penalty or guidance. CCRB
1511
Stops, Frisks, Vehicle Stops, Search of Person, Search of Property, Seizure of Person, Seizure of Property,
“Incidental” Search of Premises, Failure or Refusal to Identify, Failure or Refusal to Comply with RTKA including
Consent to Search, and wrongful Removal to a Medical Facility without Consent or Public Health.
1512
The NYC Charter requires a “detailed explanation” from the Police Commissioner whenever he imposes a “penalty
OR level of discipline” other than that recommended by CCRB. §440(d)(3) (emphasis supplied).
1513
Matrix-MOU at 3, ¶¶ 2, 3. There are a variety of requirements for documentation of variances from
recommendations or the Matrix, all discussed below.
359
is not advised that the presumed three-day penalty was not imposed. Both sides will then claim
that the Police Commissioner “concurred” with CCRB’s recommendation.1514
In such a case, any aggravating or mitigating factors found by CCRB will remain in private
correspondence with the Police Commissioner since CCRB’s explanation of factors considered in
its recommendation is not public. The Police Commissioner need not explain to CCRB, the
complainant, or the public why no penalty was imposed since the Police Commissioner is not
required, in a case of concurrence, to explain anything.
If the Police Commissioner decides to impose a lower penalty or lower level of discipline
than that recommended by CCRB, the PC is required by the Charter to advise CCRB within 45
days after discipline has been reduced. In that writing, the Commissioner is to explain how the
outcome was determined and the reasons for doing so, along with an explanation of each factor
the Police Commissioner considered.1515 Logically, the writing required by the Charter, if
followed, would acknowledge whatever aggravating and mitigating factors were considered by the
CCRB and list the factors the Police Commissioner accepted or rejected. As things stand, however,
there is no guarantee that this will occur, since the Charter does not reference the Matrix and does
not require analysis of the aggravating and mitigating factors recommended by CCRB.
The Charter also does not require the letter to be published when the Commissioner departs
from CCRB’s recommendation. The Police Commissioner has committed, in the Disciplinary
Matrix, to “notify the CCRB . . . pursuant to the process specified in the 2012 [APU] MOU between
the NYPD and the CCRB and to make the written determination publicly available.”1516 But the
Commissioner’s commitment is limited, as the APU-MOU only calls for an explanation in APU
cases.1517 Accordingly, the Matrix-MOU, when read together with the APU-MOU, does not
necessarily require a public explanation in non-APU cases or SQF violations. As this new process
takes shape, it will be of particular interest to the Floyd litigation to see if the Police Commissioner
provides a detailed explanation in public of aggravating and mitigating factors considered or
rejected when the Police Commissioner imposes a level of discipline or penalty lower than that
recommended by CCRB in non-APU cases.1518
1514
Panels do not recommend a specific number of penalty days. If a case is prosecuted by APU, the APU attorney
may negotiate a plea for a specific number of days or hours. If a DCT Trial Commissioner finds a subject officer
guilty, the APU attorney who prosecuted the case may recommend a specific penalty as well.
1515
NYC Charter § 440 d)(3).
1516
Matrix-MOU ¶ 8.
1517
Even for APU cases, the language in the Matrix-MOU is ambiguous. It promises the “written determination” will
be publicly available. The Police Commissioner can fulfill that obligation by merely posting the final disposition
without the “detailed explanation” of the reasons for departure being posted.
1518
CCRB has begun to post departure letters it receives online. See https://www nyc.gov/site/ccrb/complaints/redac
ted-departure-letter.page. The Police Commissioner at first began to post deviation letters (where the penalty imposed
by the Police Commissioner is outside the range authorized by the Matrix). Deviation Letter Library, available at
https://oip nypdonline.org/view/1009///%7B%22hideMobileMenu%22:true%7D/true/true.
There are only 14
deviation letters posted over the period from June 2021 to June 2023. Many departures are also deviations. It appears
that a deviation letter is not written, even if the penalty is outside the guidelines, if a departure letter is written and
sent to CCRB.
360
i.
Mitigation Factors
Looking broadly at the 21 Mitigating Factors the Police Commissioner may use in SQF
cases, they fall into three general categories: Personal, Legal, and Factual.
“Personal” mitigating factors are those where the Police Commissioner excuses or
mitigates based on the personnel record of the subject officer.
“Legal” issues are those where CCRB and the Police Commissioner agree on the facts
but disagree over whether the actions constitute a violation of the applicable law or
rule.
“Factual” issues are those where the Police Commissioner makes his own findings of
fact which may or may not agree with those made by CCRB.
ii.
Personal History in Mitigation
As mentioned throughout this Report, CCRB’s access to officers’ personnel histories is
extremely limited, despite the fact that the Matrix-MOU requires CCRB to “take into account . . .
the NYPD employment history and any other relevant information.”1519 If CCRB had all the
information available to it that is available to IAB, DAO, or the Police Commissioner, it would
know of all internal misconduct allegations as well as the performance record of the subject officer.
As just some examples discussed earlier, DAO has the ability to look at prior investigations by
IAB, OCD, BIU, and local Command investigations, whether substantiated or not. DAO can find
out whether or not discipline had been meted out in the precinct for command discipline matters
or as a consequence of stop/frisk audits. DAO or the Police Commissioner will know of
performance ratings, and can see the CPI, CORD reports, PPR, PERF reports, pending litigation,
precinct conditions, probation, interventions, litigation, etc.
In contrast, CCRB investigators and panels do not get the full disciplinary or personnel
history of an officer. During the investigation phase they rely upon their own limited internal
history. If there is a request for reconsideration (which are becoming nearly non-existent), DAO
will share some history of substantiated formal discipline.1520 When Charges and Specifications
have been decided, DAO traditionally handed a Summary of Employment History (SEH) to the
APU prosecutor. Again, this is a limited report that does not contain all the information available
to DAO. APU is not advised of command discipline penalties or unsubstantiated cases even if
they involved allegations of false statements, racial profiling or corruption.
1519
Matrix-MOU ¶¶ 3-4.
1520
In response to an inquiry put to RMB and IAB, dated April 16, 2020, the Monitor Team was advised that “DAO
looks at the complete disciplinary history when considering a penalty recommendation, including A-CD history and
history of dismissal probation . . . During the course of an investigation, CCRB does not get any other information
besides the CCRB history. Once they substantiate a case, if we ask for reconsideration, the reconsideration memo will
include all disciplinary history, including Dismissal probation. If it is an APU case and APU is prosecuting, APU will
be made aware of the Dismissal Probation and the disciplinary history.” The disciplinary history referred to here is
for formal discipline and substantiated (non-CCRB) A-CDs in the CPI.
361
The Matrix-MOU provides that the CCRB panel will be given access to a subject’s
“Employment History” only if a CCRB investigator has first completed the investigation and
recommends that an allegation be substantiated. In this context,
“[E]mployment history” refers to a document which was previously supplied by the
NYPD to the CCRB in cases where CCRB’s Administrative Prosecution Unit
handled the prosecution of substantiated allegations resulting in Charges and
Specifications.1521
In other words, under the new Matrix-MOU, CCRB will continue to receive the same
information as it had in the past for APU cases, which was delayed and limited. Upon
substantiation, CCRB may send an e-mail request to the Department for the available SEH. NYPD
then has twenty business days to respond. At this time, with the Matrix, APU can request CORD
reports and a Disciplinary Cover Sheet (DCS).
The MOU provides that CCRB is prohibited from disclosing any of the employment history
or disciplinary records it receives from NYPD without first notifying the NYPD Legal Bureau.
NYPD reserves the right to withhold or redact information under applicable FOIL limitations,
discussed above. Given the City’s posture in UFO v. de Blasio, A-CDs, even when substantiated,
are “technical violations” which are not discoverable under FOIL.1522
The Matrix reduces or mitigates penalties in several instances based upon the background
of the officer. CCRB and the Police Commissioner are to consider:1523
The reasonably limited or lack of knowledge, training, and experience of the MOS that
is germane to the incident;
Positive employment history including any notable accomplishments, Departmental
recognition, and positive public recognition;
The potential for rehabilitation; and
Particular to abuse of authority findings, “Potential for training to correct/rehabilitate
behavior.”1524
Each of these may only be fairly considered if CCRB has full and complete access to the
personnel record of the officer at the outset of an investigation.
iii.
Legal Issues Related to SQF Mitigation
Under the Matrix, mitigation may rest upon factors such as:
Complexity of legal analysis as applied to the facts
1521
Matrix-MOU, Section V n.5
1522
CCRB has its own records of its own determinations which it is free to disclose under FOIL.
1523
Guidelines at 9, available at https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/nypddisciplinary-penalty-guidelines-effective-2-15-2022-final.pdf.
1524
Guidelines at 30.
362
The area of law or policy implicated in the matter is novel or complex
In Patrol Guide § 212-11 (investigative encounters), the Court has previously recognized
that “[t]he application of the law in this area can be complicated, and investigative encounters are
fluid situations in which one event or observation can alter the level of suspicion or danger.” In
effect, any and every stop encounter can be said to require complex legal or policy analysis. The
danger here is that the mitigating factor of legal/policy complexity applies so commonly to SQF
encounters that, unless monitored and regulated, it can be cited in almost every SQF investigation.
The mere fact that a DAO attorney may view the facts or the law as difficult will present itself in
almost every contested stop and will, if left unmonitored, inevitably undercut the presumptive
penalty for stop and frisk misconduct.
It is a different matter altogether if the Police Commissioner and a CCRB panel have a
disagreement about the application of the law to a certain set of facts. The Police Commissioner
has the prerogative to issue no disciplinary action (NDA) with respect to a CCRB finding if she
believes the conduct was lawful and he explains his legal reasoning. However, when the Police
Commissioner upholds the finding and agrees that the officer did violate the Fourth or Fourteenth
Amendment, using the “complexity” of stop and frisk law as a reason to send (and re-send) officers
to training instead of imposing discipline risks severe erosion of any presumed penalty.
Similarly, the Matrix calls for mitigation for:
The state of mind of the MOS, including absence of intent. (Applies to all misconduct
adjudications);1525 and
Good faith and the absence of an intent to violate procedural or legal standards. (This
“Factor” is specifically inserted in the ADO section and applies to stop/frisk/search
misconduct.)1526
In discussions with the Monitor Team, representatives of NYPD have asserted that they
will use an objective reasonableness standard, rather than a subjective one. But despite that stated
intention, in practice, if adjudicators are told to look for absence of intent and to take into account
good faith along with the complexity of the law of stop and frisk, then cases can be unfound or
exonerated where an officer acted without reasonable suspicion or probable cause but did so in
“good faith.” The result is indistinguishable from a lenient, subjective standard.
There is the distinct probability, based on the frequency with which the Police
Commissioner has excused prior misconduct upon a finding of “good faith” (see case studies in
the Appendix), that absence of demonstrated bad intent will be overutilize.
Even in extreme cases of bad searches where evidence of wrongful intent may be available,
caution must be exercised to guard against a shift in the burden of proof. Respondents in CCRB
hearings frequently claim that their behavior was well-intentioned without further evidence than
the claim itself. That is an affirmative defense put forward by the officer for which he or she or
she should carry the burden of persuasion. The burden should not be placed upon CCRB to
1525
Id. at 9.
1526
Id. at 30.
363
disprove a claimed lack of mental culpability. Once a constitutional violation is demonstrated, the
burden should be on the Respondent and should not be on CCRB, APU, or DAO to prove bad
intent or to disprove lack of good intention.
iv.
Mistake of Law
Abuse of authority and SQF misconduct may be mitigated under the Guidelines upon an
absence of intent to violate legal or procedural standards. The Guidelines also reference the
“complexity” of the law as cause for mitigation.
Mistake of law should not be used as an excuse when the officer knew all the relevant facts,
the law is clear, but the officer did not understand the law. Officers should be accountable to know
the law in disciplinary proceedings.
In New York Penal Law, “[a] person is not relieved of criminal liability for conduct because
he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute
an offense” unless the belief is founded upon an administrative order, a judicial decision, or an
official interpretation made by a responsible official.1527
“Good faith mistake of fact,” “good faith mistake of law,” “totality of circumstances,” and
“objective reasonableness” are all catch-phrases which New York’s highest court has been
reluctant to apply in criminal prosecutions and which the City Council has rejected in civil
litigation.1528 As questionable as their application might be in such cases, there is even less reason
to extend those theories to excuse bad stops and searches in disciplinary proceedings where
evidence will not be excluded. The goals in internal disciplinary proceedings are standard setting,
education, correcting inappropriate behavior, deterring future misconduct, responding to
community concerns, and encouraging proper policing.1529
There are two criminal law cases where mistakes of law were invoked to avoid suppression
of evidence: Heien v. North Carolina in the United States Supreme Court and People v. Guthrie
in the New York Court of Appeals.1530 Both cases involved a situation where the law itself was
unclear; neither case forgave an officer for failing to understand or follow settled law. In Heien,
the statutory rule governing the need for an additional working rear light on a car was so poorly
worded that it divided the courts. Until the highest court settled the issue, it was impossible for an
officer to know what the law required. Suppression of evidence by retroactively applying the latest
interpretation made no sense. Accordingly, the United States Supreme Court denied suppression.
In Guthrie, an officer stopped the defendant who unequivocally ran a stop sign. Further research
by the defense attorney uncovered the fact that the stop sign was not properly listed in a registry.
1527
N.Y. Penal Law § 15.20(2).
1528
People v. Bigelow, 66 N.Y.2d 398 (1985) (rejecting as a matter of state constitutional law the “white heart, empty
head” defense permitted by United State v. Leon, 468 U.S. 897 (1984), and People v. Johnson, 66 N.Y.2d 398 (1985)
(rejecting the “totality” approach for warrantless stops and searches based on a need for “predictability and precision”
and for “the protection of the individual rights of our citizens” as a matter of State Constitutional Law)). See also
NYC Admin. Code § 8-807.
1529
“Goals of the Disciplinary System,” Disciplinary System Penalty Guidelines at 3.
1530
Heien v. North Carolina, 574 U.S. 54 (2014); People v. Guthrie, 25 N.Y.3d 130 (2015).
364
The Court, once again recognizing the practical impossibility of an officer on the street knowing
about the defect in registration, denied suppression.
Both cases forgave facially proper police behavior where the law was, practically speaking,
unknowable. Neither court would forgive an officer’s failure to recognize settled law as an excuse
merely because the law is “complex.” Yet that is exactly what might be derived from the current
Matrix mitigation for misconduct factors. “Complexity” and “absence of intent” are factors which
all too easily can be used to excuse constitutional violations. Excusing an officer’s mistake of law
removes an incentive to learn the law. As best cautioned by Associate Judge Rivera recently in
the Court of Appeals, “[W]hy incentivize mistaken, unlawful stops?”1531 In the Judge’s words, such
a rule “encourages illegal stops.” She concluded by declaring,
If we are going to adopt a per se rule, we should choose one that minimizes illegal
stops by requiring suppression in every case where the officer acts without authority
under the law. That would further public safety by incentivizing officers to know
the laws that they are obligated to enforce and ensure that motorists who comply
with the rules of the road do not have to fear being pulled over for no good
reason.1532
While forgiving tolerance for misconduct may be understood when considering personal
civil liability of the officer (see the discussion, infra, of qualified immunity) or in the case of a
criminal prosecution where vital evidence may be suppressed, the Supreme Court has never
engrafted the doctrine of good faith mistakes of law onto departmental disciplinary proceedings
That line of thinking would erase years of careful demarcation of the boundaries of lawful search
and seizure, watering down the very rights the Floyd opinion sought to protect. An officer’s
misapprehension of the law should not be grounds for avoiding discipline merely because other,
reasonable, officers could have made the same mistake. The Police Commissioner’s personal
assessment of the reasonableness of a stop/search/frisk in question cannot replace court decisions.
As a matter of law and policy, mistakes of law which officers (as opposed to courts) believe are
“objectively reasonable” should have no place in misconduct findings. A bad stop or frisk cannot
be exonerated or unfounded merely because a reasonable officer (as opposed to a court) might
have read the law to permit the stop or frisk. “Reasonableness,” either subjective or objective,
should not be used to authorize or condone Fourth and Fourteenth Amendment violations by
complete dismissal of the complaint
An officer’s objectively reasonable misapplication of the law may be used in mitigation of
penalty, but not liability. This Court, recognizing the distinction at an earlier juncture, approved
language in the Patrol Guide that “isolated cases of erroneous but good-faith stops or frisks . . .
should ordinarily be addressed through instruction and Training.”1533 That provision, if properly
1531
People v. Pena, 36 N.Y.3d 978, 998 (2020) (Rivera, J., dissenting). Pena was a plurality opinion with no majority
opinion on the question of whether the New York Constitution excused a good faith mistake of law in a case where,
again, the Vehicle and Traffic Law was ambiguous in its requirements.
1532
Id.
1533
See generally NYPD Patrol Guide, Investigative Encounters: Requests for Information, Common Law Right of
Inquiry and Level 3 Stops, Proc. No. 212-11 (eff. Oct. 15, 2016), available at
http://www nyc.gov/html/nypd/downloads/pdf/analysis_and_planning/212-11.pdf.
365
followed and limited to a small class of cases for first offenders, mitigates but does not excuse
misconduct. Nor is it justification for the Police Commissioner to avoid proceedings by retention
or by termination with an NDA. The record needs to be clear that a violation occurred and
punishment was reduced but not excused.
Unfortunately, under current practice, it is impossible to tell if the Guide’s tolerance of
isolated, erroneous, good faith mistakes by mitigated punishment is used appropriately or if the
exception has swallowed the rule. SQF misconduct commonly goes unpunished, but is that due to
a finding that the violation was isolated, erroneous and in good faith? Invocation of the clemency
rule is neither litigated nor documented. For that reason, a history of guidance in lieu of discipline
in past cases cannot be known if the “isolated, erroneous, good faith” exception was abused. It
may be that the Department may cite to PG § 212-11 when explaining departures as the disciplinary
guidelines are developed.
Unless closely watched, the new Disciplinary Guideline System creates wide portals for
improper NDAs and wrongful exonerations. In the section prescribing penalties for SQF
misconduct, the guidelines list “Complexity of Legal Analysis as Applied to the Facts.” This is
just another way of saying that an officer’s mistake of law will be considered. Similarly, the
Guidelines say that “[g]ood faith demonstrated by the member of service and the absence of intent
to violate procedural or legal standards” is also an “Additional Potential Mitigating Factor”—
another escape valve to condone Fourth and Fourteenth Amendment strictures. As the Guidelines
are applied over time it should be necessary, as a matter of compliance in Floyd, to see if these
factors are used to mitigate, which is permitted, or used to excuse, which is not.
When the Police Commissioner reduces or dismisses a penalty recommendation or a level
of discipline below that recommended by CCRB, or determines that the matter should go
NDA/DUP, a departure or deviation letter should be written. (See discussion below.) From June
2021 until June 2022, the Department posted 12 deviation letters and then discontinued the
practice. Deviations from the Guidelines are now often explained in departure letters. As of
October 2023, CCRB has posted 206 departure letters.1534
A review of the departure letters, written since 2020 shows that, typically, penalty
recommendations or misconduct findings by CCRB are rejected by the Police Commissioner for
one or more of the following reasons. Either the Police Commissioner: (a) has arrived at a different
view of the facts; (b) has a different view of the law; or (c) excuses the misconduct,
notwithstanding a substantiated violation, on the grounds that the subject officer acted in “good
faith” or with “good intent.” The letters are rarely specific enough to quickly categorize which of
the three reasons has been applied, and sometimes the explanation for the downward departure
appears to be a blend or mix of one or more of the three factors. Without the full, unredacted,
closing reports from CCRB or the CAR memo from DAO, the cause for departure is not clear.
1534
NYPD Departure Letters, available at https://www.nyc.gov/site/ccrb/complaints/redacted-departure-letter.page.
366
Of the 183 departure letters, written between January 8, 2020, to May 2, 2023:1535
Where a B-CD was recommended by CCRB for 133 of the officers:
o 81 received an NDA/DUP
o 24 received training
o 28 received an A-CD with 13 receiving to 1, 2, or 3 penalty days
Where an A-CD was recommended by CCRB for 35 of the officers:
o 27 received an NDA/DUP
o 8 received training or instructions
Training or instructions were recommended for 16 of the officers:
o All 16 received NDA/DUP
More interesting is the reason offered in the Departure letters for the 185 reductions or
dismissals. An attempt to precisely decipher or categorize the basis for departure is an impossible
task since the letters themselves are not sufficiently detailed to permit that kind of analysis. An
attempt has been made herein to read each letter and categorize, to the best of this writer’s ability,
the basic cause for departure. Understandably, some if not many departures are based upon a
combination of multiple factors. Distinguishing between disagreements on the law; disagreements
on the facts; application of lenity for “good faith”; or a mere disagreement with the Matrix as
applied by CCRB cannot easily be discerned from the letters themselves. However, a reading of
the departure letters, in the opinion of the writer, leads to the following conclusions:
64 were dismissed or reduced on the basis of a renewed finding of facts by the Police
Commissioner.
36 were dismissed or reduced on the basis of a declaration of “good faith” or “lack of
intent.”
70 were dismissed or reduced because the Police Commissioner disagreed on the law
as to whether misconduct occurred.
13 were reduced where the Police Commissioner disagreed with the penalty.
In the Floyd Liability Opinion, Judge Scheindlin observed, “[W]hen confronted with
evidence of unconstitutional stops, the NYPD routinely denies the accuracy of the evidence,
refuses to impose meaningful discipline, and fails to effectively monitor the responsible officers
for future misconduct.”1536 The Judge continued, “Rather than accepting the CCRB’s findings, the
DAO conducts its own review of the materials that the CCRB’s three-member panel has just
reviewed.” In particular, the Judge noted that NYPD has a policy of rejecting CCRB findings
when the findings rest upon uncorroborated testimony of a civilian, despite the fact that CCRB
had weighed the evidence in making its own determination. There was no “deference” to CCRB’s
factfinding process. She concluded that “DAO’s evidentiary theory [rejecting CCRB’s acceptance
of uncorroborated civilian testimony as insufficient] seriously undermines the NYPD’s ability to
1535
Starting with the first letter posted, PO
, CCRB Case #
, and through to that of PO
, CCRB Case #
, as posted sequentially. Available at https://www.nyc.gov/site/ccrb/complaints/
redacted-departure-letter.page.
1536
Floyd Liability Opinion at 105.
367
hold officers accountable for unconstitutional stops or frisks.”1537 In the Floyd Remedies Opinion,
Judge Scheindlin concluded that “[t]he Department Advocate’s Office must improve its
procedures for imposing discipline in response to the Civilian Complaint Review Board’s . . .
findings of substantiated misconduct during stops. This improvement must include increased
deference to credibility determinations by the CCRB, an evidentiary standard that is neutral
between the claims of complainants and officers, and no general requirement of corroborating
physical evidence.”1538 The clear import of the Liability Opinion and the Remedies Opinion, read
together, is that findings of fact by CCRB should not be disregarded absent good cause.
Independent civilian review is in place for a reason.
Frequent disregard for CCRB determinations simply because the Police Commissioner,
without the benefit of hearing testimony, elects to arrive at a different factual finding or because
the Police Commissioner believes the officer acted in good faith, or acted with good intent,
continues the very flawed process that underpinned the holding in Floyd.
This should be distinguished from disagreements pertaining to controlling law. No one
would quarrel with the fact that the Police Commissioner, under the current form of the Charter,
is the judge of the law.1539 As such, the Commissioner’s exoneration of a complaint on the ground
that CCRB’s findings of fact, once accepted, do not demonstrate a violation of law or guides, if
explained, is understandable.
However, dismissal of a complaint because the Police Commissioner chooses to disregard
CCRB’s investigation and factual findings, without cause, reverts the disciplinary process to the
very form Judge Scheindlin found wanting. Even worse, excusing established misconduct, such
as a stop or frisk without objective reasonable suspicion, merely because the Police Commissioner
declares that the officer meant well or acted in good faith, is in clear defiance of the opinions in
Floyd. A citizenry plagued with Fourth Amendment violations, as found in the Liability Opinion,
is not made whole when told that the officer did not mean to act illegally.
The irony here, when the “good faith” rubric is applied, is not only that an illegal encounter
is condoned. Aggravating the problem is that declarations of “good faith” or “lack of wrongful
intent” or claims of “innocent mistakes” are never fairly litigated. They are declared by the Police
Commissioner without full examination or opportunity to object. Under the sole-basis rule,
discussed above, misconduct may be excused repeatedly on grounds of mistake or good faith
without consideration that the same “mistake” or claim of good faith has previously been invoked
in defense on one or more prior occasions.1540
1537
Id. at 107-08.
1538
Floyd Remedies Opinion at 24.
1539
NYC Charter § 434. (Assuming adherence to the Constitution and, in particular, the Fourth and Fourteenth
Amendments.)
1540
As previously discussed, Patrol Guide § 212-11 permits reduction in the penalty level in “isolated cases of
erroneous but good-faith stops or frisks.” Application of this exception is neither documented nor catalogued.
368
F.
Concurrent and Consecutive Penalties
In a break from past practice, the Matrix promises that separate presumptive penalties will
be applied to each substantiated act of misconduct.1541 The stated intention, when imposing
penalties for multiple allegations contained in one complaint, is to disaggregate the discipline
imposed into separate penalties for “each distinct act of misconduct.” If this is followed to the
letter, many complaints which led to informal discipline in the past would instead result in
prosecution and formal discipline.
CCRB recommends Charges for any case where the aggregated penalties total more than
ten penalty days. This does not necessarily mean that formal discipline will follow, but it could.
Take, for example, the recent case of PO
, an officer with no prior CCRB history
1542
who has been with the Department for eight years.
CCRB substantiated a complaint wherein
five individuals were stopped illegally. Given the presumptive penalty of three days for each stop,
the aggregated presumptive penalty would be 15 days. CCRB panels do not recommend a set
number of days, the Matrix notwithstanding. Instead, CCRB recommended Charges and
Specifications for a Member of the Service whose aggregated penalty, if imposed, would calculate
to an amount above the ten-day penalty allowed for a B-CD. Thus, CCRB has recommended
Charges in this case because the aggregated total presumptive penalty is 15 days. The Charges
were served upon the officer without a request to retain under Provision Two. If this case were to
go forward to trial, the result would be unique. An APU prosecution and formal discipline for an
officer without a history and with Stop allegations only has not, after the CCRB Framework, gone
to trial.1543 It is unlikely that this will occur in the case of Officer
, but since the entire process
1544
under the Matrix is new, the outcome at this point is uncertain.
This will be a common dilemma in SQF adjudications. A stop is often followed by a frisk,
and then a search. In such cases, there could easily be three substantiated allegations. Will the
penalties for each violation be consecutive, or will they be aggregated in one concurrent penalty?
Discussions with the Deputy Commissioner of Risk Management suggested that the penalties
would be separate and concurrent, but the Matrix language is unclear on this point. There also
could be improper force in conducting the frisk, or the stop was made for discriminatory reasons.
Would the forceful frisk be considered one act of misconduct or two? Would the profiled stop be
1541
“Calculation of Penalties,” Disciplinary System Penalty Guidelines at 12-13.
1542
Subsequent to sharing this draft of the Report with the parties, PO
had a new substantiated complaint with
allegations of discourtesy and a racial slur. As of September 2023, both complaints (with a total of seven substantiated
allegations) remained unresolved, notwithstanding recommendations for Charges and Specifications by CCRB for
both complaints.
1543
Subsequent to the encounter described (CCRB Complaint #
), PO
faced a new complaint
(#
) alleging an illegal Frisk, Discourtesy and Racial Slur. The frisk allegation was exonerated but the other
two allegations were substantiated. Again, CCRB recommended Charges and Specifications. All seven allegations
remain open (“APU Decision Pending”) as of September 12, 2023. https://www.nyc.gov/site/ccrb/policy/MOSrecords.page.
1544
Subsequent to the draft Report, as of July 16, 2024, two other complaints were lodged against Officer
.
Allegations of Discourtesy and Slur, occurring during a stop, were substantiated. Further allegations of RTKA
violations were avoided as part of CCRB’s decision to drop investigations due to budget limitations. The five improper
stops were combined and Officer
forfeited three vacation days.
369
one act or two? Is the entire episode one course of conduct? At this point in time, not enough
cases have been processed under the Matrix to provide answers to these questions.
In particular, Patrol Guide § 212-11 outlines a series of requirements in the course of an
investigative encounter. These include: offering a business card, offering identification,
documenting a request for consent to search, filing Stop Reports, activating BWCs, and explaining
a reason for an encounter, among others. Some are investigated by CCRB while others are not.
Will an officer who fails to abide by multiple measures during an encounter face individualized
assessments for each failure to comply? Will multiple investigations by separate bodies be
reconciled? Will failures to comply lead to multiple allegations or will they be treated as
aggravating factors? If individually substantiated, will the penalties for multiple allegations be
consecutive or concurrent?
A recent example provided to the Monitor Team involved an officer1545 who “wore a
sweatshirt bearing discourteous and offensive words and images during an encounter with five
teenagers.” The Board recommended that the ten counts of discourtesy and slur all run
concurrently. In the same encounter, a Deputy Inspector at the scene wrongfully refused to explain
the reason for the encounter, which is a violation of the Right to Know Act. The Board
recommended that those five counts run concurrently as well.1546 In each case, one act affected
five people, so it seems appropriate for the penalties to run concurrently.
Some of the SQF requirements listed in P.G. § 212-11 (such as report failures and BWC
failures) are not contained in the Abuse, Discourtesy, Offensive Language section of the Matrix
since they are not investigated by CCRB. Instead, they are listed under “Violations of Department
Rules and Regulations.” That section, however, is headlined as violations “Adjudicated by
Charges and Specifications.”1547 This seems odd, since report failures and BWC failures, by
themselves, are practically never addressed by formal discipline. There is a footnote (Matrix n.80)
that states,
The misconduct specified here may or may not rise to the level of Charges and
Specifications as determined by the Department Advocate based upon all of the facts and
circumstances surrounding the incident. In such cases, the violations may be addressed as
aggravating factors related to other acts of misconduct or may be addressed at the command
level if there are no associated acts of misconduct being adjudicated through Charges and
Specifications.1548
Since the bulk of SQF findings by CCRB which are accompanied by stop report failures
will not end up in the Trial Room, one can assume that these M cases associated with SQF
substantiations will be rolled into DAO’s handling of CCRB’s recommendation as an added
1545
PO
1546
DI
1547
Matrix at 43.
1548
Id. at 45 n.80.
.
.
370
aggravating factor without separate investigation. It will be important to observe in the future how
this type of situation is handled.
The Department has assured the Monitor team that a stop report failure will carry a
presumptive five-day penalty, not treated simply as an aggravating factor for an improper stop.1549
But in cases where the aggregate presumptive penalty is greater than ten days, footnote 80 seems
to contradict that assertion. The choice of whether to pursue Charges appears to be left to the
discretion of DAO. Since CCRB does not investigate report and BWC failures, how will CCRB’s
assessment of whether a failure justifies aggravation be reconciled with DAO’s calculation? One
thing that seems certain is that such failures will not receive separate adjudication and result in the
imposition of penalties consecutive to CCRB’s recommended penalties.1550
G.
Multiple Allegations – Penalty
There are also open questions regarding when the Police Commissioner may impose
multiple penalties for a finding of misconduct arising from one complaint.
Civil Service Law § 75(3) lists available penalties in the disjunctive.1551 Courts have held
that the Civil Service Law “provides a choice of penalties.”1552 Penalties under the Civil Service
Law are to be imposed in the alternative, meaning that more than one penalty may not be imposed
for a single finding of misconduct. This rule has been applied even in cases where there are
multiple specifications (allegations) substantiated within one finding.1553 How this is to be applied
in the case of multiple allegations substantiated within one complaint for an NYPD officer under
the Administrative Code and the recently adopted Guidelines1554 may yet become an issue.
Civil Service Law § 75(3-a),1555 applicable solely to NYPD officers, provides that the Police
Commissioner may punish police officers pursuant to the provisions of § 14-115 of the
Administrative Code of the City of New York. That Code section (14-115(a)) repeats the same
1549
NYPD Response to Monitor Questions re Matrix (Dec. 21, 2020). Whether this will apply as well to failures to
comply with the “How Many Stops Act” (NYC Admin. Code 14-196, LL 2024/43, passed by veto override January
30, 2024) remains to be seen.
1550
Distinguish this situation from one where a RTKA violation is adjudicated by CCRB. If both an SQF and RTKA
violation are substantiated, it is possible that they will be treated as separate offenses with consecutive penalties.
Similarly, if CCRB’s proposed Rule changes (May 31, 2022) are adopted, BWC violations should be investigated and
aggregated by CCRB, rather than separately handled by DAO.
1551
“[P]unishment may consist of a reprimand, a fine not to exceed one hundred dollars to be deducted from the salary
or wages of such officer or employee, suspension without pay for a period not exceeding two months, demotion in
grade and title, or dismissal from the service.” CSL § 75(3) (emphasis added).
1552
Sinnott v. Finnerty, 113 A.D.2d 836 (2d Dep’t 1985) (emphasis added) (prohibiting simultaneous imposition of a
suspension and reprimand); see also Matter of Brabham v. Weinstein, 89 A.D.2d 566 (2d Dep’t 1982); Matteson v.
Oswego, 186 A.D.2d 1017 (4th Dep’t 1992).
1553
Matter of Brabham v. Weinstein, 89 A.D.2d 566 (2d Dep’t 1982).
1554
NYPD, Disciplinary System Penalty Guidelines (Feb. 15, 2022), available at https://www1.nyc.gov/site/nypd/
about/about-nypd/policy/nypd-discipline-matrix.page.
1555
Added by L. 1990, Ch. 753.
371
disjunctive listing of available penalties as its predecessor, Civil Service Law § 75(3).1556 Thus far,
there is no definitive court ruling embracing the prohibition against multiple penalties under the
Administrative Code. However, prior to the addition of subdivision 3-a in 1990, there were two
Appellate Division rulings barring multiple punishments of NYPD officers under Civil Service
Law § 75(3).1557 It is logical to conclude that, by repeating the same language when discipline for
NYPD officers was separately restated in the amendment, the legislature did not intend to alter
that precedent.
On the other hand, imposition of a combined sentence of forfeiture of 30 vacation days
coupled with placement on dismissal probation has been upheld.1558 That can be explained by
reference to the statute, which does not list dismissal probation as one of the punishments in the
disjunctive series.
Consonant with that interpretation, until now, the Police Commissioner has imposed one
penalty for all the substantiated allegations contained within a complaint. Past practice fell
comfortably within the statute since, regardless of the number of allegations sustained, only one
penalty was imposed.
With the new Guidelines, the Department intends to impose “separate presumptive
penalties” for “each substantiated act of misconduct.” The Guidelines explains that “presumptive
penalties are then aggregated to address each distinct act of misconduct.”1559 It is unclear, but
probable, that “act of misconduct” as used in the Guidelines is intended to refer to “allegation.”1560
It may well be that a finding that aggregates X number of penalty days for allegation number one
and Y number of penalty days for allegation number two, assuming the allegations are separate
and distinct acts of misconduct, is permitted by statute as merely constituting one choice of
alternative available punishments.
However, limiting that principle, the new Guidelines state if “the same underlying act(s)
of misconduct support multiple definitions of proscribed conduct or support alternative theories of
prosecution, then a single penalty will be applied.”1561 This would probably be required in any
event. Separate from the language of the Civil Service Law or the Administrative Code, there is
1556
The Police Commissioner may “punish the offending party by reprimand, forfeiting and withholding pay for a
specified time, suspension, without pay during such suspension, or by dismissal from the force.” (emphasis added).
1557
See cases cited supra note 1550.
1558
Quinn v. Kerik, 305 A.D.2d 68 (1st Dep’t 2003).
1559
Guidelines at 13.
1560
In one recent case, PO
was found to have improperly frisked two civilians. CCRB recommended a
B-CD with a presumptive penalty of six days—three days for each improper frisk. In a recommendation (CAR Report)
to the Police Commissioner, DAO argued that an A-CD was appropriate and that the penalties should run concurrently
because the frisks “took place immediately after each other during the same incident.” The Police Commissioner kept
the B-CD but imposed a penalty of three hours.
1561
Id.
372
case law supportive of a fundamental fairness argument that multiple punishments for the same
“identical conduct” should be barred.1562
The fundamental question yet to be determined is whether the Police Commissioner will,
or can, impose multiple punishments when multiple findings of misconduct for separate allegations
are made for one encounter, complaint, or case. It is difficult to know if single or multiple penalties
can or will be applied for a single act of misconduct, a single complaint, a single encounter, or for
each allegation.1563 If a single penalty is calculated by aggregating identified penalties for separate
allegations, the argument can be made that just one penalty was imposed. The counter-argument,
certain to be made by officers or their representatives, is that multiple penalties in the aggregate
are, nonetheless, still multiple punishments.
More uncertain in application is the Matrix declaration that where “separate charges result
from the same underlying course of conduct, a single penalty will be applied.”1564 A course of
conduct is undefined and potentially sweeping. The example given in the Guidelines is a case
where an intoxicated driver is unfit for duty. There, driving under the influence and being unfit
for duty apply to the same single act. The concern is whether “underlying course of conduct” will
be read more expansively to cover several distinct but related acts.
This question is particularly relevant to SQF investigations. Will an illegal stop, question,
frisk, and search result in one penalty or multiple penalties? If each allegation or physical act is
considered separately, will penalties be aggregated or consolidated? Will they be imposed
consecutively or concurrently?
In response to inquiry, the Monitor team was orally advised that for a single encounter that
involves an improper stop and an improper frisk and/or search, each would be reviewed
individually (because they are separate acts), and each would receive a separate penalty. The team
was also told that the presumption would be that the penalties would be consecutive and not
imposed concurrently. Presumably this means an illegal stop and frisk are not to be considered as
part of one underlying course of conduct. Since the Guidelines do not state this clearly in written
form, close scrutiny of penalties going forward is necessary.
In one of the few cases where the issue has been discussed since adoption of the
Guidelines,1565 DAO recommended that a substantiated stop against two individuals be considered
one act and, accordingly, recommended a reduced penalty (but see the PO
case discussed in
the Section above).
Further, what if an illegal stop is performed with discourtesy or a slur is used? Is
discourtesy during an improper stop “one underlying act of misconduct” or part of one “underlying
course of conduct”? Or neither? Are the discourtesy and the slur one act of misconduct?
1562
Savello v. Frank, 48 A.D.2d 699 (2d Dep’t 1975); Donofrio v. Spinnato, 144 A.D.2d 672 (2d Dep’t 1988).
1563
One action may violate separate requirements of the Patrol Guide, leading to multiple allegations or findings of
misconduct. For instance, tackling a civilian without reasonable suspicion may support an excessive force finding as
well as an improper stop finding.
1564
Guidelines at 13 (emphasis added).
1565
PO
.
373
Discourtesy, Offensive Language cases,1570 the Matrix does state in general that prior disciplinary
history may “potentially” serve as an aggravating factor.1571 There is no specific definition of “prior
disciplinary history” for purposes of aggravating a presumptive penalty. It is unclear whether
CCRB, in non-formal cases, will have access to NYPD substantiated investigations in addition to
its own prior substantiated CCRB complaints.
Progressive Discipline. The Matrix adopts a complex set of rules in advancing the
laudable goal of progressive discipline. The entire set of rules is detailed on pages 11 and 12 of
the Disciplinary Guidelines and will not be repeated here. The basic proposition is that a specified
number of penalty days will be added to the calculated penalty under the Matrix based upon
disciplinary history up to the point where, in the upper range, dismissal probation or termination
may result.
Thus, some cases will result in a “penalty increase” of one to three days, another may
require an increase of five to ten days, etc. There are, however, a number of limitations on the
imposition of progressive discipline.
Time Limitations: The prior substantiation must have been within either three, five,
or ten years of the current offense, depending on the severity of the prior offense.1572
The clock commences on the date the Police Commissioner approved imposition of the
final penalty for the prior act of misconduct.1573
In some cases, an officer may have been charged on multiple occasions with similar or
serious violations. If they are committed during the pendency of adjudication, they will
not be eligible for “progressive discipline.” Experience shows that a final decision by
the Police Commissioner often occurs years after the misconduct. If new wrongs are
committed after a finding by CCRB or a Trial Commissioner, discipline should be
enhanced, notwithstanding the fact that the Police Commissioner had not yet made a
final determination.
The Matrix provides that time limitations do not apply to prior disciplinary history
establishing patterns of misconduct.1574 Unfortunately, “prior disciplinary history” is
limited to CCRB substantiated cases and formal discipline prosecuted by DAO.
Patterns of misconduct are to be found in a broader reach than defined by the Matrix.
Narrowing of Eligibility: The Matrix does not enhance a penalty for a history of
misconduct unless the prior misconduct falls into one of two narrow boxes:
1570
There are 18 factors which apply to all cases and an additional 13 which may be used in an ADO case.
1571
Disciplinary System Penalty Guidelines at 11.
1572
There is an exception for offenders who faced termination or forced separation but escaped the penalty by way of
previous mitigation.
1573
Disciplinary System Penalty Guidelines at 11.
1574
Guidelines at 12.
375
The prior wrong had to be the “same misconduct” as the current substantiated
allegation.1575 For example, an officer who was found to have wrongfully stopped and
tasered a complainant can illegally frisk another civilian on a later occasion and not be
eligible for progressive discipline because the two offenses are not the same
misconduct.
The presumptive Guidelines penalty for the new substantiated allegation must be equal
to or greater than the presumptive penalty for any previously substantiated
allegation.1576 Progressive discipline is reserved for offenders who progressively
offend. This rule creates an unnecessary obstacle to progressive discipline for actors
who engage in repeated acts of similar but not identical misconduct.
For example, if an officer wrongfully stops a complainant in 2021, and the
officer is also found to have acted with discourtesy or used a slur, regardless
of the penalty then imposed (whether mitigated, presumptive, or
aggravated), if the officer later frisks another person unlawfully in 2022, he
or she will not receive progressive discipline because the presumptive frisk
penalty (three days) is less than the presumptive penalties for discourtesy
(five days) or slurs (20 days).
Foundation: If the above rules for progressive discipline are met, the Guidelines
permits an increase in the penalty days, without regard to the presumptive penalty for
the previous offense. So, for example, an officer who is found to have made an illegal
stop in 2021 may well have received training for the first offense. If, in 2022, he or she
illegally frisks another complainant, he or she is eligible to receive between one to three
days sanction for the second offense, notwithstanding that the presumptive penalty for
a wrongful frisk by a first offender is three days.
The Guidelines do not guarantee CCRB access to prior IAB, FID, or BIU investigations.
Repeated force, profiling, false statement, stop report failures, failures to supervise, etc., are not
available to CCRB unless Charges were prosecuted and formal discipline ensued. As such, it is
uncertain how CCRB is to calculate recommendations for “progressive discipline” without being
permitted to take such instances of misconduct into account.
I.
Other Violations in the Matrix
There are two other swaths of listed offenses in the Disciplinary Guidelines beyond the ten
broad categories listed above. One is for Equal Employment Opportunity Violations which are
consigned to the Deputy Commissioner of Equity and Inclusion.1577 The other, of significance to
SQF enforcement, is Misconduct Adjudicated by Command Discipline.1578 A-CDs or B-CDs
1575
By contrast, the LAPD guidelines provide that an offense is a repeat offense if “of the same general nature as the
previous misconduct.” The offenses need not be identical. LAPD Administrative Order 15 at 2, available at http://lapdassets.lapdonline.org/assets/pdf/AO_15.pdf.
1576
Again, for CCRB, this will be limited to prior CCRB substantiations.
1577
Disciplinary System Penalty Guidelines at 50.
1578
Id. at 52-53.
376
permit the commander of the relevant unit to set the penalty within the previously established
ranges for each under the Patrol Guide. (From no penalty up to five penalty days for an A-CD,
and from no penalty up to ten penalty days for a B-CD.)
According to the Disciplinary Guidelines, commanding officers, when imposing discipline
for A-CDs and B-CDs are to “impose penalties that are consistent with the presumptive penalties
described herein, while considering relevant aggravating and mitigating factors.” No presumptive
penalties are listed in this category. The list in the Matrix largely replicates the offenses that were
covered in the list of Command Discipline offenses that could be handled at the precinct level
included in Patrol Guide § 206-03.1579 Many of the offenses so listed are minor or technical, such
as failure to maintain a neat and clean professional appearance or illegal parking of a vehicle.
An important question to be resolved is whether SQF misconduct substantiated by CCRB
and passed from DAO to the precinct will, in fact, receive the presumptive penalty and will
compliance be monitored by DAO after the matter is sent to the precinct.
In the past, if CCRB recommended an A-CD, and, if that was accepted by DAO and the
officer, precinct commanders did not impose any penalty absent a directive from the Police
Commissioner, which was rare. Going forward, will CCRB continue to substantiate a bad
stop/frisk/search and recommend an A-CD with an expectation that a presumptive three-day
penalty will be imposed only to find that, in the vast majority of cases, no discipline will be
imposed?
The list of “Misconduct Adjudicated by Command Discipline” also includes “Omitted
Activity Log entries” and “Omitted entries in Department records, forms or reports.”1580 In other
words, when a precinct supervisor discovers, through audit or otherwise, that a stop report is
missing or omits necessary entries, the matter is left to the CO’s discretion without report to DAO
or the Police Commissioner and without a presumptive penalty.
While some M cases such as “Fail to Document an Investigative Encounter” and “Fail to
Prepare a Required Report” are also listed separately in the “Rules and Regulations” swath within
the Matrix, presumably that penalty box is reserved for cases where CCRB has made an OMN
referral in connection with its own FADO investigation or one of the central NYPD investigating
offices (IAB or BIU) has undertaken the matter. Beyond simple auditing, there is no requirement
that precinct commanders work through DAO, Borough Commanders, or the Police Commissioner
when finding stop report failures.
In theory, under the advisory language in the Matrix, a Commanding Officer, upon
discovering a report failure, is to impose penalties that are “consistent with the presumptive
penalty” ascribed for M case referrals. Within the Matrix, under the section “Violations of
Department Rules and Regulations,” the presumptive penalty for a report failure is forfeiture of
five days with a mitigation/aggravation range from three days to ten days. However, that swath is
reserved for violations “Adjudicated by Charges and Specifications.” DAO would then decide on
the penalty –theoretically somewhere between three to ten forfeited days. Absent a formal
1579
Now AG § 318-01
1580
Id.
377
proceeding, as a matter of precedent, there are no cases where a Commanding Officer imposed
five days, or even three days, solely for a missing stop report. So, until proven otherwise, it is safe
to assume that Stop Report failures, unless referred by CCRB and prosecuted by DAO, will
continue to go without discipline, the Matrix notwithstanding.
J.
Stop/Question/Frisk Under the Disciplinary Guidelines
Shortly after publication of the revised Guidelines, CCRB, by resolution, committed to
utilizing the Discipline Matrix beginning February 1, 2021 “on a trial basis, for a period of one
year, as the non-binding framework for its discipline recommendations in all CCRB cases.”1581 On
February 4, 2021, a Matrix-MOU was signed by Rev. Fred Davie, CCRB chair, and Police
Commissioner Dermot Shea, implementing an agreement to abide by the new Matrix.
It is too early to measure the impact of the Disciplinary Penalty Guideline System upon
discipline for stop and frisk misconduct. The Matrix was adopted in January 2021 and
implemented June 2021. As of the report made available to the Monitor in March 2022, there were
39 complaints where CCRB has substantiated an SQF allegation since the Guidelines were
adopted. Within those complaints, there were 91 cases (officers) with substantiated allegations,
and there are 224 substantiated allegations in all.1582
Because the new system aggregates presumptive penalties for multiple allegations within
a case, there are some stop and frisk allegations where CCRB recommended the presumptive
penalty (an A-CD) for a substantiated allegation, but when multiple allegations were combined,
the overall case recommendation was elevated to a B-CD or Charges and Specifications. For
example, an illegal stop and an illegal frisk by an officer with no prior disciplinary history could
draw a presumptive six-day penalty (three days each for the stop and the frisk). This would be a
break from past practices, but only if the Police Commissioner allows the CCRB recommendations
to be aggregated consecutively and to proceed at the elevated level
Under the new system, the Board recommends a guideline penalty for each individual
substantiated allegation. For each, it decides whether the penalty should be presumptive,
aggravated, or mitigated.
The Board then combines the allegation recommendations to arrive at an overall Board
recommendation for the entire case (i.e., for each officer).1583 Further, the Board may recommend
that some misconduct findings run concurrently, and some may run consecutively, which will then
affect the combined Board disciplinary recommendation for the officer.
The current Matrix, as it applies to SQFS misconduct, reads as follows:
1581
CCRB Annual Report 2021 at 4.
1582
“Follow-up Detail” matrix on file with Monitor Team, submitted Mar. 25, 2022.
1583
Some officers may have multiple “cases” open at the same time. Each complaint against that officer will constitute
a new case.
378
MISCONDUCT
MITIGATED
PENALTY
PRESUMPTIVE
PENALTY
AGGRAVATED
PENALTY
Stop and Question or
Improper Question of
a Person
Training
3 Penalty Days
15 Penalty Days
Frisk of Person
Training
3 Penalty Days
15 Penalty Days
Search/Seizure of
Person/Property
Training
3 Penalty Days
15 Penalty Days
At this point in time, as of October 10, 2023, since the Department has not come to a final
disposition in the 30 of the 91 cases made available to the Monitor, a complete analysis of the
results focuses more heavily upon CCRB’s application of the Matrix with less that can be said
about the Police Commissioner’s adherence to the Matrix or CCRB’s recommendations, beyond
the fact that recommendations for Charges and Specifications quite frequently remain open and
pending for an inordinate length of time. To best understand the results, one needs to look at: (a)
CCRB recommendations for substantiated allegations; (b) CCRB disciplinary recommendations
for each officer within a complaint; and (c) the disposition of a complaint.1584
A PRELIMINARY ANALYSIS OF SQF OUTCOMES WITH THE MATRIX
To assess the impact of the newly adopted Matrix upon SQF discipline, the Monitor team
asked for closing reports, CAR reports, and final dispositions for all cases in which an SQF
allegation had been substantiated by CCRB after implementation of the Matrix in June 2021.1585
There were a series of requests by the Monitor, ranging from August 31, 2021 through December
6, 2021. Requests were for correspondence between CCRB and the Department, which would
include CCRB closing reports, Police Commissioner memos, and CAR reports.
Closing reports for 91 cases (within 39 complaints containing 224 substantiated allegations) were
supplied in February and March of 2022 with follow-up data sent in June.1586 Twenty-four of the
1584
In a review of this report by representatives of Communities United for Police Reform (CPR), The Justice
Committee & CPR, and VOCAL-NY & CPR (hereinafter jointly referred to as “CPR”), dated July 12, 2024,
recommended stiffer sanctions in the Matrix, as follows:
MISCONDUCT
MITIGATED
PENALTY
1st improper stop, frisk or search
Training
2nd improper stop, frisk or search
3rd improper stop, frisk or search
5 Penalty Days
Termination
PRESUMPTIVE
PENALTY
Training
+
15 Penalty Days
15 Penalty Days
Termination
AGGRAVATED
PENALTY
Training
+
15 Penalty Days
Termination
Termination
1585
The City Department of Law has objected to production of CAR memos, claiming deliberative process and
work-product privileges. Letter, Nancy Savasta, Deputy Chief NYC Law Department (Feb. 10, 2022).
1586
The list of cases analyzed can be found in spreadsheet, “Follow-up Detail,” sent to the Monitor on June 30,
2023. “NYPD Disciplinary Administrative Database System, CCRB Substantiated Stop/Question/Frisk/Search or
Trespass Arrest Allegations Closed from 2022 to YTD 3/31/23.”
379
complaints were made to CCRB in 2019. Thirteen of the complaints originated in 2020. Two of
the complaints were commenced in 2021. At the time of the analysis, as of March 7, 2022, 38 of
the 91 cases had closed. This gives an early, but probably premature, look at the manner by which
the Disciplinary Guidelines will be utilized. Despite the 18-month interval between the time the
records were produced and the time of final analysis in this Report (October 10, 2023), final action
by the Police Commissioner has not been taken in 31 of the 91 cases.
i.
Board Recommendation by Allegation – Presumptive, Mitigated or
Aggravated
The Board recommended the presumptive penalty for 177 of the 224 substantiated
allegations.
Of the 177 substantiated allegations with a presumptive penalty recommendation:
o Seventeen arose from one complaint where two officers detained a group of
teenagers. An allegation was substantiated for one act of detention, one slur,
and one act of discourtesy that affected multiple teenagers. The Board
recommended that all substantiated allegations in the two cases run
concurrently.
o In another case where two officers detained five teenagers, the Board did not
recommend concurrent penalties for the ten findings; the allegations were
aggregated to arrive at an elevated penalty recommendation for each officer.
The Board found aggravating circumstances for 17 of the 224 allegations.
The 17 allegations with aggravating circumstances were confined to seven of the 39
complaints.
Within those seven complaints, the Board found allegations with aggravating factors
for 10 of the 91 officers.
o Aggravating factors utilized ranged from lack of candor, supervisory
position, intentional or deliberate actions, pendency of a related legal
proceeding, or use of force.
For nine of the ten officers, where aggravating circumstances were found, the Board
went on to recommend that Charges and Specifications be drawn. As of October 10,
2023, not one of the recommendations has been observed. All nine cases were either
reduced, dismissed, or remain open.
o In one case where aggravating circumstances were found (the officer was
charged with discourtesy), the Board had elevated a presumptive A-CD to a
B-CD, not Charges. The Police Commissioner rejected the B-CD
recommendation and the case ended with NDA-DUP.
o One of the ten officers separated from the Department before Charges were
served.
o In one case the Police Commissioner reduced Charges to Training.
380
o
o
o
o
In one case the Police Commissioner rejected Charges with NDA-DUP.
In one case Charges were reduced to an A-CD with 1 penalty day.
In one case Charges were reduced to Training.
The remaining cases where aggravating circumstances were found remain
open with a decision still pending.
The Board found mitigating circumstances for 30 of the 224 substantiated allegations.
In 19 of the 30 allegations that were mitigated, the explanation offered was the “totality
of circumstances.” This does not bode well for implementation of the Guidelines.
Remembering that the Matrix-MOU requires CCRB to describe “with particularity the
basis for . . . any aggravating and or mitigating factors applied and a description of how
those factors were applied,” a mere reference to “totality of circumstances” provides
no detail. The Guidelines list 14 aggravating factors and 19 mitigating factors. Not
one of those individual factors is “totality of circumstances.” Rather, the Guidelines
lists each factor with specificity, which may then be considered by reviewing the
totality of circumstances. Citing to the totality of circumstances does not explain the
basis for mitigation.
ii.
Board Recommendation - Level of Discipline for Each Allegation
The Board recommended Charges for 30 of the 224 allegations. The majority of the
allegations for which the Board recommended Charges were misconduct other than stop, question,
frisk or search. They were for use of force, untruthful statements, slurs, etc.
Sixteen of the 30 allegations called for Charges as a presumptive penalty due to the
nature of the allegation. This would not include SQF misbehavior.
Twelve of the allegations where the Board recommended Charges would not have
called for Charges presumptively, but the Board did so upon a finding of aggravating
circumstances. Five of these were for SQF misbehavior. (See discussion below.)
In two cases, the Board recommended a mitigated penalty but still recommended
Charges. This arose in a complaint where two officers1587 wrongly used force by way
of a deadly weapon (a gun) and a dangerous instrument (a vehicle). Although there
was no injury to the complainant, a presumptive penalty would have been termination
while a mitigated penalty would be Charges with 30-days and dismissal probation. The
Board called for the mitigated penalty.
The Board recommended a B-CD for 36 of the 224 allegations. Thirty-three of the B-CD
recommendations were the presumptive penalty for the allegation found. None were for a stop,
question, frisk, or search of person.
1587
Lt.
The three other allegation recommendations of a B-CD, which were elevated from the
presumptive A-CD, were instances where the Board found aggravating circumstances.
Each was for Discourtesy.
and PO
.
381
o One case was that of Lt.
, who has two open and separate postmatrix complaints with five substantiated allegations pending. Lt.
has 17 CCRB complaints against him, six of which have been substantiated.
In one of the pending cases, where he was found to have illegally
stopped/searched a vehicle and violated the RTKA; the Board recommended
three A-CDs, which aggregated to a B-CD recommendation to the Police
Commissioner.
In the other pending case against
, the
recommendation for Discourtesy was elevated from an A-CD to a B-CD by
CCRB due to the totality of circumstances. Lt.
has been sued in the
vehicle case and that lawsuit is pending in Kings County Supreme Court.
The Police Commissioner has not yet finalized a disposition for the two open
cases against Lt.
.
The Board recommended an A-CD for 134 of the 224 allegations.
For 128 of the A-CD recommendations, the Board recommended the presumptive level
of discipline.
For four of the A-CD recommendations, the Board found mitigating circumstances.
For two of the A-CD recommendations, the Board found aggravating circumstances.
In one case (PO
), the Board recommended that six penalties for
discourtesy (each is an A-CD) run concurrently. Officer
was found to be
wearing a sweatshirt with “DILLIGAF” and a “Punisher” logo, which are said to be
worn by antigovernment militia and white supremacist groups as he participated in the
stop of a group of teenagers. The Board recommended that penalties for the A-CDs
run concurrently.
iii.
SQF Allegations - Board Recommendation
Within the 39 complaints produced, there were 107 substantiated allegations for stop,
question, frisk, or search of person misconduct.
43 stops
4 questions1588
26 frisks
34 searches of person
Of the 43 substantiated Stop allegations, the Board recommended:
A presumptive disposition (A-CD, 3 penalty days) for 31 of the allegations
Mitigation (Training) for nine of the allegations
Aggravated disposition (Charges) for three of the allegations
1588
An allegation for an illegal question does not receive a separate penalty if there is a stop allegation substantiated
for the same complaint. Here, two of the four alleged illegal questioning incidents were in an encounter with an illegal
stop.
382
o Two were aggravated for lack of candor.
o One was aggravated due to a related civil suit and supervisory responsibility.
Of the four Question allegations, the Board recommended:
A presumptive disposition (A-CD, 3 penalty days) for each
o There will not be a separate penalty for two of the four officers (POs
and
) with a substantiated question allegation
since the Guidelines combine a stop and a question allegation as one
allegation.1589
Of the 26 Frisk allegations, the Board recommended:
A presumptive disposition (A-CD, 3 penalty days) for 24 of the allegations
Mitigation (Training) for one allegation (PO
)
Aggravated disposition (Charges) for one allegation (Sgt.
)
Of the 34 Search of Person allegations the Board recommended:
A presumptive disposition (A-CD, 3 penalty days) for 26 of the allegations
Mitigation (Training) for 7 of the allegations
Aggravated (Charges) for one allegation (Sgt.
)
In all, for the 107 substantiated stop/question/frisk/search of person (SQF) allegations:
The Board recommended the presumptive penalty (A-CD with 3-day penalty) for 84 of
the allegations.
The Board mitigated the finding and recommended Training for 17 of the allegations.
The Board found aggravating factors and recommended Charges for five of the
allegations.
Three of the five officers faced Charges for stop and frisk misbehavior which was
elevated from a presumptive A-CD (three penalty days) to Charges due to aggravating
circumstances. The three officers were:
o Lt.
was in a patrol car with Detective
(retired) when the complainant “flipped a bird” at the car. The complainant
was stopped, frisked, taken to the stationhouse, searched and charged with
Disorderly Conduct (which charge was dismissed). When asked about the
incident, Lt.
allegedly gave a false statement. The incident was
video recorded by a companion. Along with the stop allegation, Lt.
was charged with the stop, making a misleading statement, and
1589
PO
and PO
.
383
conducting a retaliatory arrest. The Charges are pending and unresolved at
this time.1590
o Sgt.
was with three other officers in an unmarked car in
October 2019, when he stopped and frisked the complainant without proper
cause. Other officer(s), unidentified, were alleged to have used excessive
force in the encounter. Sgt.
’s history was discussed earlier in this
Report. Sgt.
had Charges pending from an earlier incident, in May
2019. Both incidents, along with a 2018 CCRB complaint and a lawsuit from
a fourth incident were each charged along with another officer,
. CCRB cited the pending lawsuit as an aggravating factor. The
Police Commissioner has not yet made a decision regarding both open sets
of Charges against
.
is alleged to have given an untruthful statement about an
o PO
incident where he wrongfully stopped, spoke discourteously and used force
(baton) against a reporter observing a protest. CCRB, based upon
aggravating circumstances, recommended Charges. Along with
, Lt.
is alleged to have failed to supervise and is charged,
separately, with wrongful use of force on the same day. Cases against both
and
are open and pending.
iv.
CCRB Recommendations by Case
The Board arrives at a final disciplinary recommendation for a B-CD or Charges with
formal discipline in three ways: (1) some allegations presumptively call for Charges or a B-CD
(force, slurs, untruthful statement); (2) some allegations presumptively call for an A-CD, but
Charges or a B-CD flow as a consequence of aggravating factors; and (3) some less serious
allegations may be aggregated, elevating a final Board discipline recommendation from an A-CD
to a B-CD or Charges.
In any of the above three scenarios, where the final penalty recommendation exceeds ten
days (absent a recommendation for concurrent sentences or mitigation), the Board’s final
disciplinary recommendation is for Charges and Specifications.
The Board recommended that 37 of the 91 officers be served with Charges and
Specifications to face formal discipline:
o Eight of the 37 officers had one or more substantiated allegations which
presumptively called for Charges.
o Eight of the 37 officers had an allegation that did not presumptively call for
Charges, but a recommendation for Charges was based upon aggravating
factors.
1590
On February 20, 2024, Police Commissioner Caban approved a plea before a Trial Commissioner. Lt.
accepted: (1) a mitigated penalty for an untruthful statement—20 days; (2) a mitigated penalty for a retaliatory arrest—
10 days; and (3) a concurrent presumptive penalty for a bad stop—3 days.
Available at
-APU-Finalhttps://www.nyc.gov/assets/ccrb/downloads/pdf/APU-Documents/
Documents.pdf.
384
o 21 of the 37 officers did not have an allegation recommendation of Charges,
but when lesser findings were aggregated, the final Board recommendation
for the case was that Charges be served and filed.
The Board recommended that 17 of the 91 officers receive a B-CD.
o For 11 of the 17 officers, a B-CD was recommended by the Board, although
no allegation, separately considered, was higher than a presumptive A-CD.
By aggregating two or more presumptive A-CD offenses the Board elevated
the overall recommendation from an A-CD to a B-CD.
An example is the case of PO
, who was found to
have illegally searched a bag and to have failed to provide a business
card when requested. In that case, the complainant had gone to the
precinct to file a domestic violence complaint. The detective,
instead, questioned her about drug activity by her companion and
herself. The detective said he would not take the complaint unless
he could search her bag.1591 The search and business card (RTKA)
violations each called for a presumptive A-CD (three penalty days
each). Combined, the Board recommendation was for a B-CD (six
penalty days).
o For five of the 17 officers, a B-CD was the presumptive recommendation for
the allegation substantiated (threat of force or wrongful threat of arrest).
o For one officer (PO
), the Board elevated a presumptive A-CD
for Discourtesy to a B-CD due to an aggravating factor (“time for deliberate
reflection”).
o The Board recommended that 27 of the 91 officers receive an A-CD.
o For 23 of the officers an A-CD was the presumptive level of discipline. The
presumptive penalty would be three days.
o Four of the officers were found to have committed multiple offenses (stop or
search) with an A-CD presumption, which could have elevated the
recommendation to a B-CD, but the Board mitigated findings either because
of a potential for training or under the totality of circumstances. In all four
cases CCRB recommended an A-CD with Training.
The Board recommended that ten of the 91 officers receive Training without a
command discipline.
o Four of the officers had conducted an improper search of person.
o Six of the officers were cited for refusal to provide shield number (RTKA).
1591
The Board also referred Other Misconduct Noted to the Department for a failure to provide her with a consent to
search form.
385
v.
NYPD Response to CCRB Panel Recommendations
Dispositions as of October 10, 2023
Of the 91 cases produced for examination in March 2022 in response to a data request to
NYPD for SQF cases substantiated by CCRB after implementation of the Matrix, 31 have not yet
closed. They are cases listed as “decision pending,” despite the fact that they all originated in the
period 2019 to 2021. In 37 of the 91 cases, CCRB recommended Charges and Specifications.
Twenty-four of the open cases are instances where CCRB recommended Charges and
Specifications, but a decision is still “pending.” Another six are cases where CCRB recommended
a B-CD, but a decision is still pending. Lastly, in one case CCRB recommended Training, but the
matter is listed as “decision pending.1592
Of the 91 cases, the Board recommended Charges in 37 instances:
Four cases ended with NDA.
Two cases were reduced to training.
Two cases were reduced to a B-CD, with one receiving seven penalty days and the
other a two-hour time deduction.1593
Three cases were reduced to an A-CD, receiving one day, three days and a warning/
admonishment respectively.1594
One case was retained with training being ordered.
Two cases ended with officers retiring or going on terminal leave.
Twenty-three cases are open, with a decision pending.
Of the 91 cases, the Board recommended a B-CD in 17 instances:
Six cases ended with NDA.
Two cases ended with a B-CD, one receiving no penalty and the other retiring after
being assessed a ten-day penalty
Three were reduced to an A-CD, with one receiving a three-day penalty and the other
two receiving no penalty.
Six cases remain open, with a decision pending.
Of the 91 cases, the Board recommended an A-CD in 27 instances:
1592
Ten cases ended with NDA.
Thirteen cases ended with an A-CD. Two received a one-day penalty, the others
received no penalty.
NYPD Member of Service Histories, available at https://www nyc.gov/site/ccrb/policy/MOS-records.page.
1593
Lt.
had been charged with wrongful use of force (gun pointed), two wrongful frisks, two wrongful
search of person, two wrongful stops, and discourtesy.
1594
PO
was discussed earlier in this Report. In that case, notwithstanding the CCRB
recommendation for Charges based in part upon a substantiated improper strip search, the Department resolved the
case without prosecution by APU. IAB separately investigated the incident, due to a fellow officer having punched
the victim repeatedly in the face. PO
was permitted to accept an A-CD with a Warning and Admonishment.
386
Four cases were reduced to training.
Of the 91 cases, the Board recommended Training in 10 instances:
Eight cases ended in NDA.
One case ended in Training.
One case is listed as decision pending.
In sum, as of October 10, 2023, of the 91 post-Matrix case files provided to the Monitor:
Of 37 cases where CCRB recommended Charges, the Police Commissioner:
o
o
o
o
Twelve ended with a reduced level of penalty of 12.
One officer found guilty, receiving 18 penalty days.
Two officers left the Department
Twenty-three cases are still open/pending.
Of 17 cases where CCRB recommended a B-CD, the Police Commissioner:
o Two ended with a B-CD. (One of the two received penalty days.)
o Nine ended with reduced the level of penalty and no discipline.
o Six cases are still open/pending.
Of 27 cases where CCRB recommended an A-CD, the Police Commissioner:
o Twelve ended with a reduced level of penalty, no discipline.
o Two ended with an A-CD. (One of the two received penalty days).
Of the ten cases where CCRB recommended Training, the Police Commissioner:
o Ten ended NDA.
o One received Training.
o One case is still open/pending.
vi.
Penalty Disposition of SQF Misconduct by NYPD
The sample provided the Monitor was of 91 cases where a substantiated SQF allegation
was included within the findings by CCRB for complaints lodged between 2019 and 2021. More
often than not, a substantiated SQF allegation is only one of several other acts of misconduct within
the same encounter. But, in the sample provided, 14 of the 91 cases were matters where the only
substantiated allegations were for SQF allegations. As of October 10, 2023, eight of those 14 cases
had a final disposition. Six cases still have a decision pending without resolution.
The presumptive penalty under the Matrix for a substantiated stop, frisk, or search of
person is for three penalty days. In the sample provided, CCRB recommended the presumptive
penalty of three days for the allegations within 11 of the 14 SQF/only cases. CCRB recommended
mitigation for two of the cases based on “lack of experience,” and that the law in the case was
“complex.” Accordingly, CCRB recommended Training for those two cases.
387
In one case, CCRB found aggravating circumstances, which would call for charges and
carried a 15-day penalty, for a frisk conducted by a supervisor with wrongful intent.
In four cases, CCRB recommended Charges and Specifications, not due to aggravating
circumstances but because multiple SQF allegations aggregated to a consecutive penalty in excess
of ten days. However, even if the decision were made by the Police Commissioner to run those
findings concurrently rather than aggregating them consecutively, the presumptive penalty in each
of those cases would still be at least three vacation days.
If the Matrix is followed and if CCRB recommendations are respected, at least 12 of the
14 cases should have ended at a minimum with an A-CD with three or more penalty days,
regardless of whether the penalties run consecutively or concurrently and even if the Police
Commissioner denied a finding of aggravated circumstances.
If the Police Commissioner were to find mitigating circumstances for any or all of those
12 cases, reducing the case from an A-CD to training, that would still be a departure from the
penalty recommended by CCRB.1595
Remember that the Police Commissioner is to explain a departure in detail when he departs
from either the level of penalty recommended by CCRB OR the penalty recommended by CCRB.
The question is, how many of the SQF cases received the level of penalty (an A-CD, B-CD, or
Charges, as the case may be) recommended by CCRB? And how many cases received the
presumptive or proscribed penalty (three or ten days as the case may be)? How many cases were
departures from CCRB and how many were deviations from the Matrix?
For the two cases with a mitigation recommendation by CCRB:
o In one case the training recommendation was administratively closed with
an NDA for SOL.
o In the other case, the training recommendation is still open.
For the one case with an aggravated circumstance finding, a decision is pending and
the case is still open.
For the nine cases which have closed where an A-CD and the presumptive penalty for
the SQF allegations (even if the overall case recommendation was for a B-CD or
Charges due to aggregation) was recommended:
o
o
o
o
One case ended with an A-CD but no penalty imposed.
Three cases ended with NDA.
One case ended with training as the final disposition.
Four cases still have a final decision pending.
1595
If the case is simply reduced to Training upon the Police Commissioner’s finding of mitigation, there is no question
that the result is a departure. If the case is finalized as an A-CD with Training, although the level of discipline remained
as an A-CD, the penalty reduction from a presumptive three-day penalty to Training requires explanation under the
Charter provisions.
388
In sum, within the sampled 91 cases with substantiated SQF allegations, without other
accompanying non-SQF substantiations, no officer has received penalty days for an A-CD
recommended by the Board and no officer has received the presumptive three-day penalty for SQF
misconduct. 1596
Even for cases where an SQF substantiation is included along with other substantiated
allegations, imposition of penalty days is in the minority. Disallowing the 30 cases which have
yet to be decided,1597 of the remaining 61 finished cases where there is an SQF substantiated finding
within the case, only ten cases ended with imposition of penalty days. Another 13 cases resulted
in an A-CD disposition without notation that penalty days were imposed.1598 The remaining 38
finished cases went without discipline of any kind.
For those who expected that a substantiated SQF allegation, absent mitigating
circumstances, would lead to a three-day penalty, the expectation has not been realized.
As well, mitigation of an SQF allegation does not lead to Training as outlined in the Matrix.
Of the 224 substantiated allegations within the 91 cases, 17 were SQF allegations where the Board
found mitigation. Those 17 mitigated SQF allegations were found in the case of nine officers.
Two of the nine officers received Training. Five of the nine received an NDA. Two received an
A-CD without penalty or Training. One case remains open after a Training recommendation by
CCRB.
vii.
Consecutive/Concurrent Penalties in the Sample
Another aspect of the Guidelines that could have a potential impact upon discipline for
SQF violation is the decision to aggregate the penalty for multiple bad stops or frisks. The true
measure of the efficacy of the new system will be how DAO and the Police Commissioner
ultimately dispose of cases where CCRB has recommended a B-CD for SQF misconduct or
Charges as a result of multiple SQF violations being combined consecutively. In the past, the
majority of SQF cases received training or an A-CD without penalty. But, for example, if an illegal
stop and frisk are elevated to a B-CD with a presumptive six-day penalty (three days each for the
stop and the frisk), the Guidelines will have altered SQF discipline significantly.
1596
One officer, PO
, whose case is described later in this Report, received a presumptive three-day
penalty for stopping two individuals. CCRB had recommended an A-CD for each stop which might have called for
six forfeited days. But since the two were treated concurrently, the presumptive three-day penalty was imposed.
1597
As of October 10, 2023, looking at CCRB – NYPD Member of Service Histories, available at
https://www.nyc.gov/site/ccrb/policy/MOS-records.page.
1598
As described earlier in this Report, it is common for an SQF case to end with the notation “A-CD accepted,” which
typically goes without penalty days and as discussed above, for a variety of reasons, is not discipline. As well, it is not
uncommon for an A-CD finding by CCRB to be referred to the local command for decision as to penalty. There is no
guarantee, or follow-up, to ensure that the local precinct commander imposes penalty days upon receiving the case.
389
The Department has proposed amendments to the Matrix which are under consideration.1599
Thus far, the amendments have not been finalized. The proposal would mandate concurrence when
separate acts of misconduct “are related to each other by fact, scheme or pattern.”
In the sample provided to the Monitor, there were eight SQF cases where two presumptive
three-day penalties were aggregated by CCRB to combine into a B-CD recommendation by the
Board. As of October 2023, one case is open and three received NDA. Four cases closed as BCDs. The penalty imposed in those four cases were, respectively: (1) time deduction of three
hours; (2) two cases receiving three penalty days; and (3) one case receiving a penalty of ten days,
coupled with retirement. From this limited number of cases, it is too early to draw any clear
conclusions regarding potential aggregation of consecutive penalties for SQF misconduct.
viii.
PO
Case Study - A Case Where NYPD Produced a Post-Matrix File
- CCRB prosecution resolved by IAB investigation
On July 31, 2019, the victim (AS) and two others were in front of a deli at about 10:25 p.m.
when PO
and two officers in plainclothes arrived in an unmarked car. One of the officers
was found to have punched AS, as he was taken to the ground by all three officers and handcuffed.
CCRB substantiated a stop and strip search allegation against PO
and recommended an
A-CD for the stop along with Charges for the strip search. The Guidelines call for a presumptive
20-day penalty along with Dismissal Probation for the strip search.
has a history of six
CCRB complaints with only one previous RTKA violation having been substantiated. He received
“instructions” for the previous substantiation.
Before Charges were filed, the matter was taken up internally within the Department. An
investigation determined that
“effected the arrest of [AS] without reasonable cause” in
violation of the Patrol Guide. In addition, he failed to properly document the event in his activity
log, failed to prepare a stop report, improperly conducted a frisk without reasonable suspicion, and
conducted a wrongful search of “the interior portions of [AS]’s clothing. The determination was
an A-CD with “warning and admonishing in writing,” which was accepted.
The CCRB proposal to file Charges was Administratively Closed.
As indicated above, and in at least three cases (including the
case), where CCRB
had recommended Charges and Specifications by employment of the Disciplinary Guidelines, the
case was separately resolved by an internal NYPD investigation, without APU prosecution and
without application of Provision Two of the APU-MOU. How this was accomplished needs to be
examined in detail.
XI.
TRANSPARENCY
Few things are as important to the establishment of a fair, consistent, and understandable
disciplinary system as transparency. Public trust and accountability, of course, demands visibility
into actions taken by the Department. But the need for transparency goes further. Rumors of
1599
NYPD Policies, available at https://www nyc.gov/site/nypd/about/about-nypd/public-comment.page.
390
favoritism or suspicions that misbehavior is condoned or even encouraged fester in darkness.
Indeed, the only viable way for the Department to lift the label of “deliberate indifference” to
constitutional violations placed upon it by the Court is by openly producing proof of its successes
and failures as it strives for reform. Lastly, often overlooked, is the importance of discernible
discipline as a teaching tool for officers in the Department. If discipline is quietly applied or
avoided for one officer and kept as a “dirty secret,” other officers within the precinct, command,
borough, or Department as a whole remain ignorant of the Department’s efforts to corral
misbehavior and are consigned to baseless speculation about what is punishable and how discipline
is imposed.
Transparency does not work if it is half-hearted. Transparency includes open discussion
of the factual basis for decisions, whether substantiated or not, and explanation of the rules that
applied. We are all familiar with the quotation “Sunlight is said to be the best of disinfectants.”
But Justice Brandeis followed that famous aphorism with the statement, “Electric light [is] the
most efficient policemen.”1600
From 1972 to 2016 NYPD would routinely post personnel orders, including disciplinary
actions, in the office of the Deputy Commissioner for Public Information. In May of that year, the
Department ceased posting the cases and began to refuse FOIL requests for information about
disciplinary actions.
The blanket denial of access to those records led to calls for reform. After a review of
practices in NYPD, the “Independent Panel” observed that “Lack of transparency was one of the
most frequent complaints that the Panel heard about the Department’s disciplinary process.”1601
As part of the Joint Remedial Process, Judge Belen argued, “The Mayor and the State of
New York should reevaluate their interpretation of Civil Rights Law § 50-a, which prohibits the
Department from sharing information which has historically been open to the public. Many groups
agree that the current interpretation of Civil Rights Law § 50-a is overbroad.”1602
At the time, a pending lawsuit brought by the NYCLU sought copies of all final opinions
in substantiated cases issued in the Trial Room along with the final formal discipline imposed.
The petition was denied on the grounds that the documents were “personnel records” protected by
CRL § 50-a.1603 Petitioners agreed that the decisions were personnel records but argued that the
Department and the Court had the discretion to release redacted versions, if needed to guard against
“unwarranted invasions of privacy.”1604 The Court of Appeals denied the petition in a sweeping
1600
Louis D. Brandeis, Other People’s Money and How the Bankers Use It, at 92 (1914).
1601
Hon. Mary Jo White, The Report of the Independent Panel on the Disciplinary System of the New York City
Police Department at 4 (Jan. 2019).
1602
JRP 267.
1603
NYCLU v. NYPD, 102436/2012 (Sup. Ct. N.Y. Cnty.) (Hagler, J.), aff’d 148 A.D.3d 642 (1st Dep’t 2017).
1604
POL § 87.
391
opinion.1605 The Court held that police personnel records could not be disclosed and that redaction
was insufficient.
Ordinarily, agencies have discretion, subject to court review, to decide whether disclosure
of a record constitutes an “unwarranted invasion of privacy” under Public Officer Law (POL) §
87(2)(b). Even then, the agency still has the right to publish the information if, on balance, the
public interest would be served. In NYCLU, the Court ruled that CCRB did not have the same
discretion for records deemed confidential by § 50-a, which was governed by a different subparagraph, POL § 87(2)(a). That particular sub-paragraph did not permit discretionary disclosure
for items “specifically exempted from disclosure by state or federal statute.”
Partially in reaction to that NYCLU decision and in response to the numerous calls for
police reform following the death of Eric Garner and George Floyd, the Legislature repealed § 50a1606 Along with the Repeal of § 50-a, the Legislature deleted the reference to the section in POL
§ 87(2)(a).
In place of § 50-a, the Legislature directed that law enforcement disciplinary records are
available by use of the Freedom of Information Law (FOIL).1607 Within that statute it created a
two-tier system for access to law enforcement records. Some records must be disclosed in their
entirety, while others must be redacted.
“Law enforcement disciplinary records” are generally available and include the misconduct
allegations; the name of the officer; transcripts of proceedings including exhibits, and dispositions;
and any final opinion or memorandum supporting the outcome, including the factual findings and
analysis.
Certain records must be redacted. They are itemized in paragraph 2-b of § 89 of the Public
Officers Law.1608 They include distinctly personal information such as medical histories,1609 home
addresses and phone numbers, private financial records, and participation in employee assistance
programs, etc. The statute calls for redaction of the personal information only—not wholesale
withholding of files which may contain some redacted information.
Law enforcement disciplinary records, since they are not itemized as exceptions in
paragraph 2-b, must be disclosed without redaction unless the agency determines, on a case-bycase basis, to redact because disclosure with identifying details would constitute an unwarranted
invasion of personal privacy.1610 Some records are “specifically exempted from disclosure by state
1605
NYCLU v. NYPD, 32 N.Y.3d 556 (2018).
1606
L 2020, ch 96, eff. June 12, 2020.
1607
POL § 86 et seq.
1608
POL § 89(2-b).
1609
Redaction is not required for medical histories when obtained during, and are relevant to, a misconduct
investigation. In the past, CCRB would have difficulty obtaining necessary medical records of an officer from NYPD
unless the officer consented. HIPAA does not preclude this because NYPD is not a “health care provider.”
1610
“[B]lanket exemption for particular types of documents are disfavored.” NYCLU v. City of Schenectady, 306
A.D.2d 784,785 (3d Dep’t 2003) (citing Matter of Gould v. NYPD, 89 N.Y.2d 267, 275 (1996) (rev’d on other
392
or federal statute.”1611 A list of others may be withheld, but only upon a showing that disclosure
would jeopardize certain protected rights, such as depriving a person of a right to a fair trial or
identifying a confidential source.1612
But, in cases where the agency determines that release would constitute an unwarranted
invasion of privacy, the solution is not to withhold the entire record, but instead to delete
“identifying details.”1613 This is a matter of discretion for the Department. The statue suggests
specific items which would generally be so protected such as “employment, medical or credit
histories,” and “information of a personal nature reported in confidence to an agency and not
relevant to the ordinary work of such agency.”1614
The decision to redact on privacy grounds, if not itemized in paragraph 2-b, goes through
a two-step process. First the agency needs to decide whether a particular item’s disclosure would
constitute an unwarranted invasion of privacy.1615 Even then, however, the agency is still permitted
discretion to disclose, notwithstanding the privacy interests asserted.1616
The classification of a record as one which would constitute an unwarranted invasion of
privacy is generally left to agency discretion. The committee on public access to records may
promulgate guidelines regarding deletion of identifying details or withholding records, but in the
absence of such guidelines, the agency is left to determine the boundaries. However, “all records
of a public agency are presumptively open to public inspection and copying unless otherwise
specifically exempted.” Further, “[e]xemptions are to be narrowly construed to provide maximum
access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the
requested material falls squarely within a FOIL exemption by articulating a particularized and
specific justification for denying access.”1617
grounds). Agencies also have discretion to deny access to records or portions of records that, if disclosed, would
impair contract negotiations, expose trade secrets, interfere with law enforcement investigations, identify a
confidential source in a criminal investigation, and certain inter-agency and intra-agency communications. POL
§ 87(2).
1611
POL § 87(2)(a).
1612
POL § 87(2)(e)(i)-(iv).
1613
POL § 89(2)(c)(i).
1614
POL § 89(2)(b)(iv).
1615
The Court of Appeals, in condemning a “runaround” which must end in an application to see force reports,
declared, “The City is reminded that government records are “presumptively open,” and statutory exemptions are
“narrowly construed,” and the City must articulate a “particularized and specific justification for non-disclosure.”
Matter of NYCLU v. City of Schenectady, 2 N.Y.3d 657 (2004); Matter of Harbatkin v. NYC Dep’t of Records & Infor.
Servs., 19 NY 3d 373 (2012)
1616
POL § 87(2)(a): “Each agency shall, in accordance with its published rules make available for public inspection
and copying all records except such agency may deny access to records or portion there of that: . . .if disclosed would
constitute an unwarranted invasion of personal privacy. . .” (emphasis added). See also Matter of Capital Newspapers
Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 567 (1986) (“[W]hile an agency is permitted to restrict access to those
records falling with the statutory exemptions, the language of the exemption provision contains permissive rather than
mandatory language, and it is within the agency’s discretion to disclose such records . . . if it so chooses.”).
1617
Id. at 566.
393
One month after the repeal of § 50-a, Corporation Counsel for the City of Syracuse asked
for guidance from the Committee on Open Government (COG) on whether pending or
unsubstantiated complaints could be withheld on grounds of privacy.
The public debate on the bill in both the Senate and the Assembly had made it clear that
pending and unsubstantiated allegations remained available for inspection and amendments to bar
their disclosure were rejected by the Legislature. However, discretionary redaction of “identifying
details” still rested, as before, with the agency where privacy so demanded.
Previously, before the repeal of § 50-a, in advisory opinions regarding disciplinary records
of city employees generally, the Committee on Open Government had permitted redaction of
identifying details in cases where “charges of misconduct have not yet been determined or did not
result in disciplinary action.” It also noted that a finding of “unwarranted invasion of privacy” was
not without guardrails and wrote that a finding is achieved by balancing the privacy interest at
stake against the public interest in disclosure. In particular, redaction is permitted when the
information is “of a personal nature” and release “would result in economic or personal hardship
to the subject party and such information is not relevant to the work or the agency requesting or
maintaining it.”1618
The Committee also cautioned that redaction of a portions of a record is not the same as
complete exemption of a record. Privacy could not be broadly asserted to justify withholding
entire records.
In our opinion, if the City is able to prevent disclosure of records which would
constitute an unwarranted invasion of personal privacy through the redaction of
identifying details, it has an obligation to redact those details and disclose the
remainder of the records (unless another ground for denial can be asserted).1619
An advisory opinion authored by staff on July 27, 2020, in response to the question from
Syracuse Corporation Counsel about the effect of the repeal on law enforcement records, stated:
Accordingly, it is our opinion, in the absence of judicial precedent or legislative
direction, that the law does not require a law enforcement agency to disclose
‘unsubstantiated and unfounded complaints against an officer’ where such agency
determines that disclosure of the complaint would constitute an unwarranted
invasion of personal privacy, but also does not require an agency to withhold such
a record. Rather, as with all of the FOIL exemptions except § 87(2)(a), which no
longer applies to this situation since the repeal of § 50-a, an agency may, but not
must, withhold as exempt a record meeting the criteria for such exemption. In light
of the repeal of § 50-a, a request for disciplinary records relating to a police officer
must be reviewed in the same manner as a request for disciplinary records of any
other public employee. As such, based on our prior analyses of the disclosure
1618
Committee on Open Government, FOIL AO 19771 (May 7, 2020), available at https://docs.dos ny.gov/coog/ftex
t/f19771 html.
1619
Committee on Open Government, FOIL AO 19805 (Apr. 30, 2021), available at https://docs.dos.ny.gov/coog/fte
xt/f19805.pdf.
394
requirements relating to disciplinary records of government employees generally,
when allegations or charges of misconduct have not yet been determined or did not
result in disciplinary action, the records relating to such allegations may in our view
be withheld where the agency determines that disclosure would result in an
unwarranted invasion of personal privacy. In addition, to the extent that charges
are dismissed, or allegations are found to be without merit, we believe that those
records also may be withheld based on considerations of privacy. 1620
In reliance upon that opinion, the City of Syracuse denied a FOIL request seeking
disciplinary records related to complaints not yet substantiated. It did so categorically instead of
looking at each individual complaint or case. A Supreme Court Justice in Onondaga County
subsequently agreed with the City of Syracuse and even went so far as to add additional bases for
denial of disclosure. The court ruled that unsubstantiated and open cases warranted privacy.1621 In
addition, the court speculated that open claims might be protected on the grounds that release
would interfere with law enforcement investigations and were also protected as inter- and intraagency documents.1622
On November 10, 2022, the Appellate Division, Fourth Department reversed the decision
in City of Syracuse, holding that unsubstantiated and open cases could not be categorically
exempted from FOIL. It did permit the Syracuse Police Department to withhold or redact
individualized records upon a showing of a particularized and specific justification showing an
unwarranted invasion of personal privacy under Public Officers Law § 89(2)(c)(i).1623
In New York City, The New York Post sought disciplinary records of 144 officers from
NYPD. At first, the Department objected, not on the grounds of privacy, but on a claim that the
request was unduly burdensome. In that case, after a two-and-one-half-year delay, a scheduled
release was ordered, citing City of Syracuse as binding authority.1624
Another court in New York City directed the release of IAB records in two cases, but
permitted redaction of personal information, presumably not including the identity of the officers
involved.1625
The Herkimer Police Department has also denied access to unsubstantiated or open cases,
but with an additional wrinkle. The Herkimer authorities decided that the repeal of § 50-a was not
1620
Committee on Open Government (July 27, 2020), available on file in Uniformed Fire Officers Ass’n. v. de Blasio,
20-cv-05441, Dkt. 30-1 (S.D.N.Y. July 28, 2020), Doc. No. 30-1. Robert Freeman, the long-term head of the
Committee, had been forced to leave office just a few months before enactment of the provisions. The request went
to Shoshanah Bewlay, who took office on March 19, 2020.
1621
NYCLU v. City of Syracuse, 72 Misc. 3d 458 (Sup. Ct. Onondaga Cnty. 2021), on appeal NYSCEF CA 21-00796.
1622
Id. (citing POL §§ 87(2)(e), (g)).
1623
Matter of NYCLU v. City of Syracuse, 210 A.D.3d 1401 (4th Dep’t 2022).
1624
NYP Holdings, Inc. v. NYPD, 77 Misc. 3d 1211 (A), Index No. 159132/2021 (Sup. Ct. N.Y. Cnty. Dec. 6, 2022),
aff’d, 220 A.D.3d 487 (1st Dep’t 2023).
1625
Rickner Pllc v. City of NY, 2022 N.Y. Misc. LEXIS 2233, Index No. 157876/2021 (Sup. Ct. N.Y. Cnty. May 25,
2022).
395
retroactive. Accordingly, they refuse to disclose records created prior to July 20, 2020. Gannett
Newspapers has filed a petition to reverse this determination. The case is pending in Herkimer
Supreme Court.1626
Holding to the contrary, the Appellate Division, First Department, recently ruled that the
repeal of Civil Rights Law § 50-a applies retroactively.1627
In a petition filed against the City of Schenectady, another lower court has rejected the
blanket assertion of privacy for unsubstantiated cases, writing:
[R]egardless whether unsubstantiated or unfounded or exonerated or dismissed, or
regardless of whether not yet fully determined, or regardless of whether founded
but without discipline imposed, the respondents herein cannot determine to deny
the sought disclosure. A finding that [the police officer’s] personnel record, or any
portion thereof, be withheld or redacted on the basis that its release would constitute
an unwarranted invasion of personal privacy, cannot be realized by petitioners, as
to do so would render the legislature's repeal of [§ 50-a] utterly meaningless simply
by the respondents theorizing that the record (or any portion thereof) is, in their
opinion, ‘private.’ Given that an easy ability to render the new statutory scheme
meaningless could not possibly have been [ ] intended by the legislature, this Court
is constrained to deny the petition and complaint in their entirety.1628
As well, the claim of non-retroactivity has been rejected by a court in Orange County on
the grounds that the repeal was remedial in nature and, as such, is to be applied retroactively.1629
On the other hand, a Justice in Monroe County has recently held that the statute is not
remedial in nature and therefore not to be applied retroactively.1630
In New York City, litigation was commenced in United States District Court for the,
Southern District of New York, by a consortium of public unions seeking to bar disclosure of open
and unsubstantiated claims. They cited Due Process1631 and bargaining contract obligations, as
1626
Gannett Co. v. Herkimer Police Dep’t, Index No. EF2021-108916 (filed Nov. 22, 2021); accord, People v.
Francis, 2022 NY Misc. LEXIS 510 (Sup. Ct. Monroe Cnty. 2022). But see Puig v. City of Middletown, 71 Misc. 3d
1098 (Sup. Ct. Orange Cnty. 2021) (repeal was remedial and therefore retroactive).
1627
NYP Holdings, Inc. v. NYPD, __A.D.3d__(1st Dep’t Oct. 12, 2023), Index No.159132/21, Case No. 2023-00242.
1628
Schenectady Patrolmen’s Benevolent Ass’n v. City of Schenectady, 2020 N.Y. Slip Op. 34346(U) (Sup. Ct.
Schenectady Cnty Dec. 29, 2020.
1629
Matter of Puig v. City of Middletown, No. 000498-2021, 2021 N.Y. Misc. LEXIS 1713, at *16 (Sup. Ct. Orange
Cnty. Apr. 7, 2021)
1630
Matter of Abbatoy v. Bater, 178 N.Y.S. 3d 412, Index No. E2021009176 (Sup. Ct. Monroe Cnty. Nov. 17, 2022).
A notice of appeal has been filed (Dec. 16, 2022).
1631
Under a claim of “Stigma-plus” injury.
396
well as claimed a generic unwarranted invasion of privacy.1632 On August 21, 2020, Plaintiffs’
motion for a preliminary injunction was granted it in part, to extent that:
The NYPD and CCRB may not disclose records of Schedule A command discipline
violations for cases heard in the trial room, for which the ultimate disposition of the
charge at trial, or on review or appeal, is other than guilty, which records have been,
are currently, or could be in the future the subject of a request to expunge the record
of the case pursuant to Section 8, for those officers covered by the PBA, the SBA,
and the LBA, collective bargaining agreements.1633
On appeal, to the Second Circuit, the Unions’ blanket objection to the release of open or
unsubstantiated complaints was denied. In particular, as to claims that the City had, in the past,
considered unsubstantiated claims to be barred by privacy concerns, the Court decided that the
“practice, if it ever existed, appears to have ended no later than 2017.”1634 However, the court ruled
that the City may, upon a particularized finding of an unwarranted invasion of privacy, redact
records. The Unions had argued that publication of certain disciplinary records without
individualized review is arbitrary and capricious. The Court noted that “the City appears to still
recognize those specific FOIL exemptions that are designed to protect against unwarranted
invasions of personal privacy or endangering a person’s safety.”1635 In light of the ruling in City of
Syracuse, above, it would be ironic, if not patently inconsistent with arguments made to the Court
of Appeals, if the City were now to follow the lead of Syracuse and adopt a general bar to
disclosure of unsubstantiated cases—the very position the unions sought and the City opposed in
court with assurances that there would be individualized review of privacy claims.
In fact, the Appellate Division, First Department, followed that very line of reasoning on
February 16, 2023, in a decision requiring the New York City Department of Correction “to
disclose the requested records [unsubstantiated complaints or allegations], subject to redactions
with specific justification under Public Officers Law § 87(2).”1636 Although not specifically
addressed in the appellate opinion, the lower court had overruled an objection to retroactive
application. The First Department affirmed the lower court decision in its entirety.
One issue of particular importance to stop and frisk litigation that was left open by the
Appeals Court was whether “technical infractions” are available upon a FOIL request. POL §
87(2-c) permits, but does not require, redaction of technical infractions in a disciplinary history.
A technical infraction is defined as:
a minor rule violation by a person employed by a law enforcement agency . . . solely
related to the enforcement of administrative departmental rules that (a) do not
involve interactions with members of the public, (b) are not of public concern, and
1632
Uniformed Fire Officers Ass’n v. de Blasio, Index No. 20-cv-05441, ECF Doc No 197 (S.D.N.Y.) (Failla, J.).
1633
Id., ECF Doc No 16 at 23 (Aug. 21, 2020).
1634
Uniformed Fire Officers Ass’n v. de Blasio, 846 F. App’x 25 (2d Cir. 2021).
1635
Id. at 32.
1636
NYCLU v. NYC Dep’t of Corrs., 213 A.D.3d 530 (1st Dep’t 2023).
397
(c) are not otherwise connected to such person’s investigative, enforcement,
Training, supervision, or reporting responsibilities.1637
At first, the Department, took the position that Command Discipline, especially A-CDs,
were “technical infractions” and that the City would not disclose cases where informal discipline
was utilized. This, of course, would bury almost every SQF case. If followed, this would hide not
only open cases and unsubstantiated cases but, beyond that, would bury substantiated stop and
frisk misconduct from public review. The Court appreciated that this particular objection to
disclosure rested upon an unresolved interpretation of the Public Officers Law. It remanded the
issue to the lower court, writing, “If [intervenors] can show that ‘Schedule A’ violations include
anything other than ‘[t]echnical infractions[s]’ as defined by New York law, it may move the
District Court for appropriate relief.”1638
Upon remand, the question regarding disclosure of substantiated A-CDs was not settled
since the action was voluntarily discontinued. The parties, in a letter submitted by Corporation
Counsel prior to a stipulation of dismissal, promised to “continue internal discussions regarding
modification language and potentially collaborate with [Communities United for Police
Reform]1639 to draft mutually agreeable language to propose to the Court for its consideration.1640
Three weeks later, a stipulation of dismissal was filed, but it contained no language resolving the
issue of disclosure of A-CDs.1641
Settlement of this issue is of meaningful consequence for transparency in stop and frisk
cases. If one follows the clear language in the statute, it would seem there is no issue to be resolved.
The statute plainly exempts enforcement actions that involve interactions with members of the
public. By definition, FADO complaints brought to CCRB involve interactions with the public.
SQF findings are not “technical infractions” under FOIL.
Nonetheless, as of this writing it appears the parties have not yet drafted “mutually
agreeable language” to resolve the issue. In practice, CCRB had posted complaints and
dispositions online, including A-CDs and unsubstantiated allegations. More recently CCRB has
altered its reporting and no longer posts unsubstantiated cases. As well, it does not post open
cases.1642 The NYPD purports to list its disciplinary histories, but the online profile is extremely
limited. It only lists substantiated formal charges, which is less than the tip of an iceberg.
A.
Investigative Files - Public Access
If unsubstantiated and open cases are ruled to be inaccessible under FOIL as argued in the
Syracuse and Herkimer cases, either on grounds of privacy or retroactivity, a secondary question
is whether all of the material in the files of disciplinary investigations remain inaccessible. The
1637
POL § 86(9).
1638
Uniformed Fire Officers Ass’n, 846 F. App’x at 33 (internal citations omitted).
1639
CPR had intervened to strike the lower court’s preliminary injunction barring disclosure of A-CD’s.
1640
UFO v. de Blasio, 20-cv-5441, ECF Doc No 258 (Mar. 22, 2021).
1641
Id., Doc. No. 261 (Apr. 13, 2021).
1642
See MOS Records, available at https://www nyc.gov/site/ccrb/policy/MOS-records.page.
398
new FOIL provisions only apply to records “created in furtherance of a law enforcement
disciplinary proceeding” which is defined to be after “the commencement of any investigation and
any subsequent hearing or disciplinary action conducted by a law enforcement agency.”1643 For
other records, the usual and customary rules for FOIL access apply. That would include a large
portion of the records held by CCRB.
In a case that preceded the repeal of § 50-a, the Appellate Division, First Department,
affirmed an opinion granting access to BWC footage without regard to the pendency or prospect
of a disciplinary proceeding.1644 The court held that BWC footage is “is more akin to arrest or stop
reports, and not records primarily generated for disciplinary and promotional purposes. To hold
otherwise would defeat the purpose of the body-worn camera program to promote increased
transparency and public accountability.”1645
Most of the documents contained in the typical CCRB-SQF investigation are merely a
compilation of ancillary documents, comparable to BWC footage. Activity logs, stop reports, TRIforce reports, consent to search reports, strip-search reports, memo book entries, etc. are not
compiled as personnel records. They were not created in furtherance of nor during a CCRB
investigation. As such, they are not “law enforcement disciplinary records” under POL § 86.
Instead, they are ordinary “factual information” documents and therefore discoverable under FOIL
as decided by the New York Court of Appeals in Gould v. NYPD.1646 This includes activity logs
and any other document prepared or kept by the Department as a normal part of documenting
police action. This creates an interesting tension between the customary handling of FOIL
exemptions for personal privacy where the Department has discretion and may disclose the items
even after a finding of a privacy interest, and the newer language in POL § 89 where the
Department must redact items if a privacy interest is found. While “law enforcement disciplinary
records” must be redacted to guard against an unwarranted invasion privacy, other records used in
a disciplinary investigation, including stop reports and memo books, need not be redacted even in
unsubstantiated cases. The holding in Gould preceded the repeal of § 50-a, so retroactivity is not
an issue in the case of ordinary reports; they continue to be accessible as before, but now their
inclusion in a personnel file is no longer cause for withholding them.
B.
Access to CCRB Records Under FOIL
CCRB is not a law enforcement agency.1647 It is an independent agency and not under the
control of NYPD. In the past, NYPD would stress the point in refusing to give certain personnel
records to CCRB, citing § 50-a. The Civil Rights Law, prior to repeal, had an exception to § 50a, providing that the section did “not apply to any agency of government which requires the records
described . . . in the furtherance of their official functions.”1648 If CCRB were considered to be an
1643
POL § 86.
1644
Matter of Patrolmen’s Benevolent Ass’n of N.Y.C v. de Blasio, 171 A.D.3d 636 (1st Dep’t 2019), appeal dismissed,
35 N.Y.3d 979 (2020).
1645
Id. at 639.
1646
Gould v. NYPD, 89 N.Y.2d 267 (1996).
1647
See POL § 86(8).
1648
CRL § 50(4), repealed.
399
agency of government it should have had full access to personnel records and disciplinary histories
within NYPD, which it did not. NYPD restricted access to § 50-a personnel records to CCRB on
the grounds that CCRB was not a governmental agency under § 50(4) but was comprised of
civilians.
Despite the fact that CCRB is not a law enforcement agency and not automatically entitled
to police personnel records under previous law, the Appellate Division, Second Department, ruled
in Hughes, Hubbard & Reed v. CCRB in 2019 that CCRB was prohibited from disclosing its own
records, not just NYPD records, under § 50-a because they were personnel records in the “control
of a police agency” and “they are used to evaluate performance” of officers.1649 The ruling, to be
kind, was internally inconsistent. A civilian complaint to an independent agency does not become
a police personnel record merely because some percentage of them may eventually be passed on
to the Department. Similarly, a report written by a CCRB investigator is not a police record
because some of the reports may be passed on to the police for the Department’s potential use.
Even police records which were not personnel records (force reports, memo books, etc.) before
they were shared with CCRB do not assume the cloak of personnel record when sent to CCRB
merely because they are shared with CCRB and might possibly be referenced in a report to NYPD.
Finally, it was inherently contradictory to say that CCRB is not a government agency
performing an official function under former § 50(4), (thus denying access to personnel records)
while at the same time maintaining that records generated by CCRB are police personnel records
under the control of the Department because CCRB is part of the Department.
§ 50-a only applied to “personnel records used to evaluate performance toward continued
employment or promotion, under the control of any police agency.” (emphasis added). In order
to find that all records created or maintained by CCRB, an independent agency, were Police
Department records, the Court in Hughes had to stretch the boundaries of precedent. In an earlier
opinion, Matters of Prisoners’ Legal Services (PLS) v. New York State Department of Correctional
Services,1650 the Court of Appeals faced a situation where two offices in the same correctional
facility maintained records that were used for employee evaluations. One office maintained
employment records. Another office held files with grievances lodged against the officers by
inmates. Both were used for promotion and assignments. The Court found that both sets of
records, maintained in the facility and in the custody and control of the agency, were personnel
records even though kept in separate offices in the same building.
The Court in Hughes extended the PLS holding to find that the records of CCRB, an
independent agency, with records independently created by CCRB, were also under the control of
the Police Department as well because some CCRB records were passed on to DAO after an
investigation. For the Hughes court the simple fact that CCRB records may be used by NYPD for
employment purposes was enough to make them personnel records protected by § 50-a. By that
logic, if a New York Times article put in an officer’s file and used to evaluate the officer, not only
does that article becomes confidential, but the New York Times would also be prohibited from republishing it.
1649
Matter of Hughes, Hubbard & Reed v. Civilian Complaint Review Bd., 171 A.D.3d 1064 (2d Dep’t 2019).
1650
73 N.Y.2d 26 (1988).
400
In any event, no matter how strained the opinion in Hughes may have been, it is past history
because § 50-a is gone. However, the question will arise anew in the language of POL § 89. That
section took away NYPD’s ability to disclose some records of a personal nature. It also permitted
NYPD to refuse disclosure of other records where a privacy exception was successfully asserted
or on the grounds of interference with criminal investigations, or as intra-agency/inter-agency
communications.
So, for example, does the new law mean that CCRB investigative files and dispositions are
to be governed by whatever policy NYPD may adopt with regard to unsubstantiated and open
cases? Will the mandated withholding of private disciplinary records be extended to CCRB
despite the fact that CCRB is not a law enforcement agency? Will NYPD attempt or have the right
to impose its view of the privacy provisions of FOIL upon CCRB? A good argument can be made,
now that CCRB is freed of the yoke of the ruling in Hughes, that the new sections of the Public
Officers Law do not apply to CCRB. It should be free to disclose any or all of its own records
under the older provisions of FOIL—which leaves discretion to the holding agency. It is unclear
at this time which policy will prevail.1651
The recently adopted Matrix-MOU contains a proviso that NYPD employment histories
provided to CCRB are subject to the redactions required by the Public Officers Laws.1652 It further
provides that CCRB shall not disclose any NYPD employment history without first notifying
NYPD’s Legal Bureau, giving NYPD an opportunity to assert any applicable legal exemptions.
CCRB needs to be cautious about entering into any agreement that may narrow disclosure beyond
that required by FOIL. As the Second Circuit wrote when discussing the contract between the
unions and NYPD, “disclosure obligations” cannot be bargained away.1653
In any event, the “employment history” which is delivered to CCRB under the MatrixMOU “refers to a document which was previously supplied by the NYPD to the CCRB in cases
where CCRB’s Administrative Prosecution Unit handled the prosecution of substantiated
allegations resulting in charges and specifications.”1654 This clause is apparently limited to the
Summary Employment History (SEH) which, in the past, did not contain CORD reports, or
disciplinary histories from IAB, DAO, BIU, or local commands.1655 In the typical SQF case where
Charges and Specifications are not filed, the panel did not receive even a limited employment
history. But the current Matrix-MOU does not confine records available to CCRB investigators
solely to APU cases, which may mean that more information will be available in SQF
1651
A Supreme Court Justice in Albany County recently wrote that, notwithstanding a privacy interest, an “agency
may within its exercise of discretion release such records.” Munger v. Hochul, 2022 N.Y. Misc. LEXIS 8031, Index
No. 907274-21 (Sup. Ct. Albany Cnty. Nov. 23, 2022).
1652
Memorandum of Understanding Between NYPD and CCRB concerning the NYPD Discipline Matrix at 11 (Feb.
24, 2021) (hereinafter “Matrix-MOU”).
1653
Uniformed Fire Officers Ass’n v. de Blasio, 846 F. App’x 25, 31 (2d Cir. 2021).
1654
Matrix-MOU at 5 n.5.
1655
The Matrix-MOU also provides that NYPD will not refuse to disclose or delay disclosure of an officer’s
employment history on the ground that it is conducting a concurrent or parallel investigation.
401
investigations not leading to formal discipline.1656 The new MOU also does not say anything about
CCRB’s ability to make an independent determination in response to a FOIL request for CCRB
records.
A lawsuit demanding redacted copies of CCRB closing reports was recently settled in the
applicant’s favor.1657 but the extent and scope of the redactions not yet undetermined.
C.
Published Reports
On March 27, 2018, the Department announced that it would publish summaries of
Disciplinary records with the names of the officers redacted in a “Trial Decision Compendium.”
The PBA successfully sued to enjoin the publication, citing § 50-a.1658 With the repeal of § 50-a,
the basis for the petition became moot and the order was reversed.1659
Since then, the Department has posted an online a “Trial Decisions Library” which has the
written opinion of the Trial Commissioner in cases that went to trial or where there was a plea to
Charges.1660 The approval/disapproval letter of the Police Commissioner is attached, and the
charged officers are identified by name. This is a useful resource for the 35 to 50 cases that are
written up each year, but it is not very useful for the vast majority of disciplinary matters, including
most SQF cases, that are not included in the writeups.
D.
Explanation of Findings, Variance, Deviation, Departure
Recent Charter amendments, along with MOUs and adopted Rules, require certain memo
exchanges between CCRB and the Department as explanations for decisions pertaining to
disciplinary findings and recommendations. In addition, the parties have agreed to explain the
decision to adhere to or deviate from the Guidelines Matrix. As outlined below, some of these
“explanations” are publicly available.
One of the Charter amendments approved in November 2019 requires the Police
Commissioner to report to CCRB, in writing, on any action she takes with regard to any
substantiated case submitted by CCRB. She is directed to specify the “level of discipline and any
penalty imposed, in all cases.”1661 Notwithstanding the clear mandatory language of the Charter,
CCRB reports, “While the CCRB receives notification of the final category of discipline, the
Agency does not receive specifics on the penalty that the Police Commissioner ultimately
1656
Employment histories may not necessarily be sought in every case. The Matrix-MOU only promises to deliver
the employment history within 20 business days after a specific written request is made to the Department by the
CCRB investigator. Matrix-MOU ¶¶ 9-12.
1657
Teufel v. Civilian Complaint Review Bd., Index No. 157001/2021 (Sup. Ct. N.Y. Cnty. Dec. 27, 2021).
1658
Patrolmen’s Benevolent Ass’n of N.Y.C. v. de Blasio, 153231/2018 (Sup. Ct. N.Y. Cnty. Mar. 11, 2019) (Engoron,
J.).
1659
Patrolmen’s Benevolent Ass’n of N.Y.C. v. de Blasio, 2020 N.Y. Slip Op. 6866 (1st Dep’t Nov. 19, 2020).
1660
Available at https://nypdonline.org/link/1016.
1661
NYC Charter 440(d)(3).
402
imposes.”1662 As explained earlier, in most substantiated SQF cases, informal discipline or
guidance is imposed by the Police Commissioner. If read literally and followed, the Police
Commissioner will need to follow up on cases sent to the precinct for action, i.e., most command
disciplines, to find out what action if any the local commanding officer has taken, and then explain
his findings to the CCRB. The Charter does not require that the notice must be publicly available.
While CCRB does list online1663 the penalties imposed for substantiated cases where they are so
advised, the records are only available if the name of the subject officer is known. CCRB does
publish semi-annual reports, annual reports, and monthly statistical reports, but while levels of
discipline are reported, penalties are not. Thus, there is no easily accessible way for the public to
look at penalties imposed overall during a particular time-block.
Knowing the precise penalty imposed would be useful in gauging the “concurrence rate”
between CCRB and NYPD. Statistics provided heretofore were imprecise. For example, if CCRB
recommended an A-CD, but the discipline was “accepted” without penalty, it would be generous
to describe the result as one of “concurrence” without further explanation. Even with that, the
Charter Commission Staff noted that only 45 to 54 percent of non-APU cases resulted in discipline
at a level suggested by CCRB in the 12 months preceding the Charter report. In cases where
formal discipline was recommended, the fall-off was even greater. Only 26 to 37 percent of cases
in that time period were formally prosecuted after a recommendation of Charges by CCRB.1664
Prior to 2019, the Police Commissioner did not explain variances from a CCRB
recommendation, with two exceptions: (1) pursuant to the APU-MOU, the Police Commissioner
voluntarily agreed to give advance notice when he or she divested APU of authority to prosecute
formal discipline (under Provision Two of the APU-MOU, discussed earlier); and (2) in cases
prosecuted by APU in the Trial Room where the Police Commissioner imposed discipline that was
of a “lower level” that that recommended by CCRB or the Trial Commissioner.
The explanations were judged to be wanting by the Independent Panel. The “change of
penalty” letters sent to DAO when there was a variance from a Trial Commissioner’s finding or
penalty were cited by the Panel as “conclusory” and “boilerplate,” often advancing little more than
the “totality of the issues and circumstances” or that the officer “did not act in bad faith.” The
Panel wrote that “the conclusory format of the letters contributes to a perception that disciplinary
decisions are arbitrary” and that it “undermines [s] the confidence of the public and other
constituencies in the integrity, fairness, and robustness of the NYPD’s disciplinary system.”
Despite the fact that “variance memoranda prepared by the Police Commissioner’s Office in
CCRB cases typically include greater detail,” the Panel concluded that “CCRB, DAO, and DCT
trial judges, all of whom base their penalty recommendations on precedent, would benefit from a
better understanding of the Commissioner’s rationale.”1665
1662
Available at https://www nyc.gov/site/ccrb/complaints/redacted-departure-letter.page.
1663
Available at https://www1.nyc.gov/site/ccrb/policy/MOS-records.page.
1664
Preliminary Staff Report, Charter Commission at 17 (Apr. 2019).
1665
Independent Panel at 25-28.
403
Picking up on that point, the Staff of the Charter Commission recommended a more
detailed explanation in all cases, not just APU cases.
At this point in time, a duty or commitment to explain variances in disciplinary actions
from CCRB’ recommendation, a Trial Commissioner’s recommendation, or the Disciplinary
Guidelines, are contained in: (1) the Charter; (2) the APU-MOU; (3) the Matrix-MOU; and (4)
the Guidelines Matrix itself. In addition, the Administrative Code requires an annual online public
posting online of statistics regarding the number and percentage of instances in which the
Commissioner deviated from the Guidelines.1666
The mandates and agreements create multiple, seemingly inconsistent and/or overlapping,
requirements or obligations to document or to explain. They vary in: (a) content, (b) timing, (c)
whether an exchange of documents may obtain prior to imposition, and (d) who receives the
information. It is unclear, at this time, how any of these inconsistencies will be reconciled. The
list of reports includes the following:
1.
The 2012 APU-MOU1667 requires advance notice in an APU case when “the Police
Commissioner intends to impose discipline that is of a lower level than that
recommended by CCRB or by an NYPD Trial Commissioner.” The notice is to
include “a detailed explanation of the reasons for deviating from CCRB’s
recommendation including but not limited to each factor the Police Commissioner
considered in making his decision.” The written notification goes to CCRB and the
subject officer ten business days prior to imposition of discipline, with an
opportunity for both to respond. Notice or explanation to the DCT is not required.
The clause only requires notice where the “level of discipline,” not the penalty, is
affected. So, for instance, a decision to replace Charges with Command Discipline
would be noted, but a decision to reduce the number of penalty days recommended
by the DCT or in a plea bargain with CCRB does not require prior explanation
under the 2012 MOU. The provision applies only to formal disciplinary matters
and, as such, is rarely applicable to SQF misconduct.1668 Oddly, the “or” in the
notice paragraph has been read in the conjunctive, so notice and an explanation
under the APU-MOU is not given to CCRB when the Police Commissioner
approves a verdict or penalty recommendation by the DCT, even where the DCT
recommended a lesser discipline than that sought by CCRB. If the two
recommendations (CCRB and DCT) are different, but the Police Commissioner has
1666
NYC Admin. Code § 14-186(d): “[B]y each January 30 . . . the department shall post . . . the number and percentage
of instances within the preceding calendar year in which the commissioner imposed a discipline penalty that is
different from the disciplinary matrix penalty.” In the two year period from June 2021 through June 2023, a total of
14 deviations have been posted. https://nypdonline.org/link/1035.
1667
Memorandum of Understanding Between the CCRB and the NYPD of the City of New York Concerning the
Processing of Substantiated Complaints (APU-MOU) ¶ 6, available at https://www1 nyc.gov/assets/nypd/downloads/
pdf/public_information/ccrb_nypd_mou_prosecution_of_substantiated_civilian_complaints_130402.pdf.
1668
The language of 38 RCNY § 15-18, which incorporates paragraph 6 of the APU-MOU, does not limit itself to
formal charges. It applies to “any case substantiated by CCRB,” which would seem to require an explanation in SQF
cases that are not formally charged. Notwithstanding such, the explanations are only supplied in cases prosecuted by
APU. Conversation with Robert Martinez, Risk Management Bureau (July 16, 2019).
404
gone below both recommendations, the MOU calls for explanation of deviation
from CCRB’s recommendation, not the DCT recommendation, but in practice the
deviation from both was noted. The explanation is considered confidential and is
sent to CCRB but not shared with the complainant nor made public.
2.
The Rules of CCRB require the same notice and permit the same response in APU
cases where the Police Commissioner intends to impose a lower level of discipline
than that recommended by CCRB or the Trial Commissioner. But the CCRB Rules
modify the APU-MOU slightly by specifying that the Police Commissioner give
reasons for lowering the level of discipline from the Trial Commissioner’s
recommendation as well as from that of CCRB, which may not be the same.1669 In
practice, one letter is written.1670
3.
Provision Two: The 2012 APU-MOU and the Rules of CCRB1671 allow the Police
Commissioner to “retain” cases being prosecuted by APU, which are known as
“Provision Two” or “Paragraph Two” cases.1672 The Commissioner can direct
CCRB to refrain from prosecution in such cases, but the Commissioner is to invoke
this paragraph only when pursuit of Charges by APU would be “detrimental to the
Department’s disciplinary process.” In those cases, the Police Commissioner is to
give a “detailed explanation” for the request and a statement detailing the discipline
the Police Commissioner will pursue, if any, as an alternative. Within five days of
receipt, CCRB can reject the request by a statement rebutting the Police
Commissioner’s notice. Five business days after receiving CCRB’s rejection, the
Police Commissioner can respond, rebutting CCRB’s rejection in a detail. The
Police Commissioner’s determination is final. Again, the correspondence in
Provision Two cases is considered confidential and is not shared with the
complainant nor available to the public.
4.
The City Charter as amended in 2019 (effective 2020)1673 now requires the Police
Commissioner to report to the Board in writing “on any action taken, including the
level of discipline and any penalty imposed” whenever the CCRB has submitted a
1669
Rules of the Civilian Complaint Review Board, 38-A RCNY § 1-45. The recommendations of CCRB and the
Trial Commissioner may, and often do, differ. Although the CCRB Rules require the Police Commissioner to explain
deviations from both the CCRB recommendation and the Trial Commissioner’s recommendation, this does not result
in two writings: only one explanation is written. In cases prosecuted by DAO, the Police Commissioner does not
provide an explanation to DAO or the Trial Commissioner. Rules of the Police Department, 38 RCNY Chapter 15,
“Adjudications.” In all cases, regardless of whether prosecuted by APU or DAO, and regardless of the level of
intended discipline, the parties may submit a Fogel letter commenting on the recommendation of the Trial
Commissioner before final consideration by the Police Commissioner. See Matter of Fogel v. Bd. of Educ. of City of
N.Y., 48 A.D.2d 925 (2d Dep’t 1975).
1670
This is, theoretically, more detailed than the “conclusory” or “boilerplate” change of penalty letters written to
DAO of which the Independent Panel complained. Independent Panel at 25-28.
1671
38-A RCNY § 1-42(b); APU MOU ¶ 2, available at https://www nyc.gov/assets/ccrb/downloads/pdf/about_pdf/
apu_mou.pdf.
1672
APU MOU ¶ 2, available at https://www nyc.gov/assets/ccrb/downloads/pdf/about_pdf/apu_mou.pdf.
1673
LL 2019/215 by referendum amending Chapter 18-A, Section 440 of the N.Y. City Charter, eff. Mar. 31, 2020.
405
finding or recommendation to the Commissioner. Theoretically, the final level of
discipline and specific penalty imposed will be reported to CCRB. If followed to
the letter, this means that CCRB will learn, for the first time, how many days or
hours were forfeited after the CO was advised of a CD. In practice, as cited above
in the NYPD Departure Letters page of CCRB’s website, this does not occur.1674
Unlike the APU-MOU, this requires notice in all cases, including non-APU cases,
which should encompass SQF misconduct.
a.
b.
c.
d.
If the level of discipline or the penalty is less than recommended by either
CCRB OR DCT, than an additional explanation “of how the final
disciplinary outcome was determined, including each factor the Police
Commissioner considered in making his or her decision” is required.1675
But the Board does not recommend a specific penalty;1676 it only
recommends a level of discipline (Guidance, Command Discipline A or B,
or Charges). With adoption of the Guidelines, the Board may also
recommend the “presumptive” sanction, the “mitigated sanction,” or the
“aggravated sanction,” but it will not recommend a specified number of
hours or days. This presents an open question: If, for example, the
presumptive penalty for improper use of a Taser is 20 days and the Board
so finds, is an imposed penalty of 10 days or 25 days a “deviation” that
requires explanation?
The Charter further requires an additional explanation of “how the
disciplinary outcome was determined, including each factor the Police
Commissioner considered” in cases where the penalty is lower than that
recommended by “the board” or “deputy commissioner.” Will the
explanation be offered when the Board has not recommended a penalty, but
APU has? Unlike Board recommendations, it is common for APU to
recommend a specific number of penalty days. Will the detailed
explanation be offered when in the Trial Room, the Police Commissioner
agrees with the ADCT, but not with the APU attorney?
Also, the Charter permits delay of the explanation until 45 days after the
imposition of discipline. Unlike APU cases, there will not be an opportunity
in advance of imposition to object.1677 The charter is silent as to access by
the complainant or the public. If past is prologue, the correspondence here
might also be kept from the complainant and the public—although with the
repeal of CRL § 50-a and given the fact that the report is created well after
the case has closed, there would seem to be little legal support for continued
secrecy. It is unlikely that the public, when voting for the Charter change
1674
Available at https://www nyc.gov/site/ccrb/complaints/redacted-departure-letter.page.
1675
City Charter 18-A § 440(d)(3).
1676
After a trial or as part of a plea-bargain, APU will recommend a specific penalty to the DCT.
1677
Id.
406
and promised explanations for deviations from recommendations were
aware that the explanations might remain secret.1678
5.
The Disciplinary System Penalty Guidelines or “Matrix” promises that the
Police Commissioner will prepare a memorandum documenting factors that were
considered in making his final “disciplinary decision” in all cases—not just formal
disciplinary proceedings—describing any deviation from a recommendation by
DAO, Trial Commissioner, or CCRB—all of which may be different.1679 Although
the Guidelines promise an explanation for deviations from the “presumptive
penalty,”1680 this promise is probably meant to be limited to dispositions entirely
outside the Guidelines, which is all that is required by the Matrix-MOU. In other
words, it is not foreseen that the Police Commissioner will write and publish a
detailed explanation (a deviation letter) in every case where she applies mitigating
or aggravating factors but stays within the Guidelines.
a.
The Matrix narrative does not distinguish its promised memorandum from
the 2012 APU-MOU explanation or the Charter-mandated explanation
described above, so the following questions remain:
1.
2.
3.
4.
5.
6.
When will the memorandum explaining the decision be prepared
and sent to CCRB?
Will the “final decision” memos be the same as an explanation of a
deviation?
Will the final decision memo be available to the complainant and
the public?
Will it document factors in all cases, including when there is no
departure or deviation. if the Police Commissioner merely accepts
a recommendation?
Will the promised “disciplinary decision” include both the level of
discipline and the final penalty?
2021 Matrix-MOU. Section IV of the Matrix-MOU promises that both the CCRB
and the Police Commissioner will abide by the guidelines contained therein and:
a. The Matrix-MOU requires CCRB to describe with particularity the basis for a
recommended penalty in all cases, including a description of how aggravating
and/or mitigating factors were applied. This applies to plea negotiations as
well.1681
1678
It appears deviation letters in a few cases have begun to be posted online in response to the Matrix-MOU. The
range of letters to be posted has yet to be determined.
1679
NYPD Disciplinary System Penalty Guidelines, eff. January 15, 2021, at 6. Adopted pursuant to NYC Admin.
Code § 14-186.
1680
Guidelines at 8 (“That penalty determination, including the rationale for any deviation from the presumptive
penalty and/or the recommendation of either a trial judge or CCRB, is memorialized in a memorandum, as part of the
final adjudication of the case.”).
1681
Matrix-MOU at 5.
407
b. Under the Matrix-MOU, where CCRB recommends a departure from the
Matrix, the basis for the departure will be in writing. The writing will be
“publicly available” subject to potential redaction if required.
c. Under the Matrix-MOU, where the Police Commissioner intends to depart from
the Matrix, she will set forth in writing the basis for the departure, including
aggravating and mitigating factors considered, which will be publicly available
subject to redaction.
Under the Matrix-MOU, where the Police Commissioner intends to impose discipline or
penalty within the guidelines, but lower than recommended by CCRB, she will follow the
procedure outlined in the 2012 MOU, and make the determination publicly available, subject to
redaction. The determination may be made based on recommendations from the Trial
Commissioner or DAO. Their recommendations will be publicly available, again, subject to
redaction.
Crucial to the above is a fundamental question: What is meant by a variance in “penalty?”
Since CCRB does not recommend specific penalty days, how are we to know if there has been
either a departure or a deviation? (Although CCRB and NYPD are not consistent in their use of
the terms “departure” and “deviation,” the former usually refers to a variance between a CCRB
recommendation and the Police Commissioner’s disposition; the latter usually refers to a
disposition that is not within the Guidelines.)
For example, if CCRB recommends an A-CD for a bad frisk, using the Guidelines’
presumptive penalty because it found no finding aggravating or mitigating circumstances, and the
officer accepts the A-CD without forfeiting any penalty days, or the Police Commissioner imposes
an A-CD with Training, is that a different “penalty” than one recommended by CCRB which
requires an explanation? If CCRB recommends an A-CD and the Police Commissioner, applying
progressive discipline, imposes a six-day penalty instead of the presumptive five-day penalty, is
that a different penalty than the one recommended by CCRB?
As a result of the multiple and inconsistent requirements for “explanations,” knowing
whether a written explanation is due and who will be able to see it is a daunting task. Putting the
various disclosure requirements together, a decision flow chart, with the basis for the mandate in
parentheses, would look like the following:
i.
Memos and Correspondence - APU cases (formal discipline):
CCRB describes in writing the basis for a recommended penalty, along with a
description of aggravating and mitigating factors applied.1682 This is sent to DAO prior
to NYPD action but is not publicly available.
If APU enters into a proposed plea agreement, the basis for the plea is in writing and is
not publicly available. It is provided to the officer prior to approval/disapproval by
Police Commissioner.1683
1682
Matrix-MOU, available at https://www1.nyc.gov/assets/home/downloads/pdf/office-of-the-mayor/2021/
Disciplinary-Matrix-MOU.pdf.
1683
Id.
408
If CCRB’s recommendation is outside the Guidelines (limited to extraordinary
circumstances), the basis for the determination must be in writing and will be publicly
available. Provided prior to NYPD action.1684
If DAO requests reconsideration (rare in recent years) there is a written request from
DAO to CCRB and a response from CCRB prior to service of Charges and
Specifications. These documents are not publicly available.1685
If the Police Commissioner determines (limited to extraordinary circumstances) to
deviate from the Guidelines (whether or not it is in agreement with CCRB’s
recommendation), she will put the basis in writing in a departure letter. This will be
publicly available. No time limit is given for this departure letter.1686
If the Police Commissioner intends to impose a level of discipline or penalty of
discipline other than that recommended by CCRB (regardless of whether it is within
the Guidelines), she must explain the reasons for deviating from the Board within 45
days after imposition of the discipline. This is not publicly available.1687
If the Police Commissioner intends to impose a level of discipline or penalty lower than
that recommended by CCRB (regardless of whether it is within the Guidelines), she
must also explain how the outcome was determined including each factor considered.
This is provided to the CCRB within 45 days after imposition and is not publicly
available.1688
o BUT: Under the APU-MOU, if the Police Commissioner intends to impose
“discipline that is of a lower level” than that recommended by CCRB or the
Trial Commissioner, the Police Commissioner must “notify” CCRB and the
Respondent ten days prior to imposition with a detailed explanation of the
reasons for deviating. CCRB and the Respondent have five days to respond,
followed by the Police Commissioner’s final determination.
This
correspondence is not publicly available.1689
In “limited instances” where the officer has no disciplinary history and the Police
Commissioner wishes to withdraw the case from APU prosecution in the “interests of
justice” (either permitting DAO to take over the prosecution or diverting from formal
discipline entirely), the Police Commissioner writes a detailed explanation, CCRB may
offer a statement in rebuttal, and the Police Commissioner may deny CCRB’s request
with a “detailed response.”1690 The entire exchange takes place prior to removal and is
not publicly available.
1684
Id.
1685
38-A RCNY § 1-36.
1686
Matrix-MOU, available at https://www1.nyc.gov/assets/home/downloads/pdf/office-of-the-mayor/2021/
Disciplinary-Matrix-MOU.pdf. When an item is designated as publicly available, the Department and CCRB reserve
the right to redact or withhold information where “permitted by applicable local, state, or federal laws.” Id. at 4.
1687
N.Y. City Charter § 440(d)(3).
1688
Id.
1689
APU-MOU, Provision Six, available at https://www nyc.gov/assets/ccrb/downloads/pdf/about_pdf/apu_mou.pdf.
1690
Id., Provision Two.
409
In all cases, CCRB must be notified of the “level of discipline and penalty imposed” at
the close of the case. The NYPD notification letter is not publicly available, but notice
from CCRB is provided to the complainant and will be posted on the CCRB MOS
discipline website. Despite the Charter mandate that CCRB be informed of the level
of discipline and the penalty imposed, the Department has heretofore disregarded the
mandate.1691
ii.
The Trial Commissioner prepares a written decision, applying the Guidelines, with
findings as to each allegation and a recommended penalty within the Guidelines. The
Trial is public, but the decision before review by the Police Commissioner is not
publicly available.
The Police Commissioner will either approve or disapprove the recommendation. If
she disagrees with a Trial Commissioner’s penalty recommendation, she will write a
cursory “change of penalty” letter. No time limit is provided.
The final decision is posted online in a “Trial Decisions Library” with the
approval/disapproval letter. Earlier exchanges (Trial Commissioner’s recommendation
and Fogel letters) are not publicly available.
iii.
Memos and Correspondence - DAO/DCT Cases (formal discipline):
Memos and Correspondence - CCRB FADO Cases Without Charges
(Most SQF; Informal Discipline):
CCRB describes in writing the basis for a recommended penalty, along with a
description of aggravating and mitigating factors applied. This is not publicly
available. Provided to NYPD prior to NYPD action. (Matrix-MOU).
If CCRB’s recommendation is outside the Guidelines (limited to extraordinary
circumstances), the basis for the determination is in writing and will be publicly
available. Provided to NYPD prior to action; provided to public after final NYPD
decision. (Matrix-MOU).
If DAO requests reconsideration (rare in recent years), DAO sends a written request
from CCRB and provides a response prior to service of Charges and Specifications.
These documents are not publicly available. (38-A RCNY 1-33).
If the Police Commissioner determines (limited to extraordinary circumstances) to
deviate from the Guidelines (whether or not it is in agreement with CCRB’s
recommendation), she will put the basis in writing in a deviation letter. This will be
publicly available. No time limit is provided. (Matrix-MOU).
If the Police Commissioner intends to impose a level of discipline or penalty of
discipline other than that recommended by CCRB (regardless of whether it is within
the Guidelines), she must explain the reasons for departing from the Board’s
recommendation. This is not publicly available and is provided 45 days after
imposition of the discipline. (Charter).
1691
“The Agency does not receive specifics on the penalty that the Police Commissioner ultimately imposes.” CCRB
Annual Report 2020 at 42, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_biannual/2020_semi-annual.pdf.
410
If the Police Commissioner intends to impose a level of discipline or penalty lower than
that recommended by CCRB (regardless of whether it is within the Guidelines), she
must also explain how the outcome was determined including each factor considered.
This is not publicly available and is provided 45 days after imposition. (Charter).
In all cases, CCRB must be notified of the “level of discipline and penalty imposed” at
the close of the case. (Charter). The notification letter is not publicly available, but
notice from CCRB is provided to the complainant and will be posted on the CCRB
MOS discipline website. Despite the Charter mandate that CCRB be informed of the
level of discipline and the penalty imposed, the Department has, heretofore,
disregarded the mandate. “The Agency does not receive specifics on the penalty that
the Police Commissioner ultimately imposes.”1692
iv.
Memos and Correspondence When Internally Investigated by IAB,
OCD, BIU, and FID
For all but FID (Force) allegations, the findings and recommendations are presented to
DAO, which can modify the recommendation to the Police Commissioner. The
correspondence is not publicly available.
FID findings and recommendations are presented to the First Deputy Commissioner.
The report is not publicly available.
v.
Departure Letters Posted by CCRB as of June 2022.
In 2020, the Police Commissioner acted on 494 non-APU recommendations from CCRB.
The Police Commissioner ordered command discipline for 118 of the 494 officers, or 23.8% of
the time. According to CCRB’s 2020 Annual Report, there was a “Discipline Difference”1693 in 81
cases and “No Discipline” in another 24 cases. One might expect, therefore, based on CCRB’s
assessment in that report that somewhere in the vicinity of 105 departure letters will need to be
written for cases disposed of in 2020 alone.
As of June 12, 2022, a total of 118 cases are detailed in explanatory departure letters
covering misconduct occurring during a period from 2018 to 2021.1694 The posting is not yet
complete. Departures out-pace postings, but more letters are posted as time goes on. Of the first
118 cases where a departure letter was posted by CCRB, if presumptive penalties under the
Guidelines were imposed, penalty days would have been forfeited in 100 of the 118 cases. Instead,
it appears the Police Commissioner ordered penalty days in two of the cases and discharged 63 of
the cases with NDA (no disciplinary action). Thirty-one cases were reduced to training or
1692
Id.
1693
“Discipline Difference” is not defined (id. at 47), so a prediction of how many departure letters need to be written
is imprecise.
1694
There is some overlap between the first 47 departures contained in the Appendix to CCRB’s Semi-Annual 2020
Report, available at https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2020_semiannual.pdf, and CCRB’s posting of departure letters under “Complaint Outcomes,” available at
https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2020_semi-annual.pdf.
The
combined total covers 119 cases.
411
instructions. Broken down by CCRB recommendation with final Police Commissioner
determination, the 118 cases were resolved as follows:
Charges were sought by CCRB in four cases. (Each involved force):
o The Police Commissioner imposed an A-CD without penalty in one case and
NDA for the remaining three cases, including one false statement finding.
B-CD was sought by CCRB in 69 cases:
o The Police Commissioner imposed no discipline (NDA) in 31 of the 69 cases
o The Police Commissioner reduced the B-CD to training or instructions in 21
of the 69 cases.
o The Police Commissioner allowed the subject to accept an A-CD with no
penalty in 15 of the 69 cases.
o The Police Commissioner “concurred” in the recommended level of
discipline (B-CD) in two cases. It is unclear what penalty, if any, was
imposed.
A-CD was sought by CCRB in 25 cases:
o The Police Commissioner imposed an A-CD in two cases.
o The Police Commissioner reduced the A-CD to guidance (training or
instructions) in seven of the cases.
o The Police Commissioner reduced the A-CD to NDA in 16 of the cases.
o There were two cases where CCRB recommended consecutive A-CD’s for
RTKA violations, which would have combined to a B-CD level of penalty,
but the Police Commissioner ruled that the violations should be dealt with
concurrently—reducing the discipline level to an A-CD in both cases.
Instructions or training were sought by CCRB in 18 cases:
o The Police Commissioner reduced guidance to NDA in 15 of the 18 cases
o The Police Commissioner imposed instruction twice and training once.
There were another 58 downward departures where CCRB did not receive an explanation,
mostly because CCRB had recommended Training and the Police Commissioner ordered that
Instructions be given instead. In the eyes of CCRB, this is a downward departure, but in the eyes
of DAO this is not a downward departure and, thus, no letter is written.1695
The Charter requires an explanation of any departure from the “penalty or level of
discipline” recommended by CCRB. The Matrix-MOU requires an explanation when the Police
1695
CCRB Semi-Annual Report 2020 at 53. But compare Disciplinary Guidelines for failure to activate a BWC, at 43,
where the presumptive penalty is Training, but a mitigated penalty is Instructions. NYPD’s Guidelines seem to support
CCRB’s argument that Instructions is a lesser penalty than Training.
412
“acted reasonably, under confusing circumstances which provided contradictory evidence and
diverse claims by several present parties.”1701 Accordingly, the officer was given Training.
Upon reading all the posted letters, it appears that this letter is not unusual in its opacity.
Since the letters do not specify the facts, findings, the penalty recommendation of CCRB, it is
impossible to discern the point of departure, since the extent of departure cannot be calculated
without knowing the starting point.1702 What was recommended by CCRB, and why? The Police
Commissioner’s repeated assertion in the “departure” letters typically provide little more than his
unexamined assertion that the officer acted “reasonably” or in “good faith.” With time, this may
improve, but if not, no conclusion can be drawn other than that the Charter is being ignored.
viii.
Deviations From Trial Decisions
The Department has begun to post decisions from the Trial Room in a Trial Decisions
Library.1703 Accompanying the memorandum is an approval or disapproval note from the Police
Commissioner. In the reported decisions, the Trial Commissioners refer to the Disciplinary
Guidelines, which, in the long run, may prove useful in measuring compliance with the Guidelines.
For example, in one unusual case, the APU prosecuted a Sergeant for authorizing an unwarranted
strip search. The presumptive penalty under the Guidelines would be 20 penalty days, coupled
with dismissal probation for one year. The Trial Commissioner found mitigating circumstances
in that the Sergeant acted in “good faith” and in reliance upon a Lieutenant with whom she
consulted before authorizing the strip search. She also pled guilty, accepting responsibility.
Nonetheless, the Police Commissioner disapproved the lesser penalty and imposed the
presumptive penalty of 20 days along with the one-year dismissal probation.1704
In the end, CCRB and the Police Commissioner will need to negotiate and amend several
of the various commitments into one integrated system or framework of reconciling and explaining
disciplinary decisions as they are made. At the moment, postings of departure letters, deviation
memos, and trial decisions seem to be haphazard and uncoordinated. Each of the requirements of
the MOUs and Charter are not being followed precisely, but that is in part due to internal
consistencies in the rules governing when they are to be delivered, to whom they are to be
delivered, and when they are to be publicly posted. These are relatively minor inconsistencies
which can, and probably will, be worked out in time.
The most serious defect, however, is in the continued failure of the Department to provide
meaningful explanations for variances at the level of detail that was expected when the Charter
was adopted and the MOUs were signed. If the Department can continue to justify deviances and
departures with little more explanation than that the officer acted in good faith or reasonably, then
1701
PO
(Feb. 14, 2020). Not mentioned in the letter were the findings or recommendation of CCRB
or the underlying facts. The Board had found him guilty of three allegations— Forcible Removal to a Hospital, Threat
of Arrest and Threat of Removal to a Hospital— and had recommended a B-CD.
1702
CCRB has a separate online posting which contains its recommendation. By viewing both databases, the
recommendation can be read in conjunction with the Police Commissioner’s posting.
1703
Trial Decisions Library, available at https://nypdonline.org/link/1016.
1704
Sergeant
.
416
the memos are not worth the time it takes to write or read them. 1705 Also disappointing is the
failure of the Department to meet its obligation to report both the level of discipline and the final
penalty imposed in non-APU cases, especially SQF cases.
(1)
Case Study of a “Deviation”
Take as an example, the Deviation letter posted by the Department in the case of Officer
. Officer
had allegations substantiated against him for illegally searching a
car and for abusing his authority by wrongfully issuing two summonses for “Disorderly Conduct”
in retaliation for the civilian’s reaction to the encounter. The presumptive penalties for the three
allegations would normally be 20 days each for the retaliation and 10 days for the search. The
mitigated penalties would be 10 days each for the retaliatory acts and five days for the search.
Finally, if the search was “incidental or de minimis,” the penalty for the search of the vehicle could
be mitigated as low as Training. If the summons allegations were deemed to run “concurrently”
the mitigated penalty would be 10 days. The best case scenario for Officer
, if the Matrix
were applied in his favor, would be a 10-day penalty.
In the end, CCRB and the Police Commissioner deviated from the Matrix, even beyond
mitigation. Both concurred in a disposition of an A-CD as discipline with two days forfeited. The
Deviation Letter was prepared in July 2021, almost two years to the date after the incident and
complaint.
In just the past five years, Officer
has been the subject of seven CCRB complaints.
He previously had a substantiated allegation of a wrongful frisk where he received Training. He
also was the named subject of ten lawsuits, five of which are still open and four of which settled
for amounts of $5,000, $7,500, $10,000 and $23,595.
Given his track record over the past few years, it is difficult to understand mitigation on
the basis of his personnel/disciplinary history record. The deviation from the presumptive and
mitigated penalties is marked; accordingly, a full “detailed explanation” as called for by the MOU
and Guidelines would seem necessary.
1705
As just one example, in the case of PO
, discussed earlier, the Police Commissioner’s Departure
Letter, written November 8, 2021, explained a reduction from CCRB’s recommended B-CD to an A-CD based on a
“lack of substantiated CCRB history and the belief that the stop and the question were conducted in good faith.” PO
had eight previous similar CCRB complaints, none substantiated. in this incident, the police had received
a radio call for a “past” domestic incident. By mistake they went to the wrong building. Although the complainant
did not fit the description of a suspect, the officers thought he looked “angry.”
and his partner stopped the
man, and during the stop, handcuffed, frisked, and detained the complainant for ten minutes, along with other
discourteous actions (such as throwing his wallet on the ground when the complainant asked for its return). The
suspect sought by police in that case was described as a Black male, 6’5” tall, heavy set, bald, and walking with a
limp. The record was clear that the wrongly detained complainant was 5’7”
. In short, he looked nothing like the suspect. The officers , in the findings of CCRB, lacked “any
credible suspicion.” PO
admitted in his interview that the officers “did not have reason to suspect [the
complainant] of being involved.” In other words, there is nothing in the record to support the claim that the actions
were taken “in good faith.” Instead, it is merely a conclusory assertion, without basis, offered by rote to justify a
departure.
417
Also of interest is the fact that the encounter under examination occurred on the same day
the PO
is alleged, according to the sworn complaint in Bronx Supreme Court, to have
been part of an encounter with several officers and several complainants, which included wrongful
arrests, use of force. and chokeholds.1706 Even though the encounter is the same day, it is
impossible to tell from the Deviation Letter if the lawsuit complaining of a wrongful arrest, force
and chokeholds is the same incident for which PO
was given discipline of two penalty
days. The Deviation Letter merely says that the intrusion into the vehicle was minimal and solely
for identification purposes. There is no explanation in the Deviation Letter of why the retaliatory
summonses received relief from the Matrix.
In the end, this would have been an ideal case for a Deviation Letter, as called for in the
Charter, to describe the subject officer’s disciplinary history fully explain the encounter(s) on that
day, and PO
specific role in the encounter(s). Instead, the public was provided with a
sugar-coated minimal explanation filled with defensive conclusions, but no analysis of the facts,
factors, or precedence.
One of the purposes of explanatory letters, aside from assuring the public that there is
accountability, is to provide guidance to fellow officers. Any officers in PO
command
who were familiar with the facts could take only one lesson from the experience: regardless of his
recent past history and regardless of all the surrounding facts, the prescribed penalties in the Matrix
are easily evaded.
XII.
False Statements – Recent Patrol Guide Amendments And The Disciplinary
Guidelines
Integral to any disciplinary system is the ability to compel interviews of subject officers
and to demand candor in response to inquiries. The handling of false statements, and whether the
Department deals with false testimony with requisite gravity, has been a source of repeated concern
and skepticism throughout the saga of civilian oversight of police in New York City.
This is a particularly sensitive matter in connection with stop and frisk compliance. SQF
investigations are commonly reliant upon the unsupported word of a witness and a subject officer.
Even with video evidence, the entire episode and the reasons for the interaction will rarely be
resolved completely by extrinsic evidence. A simple denial or an uncorroborated explanation of
the stop by the subject officer will be, in many cases, sufficient cause for a case to fall short of
substantiation
As noted by the Commission to Combat Police Corruption (CCPC), following years of
analyzing false statement investigations with NYPD, “There continues to be allegations of false
testimony regarding the circumstances surrounding stops and searches of individual . . . . In order
to prevent the tarnishing of the Department’s credibility, those officers who have lied must, in all
but the most exceptional of circumstances, be separated from the Department.”1707
1706
Castro v. City of New York, P.O.
, Index No. 34384/2018E (Sup. Ct. Bronx Cnty. 2018)
1707
Twelfth Annual Report of the Commission at 61 (Feb. 2010). The Annual Reports may be found online at
https://www1.nyc.gov/site/ccpc/reports/annual-reports.page.
418
Since history seems to repeat itself in this area, a brief recitation of the Department’s long
and twisted history of processing of false statement cases may prove useful.
In 1995, Commissioner Bratton, responding to claims of “pervasive” false testimony by
officers, sought to measure the extent of the problem before the courts. He sent a letter to all
criminal court judges, the five district attorneys, the two U.S. attorneys, and the Legal Aid Society,
asking them to report any instance of suspected police perjury in the prior two years. There were
25 immediate responses. His reaction was to declare, “Based upon the over six hundred thousand
arrests made during that same period the Commissioner concludes that the reported instances of
‘testifying’ are remarkably sparse.” Nonetheless, the Commissioner Bratton decided to “form a
committee to ensure the integrity, effectiveness and professionalism of police witnesses.”1708 Made
up of fourteen officials, it was denominated the “Committee for Excellence in Testimony.”
Participating in the meetings of the Committee were representatives of the Commission to Combat
Police Corruption (CCPC), which continued the mission of analyzing false statement allegations
and assessing the Department’s handling of those allegations for the following twenty-six years.
The CCPC’s annual reports have been critical in understanding the depth of the problem of false
statements by the Department’s officers.
In CCPC’s first study, published in 1996, it concluded that:
“[A]dministrative penalties imposed by the Department in cases involving false
statements, which sometimes were accompanied by charges for other misconduct,
were insufficient given the nature of the offenses. Traditionally, in the
Department’s disciplinary system, those found guilty of making false
statements . . . were not discharged from the Department, unless the false
statements were linked to extremely egregious underlying conduct . . . . Of the cases
reviewed by the Commission, the most common penalties for false statements
relating to an officer’s own misconduct generally involved either suspensions of 30
days or less or the loss of vacation days, accompanied in various cases by some
form of probation. In situations where the false statements involved covering up
for other officers, the most common penalties involved the loss of 15 days or
less . . . . The Commission still believes that more severe penalties are generally
warranted in false statement cases.”1709
After reviewing the Commission’s findings, Police Commissioner Howard Safir
announced a new policy. The policy statement, issued December 12, 1996, stated that whenever
an officer was found to have made an official false statement, either through a decision by a Trial
Commissioner or by a guilty plea, the officer would be terminated from the Department absent
exceptional circumstances.1710 CCPC applauded the policy, citing the need to fight a public
1708
First Report of the Commission to Combat Police Corruption, at 76 (Mar. 1996).
1709
Second Annual Report at 6-8 (Oct. 1997).
1710
Id. at 9. “Absent exceptional circumstances the making of a false official statement will result in dismissal from
this Department. Examples of a false official statement include, but are not necessarily limited to, lying under oath
during a criminal or civil trial as well as during an official Department interview conducted pursuant to Patrol Guide
Section 118-9.” (Section 118-9 was the predecessor to the current Patrol Guide provisions). Not included as a “false
419
perception of a “blue wall of silence,” while conceding that “police officers linked together by the
danger of the streets, not wanting to disclose a partner’s or other officer’s misconduct is an
understandable, albeit unacceptable, emotional response.” The Commission concluded that “lying
cannot be allowed to become acceptable conduct, and reversing this climate requires that a strong
message of intolerance towards lying be communicated throughout the Department.”1711
Since then, in its annual reports, CCPC continues to assess discipline for false statements
and continued to press for serious sanctions,
“There continues to be allegations of false testimony regarding the circumstances
surrounding the stops and searches of individuals. When officers are found to have
made false statements, the public’s confidence in the integrity of the policy may be
affected. In order to prevent the tarnishing of the Department’s credibility, those
officers who have lied must, in all but the most exceptional of circumstances, be
separated from the Department.”1712
CCPC has consistently disapproved of a number of loopholes in the termination policy
which have emerged as ways by which the Department may avoid imposing significant discipline
on officers who make false statements. There are at least 11 separate annual reports where CCPC
pursued the subject.1713
Listed below are thirteen observations and objections that CCPC has made over the years
regarding the issue:
1. CCPC found that the Department invoked the “exceptional circumstances” clause quite
frequently. CCPC believed that “the Department needs to better document, where
applicable, its reasons for finding exceptional circumstances.”1714 Through the years, the
Commission has noted that exceptional circumstances were increasingly becoming
standardized, instead of being considered in light of the facts in each individual case.1715
2. In cases where DAO decides not to charge a false statement, there should be
documentation.1716 Whenever an officer’s testimony is found to be “incredible” by a
official statement” were statements to a supervisor in a non-investigatory context or where the statement involved an
administrative matter, such as time and leave issues (Fifth Annual Report at 43).
1711
Id. at 6-7.
1712
Twelfth Annual Report of the Commission at 61 (Feb. 2010).
1713
Tenth Annual Report of the Commission (“Tenth Annual Report”) (Feb. 2008) at 33; Eleventh Annual Report of
the Commission (“Eleventh Annual Report”) (Feb. 2009) at 39; Twelfth Annual Report of the Commission (“Twelfth
Annual Report”) (Feb. 2010) at 53-55; Thirteenth Annual Report at 19; Fourteenth Annual Report at 39-45; Fifteenth
Annual Report at 73-74; Sixteenth Annual Report at 86-87; Seventeenth Annual Report at 103-104; Eighteenth Annual
Report of the Commission (Aug. 2017); Nineteenth Annual Report of the Commission at 107-08 (Dec. 2019).
1714
Fourth Annual Report of the Commission at 18 (Nov. 1999).
1715
Eleventh Annual Report of the Commission at 38 (Feb. 2009).
1716
Sixth Annual Report of the Commission at 85 (Dec. 2001).
420
3.
4.
5.
6.
7.
8.
9.
factfinder, the Department should conduct further investigation to determine whether the
officer testified falsely.1717
Officers are permitted to “correct” prior falsehoods in a second interview when confronted.
These “corrections” should not “routinely” result in lesser penalties.1718
A “flat denial” where the “underlying misconduct was relatively minor” should not be
considered an “exceptional circumstance.”1719
A plea of guilty to avoid a trial should not be used to bargain away discipline.1720
A “lack of prior disciplinary history and good performance evaluations alone” should not
constitute “exceptional circumstances.”1721
The Department should consider termination for all false statements, not just those made
in sworn testimony or in a P.G. hearing. “[T]ermination should be consistently applied to
falsities made in non-testimonial settings, since the same policy considerations apply.”1722
A “mere denial” absent additional “embellishment” is still a false statement justifying
termination.1723 Analysis revealed that Departmental findings that a lie was a “mere denial”
without elaboration, thereby avoiding termination, is extensively used.1724 “[T]he ‘mere
denial’ exception should not be applied to statements made in an official Department
interview. It is all too easy for an officer to couch a false statement as a ‘mere denial’ and
thereby to escape appropriate discipline.”1725
In more recent years, the Department (over objection by CCPC) reduced penalties in false
statement cases where “rather than acting with malice aforethought or intent to obtain a
personal gain [the] respondent’s misconduct appeared to be more the result of carelessness
and complacency.”1726 This, of course, elevates the requisite proof from knowing falsity to
intentional fraud, a higher standard that is more difficult to prove.
1717
Seventh Annual Report of the Commission at 139-41 (Mar. 2004).
1718
Fifth Annual Report of the Commission at 47 (Feb. 2001).
1719
Id. at 49.
1720
Id. at 50
1721
Sixth Annual Report of the Commission at 77 (Dec. 2001).
1722
Id. at 80.
1723
Seventh Annual Report of the Commission at 136 (Mar. 2004).
1724
Ninth Annual Report of the Commission at 36 (Feb. 2006). “Due to the Department’s revised false statement
policy, the Commission removed all of those cases where the false statement could be characterized a mere denial of
guilt.”
1725
Nineteenth Annual Report of the Commission at 107-08 (Dec. 2019). “The Commission has repeatedly disagreed
with the “mere denial” exclusion in the context of official Department and CCRB interviews.” (Citing Ninth Annual
Report at 35-36; Tenth Annual Report at 34; Eleventh Annual Report at 38; Twelfth Annual Report at 53; Thirteenth
Annual Report at 18, n. 61; Fourteenth Annual Report at 41; Fifteenth Annual Report at 60; and Sixteenth Annual
Report at 82-83). Compare with Brogan v. United States, 522 U.S. 398 (1998) (finding an official guilty of making a
false statement, 18 U.S.C. § 1001, who merely replied “No” to an inquiry of wrongdoing).
1726
Thirteenth Annual Report of the Commission at 21. (Mar. 2011).
421
10. Over time, the “most commonly charged” offense, in lieu of a false statement charge was
Conduct Prejudicial to the Good Order of the Department,1727 which regularly carries a
lesser penalty, thereby avoiding presumptive termination.1728
11. “Imposition of penalties for false statement are not significantly different from the penalties
that would have been imposed for the underlying misconduct alone . . . [which] undermines
the work of investigators, weakens the utility of Department interviews, and sends a
message to members of the service that lying to cover up their own misconduct will be
tolerated.”1729
12. “Impeding an Investigation,” “Inaccurate Statements,” and “Misleading Statements”
should not be used as lesser alternatives and a substitute for False Statement charges.1730
“Often, the circumstances in reviewed cases leave little doubt that the subject officer made
statements that were false, official, more elaborate than “mere denials,” and by any
reasonable estimate, both intentional and material. Yet the Department appears to routinely
employ other Patrol Guide Sections to address the misconduct, bypassing the mandatory
termination penalty in the process . . . . [B]y levying an alternate charge, the Department
need not find that exceptional circumstances exist to retain those officers.”1731
13. Typically, when an officer makes a false entry in a document, such as a Stop Report, the
matter is investigated under Patrol Guide §203-05 (Performance on Duty) and not deemed
to be an official false statement under §203-08.1732
Despite CCPC entreaties, the Department has persisted in modifications to the termination
policy. In 2005, the Department issued Interim Order 4 which prohibited false statement charges
where the officer “merely pleads not guilty in a criminal matter, or merely denies a civil claim or
an administrative charge of misconduct.”1733 CCPC condemned the change in policy on the ground
that a “denial of guilty when it’s a false denial, is still a lie and, therefore, directly erodes the
credibility of the officer and indirectly affects the public’s confidence in the integrity of the
Department.” This change has a direct impact on CCRB interviews and especially so in stop and
frisk interviews before CCRB. To the extent that officers are led to believe that flat-out false
denials of conducting illegal stops and frisks, under oath before a CCRB investigator, is not as
1727
Patrol Guide § 203-10 (5).
1728
Seventeenth Annual Report of the Commission at 103 (Nov. 2015).
1729
Seventeenth Annual Report of the Commission at 106 (Nov. 2015) and Eighteenth Annual Report at 114 (Aug.
2017).
1730
Id. at 112.
1731
Eighteenth Annual Report of the Commission at 113-16 (citing to findings of “conduct prejudicial,” “inaccurate,”
and “misleading” in lieu of a false statement). The Commission gave as an example of an officer who was charged
with false statements on two separate occasions. In one, the officer falsely claimed to have seen a violation before a
stop and search, both in testimony before a grand jury and in interviews with IAB and an ADA. His false statements
were considered to be “inaccuracies” and “mistakes,” and in all, for both cases, the officer received a 40-day penalty.
The Commission concluded that the officer’s repeated falsehoods represented an intentional attempt done to cover up
his misbehavior. Id. at 118-21.
1732
In June 2021, many of the misconduct provisions of the Patrol Guide were moved to the Administrative Guide.
§203-08 (False Statements) became AG 304-10, and PG § 203-05 (Performance on Duty) became AG 304-05, which
requires “accurate” entries in Departmental reports.
1733
See former Patrol Guide §203-08, currently Administrative Guide 304-10, which contains similar language.
422
“serious” as a lie before an IAB investigator, a district attorney, or a court, the integrity of the
entire civilian complaint process is called into question. If officers learn that a simple denial of
SQF misconduct, even when false, can result in unsubstantiation and that the denial will not be
treated as a false statement, Judge Scheindlin’s call for “increased deference” to CCRB credibility
assessments takes on a new meaning.
In 2007 the Department further modified the 1996 policy as follows:
“The intentional making of a false statement is prohibited, and will be subject to
disciplinary action, up to and including dismissal. Intentionally making a false
official statement regarding a material matter will result in dismissal from the
Department, absent exceptional circumstances. Exceptional circumstances will be
determined by the Police Commissioner on a case-by-case basis. Examples of
circumstances in which false statements may arise include, but are not limited to,
lying under oath during a civil, administrative, or criminal proceedings [sic] or in a
sworn document; lying during an official Department interview conducted pursuant
to Patrol Guide 206-13, “Interrogation of Members of the Service” or an interview
pursuant to Patrol Guide 211-14, “Investigation by Civilian Complaint Review
Board;” and lying in an official Department document or report. The Department
will not bring false official statement charges in situations where, as opposed to
creating a false description of events, the member of the Department merely pleads
not guilty in a criminal matter, or merely denies a civil claim or an administrative
charge of misconduct.”1734
In sum, after 25 years of effort exhorting the Department to take false testimony seriously,
CCPC was forced to concede, in its Eighteenth Annual Report (after noting a small increase in
false statement charges):1735
“Yet, even when the false statement provision was utilized, the mandatory
termination clause did not appear to factor into the Department’s deliberative
process when formulating a penalty. In each of the 20 cases from the current review
period where officers were found guilty of making false statements under Patrol
Guide § 203-08, the Department’s Trial Commissioners and assistant department
advocates made discretionary decisions to recommend either separation or a less
severe penalty. These decisions appeared to be based solely on the severity of the
misconduct and the service history of the officer, without reference to the
mandatory termination provisions or any exceptional circumstances to exclude
application of that provision. In other words, in articulating a rationale for the
1734
Former Patrol Guide § 203-08.
1735
Eighteenth Annual Report of the Commission at 116 (Aug. 2017). The Commission examined 1225 disciplinary
cases adjudicated between October 2014 and August 2016. 171 of them were false statement cases. 161 ended with
some form of substantiated misconduct finding. The Commission disagreed with the penalty assessed in 45 of those
cases. Of the 161, only 20 were found guilty of making an official false statement. The other 141 were found guilty
of alternative provisions - conduct prejudicial (78), misleading, impeding, etc. at 114. In a follow-up review in 2019
the Commission found that only 9 of 82 false statement cases were charged as such. Three officers were terminated.
(Nineteenth Annual Report of the Commission at 103).
423
discipline imposed, the mandatory termination provision of Patrol Guide § 203-08
to which exceptions can only be approved by the Police Commissioner appeared
to have been completely ignored.”
In one egregious example, flagged by CCPC in its December 2019 report, an officer was
found to have provided false information in three separate investigations. On each occasion CCPC
complained of inadequate discipline. By the time of the third adjudication, the officer was still
able to plead guilty to making improper entries in her activity log and failing to prepare required
paperwork, culminating in a forfeiture of only 20 days. CCPC opined that termination, or at least
dismissal probation, should have been imposed.1736
A.
False Statement - Jurisdiction
Before the 2019 Charter amendment, the making of a false statement in connection with a
citizen encounter or a related CCRB investigation could have easily fallen within the category of
Abuse of Authority and CCRB’s FADO jurisdiction. However, for reasons unstated, the
Department and CCRB agreed years ago that IAB, and not CCRB, would handle those cases. The
2012 APU-MOU specifically excluded the cases from the jurisdiction of CCRB.1737
Former Patrol Guide, Section 203-08, provided “Intentionally making a false statement
regarding a material matter will result in dismissal from the Department absent exceptional
circumstances . . . [as] determined by the Police Commissioner on a case-by-case basis.” Note
that both intentionality and materiality must be proven. Section 203-08 applied to statements under
oath in a civil, administrative or criminal proceeding, in a sworn document, during a Department
interview conducted pursuant to Patrol Guide §206-13 (Interrogation within the Department) and
in an official Departmental document or report. Also included were Patrol Guide §211-14 (CCRB
interviews), which requires officers to cooperate with CCRB investigations by answering
interview questions.
False statement allegations have been investigated by IAB and are meant to be treated
seriously, as “C” (corruption) cases. Nonetheless, in time, many others joined CCPC in arguing
that the Department’s enforcement of these provisions was ineffective and called for stringent
enforcement of the Department’ false statement disciplinary policies.
The Independent Panel wrote in 2019, “The Department should strengthen enforcement of
False Statement disciplinary policies” but the Panel did not recommend specific remedies.1738
The 2019 Charter Revision Commission observed that “there is a clear concern that the
NYPD currently does not adequately handle false statements made by police officers during the
1736
Nineteenth Annual Report of the Commission at 97 (Dec. 2019).
1737
APU-MOU, ¶ 7. In accord with the MOU, CCRB Rules (38A RCNY 1-44) provided: “If during the course of a
Prosecution the CCRB becomes aware of possible misconduct falling outside its jurisdiction, such as the making of a
false statement by an officer . . . [the CCRB] shall not itself prosecute such possible misconduct but shall instead
immediately refer such possible misconduct to the Police Department” as Other Misconduct Noted.
1738
The Report of the Independent Panel on the Disciplinary System of the N.Y.C. Police Department (Jan. 25, 2019),
at 53.
424
course of investigations.”1739 The Commission noted that the CCRB reported 139 cases of false
statements to the NYPD from 2013 to 2017. In 81 cases tracked by CCRB, the Department
imposed discipline in only two. In the remaining 79 cases, the Police Commissioner either found
no wrongdoing or found the officer guilty of lesser misconduct, such as failing to properly fill out
a memo book.1740 Further, a complete failure to file a report, such as a stop report—whether
intentional or not—is handled as an “M” case and not investigated by IAB for falsity.
Finally in November 2019, in a public referendum, over Departmental and Union
objection, prosecution of false statements made in the course of a CCRB investigation was
included in CCRB’s jurisdiction. The Charter was amended to provide, “The board shall . . . have
the power to investigate, hear, make findings and recommend action regarding the truthfulness of
any material official statement made by a member of the police department who is the subject of
a complaint received by the board, if such statement was made during the course of and in relation
to the board’s resolution of such complaint.”1741 CCRB now examines untruthful statements made
to CCRB after July 18, 2020.1742
While this is a welcome amendment to the Charter, areas of concern remain.
First, an officer’s s full disciplinary history and personnel record are not made available to
CCRB. The veracity of an officer’s statement, including whether it is a “mere denial,” cannot be
accurately determined without such information. The case cited by CCPC in its Nineteenth Annual
Report, described above, in which three successive cases questioning a certain officer’s
truthfulness, provides a prime example of the necessity of access to officers’ full disciplinary
history and personnel records. None of those prior cases alleging untruthfulness were CCRBFADO cases, so as things stand, the CCRB will not be permitted to take them into account.
The Floyd liability opinion expressed concern that NYPD tended to reject SQF complaints
due to over-reliance upon the officer’s account. In its remedial opinion, the Court ordered
increased deference to credibility determinations made by CCRB. Examination into the
truthfulness of a subject officer’s testimony in an SQF case could well result in more than a
substantiation of the stop/frisk complaint; it could be accompanied by a finding that the officer
lied. The Department would then review the encounter and also weigh the false testimony finding.
History teaches that the result may well be a “split” determination which invites inconsistent
assessments. The CCRB may discredit an officer’s account, believing that the officer is not
credible and substantiate a claim of an illegal stop or search. At the same time, the NYPD may
examine the officer’s account and may find the false statement allegation unsubstantiated. The
DAO and the Police Commissioner would then be presented with the CCRB’s finding that the
encounter was illegal or abusive based in part on an assessment against the officer’s credibility
and that the officer’s explanation or denial was false. up against the IAB’s determination that the
1739
Final Report of the 2019 New York City Charter Revision Commission, at 54.
1740
Id at 54-54 (citing Joseph Goldstein, Promotions, Not Punishments, for Officers Accused of Lying, The New York
Times (Mar. 19, 2018)).
1741
NYC Charter § 440.
1742
CCRB Annual Report 2020 at 17, https://www1 nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_biannual/2020_Annual.pdf.
425
same statement by that officer was credible. Given the Department’s historical reluctance to
substantiate false statement findings, credibility determinations in SQF cases may become
entangled in that historical reluctance.
This will become more complicated when statements from outside the CCRB interview are
reviewed, raising many unanswered questions. An officer who is questioned about a stop/frisk
encounter may have made statements about the encounter in IAB interviews, activity logs, memo
books, stop reports, consent forms, Vehicle or Premise Search Reports, Strip-Search Reports,
arrest reports, criminal court complaint reports, grand jury testimony, and/or courtroom testimony.
If false, they could fall under the category of “Abuse of Authority.” Will CCRB jurisdiction extend
to the entire range of statements made by the officer about the encounter? If not, will CCRB have
access to all those statements? Even where CCRB may not adjudicate the credibility of an outside
statement, such as grand jury testimony, it will need access to all prior statements in order to
adequately compare and weigh the truthfulness of any statements made in the course of the CCRB
investigation. Will IAB run concurrent investigations? Will IAB or DAO “re-examine” false
statement findings by CCRB to the point that a CCRB finding will be discredited or reduced to
one of the lesser alternative misconduct findings?
Recently, the Department re-wrote the elements of false statement misconduct to
concretize many of the practices condemned by CCPC over the years. The Charter Amendment
took effect March 31, 2020. The next day, the Police Commissioner substantially revised the
definition of a false statement in Administrative Guide 304-10 to codify many of the methods—
repeatedly condemned by CCPC— by which the Department has avoided fulfilling its promise to
terminate for making false statements.1743 The revised Guide provisions now explicitly codify the
following:
False Statements are distinguished from lesser alternatives such as Misleading Statements,
Inaccurate Statements, and Impeding an Investigation.
“False Statements” are defined as requiring proof of an intentional presentation of a
statement known to be untrue and which is material to the outcome of the investigation in which
the statement was made.
“Misleading Statements” are defined to include most of the items which many observers
and the CCPC would argue are false statements:
Intentionally omitting material facts;
Denying recall of events when a reasonable person would recall or be aware of the
facts;
Any revision of a false statement after being confronted with contrary proof.
1743
Patrol Guide § 203-08, amended March 30, 2020. In June of 2021 PG § 203-08 was moved to AG 304-10, which
was amended again on August 26, 2021.
426
“Inaccurate Statements” are defined as one known to include material information with
gross negligence. 1744
“Impeding” can include making an impeding action such as failing to produce records, but
can also include false, misleading or inaccurate statements to impede. Impeding is punished as
“conduct prejudicial” and not as a false statement.
In all, (1) mistakes are not considered misconduct; (2) absent materiality, there is no
misconduct; (3) absent mens rea of either intent or gross negligence, there is no misconduct; (4)
absent personal knowledge that the statement is false there is no misconduct.
Based on past experience as catalogued by CCPC, one can predict that many false
statements will not survive this winnowing process and will instead be reduced to lesser alternative
forms of misbehavior carrying less severe penalties.
While CCRB is not necessarily bound to the new classification system, the Board is
cognizant of the fact that the Police Commissioner will review its findings and apply the revised
definitions in AG 304-10. At this time, there have been a few recommendations to the Police
Commissioner from CCRB under the new policy, but CCRB only recommends Charges and
Specifications, and it is unclear what the Police Commissioner will do with those
recommendations.
B.
CCRB Examination of Untruthful Statement Allegations
CCRB has begun to examine statements under the revised Charter. To some extent the
Board has adopted the new NYPD classification system. It subdivides “Untruthful Statement
Allegations” into the categories of “False Official Statement,” Misleading Official Statement,”
Inaccurate Official Statement,” and “Impeding an Investigation.” This corresponds to the four
categories in the Disciplinary Penalty Guidelines System.
CCRB has explained their subdivisions as follows:
Untruthful statements – statements made by officers shown to be untruthful by
evidence gathered during the course of an investigation. A false official statement
is knowingly false, rather than merely inaccurate. A misleading statement is when
an officer intentionally tries to misdirect an investigator by omitting facts they
would be reasonably expected to know or remember. An inaccurate official
1744
“Gross negligence” in a civil context, generally means “conduct that evinces a reckless disregard for the right of
others or ‘smacks’ of intentional wrongdoing.” Colnaghi USA v. Jewelers Protection Servs., 81 N.Y. 2d 821 (1993).
In criminal law, “[a] person acts recklessly with respect to a result or to a circumstance described by a statute defining
an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will
occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes
a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who
creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect
thereto.” Penal Law 15.05.
427
statement does not require the officer to intend to deceive but may include material
statements so incorrect as to constitute gross negligence.1745
i.
False Statements Under the Disciplinary Guidelines
The Disciplinary Guidelines and the 2020 amendments to the Patrol/Administrative Guide
replaced a simple one-half page statement banning intentional false statements and replaced it with
subcategories and qualifiers. Without repeating them in the entirety, their result is a matrix that
essentially divides the inquiry into four categories:
1. Intentionally Making a False Official Statement
o Mitigated Penalty: Forced Separation
o Presumptive Penalty—Termination
2. Intentionally Making a Misleading Official Statement
o Mitigated Penalty: 20 Days
o Presumptive Penalty: 30 Days + Dismissal Probation
o Aggravated Penalty: Termination
3. Making an Inaccurate Official Statement, or Causing Same to be Made by Another
o Mitigated Penalty: 5 Days
o Presumptive Penalty: 10 Days
o Aggravated Penalty: 15 Days
4. Impeding an Investigation
o Mitigated Penalty: 20 Days
o Presumptive Penalty: 30 Days + Dismissal Probation
o Aggravated Penalty: Termination
Multiple statements may be charged separately if made in separate interviews. If made in
one interview and about the same fact, they may be charged as one false statement.
The Disciplinary Guidelines spends three and one-half pages explaining its application to
false statements. The net effect of the Guidelines, when combined with the 2020 revision to the
Patrol Guide, is to add elements needed to prove falsity, defenses to prosecution, and lesser
alternatives to finding a false official statement. In sum, Commissioner Safir’s call for a
presumption of termination will become more difficult to implement. His stated policy— a false
statement carries automatic termination absent exceptional circumstances— has been reduced to a
rule where termination is presumed, but not required, and only subject to the following criteria
limitations :
It must be an “intentional” statement that the officer knows is untrue.
It must be an asserted falsehood about a “material” fact, i.e., one that is “essential to
the determination of the issue” and would result in a different decision or outcome.
1745
CCRB Semi Annual Report - 2022 at 14. https://www nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_biannual/2022_semi_annual.pdf.
428
If it merely “misdirects” the factfinder, that is a “misleading statement” which does not
carry presumptive termination.
Merely “intentionally omitting a material fact or facts” is a misleading statement, not a
false statement.
The declarant must “know” the statement is false. It is not enough that the declarant
should have known the statement was false.
If the declarant makes a statement that he or she the declarant knows to include
incorrect material information, but there is “no intent to deceive,” ” the statement is
“inaccurate” and not false—even if the statement is grossly negligent or “causes a
material variation.”
Improperly influencing another witness to make a false statement may constitute
“impeding an investigation,” which does not call for termination unless aggravating
circumstances are found.
Intentionally making statements that “misdirect or misinform the investigator . . . or
undermine the goals of the investigation” may constitute “impeding an investigation”
but does not automatically qualify as making a false statement.
If APU or IAB satisfied the criteria above, an additional set of factors may be used to
mitigate the penalty or reduce a false statement finding to one of the lesser alternatives:
A false general denial is not a false statement. But if the officer, “after being afforded
the opportunity to recollect, intentionally denies specific facts that are proven by
credible evidence to have occurred” a denial may be a false statement.
An officer may retract an intentionally false statement during an interview or “session”
or within 24-hours after a PG§ 206-13 interview.
Perhaps the largest “loophole” in the Disciplinary Guidelines is in the paragraph
denominated “Mistakes.”1746 There, “errors” in filed reports or other statements are considered
clerical mistakes if they have little or no effect on the overall intent of the statement. Again, a
“material variation” is not a false statement if “lacking in willful intent.”
False stop reports are another easy way for SQF misconduct to be veiled. PG § 203-08 had
defined false statement to include “lying in an official Department document or report.” The
amended Administrative Guide section refers only to “written statements made in a sworn
document, including affirmations.”1747 And the Disciplinary Guidelines further limits the scope to
statements “written or spoken, during an official investigation.”1748 This would seem to exclude
stop reports which were intentionally falsified to mis-describe a stop encounter.1749 While the
amended Administrative Guide section retains a minor infraction for failure to file an accurate stop
1746
Disciplinary System Penalty Guidelines at 31-34. Also, in AG § 304-10 (“Mistakes distinguished”)
1747
AG 304-10 at 2 (emphasis added).
1748
Matrix at 29.
1749
Disciplinary Penalty Guidelines at 43. “Fail to Document an Investigative Encounter” carries a penalty range
from three to ten penalty days. This is included in the section of Violations of Department Rules and Regulations with
the heading “Presumptive Penalties . . . Adjudicated by Charges and Specifications. “This would appear to imply that
false or missing Stop Reports uncovered in the precinct by audit or otherwise do not carry presumptive penalties.
429
report, intentionally lying in a report to cover up misbehavior does not seem to be included any
longer.
Time will tell whether the gaps written into the Disciplinary Guidelines and the
Administrative Guide will impede successful substantiation of cases where an officer has falsified
reports and answers in interviews, persuaded others to distort or resist, or omitted necessary
information with an intent to deceive. CCRB now plays a partial role in ferreting out untruthful
statements. Ultimately, the question will be whether CCRB will adhere to the many restrictions
set by the Police Commissioner in the Administrative Guide and Disciplinary Guidelines described
above. If not, how will conflicting determinations by CCRB and DAO be reconciled?
Under the Guidelines, the specific sub-category of Untruthful Statement includes a
significant difference of available penalties. For example, an intentional false official statement
requires termination or forced separation, while an inaccurate statement allows for penalties
between five to 15 days.
In 2021, CCRB panels reviewed 31 allegations falling in the general category of untruthful
or misleading. The Board substantiated 24 allegations and was unable to determine the remaining
seven. 1750
14 were found to be False Official Statements1751
7 were found to be Misleading Official Statements1752
1 was found to be an Inaccurate Official Statement1753
2 were found to Impede an Investigation1754
The Police Commissioner has yet to act upon those findings. It is too early to tell if the
Police Commissioner will impose presumptive penalties or not in each of the 24. Of importance
to this Report would be the overlap between a finding of untruthfulness and SQF findings. At this
point in time, the panels also found untruthfulness in four of the of the first 46 substantiated SQF
cases.
ii.
False Statements in SQF Cases Investigated by CCRB
Critical to SQF compliance is the ability to demand candid answers from officers in
interviews. Failures to substantiate are frequently the product of a complainant’s word against the
officer’s. Yet the Matrix eviscerates any need for an officer to be forthcoming or careful in his
testimony by declaring, “Erroneous statements, lacking in willful intent, and not so unreasonable
as to be considered gross negligence are not a basis for finding misconduct.”1755 Knowingly
making a false statement, i.e. making a statement and knowing that it is not true, should be
1750
CCRB Annual Report 2021, at 31.
1751
Presumptive Penalty: Termination
1752
Presumptive Penalty: 30 days + Dismissal Probation
1753
Presumptive Penalty: 10 days
1754
Presumptive Penalty: 30 days + Dismissal Probation
1755
NYPD Disciplinary System Guidelines at 31.
430
sufficient to constitute misconduct; knowledge that the statement is false is all that should be are
required.
The potential problem here is the meaning of “willful intent.” If all that were meant by the
term was that CCRB needs to prove that the officer intentionally made a statement knowing that
it was false, that would be sufficient. However, generally speaking, intentionality requires proof
beyond wrongful knowledge. Intentionality requires “a conscious objective . . . to cause [the]
result or to engage in such conduct.” “Willful intent” has been interpreted to require an intent to
violate the applicable statute or regulation.
For example, N.Y. Penal Law § 210.40 (making an apparently sworn false statement)
requires proof, not only that a false statement was knowingly made, but also that it was “made
with the intent to mislead a public servant in the performance of his official functions.” Thus far,
the Department has not indicated that it will require proof of an intent to mislead the CCRB
investigator. But, if not carefully monitored, it will be too easy for IAB investigators or DAO to
find that a false statement was made, knowing it was false, but without an intent to deceive, thus
exonerating the officer.
XIII. Lawsuits And Civil Claims Against Officers
Another check on police misconduct, aside from disciplinary investigations by CCRB,
NYPD, or any of the four oversight agencies,1756 is the role played by the Comptroller in claim
settlements and the courts through civil litigation. In some cases, a complaint is filed with CCRB
or NYPD and is also part of a civil claim or litigation. Often, civil claims or lawsuits are filed
without a complaint to CCRB or NYPD. Comparatively speaking, more complaints against the
police are filed with the Comptroller than with CCRB. Precise comparisons cannot be made
because of overlap in some cases and the fact that classification systems vary. But for an overall
sense of proportion the following look at filings in 2018 is helpful:
4,645 complaints were received and retained by CCRB;1757
1,234 complaints were fully investigated by CCRB;1758
6,491 civil complaints against the Department were filed with the Comptroller;1759
3,079 lawsuits were filed in state and federal courts alleging police misconduct.1760
1756
Discussed below: the Inspector General for the NYPD, the Commission to Combat Police Corruption, the
Commission on Human Rights and the Attorney General’s Law Enforcement Misconduct Investigations Unit.
1757
Roughly 50% of complaints brought to CCRB each year do not fall within its FADO or personal jurisdiction.
Received and retained cases are those which survive initial screening for jurisdiction.
1758
Most retained cases end up being diverted due to truncation, mediation, lack of witness cooperation, etc.
1759
This includes police action tort cases, which can include an injury, and civil rights claim. Roughly one-third
(1,541) of the complaints filed with the Comptroller against police are for civil rights violations without an alleged
physical injury. Some of the 6,491 complaints with the Comptroller are settled without litigation, and some continue
as filings in court. The number here includes both - cases which were settled pre-litigation and those that went on to
litigation.
1760
These include cases which were filed with the Comptroller but were not settled pre-litigation. This includes false
arrest, malicious prosecution, excessive force, false imprisonment and assault/battery claims.
431
In 2017-2018, the City settled 2,027 police misconduct lawsuits at a cost of $194,171,176.
One might think that the bulk of the claims were for misuse of force, but in fact there were only
1,379 allegations of use of force or assault and battery, while there were 2,516 allegations of
malicious prosecution, false arrest, and false imprisonment.1761
Many lesser claims are settled with the Comptroller before litigation, usually for relatively
small amounts of money. One could argue that some of those claims were of dubious merit and
were settled for their nuisance value. The same assumption should not be made for filings in court.
A minority of the settlements and judgments in court are settled for seemingly trivial
compensation. In 2018, for example awards for police misconduct were as follows:
Judgment/Settlement for CY 2018
$250,000 & Greater
$100,000 - $249,999.99
$50,000 - $99,999.99
$25,000 - $49,999.99
$5,000 - $24,999.99
$1,000 - $4,999.99
Below $1,000
GRAND TOTAL
Total
49
80
136
212
357
62
6
902
As early as 1992, then-Comptroller Elizabeth Holtzman issued a “Report on Police
Department Monitoring of Lawsuits and Claims of Misconduct” in which she advised NYPD to
“establish a data base which includes notices of claims and civil actions as well as civilian
complaints and correlate the data from all three sources” and “the data should be organized by
such variables as precinct, commander, type of conduct, characteristics of officers and
complainants and any factors which may be significant in analyzing problems in police/civilian
relations.”1762
Seven years later, Comptroller Alan Hevesi renewed the call, writing, “[a]lthough most of
these claims are settled by the Comptroller’s Office and Corporation Counsel without a direct
admission of guilt on the part of the police officers(s) involved, there is enough evidence collected
to convince the City that the plaintiff has a serious case. The police department should analyze
these settled claims and take steps to review the officers’ performance and propensity to commit
acts of excessive force.”1763 He went on to complain, “[t]here is a total disconnect between the
1761
NYPD-OIG, 2019 Assessment of Litigation Data Involving NYPD at 12 (Apr. 30, 2019),
https://www1.nyc.gov/assets/doi/reports/pdf/2019/Apr/13LitData_pressrelease_report_43019.pdf.
1762
Repeated requests to the Comptroller’s office to obtain a full copy of Comptroller Holtzman’s report have been
unsuccessful. References to the report can be found in the Written Testimony of the NYC Affairs Committee of the
New York City Bar before the City Council Committee on Oversight and Investigations, Hearing on Int. 0119-2014,
May 5, 2014, at https://www2.nycbar.org/pdf/report/uploads/20072720-SupportforRequiredQuarterlyReportsfromN
YPDInspectorGeneral.pdf. (“City bar testimony”).
1763
Id. at 2 (K. Flynn, Record Payout in Settlements against Police, New York Times (Oct. 1, 1999). See Statement
of the New York Civil Liberties Union Before The New York City Council Committee on Government Operations
Regarding Int. No. 1025: Reporting by the New York City Corporation Counsel on Civil Damage Claims Related to
432
settlements of civil claims and police department action; such matters are ordinarily not even noted
in an officer’s personnel file.”
NYPD has traditionally taken the position that the fact “that a lawsuit has been filed does
not mean that officer misconduct has occurred or will be proven. The majority of lawsuits
involving the NYPD are settled, without admission of fault or liability.”1764 In other words, the
officer or Department may or may not have been at fault. 1765
As one might expect, “nuisance suits” settled at lesser amounts to avoid the cost of
litigation predominate. However, the remainder is not insignificant. Over the period 2010 to 2020,
NYC paid out $1.779 billion. Over $687 million of that was for cases settled in an amount under
$100,000.1766
NYPD’s argument is justified if one were to look only at filings, without further analysis.
Holtzman and Hevesi called for correlation and a deeper look into the underlying merits of claims.
Beginning in 2015, efforts have been undertaken to separate the wheat from the chaff. Mayor de
Blasio announced on January 30, 2015, that the City would no longer settle frivolous lawsuits.1767
And since 2015, NYPD’s Legal Bureau has conducted litigation data analysis through its Police
Action Litigation Section (PALS).1768 NYPD no longer looks at filings alone. “PALS relies on
merit-based litigation information as the basis of its advice and counsel to the agency, not mere
filing data.”1769 Without external independent analysis, claims of merit assessment will continue
to be questioned. “Merit” is in the eye of the beholder.
Police Misconduct, December 11, 2009 (available at: https://www nyclu.org/en/publications/reporting-new-york-citycorporation-counsel-civil-damage-claims-related-police)
1764
NYPD Response to OIG “2019 Assessment of Litigation Data Involving NYPD” at 5 (July 29, 2019),
https://www1.nyc.gov/assets/doi/oignypd/response/NYPDResponse%20_LitDataReport_72919.pdf.
1765
Comptroller Alan Hevesi memo (Apr. 12, 1999), as reported in a July 1, 2002, Joint Committee Report of the NY
City Affairs Committee and the Criminal Justice, Police Reform & Civil Rights Committee of NY City Bar
Association, “The Failure of Civil Damages Claims to Modify Police Practices and Recommendations for Change.”
1766
Keith Alexander, Steven Rich, & Hannah Thacker, The hidden billion - dollar cost of repeated police misconduct,
The Washington Post (Mar. 9, 2022), https://www.washingtonpost.com/investigations/interactive/2022/policemisconduct-repeated-settlements/?itid=hp-top-table-main.
1767
During a January 30, 2015, press conference, the Mayor announced that the City will no longer settle “frivolous”
suits. The same day, First Deputy Mayor Shorris made the same announcement in a letter to several police unions
about changes in the City’s litigation strategy for lawsuits against NYPD. Letter from Anthony E. Shorris, First Deputy
Mayor to Mr. Ray Richter, President, Captain’s Endowment Association et al. (Jan. 30, 2015).
1768
PALs was created in conjunction with increased staffing at the Law Department. The aim was to provide an
“enhanced defense of officers.” NYPD Letter to Mayor de Blasio at 4 (Aug. 7. 2018), 6.
https://www1 nyc.gov/assets/doi/oignypd/response/LitigationDataResponse_FINAL_80718.pdf. As well the Risk
Assessment Information Liability System (RAILS), the Performance Analysis Section, the Early Intervention System
(EIS) and the Civil Lawsuit Monitoring Program, all created within the last decade purport to incorporate litigation
data in measuring performance and the need for remedial measures.
1769
Id. at 5.
433
In 2017, the Comptrollers’ bid for correlation was further bolstered by the Association of
the Bar for the City of New York in testimony supporting proposed legislation:1770
The defendants usually do not admit liability in a settlement, and cases may be
settled merely upon an estimate of the risks involved in the litigation, rather than
because of the intrinsic merits of the claim. Nevertheless, it appears to be the case
that the City and its Police Department (NYPD) can make judgments about the
behavior of individual officers based on their investigations of cases, and that more
general conclusions could be drawn from a range of cases. A memo of the facts is
made as a basis for a recommendation of settlement in a tort case, and as a result,
the City usually does have an informed opinion concerning the actual liability of
the officers and the City from its own investigation of the case. Narrative accounts
of cases, based upon sometimes undisputed facts, both by the Comptroller and in
news accounts, indicate that some very serious abuses have passed through the tort
system without any action by the NYPD. For example, in 1995, the city paid $16.6
million in a case where a man was left a quadriplegic after police allegedly slammed
his head into a door with such force that it crushed his spine. The police officers
involved were apparently never disciplined.1771
While it is clear that a direct conclusion, without analysis, should not be made between a
settlement or verdict in litigation and an individual officer’s misconduct, the Bar Association urged
nonetheless that “there are factors that can be used to separate cases which may be frivolous or of
relatively little merit” if NYPD were to look at: “the level of culpability of the officer, some
evidence of a pattern of conduct of an officer or group of officers, or a precinct . . . [and for]
corroborative evidence of misconduct.”1772
The testimony concluded:
Then, as now, the NYPD should be giving more attention to the civil cases brought
against police officers as part of its routine job performance and discipline reviews.
Requiring the reporting called for in Int. 1192 should yield immediate benefits,
including: (1) allowing the NYPD to identify those officers with a possible
propensity for violating and/or disregarding New Yorkers’ civil rights; (2) notifying
and deterring repeat offenders by marking their personnel files; and (3) assisting
the NYPD in unearthing practices among officers or department-wide policies that
precipitate recurring misconduct. 1773
In time, the Comptrollers’ proposals became the impetus for Local Law 166 of 2017, which
enacted NYC Administrative Code § 7-114 requiring posting of civil actions.
1770
Intro 0119-2017 which was subsequently enacted as LL 166/2017.
1771
City bar testimony, supra at 4.
1772
Id at 4.
1773
Id. at 2.
434
Effective September 2017, the Administrative Code was amended to require the Law
Department to post a list of civil actions filed against the Department or officers containing
allegations of “improper police conduct” which is defined to include “claims involving the use of
force, assault and battery, malicious prosecution, or false arrest or imprisonment.”1774 The listing
is for filings of wrongful police action in both state and federal Court. The law requires listing for
each action:
[T]he court in which the action was filed; (ii) the name of the law firm representing
the plaintiff; (iii) the name of the law firm or agency representing each defendant;
(iv) the date the action was filed; and (v) whether the plaintiff alleged improper
police conduct, including, but not limited to, claims involving use of force, assault
and battery, malicious prosecution, or false arrest or imprisonment; and . . . if an
action has been resolved: (i) the date on which it was resolved; (ii) the manner in
which it was resolved; and (iii) whether the resolution included a payment to the
plaintiff by the city and, if so, the amount of such payment.
The posting is helpful in that it can be searched by officer name and tax ID as well as by
other common signals.1775 It is somewhat ironic that this database has been in place for several
years while the controversy over § 50-a raged on. The database gives full exposure to the names
and ID numbers of officers and is readily searchable. With a little effort (and some PACER1776
fees), the cases may be researched on court electronic filing sites, at which time detailed allegations
in a complaint can be uncovered. In fact, it is somewhat of a further irony that one can easily read
unproven allegations in the filed complaint and motions, while the final settlements (many more
are settled than decided after trial) are usually listed without details as to what misconduct, if any,
was adjudged or conceded. Thus, while disclosure of unsubstantiated and pending claims at CCRB
is highly contentious and the subject of litigation,1777 the Law Department’s posting leads to
disclosure of unredacted and unproven claims more readily than to findings of misconduct.
In more recent posting on the Law Department website, tax IDs have been deleted, making
it more difficult to search records with precision. This portends a desire to limit public access to
tax IDs. At the same time, the Department has asserted in litigation seeking access to disciplinary
records that a FOIL request by the public requires identification of the record by tax ID. Simply
put, the Department’s argument was that a record could not be obtained in a FOIL request unless
the requester knew the tax ID of the officer, while at the same time acknowledging that “such
identifying information is not publicly available.” This “catch 22” proposition was soundly
rejected by the Court.1778
1774
Local No. Law 166 (2017) adding NYC Admin. Code § 7-114. (Intro 0119-2014, J. Williams).
1775
The database may be accessed at https://www1.nyc.gov/site/law/public-resources/nyc-administrative-code-7114.page.
1776
Public Access to Court Electronic Records.
1777
E.g., UFO, supra.
1778
NYP Holdings v. NY City Police Dep’t, 77 RCNY. 3d 1211 (A), Index 159132/2021 (Sup. Ct. RCNY Cty. Dec. 6,
2022).
435
A.
Potential Use of Civil Case Information in Disciplinary Proceedings
NYPD has acted to track indicators of potentially at-risk officers in its Early Intervention
System (EIS) and through its Risk Assessment Information Liability System (RAILS).1779
However, the EIS system is divorced from the disciplinary system. The Department does not
coordinate an analysis of civil liability with disciplinary investigations. The only time they
intersect is when civil litigation is the cause of delay in, or even closure of, a disciplinary
proceeding. In practice, disciplinary investigations or adjudications are, from time to time, closed
on account of pending litigation. When CCRB closes a case due to pending litigation, it is because
“the complainant or victim chose not to cooperate with the investigation on the advice of
counsel.”1780 Witnesses, victim/complainants, and subject officers may be reluctant to participate
in a CCRB or IAB investigation while either civil or criminal litigation is pending. On occasion,
the Police Commissioner will administratively close a disciplinary proceeding which has gone to
litigation. This could be either because of a failure of witness cooperation or simply as a matter
of discretion on the part of the Department. On the other side of the coin, civil practitioners, if
confident of substantiation, may delay litigation until a finding against the officer is made and then
seek to present it in court.
On occasion, disciplinary proceedings are closed “pending litigation” when the litigation
is unrelated to the investigation that was closed. This situation is unfortunate since allegations of
new misconduct do not seem sufficient reason to abandon earlier claims of misconduct, other than
to shield the City from adverse material that might be used in the later litigation.
As just one example, take the case of Police Officer
. On May 29, 2020,
during a Black Lives Matter protest, he was recorded on video shoving a 20-year-old woman to
ground. Officer
was suspended. A review of his disciplinary history revealed five
separate complaints to CCRB against him in his five-year career with the force. One of those
complaints, alleging an illegal vehicle search in 2019, was open until it was closed pending
litigation in the new case.1781 If the two case are unrelated, it serves no purpose to close the 2019
investigation. The new charges, if supported by evidence, should be considered when reviewing
the old case. The new case is not a reason to drop the pending case.
Along with enactment of Section 7-114 (posting of civil actions), the City Council enacted
Section 808 of the City Charter. That section directed six agencies: the inspector general, the
comptroller, the Department, CCRB, CCPC, and CCHR to work together to collect and evaluate
information regarding allegations or findings of improper police conduct and to develop
recommendations relating to discipline along with Training, monitoring and related policies.1782 In
1779
The status of RAILS is currently under review at this time.
1780
38-A RCNY 1-33 (e)(11).
1781
CCRB #
; Case No. 20-cv-6070 (E.D.N.Y.).
1782
N.Y.C. Charter § 808 (b). The inspector general for the police department shall, working with the law department,
the comptroller, the police department, the civilian complaint review board, the commission to combat police
corruption, and the commission on human rights collect and evaluate information regarding allegations or findings of
improper police conduct and develop recommendations relating to the discipline, Training, and monitoring of police
officers and related operations, policies, programs, and practices of the police department, including, but not limited
436
particular, as coordinator and reporter of the group, OIG-NYPD was to consider patterns of actions
and claims, and to make comparisons of closed cases listed in § 7-114 with any incidents alleged
to have given rise to actions and claims.1783 Further, the OIG-NYPD was to report on steps taken
by the police department in response to civil actions and claims including investigations and
disciplinary actions.
In April 2018, OIG-NYPD published a report, “Ongoing Examination of Litigation Data
Involving NYPD” (“Examination”). The Examination was in response to section 808(b) of the
Charter. OIG looked at 541 lawsuits and claims as a representative sample of litigation. The
Examination was limited by NYPD, which led to the conclusion that “DOI cannot state whether
NYPD is currently conducting the type of analysis described in [the] Report.”1784
[W]hen DOI sought certain information, NYPD withheld it on the basis of legal
privilege, although such privileges do not bar disclosure of NYPD information to
DOI. When DOI attempted to interview current NYPD lawyers about the NYPD
unit that monitors litigation, NYPD refused to make NYPD lawyers available to
DOI, despite DOI’s legal mandate and despite NYPD being informed that the
interviews would cover general questions at the unit (as opposed to covering
specific lawsuits).1785
NYPD responded that it had made information and employees available, and that the Examination
was “hardly accurate.”1786
As mentioned, the Department claims to use a “merit-based” analysis rather than merely
looking at allegations to weed out “baseless litigation” in its use of data “to adjust policy and
training, identify officers in need of intervention and reduce the number of lawsuits.”1787 But
allegations, even if not credited by NYPD or the Law Department are signals which should be
accounted for, not ignored. As the OIG noted, “such data [has] value.”1788 OIG’s examination
continued, “the Department should also consider ways to analyze data from all filed lawsuits so
that meaningful trends can be identified,” citing similar efforts in Los Angeles and Seattle.1789 In
its March 2022, Eighth Annual Report, the OIG persisted notwithstanding NYPD resistance,
to, any system that is used by the police department to identify police officers who may be in need of enhanced
Training or monitoring.
1783
Id. § 808 (b)(1),(2).
1784
Examination at 6 n.9, https://www1.nyc.gov/assets/doi/reports/pdf/2019/Apr/13LitData_pressrelease_report_430
19.pdf.
1785
Id. at 6.
1786
NYPD letter to Mayor de Blasio, at 9 (Aug. 7. 2018), https://www1 nyc.gov/assets/doi/oignypd/response/Litigati
onDataResponse_FINAL_80718.pdf.
1787
Id. at 2.
1788
NYPD-OIG, 2019 Assessment of Litigation Data Involving NYPD at 10 (Apr. 30, 2019),
https://www1.nyc.gov/assets/doi/reports/pdf/2019/Apr/13LitData_pressrelease_report_43019.pdf.
1789
Id. at 19.
437
asserting, “NYPD’s analysis is too limited . . . there is value in a broader Department-wide
analysis of litigation and claims data.”1790
Even when NYPD finds a case to be “meritorious,” there is no mention of potential use of
the case in disciplinary cases. The OIG-NYPD examination and the Department’s response to
Local Law 166 were disappointing in that regard. Charter § 808 called for “disciplinary
recommendations” and neither addressed that issue. As one goes through individual case files, it
is clear that some officers have a history of disciplinary investigations and civil filings which
intertwine. An investigated incident may also be subject of a civil claim. Even when there is no
specific overlap for a particular encounter, multiple allegations of similar conduct or disregard of
citizen rights and privileges tend to repeat themselves in short time spans where officers are
confronted with CCRB investigations, IAB investigations, Comptroller claims, and lawsuits all
contemporaneously. Pending litigation is used, from time to time, to discontinue a disciplinary
action, but there is no indication that the Department integrates the information in evaluating
misconduct allegations or discipline.
More could be done to make use of the information contained in lawsuits and claims to the
Comptroller:1791
As is demonstrated in some of the case studies catalogued elsewhere in this Report,
patterns of behavior by one officer or a group of officers become readily identifiable in
the allegations of a string of what might otherwise seem to be unconnected civil actions
and complaints.1792
Civil filings, depositions, and discovery as well as GML 50-h1793 hearings could be used
to aid CCRB, IAB, and DAO in reducing the number of unsubstantiated cases where
evidence is otherwise insufficient, or in identifying false or misleading statements
given to CCRB and IAB investigators.1794
1790
OIG-NYPD, Eighth Annual Report, March 2022 at 25-26. https://www1.nyc.gov/assets/doi/pressreleases/2022/March/08OIGNYPDAnnualRpt_Release_3312022.pdf.
1791
See, generally, Joanna C. Schwartz, What Police Learn from Lawsuits, 33 Cardozo L. Rev. 841 (Feb. 2012).
1792
NYPD is reluctant to look at cases it screens out as meritless for trend analysis persists. The NYPD-OIG had
urged, in its April 2018 examination of litigation data, that the Department look for precinct or unit level patterns and
trends in its internal reports for use by leadership. As recently as April 2021, the Department has continued to reject
the call on the ground that “such a report will not provide any benefit and will instead open NYPD up to unnecessary
litigation.” DOI, Seventh Annual Report at 21 (Apr. 2021), https://www1.nyc.gov/assets/doi/reports/pdf/2020/OIG
NYPDAnnualRpt_4012021.pdf
1793
Examination of claims, NY General Municipal Law § 50-h. A claimant may be required to give testimony
describing the basis for claims against the City. “The transcript of the record of an examination shall not be subject
to or available for public inspection, except upon court order upon good cause shown, but shall be furnished to the
claimant or his attorney upon request.” CCRB complainants could, if they choose, voluntarily turn them over to
CCRB investigators. It is not clear if the Comptroller shares the interviews with the Law Department or NYPD prior
to commencement of litigation.
1794
One published opinion addresses CCRB’s ability to access transcripts of examinations before the Comptroller in
order to gather more information during an investigation. In CCRB v. Office of the Comptroller, 33 N.Y.S.3d 675
(N.Y. Cty. Sup. Ct. 2016), the Court ruled that the documents could be obtained, after in camera review, if material to
CCRB’s investigation.
438
Transcripts from § 50-h hearings and civil depositions or filings could be presented as
evidence in trials before the DCT. The Rules of the NYPD permit hearsay in the case
of a witness’ absence.1795 Today, an unfortunate number of cases fail or are negotiated
down due to non-appearance of witnesses.
Corporation Counsel’s decision to deny representation to, or deny indemnification for,
an officer is a signal that either a conflict exists, or counsel has determined that the
officer was acting in violation of NYPD rules or regulations. The basis for any
determination to deny indemnification should be analyzed in any disciplinary hearing
and considered by the Police Commissioner as he weighs the evidence presented to
her.1796
General Municipal Law § 50-k also precludes indemnification where “the injury or
damage resulted from intentional wrongdoing or recklessness on the part of the
employee.” Since NYPD’s Disciplinary Guidelines look to intentional or reckless
mens rea in assessing penalties, inconsistencies in Corporation Counsel and Police
Commissioner determinations in this regard should be analyzed, if not reconciled.
Civil filings often bring to light acts of misconduct which were not reported to CCRB
or IAB.
Litigation exposes a wealth of information which the ordinary CCRB or IAB
investigation will not uncover.
Transcripts and reports in civil proceedings can expose misleading or untruthful
statements given in CCRB or IAB investigations.
A civil filing listed on the Law Department’s website may match a claim filed before
CCRB or IAB. Reconciling them is a laborious process, sometimes available to the Monitor Team
but not the public. The Monitor Team is given access to certain Departmental matrices and files
which identify subject officers by name or tax ID.1797 In particular, the vast number of profiling
complaints received by IAB can be reviewed and matched with civil complaints listed on the Law
Department’s site. Since none of the profiling complaints against a UMOS have been
substantiated, it is illuminating to see if profiling complaints or CCRB allegations of force,
discourtesy or slurs went unsubstantiated while settlements or judgments for the same encounter
or other roughly contemporaneous encounters were resolved by the Law Department.
1795
38 RCNY § 15-04 (e)(1) (“Hearsay shall be admissible and may form the sole basis for making findings of fact,
when consistent with law.”).
1796
It could be argued that Corporation Counsel’s decision-making process in this regard is privileged and cannot be
shared with the Police Commissioner. Without accepting that claim, there is no reason CCRB, DAO or even the Police
Commissioner could not use the decision to deny indemnification as a signal to dig deeper into the facts of the case.
1797
Tax IDs are a unique number given to each officer. They are invaluable identifiers when name changes, spelling,
assignments and other variables arise. The Law Department is required to update its website every six months and to
identify the named defendants. The law does not specifically require a listing of tax IDs, but they are commonly used
to more accurately search for records regarding a particular officer. Unfortunately, in recent postings, whether by
design or inadvertence, the Department has begun to omit tax IDs from filings, leaving the column entry blank. In its
2013-2017 posting, only 450 of 11,005 (4%) filings failed to include a tax ID. In its most recent posting for 2021,
3,096 of 13,869 (22%) filings omitted the tax ID. The failure rate has increased. 407 of 1,149 (35%) postings of cases
filed in 2020 failed to include the tax ID. Since DAO, IAB, CCRB, and other units use their own distinctive numbering
system for complaints, tax IDs are necessary adjunct to any meaningful research.
439
“no applicable entries”1800 and his “CCRB history” also shows no substantiated cases, although he
does have two listed force complaints which are “closed pending litigation.”
B.
Identifying Civil Claims of Police Misconduct
NYC Administrative Code § 7-114 (“Civil Actions Regarding the Police Department”)
requires the Law Department to post “for each such action . . . whether the plaintiff alleged
improper police conduct, including, but not limited to, claims involving use of force, assault and
battery, malicious prosecution, or false arrest or imprisonment.” Accordingly, the site lists the
four categories in columns with a yes (“Y”) or no (“N”) for each of the four kinds of claims.
The posting is unreliable at best. As one example, in the posting of the filing against Sgt.
, described above, the Law Department’s four columns (“Use of Force Alleged?”
“Assault/Battery Alleged?” Malicious Prosecution Alleged?” and “False Arrest/Imprisonment
Alleged?”) are all marked with an “N.” Similar failures to comply with the Code or to accurately
report the allegations in the complaints are abundant.1801 A statistical analysis would be a timeintensive and expensive proposition, but it is this reviewer’s anecdotal experience that the column
entries commonly fail to reflect the filings in court. “NNNN” for the four columns means that
neither force, assault, malicious prosecution nor false arrest were alleged in the complaint. The
online posting for July 2021 lists 11,605 of 13,869 “NNNN” cases. Even a superficial survey of
civil complaints filed in state and federal courts for wrongful police action would expose that
statistic as highly improbable.
The Law Department’s failure to accurately portray causes of action in thousands of cases
is not a trivial matter. Research and statistical evaluation on a simple question such as, “How
many false arrest cases are filed against officers and how many are successful?” should be capable
of easy and accurate compilation.
Immediately following is a case study involving a Sergeant
. Four lawsuits against
the City were settled in which he was a named subject. Typically, despite multiple claims of
assault, false arrest, or malicious prosecution, the Law Department posting of those cases each
reports, “NNNN”—as though the allegations in the complaints did not exist.
To lend any utility to the posting, data entry clerks for the Law Department need to read
civil complaints and identify the causes of action. Whether through inadvertence or want of care,
the listings by the Law Department in this regard are often inaccurate or incomplete. For all
practical purposes, the column entries are useless.
In the end, the good intentions of the Administrative Code—to provide a useful listing of
subcategories of wrongful police action—are not met. This failure has consequences for
1800
NYPD Online, Officer Profile, https://nypdonline.org/link/2. Notably, Sgt.
continued to receive
recognition and awards for meritorious and excellent policy duty through November 20, 2018.
1801
Take the case of Lt.
, discussed below. The online posting by the Law Department for his most recent
ten lawsuits (of 15) lists “N” for each of the four categories (38 out of 40 entries), which, without itemizing each
has been named in 18 lawsuits,
allegation in the ten complaints, is nowhere near accurate. From 2015 to 2023, Lt.
ten of which, so far, have resulted in money settlements/payouts. Many of the cases named multiple officers as
defendants. It cannot be ascertained from the public filings if individual liability was assessed.
441
transparency in the area of stop and frisk going forward. Section 7-114 was amended this year to
add a fifth column.1802 The law now requires the Law Department’s online posting to also note
whether a “deprivation of a right pursuant to chapter 8 of title 8” is alleged.1803 The right that is
referenced is a newly created right, within the City of New York, which tracks but does not literally
copy federal and state guarantees against unreasonable search and seizure and related wrongful
use of force. The new section reads:
Right of security against unreasonable search and seizure and against excessive
force regardless of whether such force is used in connection with a search or
seizure. The right of natural persons to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures, and to be secure against the
use of excessive force regardless of whether such force is used in connection with
a search or seizure, shall not be violated; and no warrants shall be issued but upon
probable cause supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.1804
This amendment to § 7-114, calling for itemization in the Law Department posting, has the
potential to go a long way toward increasing transparency and ready access to filings that complain
of SQF misconduct. If followed, the Law Department’s online posting would now clearly indicate
if illegal seizures were alleged in any court filing. The listing should include the name of the
officer, the docket number, and disposition of the case. The online posting is in the form of an
excel spreadsheet, so it should be readily searchable.
Segregating out SQF allegations for public scrutiny is meaningful because, unlike assault
and malicious prosecution cases, SQF cases, standing alone, do not typically resolve with large
judgments or draw attention. But a public listing where an officer or group of officers have
multiple search and seizure allegations filed in court against the officer(s) would be telling and
worthy of review for intervention, identifying patterns, and maybe discipline (if substantiated).
The fact that one SQF case is settled for a small amount without assessing personal liability may
not be significant, but the fact that several cases are brought against the same officer, or many
cases against officers of the same precinct, or even that a substantial number are brought with
regard to a particular practice, may be of great significance, even if the individual money
judgments are relatively small.
There are, however, a few flies in the ointment. For one, as mentioned above, data entry
in the past has been consistently inconsistent. Unless data entry clerks at the Law Department are
pressed, there is no reason to believe that a new column listing allegations of illegal seizures will
be employed with greater assiduity than listings in the past. For another, the precise language of
the amended Code calls for listing of alleged “deprivation of a right pursuant to chapter 8 of title
1802
Local Law 48 of 2021 (eff. Apr. 25. 2021); Admin. Code § 7-114 (b).
1803
The law had an effective date of April 25, 2021. The latest posting by the Law Department, July 31, 2021, is not
yet in compliance with the law’s new mandate.
1804
Admin. Code § 8-802. The plain intent of the language is to capture the panoply of protection afforded by the
fourth amendment to the federal constitution and section 12 of article I of the state constitution. In fact, new section
8-807 of the Code explicitly calls for this construction. If so read, the newly created right would include protections
of Terry and de Bour.
442
8.” A natural reading of this section would indicate a legislative command to include all cases that
seek to vindicate Fourth Amendment interests, including Terry and Floyd complaints. If read more
narrowly than was probably intended by the Council, the Law Department data entry clerks need
only look for causes of action based on NYC Administrative Code § 8-802 and not list allegations
of federal and state search and seizure claims.
A readily accessible listing of SQF allegations in lawsuits would be valuable to parties in
Floyd, but it should not be assumed that this useful and logical interpretation of the statute will be
adopted.1805
i.
Posting Individual Officer Liability Online
Another improvement to the Department’s online posting made this year by Local Law 48
is the requirement that the Law Department’s online posting note whether payments resulting from
a judgment or settlement were made by the City or by an individual defendant.1806 Electronic
filings in court terminating a case usually show a discontinuance without the terms of a settlement.
Until now, the Law Department’s posting would list the “Total City Payout Amount” without
indicating whether a named officer contributed. There are occasions when a settlement will
include a payout by a named officer, which can be a marker of interest in assessing whether
misconduct carries consequences beyond disciplinary penalties authorized by NYC
Administrative Code § 14-115. When settlements include personal assessments of liability, that
information, if made public, can help to assure that the officer has assumed some personal
responsibility for the misconduct alleged, even if the terms of the settlement don’t say so.
Currently, it is common practice for the final terms of a settlement in court to be sealed or
simply not filed with the court. As such, they are, practically speaking, unavailable to the public.
This is especially troubling for the many related disciplinary matters that are “closed pending
litigation,” never to be revived.
In 2019 and 2020, 716 CCRB investigations were closed “pending litigation.”1807 The
combinations of CCRB closure with a private settlement defeats the primary purposes of civilian
oversight. There is no transparent accountability. There is no way to assess the officer’s individual
culpability or lack of culpability and no way to assess the Department’s responsibility.
The Administrative Code requires the new postings to be made by January 31, 2022.
Unfortunately, the posting for January 31, 2022, does not include the required information.
1805
As of March 1, 2024, the posting indicated that 331 of 4534 civil cases alleging police misconduct in 2022 and
2023 also alleged a deprivation of rights under Chapter 8, Title 8 of the Administrative Code.
1806
LL 2021/048. In the past, Admin. Code § 7-114 required a posting “of whether the resolution included a payment
by the city. . . . and, if so, the amount of such payment.” The new law inserted “or by a covered individual or an
employer or other person paying on behalf of a covered individual.” The law took effect April 25, 2021. The section
was further amended on January 19, 2024, LL 2024/027, giving the Law Department until January 31, 2025 to post
the actions “in a searchable and machine-readable format,” and expanding the look-back period.
1807
CCRB, Semi-Annual Report at 25 (2021), https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_
bi-annual/2021_semi-annual.pdf.
443
One example of how the new law might work is the case of Lieutenant
. His
case is one of the few cases where public electronic filings itemize information regarding an
assessment of personal liability.
Lt.
has been with the force seventeen years. He was the subject of nine complaints
to CCRB—none of which resulted in penalty or discipline. Two of the investigations were
substantiated by CCRB, with recommendation for Charges and Specifications, but the Police
Commissioner did not accept the recommendations or findings, and no discipline was imposed.1808
He has also been named as a defendant in six lawsuits (four in federal court and two in state court).
At least two of the lawsuits directly corresponded to CCRB complaints. As of this writing, four
of the lawsuits ended in payouts of $13,500, $20,000, $12,500, and $50,000 respectively. This
does not include a $325,000 verdict against fellow officers in his precinct for which, it was later
claimed, he personally and wrongfully retaliated against the same complainant.1809 Without the
ability to pierce the terms of three of the settlements before the new law takes effect,1810 it is
unknown if he accepted personal responsibility in any of those cases. However, one of the
settlements (for $13,500) did include, in the public file, information that Lt.
personally
was responsible for a payment of $1,500 to the plaintiff.
Of interest at this point in the Report is that the personal assessment of $1,500 was made
in a case which was also the subject of a complaint to CCRB. In that encounter, the Board
substantiated the allegation and recommended Charges. The Police Commissioner retained the
case under Provision Two of the APU-MOU (discussed infra) and decided to impose “NDA”—
No Disciplinary Action.1811 The Police Commissioner’s decision was made four weeks after the
federal lawsuit was filed against Lt.
for the same encounter.1812 Six months later, the
lawsuit was settled (as indicated for $12,000 against the City and $1,500 against Lt.
). The
City is obligated to represent and indemnify officers unless the Corporation Counsel determines
that the misconduct was not in the line of duty or violated NYPD rules and regulations. It is unclear
if Lt.
is being indemnified in this case but, three months after the case was filed, retained
counsel entered an appearance on his behalf. It could be that Corporation Counsel denied
indemnification based on factors in § 50-k or it could be that a conflict necessitated separate
counsel. It might be that the City is not covering the award, but that is unclear from the public
record.
In any event, with the new requirement to post individual assessments in lawsuit
settlements in the future, if properly followed, it should be easier to trace, match, and compare
1808
In one case, discussed below, where CCRB recommended Charges, the Police Commissioner retained the case
and removed APU from the prosecution. In another case that went to trial, the Police Commissioner overturned a
guilty verdict and substituted it with a not-guilty finding.
1809
The lawsuit claiming retaliation was dismissed.
1810
Local Law 48 became law on April 25, 2021. But the new listings are not required until July 31, 2021, and are to
be updated bi-annually on January 31st and July 31st thereafter.
1811
CCRB substantiated Charges on two separate occasions against Lt.
disciplinary history online.
. Neither appears in the NYPD
1812
There is nothing in the records indicating whether the Police Commissioner was aware of the pending lawsuit
when he dismissed CCRB’s complaint.
444
civil and disciplinary outcomes. CCRB should amend its protocols, when an investigation is
“closed pending litigation” to specify the litigation at issue.
ii.
Integrated Reporting of Civil Claims and Citizen Complaints
While it would be worthwhile to consider overlapping and contemporaneous complaints
when assessing discipline, the Department’s history of resistance to that concept is welldocumented. Nonetheless, at the very least an integrated, seamlessly coordinated database would
be of value. Whether one believes that multiple complaints should be dealt with in isolation or
conjunction when considering discipline, it is hard to argue with the proposition that allegations
known to IAB, CCRB, OCD, DAO, local CO’s, the Comptroller, the Law Department, and District
Attorneys, ought to be readily accessible with one user-friendly data search. That is not the case
today. Search criteria, data access, case identifiers, descriptive entries and results, etc. are all
scattered and non-uniform. Trying to compile statistics on, for example, wrongful force
allegations by reliance on Law Department’s online listing of misconduct filings is futile.
An extreme, but not unique, example would be the case of Lieutenant
. The
Lieutenant has had 28 CCRB complaints filed against him. Thirteen of the complaints have been
substantiated. Many of the complaints are recent (after 2017) and contemporaneous. Multiple
investigations of Lt.
are, or were, pending simultaneously. Twelve of the thirteen CCRB
substantiations were findings made in the last three years. Overlapping the CCRB investigations,
are eighteen separate lawsuits in New York Supreme Court and Federal Court, all arising from
incidents occurring in 2015-2023 and pending while the CCRB investigations were open. Not all
of the lawsuits correspond to a CCRB complaint as the plaintiffs may not have sought CCRB
discipline. Nine of the lawsuits have settled or resulted in payouts ranging from $178,000,
$50,000, $860,000, $30,000, $75,000, $52,506, $115,000, $45,000, $417,600 to $20,000. Others
remain open. Charges and Specifications have been recommended against Lt.
by CCRB
multiple times, but at the present time, five CCRB of those substantiated cases are open,
unresolved, and listed only as “APU decision pending.” Lt.
retired with charges pending in
two cases. Those cases remain unresolved.
Pending litigation can cause CCRB cases to close, whether the complaints are for the same
incident or merely arising at or about the same time. On the other hand, a negative CCRB finding
can have an impact on legal issues in pending lawsuits, such as indemnification, qualified
immunity, representation by the Law Department, and liability. All in all, each of the charges and
complaints against Lt.
cannot be looked at in isolation, but need to be examined holistically
to arrive at a fair measure of discipline for proven misconduct.
General, civil claims against a respondent officer are discounted as evidence of wrongdoing
absent a verdict, admission or finding. Ironically (or inconsistently), while a civil lawsuit (even
one based upon sworn affidavits) is disregarded as evidence of misconduct or a basis for
impeachment of the officer’s credibility, Departmental Trial Commissioners weigh civil claims
brought by a complainant against the citizen on a belief that an interest in the outcome of a court
case undermines the complainant’s credibility.
Both the officer and the plaintiff have an interest in a court proceeding, but that interest is
.
only weighed against the civilian. This was explicitly stated in a decision in the case of Lt.
445
The complainant was asked if he had “pursued civil litigation.” The complainant testified,
truthfully, that he had not. But the Trial Commissioner ascertained later that “several weeks after
his testimony, [the complainant] filed a civil action against . . .
[and] based on this filing, I
must consider [the complainant’s] financial interest as a factor in my credibility determination.”1813
There is no mention of considering the financial interest, if one existed, of the officer as a factor
in the Trial Commissioner’s credibility determination.
iii.
Case Study - Multiple Contemporaneous Actions—The Need for an
Accurate Integrated Database
1814
1815
Take the case of Sergeant #1
and Sergeant #2
Their disciplinary career paths are not exceptional but highlight the interplay between disciplinary
proceedings and civil complaints for officers who work together. Citizen complaints may proceed
contemporarily or in tandem. Only with exorbitant effort can a clear picture of potentially troubled
paths develop.
Sgt. #1
has seven known civil actions filed since 2013, naming him as having
engaged in wrongful police actions, usually in concert with other named police officers. He has
also been the subject of seven CCRB complaints. One of the seven coincided with one of the
lawsuits. Otherwise, the CCRB complaints are distinct from the lawsuits.
Sgt. #2
has been named in four civil suits and eight CCRB complaints.
Of interest is the fact that they have been jointly named in three civil suits, each of which
settled with money awards, and in a more recent CCRB complaint which was “closed pending
litigation.” Their disciplinary odyssey is as follows:
Date of Incident (if known)
Sgt. #1
8/5/11
3/6/12
7/5/13
10/21/14
-
12/11/14 9/19/15 1/7/17
-
CCRB: Discourtesy - Exonerated
CCRB: Force with gun as a club - Complainant Uncooperative
CCRB: Force - Unsubstantiated
LAWSUIT: false arrest/Stop/Search/Malicious Prosecution Settled
$ 9,750
CCRB: Force - Unsubstantiated
LAWSUIT: Chokehold - open
CCRB: Refusal to Identify - Complainant Uncooperative
LAWSUIT: False arrest, Assault, False Imprisonment - Open
1813
Hon. Paul M. Gamble, Assistant Deputy Commissioner of Trials, In the Matter of the Charges and Specifications
against Lieutenant Special Assignment
, et al, Case Nos.
and
at 12.
https://oip nypdonline.org/files/956643_09072022_2022045.pdf.
1814
Sgt. #1
1815
Sgt. #2
was promoted to Detective in November 2017 and to Sergeant on March 18, 2021.
has been with the force for 20 years and was promoted to Sergeant on June 24, 2011.
446
absent aggravating circumstances, falls readily into this category. A side-by-side comparison of
settlements by the Comptroller, pre-litigation, for police misconduct with payouts by the City
following commencement of litigation would be worth studying. Better still would be a study of
the cost to the City for SQF misconduct in pre-litigation settlements segregated out from other
misconduct—not dissimilar to the demarcation required of Corporation Counsel under section 7114. If done, such a study would accomplish several salutary purposes. For one, it would identify
the true cost to the City of alleged SQF improprieties. For another, side by side comparisons of
settled claims with CCRB/DAO outcomes might highlight the costs or savings that may
accompany a vibrant disciplinary structure and lead to improvements. Additionally, a substantial
number of SQF incidents go unreported by the officers. An audit of SQF complaints to the
Comptroller matched with Stop Reports might expose some number of unreported incidents—
especially incidents causing community friction or resentment. Another number of SQF-CCRB
complaints end up truncated. It is worth knowing what number of truncated CCRB complaints
ended up with an Early Settlement payout. Finally, matching complaints of SQF misconduct to
CCRB with those made to the Comptroller, if segregated by precinct and officer, would be useful
in identifying patterns of alleged misconduct and concomitant community concerns.
At the moment, comparisons are difficult for several reasons. For one, Law Department
postings are by calendar year and Comptroller listings are by fiscal year. For another, some
number of the Comptroller’s settlements are for wrongful use of force—even if the complaint only
alleged minor injury. Approximately 72% of the Comptroller’s settlements are for wrongful
“police action” or “civil rights,” claims.1818 Not included in this number are wrongful conviction
claims which are quite costly. In 2018 there were five such settlements for $33.3 million and in
2019 there were seven settlements for $30.9 million.
Police action claims are a subset of personal injury claims and are usually associated with
allegations of false arrest, false imprisonment, firearm usage, excessive force and assault.
First, when it comes to the specific types of litigation data that is tracked, the Comptroller’s
Office, the Law Department, and NYPD all collect and track different information from legal
claims and lawsuits. For example, the Comptroller’s Office tracks the number and type of prelitigation Notices of Claim filed with the Comptroller’s Office, as well as the amount paid in any
claim or lawsuit. The Law Department tracks the number of lawsuits filed, the court in which they
were filed, and any named defendants; after the cases have closed, it also tracks the disposition
type, and if a settlement is involved, the total disposition amount. Both agencies also keep some
metrics regarding “police action” matters, but the specific definition of “police action” and the
categories of cases that fall under “police action” differ from agency to agency.1819
Wrongful SQF conduct falls safely in the early settlement category since, without serious
injury or death, victims and the Comptroller are usually willing to avoid court proceedings for
wrongful stops and frisks.
1818
See Annual Claims Report, Chart 11, N.Y. City Comptroller, available at
https://comptroller.nyc.gov/reports/annual-claims-report/.
1819
NYPD-OIG, Using Data from Lawsuits and Legal Claims Involving NYPD to Improve Policing, page 17, April
20, 2015, available at https://www1 nyc.gov/assets/doi/reports/pdf/2015/2015-04-20-Litigation-Data-Report.pdf.
448
It is difficult to compare the number of cases and amounts paid for non-force, police
misconduct cases filed in court and handled by the Law Department, with pre-litigation settlements
by the Comptroller for the same class of cases. A rough calculation can be made by looking at the
Law Department section 7-114 filings with the hope that the categorization in the columns
describing the action are approximately accurate (see discussion above). In calendar years 2018
and 2019, 5,747 cases were filed in state and federal Court alleging police misconduct. 4,834 of
those cases alleged malicious prosecution or false arrest without alleging an assault or wrongful
use of force. For those court cases, it is reported that the City paid out $55,645,598 in 20181820 and
$68,688,423 in 2019.1821
For the Fiscal Years 2018 and 2019, the Comptroller also settled 2,671 police action claims
pre-litigation for a total of $51.3 million (an average pay-out of $19,206).1822 The Comptroller
settled 2,971 civil rights claims for a total of $194.8 million (not all the civil rights claims are
against the Department or its officers).1823 Again, it would be useful if the Comptroller were to
disaggregate claims made for police action or civil rights claims, indicating when alleged SQF
claims were made and settled.1824
1820
NYPD-OIG 2019 Assessment of Litigation Data involving NYPD, April 13, 2019, at 10, available at
https://www1.nyc.gov/assets/doi/reports/pdf/2019/Apr/13LitData_pressrelease_report_43019.pdf.
1821
Priscilla DeGregory, City Payouts in NYPD Misconduct cases up by nearly $30m, NY Post, Jan. 31, 2020,
available at https://nypost.com/2020/01/31/city-payouts-in-nypd-misconduct-cases-up-by-nearly-30m/.
1822
Comparisons are difficult for several reasons. For one, Law Department postings are by calendar year and
Comptroller listings are by fiscal year. For another, some number of the Comptroller’s settlements are for wrongful
use of force – even if minor injury was all that was alleged. Approximately 72% of the Comptroller’s settlements are
for wrongful “police action” or “civil rights,” claims. See Chart 11, supra, note 776. Not included in this number are
wrongful conviction claims which are quite costly. In 2018 there were 5 such settlements for $33.3 million and in
2019 there were 7 settlements for $30.9 million.
1823
See Chart 11, supra, note 776. Over the five-year period 2016-2020, 14,459 police misconduct cases were filed
in state and federal courts - averaging about 3000/year. However, even this large number vastly undercounts potential
misconduct claims since many cases are disposed of by the Comptroller without litigation and most civil lawsuits
contain allegations against multiple officers. While a civil lawsuit claim, in and of itself, does not necessarily prove
misconduct, the expense and effort accompanying a court filing are such that court filings cannot be discounted. The
Comptroller’s office, for purpose of reporting, separates Personal Injury Police Action Claims from Police Action
Civil Rights Claims. In 2019, there were 3614 personal injury claims and 1468 Civil Rights Claims filed. Some were
settled by Comptroller “Pre-litigation” and some went on to be filed in court. One can assume that some number fell
by the wayside between the time they were filed in court as well. A little more than half (5110 of 9782 = 52 percent)
of Personal Injury Police Action Claims were settled Pre-litigation by the Comptroller in the 2017-2020 time period.
If about one-half of all police action claims are settled by the Comptroller and about 3000 per year continue on to
court filings, we can approximate that a total of 6000 sworn complaints are brought each year.
1824
The Comptroller separates “police action” claims from “civil rights” claims. See Chart 11, supra, note 776. Police
action claims cover false arrest, false imprisonment, assault, failure to provide police protection and excessive force.
Civil rights claims arise from alleged statutory or constitutional violations such as discrimination based on sex, race,
religion, disability, sexual orientation, or age. Claims in this category also include alleged constitutional civil rights
violations by law enforcement personnel such as false arrest, malicious prosecution, excessive force, or wrongful
incarceration claims under 42 U.S.C. section 1983. In 2019, 16 percent of the claims settled by the Comptroller were
police action claims and another 16 percent were civil rights claims.
449
The Court’s order establishing an Early Intervention Program1825 recognized the need to
capture claims of wrongful conduct made to the Comptroller and in court filings as a tool to
recognize and intercept potential bad practices.1826 This information should be used as a tool in
weighing allegations or assessing appropriate discipline for SQF misconduct as well. Illegal stops
and frisks should not be ignored simply because the monetary claim was low. Settlements follow
filings of sworn statements and interviews. Statements given, such as court filings and
Comptroller examinations should be available and reviewed, when relevant, in any misconduct
investigation.
In particular, General Municipal Law section 50-h transcripts should be obtained and
presented to CCRB panels in the ordinary course and, especially, as a mechanism to avoid
unnecessary truncations or unsubstantiations. The law provides that a “transcript of the testimony
taken at an examination . . . may be read in evidence by either party in an action founded upon the
claim . . . .”1827 Additionally, hearsay is admissible at DCT Trials and should be utilized in CCRB
determinations.1828 GML section 50-h transcripts may be obtained upon a showing of good cause
for their need to a court. An agency investigation of allegations of police misconduct as the cause
of damages or injury should, by itself, constitute good cause.1829 An application to a court is not
necessary if the claimant or the claimant’s attorney is willing to share the transcript. But if a case
is settled quickly for a small amount of money, there may be no incentive for the claimant to
continue with a CCRB investigation once the civil case is settled. For SQF complaints in CCRB
which might fail if the civil claim is settled quickly before the Comptroller, it would be helpful if
CCRB asked for permission to obtain a copy at the outset of an investigation.1830
Claims made, even when not part of the encounter before the panel should be reviewed as
well. While it is clear that many claims, especially for wrongful police action where there is no
injury, are settled for their “nuisance value” rather than fully adjudged misconduct, a pattern of
claims or multiple claims against one officer or one squad, may demonstrate intent, absence of
1825
Floyd, ECF Doc No. 767 (June 2, 2020). In reviewing a draft of this Report, the City asserts that, “The early
intervention order does not include ‘claims of wrongful conduct made to the Comptroller” (Item 846, City 09.01.23
Feedback to Yates Discipline). The order itself refers to “any civil lawsuit or settlement alleging an unconstitutional
stop, an unconstitutional trespass enforcement, or racial profiling, including racial slurs, where there has been a
judgment or settlement against a police officer, and where there exists evidence that the police officer violated a rule
or regulation of the NYPD, identification of such evidence, including, but not limited to notices of claims and civil
complaints.” (Emphasis in original).
1826
As well as declined prosecutions, adverse credibility determinations and unsubstantiated profiling allegations. A
simple declined prosecution can constitute a “favorable termination” sufficient to permit a section 1983 action for
Malicious Prosecution. Thompson v. Clark, 142 S. Ct. 1332 (2022).
1827
N.Y. General Municipal Law § 50-h (4); But see discussion of CCRB v. Office of the Comptroller, 52 Misc. 3d
226, 227 (Sup. Ct. NY Cnty. 2016), supra.
1828
38 RCNY 15-04 (e)(1).
1829
CCRB v. Office of the Comptroller, supra
1830
CCRB “has requested no more than five 50-h transcripts in the twenty years preceding December 2014 and
represented in September 2014 that it plans to request only about seven to ten 50-h transcripts per year going forward.”
CCRB v. NY City Comptroller, Respondent’s Memorandum of Law in Support of Verified Answer and in Opposition
to Verified Petition, Sup. Ct. NY Cnty., Index No. 452358/2015, NYSCEF Doc. No. 18 at 12.
450
mistake, absence of good faith, absence of misunderstanding, a common scheme or plan, or even,
in extreme cases, bias.1831
The argument against consideration of settlements which have not been fully litigated,
expressed by Jim Pasco, executive director of the national Fraternal Order of Police, is: “If there’s
never been a finding of guilt or anyone’s fault, why put that in an officer’s record?”1832 But an
unadjudicated payment does not equate to exoneration or even the equivalent of unsubstantiated.
Given the realities of qualified immunity, indemnification, and the cost of litigation, it simply is
not worth the time or the money to address individual culpability in most cases. Avoiding an
accounting for fiscal reasons does not mean that the officer’s conduct has been excused or
condoned.
Litigation often brings to light complaints of police misconduct which are not made before
CCRB and can be useful in identifying problems within the Department. For example, PO
(no longer with the force) had acquired 29 lawsuits with a total payout of $841,501 before
his retirement. At the same time, he had only six complaints filed with CCRB and the only matter
which was substantiated by CCRB ended with a not guilty verdict. PO
(also retired)
was named in 33 lawsuits resulting in a payout of $1,402,500 and yet his six complaints
investigated by CCRB ended with not one substantiation.1833 Clearly, one cannot rely exclusively
upon CCRB substantiations or even complaints as the sole measure of conduct or misconduct.
D.
Qualified Immunity and Indemnification
In the main, officers are not personally liable for damages in connection with an improper
search or seizure, or excessive use of force in connection with a seizure. They are protected by
the doctrine of “qualified immunity” 1834 and, when not so protected, they may still be indemnified
by the City.1835
The immunity doctrine, explained in 1982 (Harlow v. Fitzgerald),1836 and expanded in 1987
(Anderson v. Creighton)1837 protects officers from financial liability in Civil Rights actions1838 when
1831
People v. Rouse, 34 N.Y.3d 269 (2019). See discussion of use of unsubstantiated allegations, infra.
1832
Keith L. Alexander, Steven Rich & Hannah Thacker, The hidden billion-dollar cost of repeated police misconduct,
WASHINGTON POST (Mar. 9, 2022), available at https://www.washingtonpost.com/investigations/interactive/2022/po
lice-misconduct-repeated-settlements/?itid=hp-top-table-main.
1833
The hidden billion-dollar cost of repeated police misconduct, supra.
1834
Conrad v. City of New York, 192 A.D. 3d 505 (1st Dep’t 2021). The historical oddity of Harlow is that the appeal
was premised upon a claim that “high officials” close to the President enjoyed absolute immunity similar to that
claimed by the President in Nixon v. Fitzgerald, 457 U.S. 731 (1982). The Court in Harlow rejected the claim of
absolute immunity. Absent qualified immunity, excessive use of force by an officer may be considered an
unreasonable seizure under Fourth Amendment. Shamir v. City of New York, 804 F.3d 553 (2d Cir. 2015).
1835
GML § 50-j.
1836
457 U.S. 800 (1982).
1837
483 U.S. 635 (1987).
1838
42 U.S.C. § 1983. Harlow modified earlier cases, e.g., Pierson v. Ray, 386 U.S. 547 (1967) that gave qualified
immunity to officers who acted in “good faith” and with probable cause.
451
they violate the Fourth Amendment, unless the United States Supreme Court has, by prior decision,
clearly established the right sought to be vindicated under the factual circumstances presented.
This translates into a requirement that the violation must be “apparent.” Under qualified immunity,
an officer is insulated from liability for money damages if the officer acted with objective
reasonableness while performing a discretionary governmental function. Further, a lower court is
directed to first consider whether there is doubt or lack of clarity from the Supreme Court on the
lawfulness of the actions taken under the circumstances presented before reaching the question of
whether a violation occurred.1839 Unless precedent is clear that the officer’s actions violated the
Constitution, the case will be dismissed on a motion for summary judgment.1840
The required “clear precedent” standard presents a significant hurdle to civil rights
complainants. Critics point to the difficulty in obtaining clear precedential court rulings if cases
are dismissed before the merits of misconduct claims can be reached. They claim the rule
precludes development of the law by denying lower courts an opportunity to decide novel
questions and it denies appellate courts the power to review and refine decisions in a fluid
environment.
In 2021 the Supreme Court reversed two Circuit Courts and applied qualified immunity to
protect officers in two cases where the question of “clear” precedent was at issue.1841 In both cases,
the lower courts had cited to precedent that was similar, but not identical, to the condemned actions
by officers. The Ninth and Tenth Circuits had denied qualified immunity based on a determination
that a reasonable officer should have known that the conduct was unlawful. The Court reversed
and emphasized that “[w]e have repeatedly told courts not to define clearly established law at too
high a level of generality . . . [to find that precedent is established] the contours must be so well
defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he
confronted . . . [and] [s]uch specificity is especially important in the Fourth Amendment context,
where it is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will
apply.”1842
Separate from the issue of precedent is the mens rea question. Prior to Harlow, the
common law would look to the officer’s intent. Did the officer act maliciously? Did the officer
knowingly violate the plaintiff’s rights? Instead, Harlow opened the door to cases where the
officer acted unreasonably. No longer would courts, “inquire into the state of mind of [officers]
as to what they did or did not believe. Rather, the question is whether a reasonable officer in the
same circumstances would have believed that he [acted] constitutionally.”1843 By extension, if the
1839
Safford v. Redding, 557 U.S. 364 (2009).
1840
See Chamberlain v. City of White Plains, 960 F.3d 100, 110 (2d Cir. 2020) for a discussion of whether a motion
for summary judgment or a motion to dismiss is the correct procedural moment for decision. Complaints are, on
occasion, dismissed on a finding of qualified immunity at the earlier procedural opportunity, but that would appear to
be premature.
1841
City of Tahlequah v. Bond, 142 S. Ct. 9211 (2021); Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021).
1842
City of Tahlequah v. Bond, at 173 (internal quotations and citations omitted).
1843
Bastidas v. City of Los Angeles, 2006 U.S. Dist. LEXIS 96770 (C.D. Cal. 2006).
452
violation was clearly established by precedent, then it can be said the officer knew or should have
known that his actions were wrongful.
Over time the holding in Harlow has been turned on its head; instead of expanding proof
of malice to include cases where the officer “should have known” he was in the wrong, today,
actual proof that the officer acted with malice no longer suffices. The subjective beliefs or motives
of the officer are irrelevant.
Under the Harlow standard . . . an allegation of malice is not sufficient to defeat
immunity if the defendant acted in an objectively reasonable manner . . . .
Defendants will not be immune if, on an objective basis, it is obvious that no
reasonably competent officer would have concluded that a warrant should issue;
but if officers of reasonable competence could disagree on this issue, immunity
should be recognized.1844
An officer’s determination is objectively reasonable if there was ‘arguable’ probable cause
at the time of the arrest.
A police officer has arguable probable cause if either (a) it was objectively
reasonable for the officer to believe probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable cause test was
met . . . Put another way, an arresting officer will find protection under the defense
of qualified immunity unless ‘no reasonably competent officer’ could have
concluded, based on the facts known at the time of arrest, that probable cause
existed.1845
Or, in the words of Justice Byron White, “[a]s the qualified immunity defense has evolved,
it provides ample protection to all but the plainly incompetent or those who knowingly violate the
law.”1846 This was seconded by Justice Sonia Sotomayor who wrote that the doctrine “renders the
protections of the Fourth Amendment hollow.”1847
The New York Court of Appeals has created and extended a form of qualified immunity to
New York common law torts as well. The doctrine of “governmental function immunity”
continues to shield public entities and individual officers from liability for discretionary actions
taken during the performance of governmental functions by municipal agents. The discretionary
act must be the exercise of reasoned judgment.1848
Since qualified immunity doctrine is not text-based, it is unclear how much power a
legislature (federal, state, or local) has to modify the Court’s balancing. If the doctrine is not drawn
1844
Malley v. Briggs, 475 U.S. 335, 341 (1986).
1845
Figueroa v. Mazza, 825 F.3d 89, 101 (2d Cir. 2016).
1846
Malley, supra, at 341.
1847
Mullenix v. Luna, 577 U.S. 7, 26 (2015).
1848
Valdez v. City of New York, 18 N.Y.3d 69 (2011); see also Jenkins v. City of New York, 478 F.3d 76 (2d Cir. 2007);
In re World Trade Center Bombing Litigation, 17 N.Y.2d 428 (2011).
453
from constitutional interpretation nor an exercise of the supervisory powers of the Supreme Court,
is it open to Congressional modification by amendment to section 1983?1849 If local legislative
bodies wish to grapple with the issue, then that must be done by amendment to state or local rights
and causes of action founded in state or local law since they are powerless to affect the application
of Section 1983.
The City has acted to some extent. It did so by codifying the civil rights tort, then limiting
the available defenses to that tort. On April 25, 2021, Local Law 48 of 2021 took effect.1850 The
intent of the law is to limit “qualified immunity” as a defense in civil actions brought against city
police officers for illegal searches and seizures under a newly established cause of action. The law
creates Chapter 8 of Title 8 of the Administrative Code.1851 That section establishes:
The right of natural persons to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures, and to be secure against the use of
excessive force regardless of whether such force is used in connection with a search
or seizure, shall not be violated; and no warrants shall be issued but upon probable
cause supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.1852
The language is parallel to that of the Fourth Amendment and Article 1, Section 12 of the
New York Constitution. The new provision creates a private right of action for aggrieved persons.
It speaks to the right of “natural persons” rather than a right of “the People” as contained in the
two Constitutions—thereby eliminating a potential claim of inapplicability to non-citizens or nonresidents. Of interest, it also inserts an affirmative right “to be secure against the use of excessive
force,” which is not explicit in the text of the two Constitutions.1853 Exhaustion of administrative
remedies is not required, and the right is in addition to any other remedies an aggrieved party may
pursue.
The law declares, “[i]t is not a defense to liability . . . that a covered individual [a member
of the force] has qualified immunity.”1854 Prevailing plaintiffs are entitled to compensatory and
punitive damages. Victims may elect to receive $1,000 in place of proving damages. Attorney’s
fees may be awarded as well. Denial of qualified immunity under this provision applies to section
8-802 claims, and not to parallel claims of constitutional tort, section 1983, or state common law.
1849
Ending Qualified Immunity Act, H.R. 7085, 116th Cong. § 2 (2020), available at
https://www.congress.gov/bill/116th-congress/house-bill/7085/text; see also Congressional Research Service,
https://crsreports.congress.gov/product/pdf/LSB/LSB1049 note 2, at 1.
1850
N.Y. City Council, Intro No. 2220 of 2021, enacted April 25, 2021, available
https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4771043&GUID=32ED0C83-7506-45F9-81AAF5144FCA193A&Options=&Search=.
at
1851
Specifically, the bill had been passed by the City Council thirty days earlier and became law when returned
unsigned by Mayor. City Charter § 37(b).
1852
N.Y.C. Admin. Code § 8-802.
1853
Excessive use of force by an officer may be considered an unreasonable seizure under Fourth Amendment by
implication. Shamir v. City of New York, 804 F.3d 553 (2d Cir. 2015).
1854
NYC Admin. Code § 8-804.
454
The new local law does not address the question of indemnification. When actions are
brought under Section 8-802, eligibility for indemnification will still be governed by the General
Municipal Law. In essence, for the newly created civil right, elimination of qualified immunity is
a cost-shift - making the City liable for the tort. But there are limits to the obligation to indemnify
built into GML section 50-k. The first, already described, is that the act must have been within
the scope of the officer’s duties and not in violation of rules and regulations, i.e., the Patrol Guide.
Section 50-k also denies indemnification if the officer caused the injury intentionally or
recklessly.1855 Even in those cases, however, the officer’s representation can be covered by a Legal
Services Fund of the Police Benevolent Association to which the City contributes $5.5
million/year.1856 Unlike qualified immunity, the indemnification statute does look into the officer’s
mental culpability. Putting the doctrines of qualified immunity and indemnity together, with the
exception of the newly created tort in the Administrative Code, NYC officers are personally liable
for money damages only if: (1) the actions were not objectively reasonable, and in apparent
violation of known rules (qualified immunity); and; (2) if it is demonstrated that the officer, while
acting within the scope of the officer’s employment, violated a rule or law, or acted intentionally
or recklessly. It is easy to see why the Public Safety Committee of the City Council concluded
officers are “virtually always indemnified.”1857
In the event an officer is sued, New York City is obligated to supply counsel to defend on
behalf of the officer. If a judgment or award of damages is made, the City, as a self-insurer, pays
claims directly.1858
In the absence of qualified immunity, indemnification may hinge upon the outcome of
disciplinary findings:
In the event that the act or omission upon which the court proceeding against the
employee is based was or is also the basis of a disciplinary proceeding by the
employee’s agency against the employee, representation by the corporation counsel
and indemnification by the city may be withheld (a) until such disciplinary
1855
In 2019, the Law Department declined to represent 48 officers of 562 filed cases.
1856
Jake Pearson, NYPD Union Contract Puts Taxpayers on the Hook to Defend Officers When the City Won’t, March
26, 2021, available at https://www.thecity.nyc/2021/3/26/22351475/nypd-union-contract-defend-officers-when-thecity-wont.
1857
Committee Report on Int 2220-2021 at 14, NYC Council Committee on Public Safety (Mar. 25, 2021), at
https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4771043&GUID=32ED0C83-7506-45F9-81AAF5144FCA193A&Options=ID|Text|&Search=2021%2f048. (quoting Joanna C. Schwartz, The Case Against
Qualified
Immunity,
93
NOTRE
DAME
L.
REV.
1797,
1804
(2018),
available
at
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4796&context=ndlr#page=8; Joanna C. Schwartz, Police
Indemnification, 89 N.Y.U. L. REV. 885, 890 (2014), available at https://www nyulawreview.org/wpcontent/uploads/2018/08/NYULawReview-89-3-Schwartz.pdf#page=6.)
1858
The obligation to save the officer harmless is independent of any claim that the municipality is directly responsible
for any official government policy, custom or widespread practice that may have caused the violation of constitutional
rights. Monell v. NYC Dep’t of Social Services, 436 U.S. 658 (1978).
455
proceeding has been resolved and (b) unless the resolution of the disciplinary
proceeding exonerated the employee as to such act or omission.1859
Under this provision, there will be cases where a finding of “unfounded” or
“unsubstantiated” may be insufficient to assure the officer that indemnification will attach. The
perceived need to be exonerated will be heightened by the withdrawal of qualified immunity.
An interplay between disciplinary proceedings and civil lawsuits arises on frequent
occasion.1860 It is not uncommon to see cases where Departmental disciplinary proceedings are
“closed pending litigation,” never to re-surface. Similarly, since Corporation Counsel may
withhold a decision on indemnification until the disciplinary proceeding has been resolved, the
two events are intertwined. Given the potential for use that might be made in court of disciplinary
proceedings and findings it is understandable that the Department would be reluctant to arrive at a
finding on the same case during the pendency of a lawsuit. It is less understandable as to why
unrelated pending disciplinary cases are closed, which also happens from time to time.
The new law, creating a cause of action and stripping away individual immunity, will lend
new and meaningful consequence to disciplinary actions in SQF cases for officers and the City.
If officers do not enjoy qualified immunity, and if they face personal liability based upon
the outcome of disciplinary proceedings, then the stakes in SQF decisions before CCRB and before
the Police Commissioner will rise considerably. Unless checked, this concern may find its way
into decisions by CCRB and the Police Commissioner. Earlier this Report highlighted the lack of
clarity and uniformity in the borders between “unsubstantiated,” “unfounded,” and “exonerated.”
The potential for personal liability can accentuate those problems and sympathy for the officer’s
financial peril may improperly sway internal disciplinary findings by the Board or the Police
Commissioner. There will be pressure on CCRB and the Police Commissioner by individual
officers and union representatives to exonerate misconduct because of the heightened personal
consequences for the officer. A predictable and easy way out would be to exonerate the officer
because the officer acted “reasonably” or in “good faith” even when the officer acted illegally.
Liability without qualified immunity is a concern for the Department as well as for the
officer. With elimination of immunity under the new Administrative Code, the number of cases
1859
GML § 50-k (5). Note that the exclusion arises when there is a disciplinary proceeding by “the employee’s
agency.” If the Department refuses or delays service of Charges, it can be argued that a CCRB decision is not sufficient
to preclude indemnification.
1860
Over the five-year period 2016-2020, 14,459 police misconduct cases were filed in state and federal courts averaging about 3000/year. However, even this large number vastly undercounts potential misconduct claims since
many cases are disposed of by the Comptroller without litigation and most civil lawsuits contain allegations against
multiple officers. While there is some probability that a civil lawsuit claim, in and of itself, does not necessarily prove
misconduct, the expense and effort accompanying a court filing are such that they do not deserve to be minimized.
The Comptroller’s office, for purpose of reporting, separates Personal Injury Police Action Claims from Police Action
Civil Rights Claims. In 2019, there were 3614 personal injury claims and 1468 Civil Rights Claims filed. Some were
settled by Comptroller “Pre-litigation” and some went on to be filed in court. One can assume that some number fell
by the wayside between the time they were filed in court as well. A little more than half (5110 of 97 percent = 52
percent) of Personal Injury Police Action Claims were settled Pre-litigation by the Comptroller in the 2017-2020 time
period. If about one-half of all police action claims are settled by the Comptroller and about 3000 per year continue
on to court filings, it would seem that approximately 6000 sworn complaints are brought each year.
456
calling for indemnification will swell. In the past, qualified immunity spared both the officer and
the City. Without immunity, the City will be exposed to greater costs unless it denies
indemnification. In the end, the choice between “Unsubstantiated” and “Exonerated” findings
may determine who bears the cost.
E.
Adverse Credibility Determinations
Aside from the annual consultations and review of disciplinary practices to be conducted
by the OIG-NYPD required by Section 808,1861 the Charter called for a report to the Speaker of the
City Council, by September 1, 2018, which was to detail “a plan to establish a system for obtaining
and reviewing adverse credibility determinations.” While a look at adverse credibility
determinations is now included in the court-ordered Early Intervention Program, the stated purpose
of early intervention is “non-disciplinary.”
Although Charter section 807 is aimed at identifying police officers who may need
enhanced Training or monitoring” the report was to include, as well, a description of the
Department’s “current policies for the collection and use of such determinations, including, but
not limited to, any . . . discipline that may result” from adverse credibility determinations. 1862
The 2018 Report submitted to the City Council Speaker1863 described, as required, the
creation and workings of a joint effort in 2014, requested by then-Commissioner William Bratton,
with the city’s five District Attorneys and two United States Attorneys to promptly inform the
Department of all adverse credibility rulings. That effort continues with the Deputy Commissioner
of Legal Matters and added the Special Narcotics Prosecutor and the Corporation Counsel’s
Family Court Division. In 2016 the process was formalized with the creation of the Adverse
Credibility Committee which consisted of the Legal Bureau, the Detective Bureau and the Risk
Management Bureau. Case materials from the prosecutors’ offices to the Legal Bureau was
described as an ongoing process. The Committee concentrated primarily on Training and
monitoring. It did, however, explain,
Generally, in the infrequent instances in which there have been multiple adverse
credibility findings with respect to the same officer or the officer’s disciplinary
history indicated pertinent information, notice is given to the officer and the
commanding officer along with a recommendation to the commanding officer that
he or she evaluate either the officer’s current assignment is the one most appropriate
for the officer.
In the five-year period, 2014-2018, the Committee received 81 referrals. Since much of
the work of the Adverse Credibility Committee is being folded into the work of the Early
Intervention Committee, as part of the Early Intervention Program (EIP) for SQF misconduct, it is
unclear what role adverse credibility determinations will play in disciplinary decisions. The
Department states that the EIP is not part of the disciplinary system, but in its implementation
1861
After May 2020, Local Law 166 only requires a Section 808 report once every three years.
1862
Section 3 of LL 2017/169 (unconsolidated).
1863
Supplemental Adverse Credibility Determination Study (SACDS).
457
order of EIP, the Court specifically directed that “referral for potential disciplinary action to an
internal NYPD bureau” shall be made “when appropriate.”1864
Prior to the Adverse Credibility Committee being “folded” into EIP, according to the
SACDS, the Legal Bureau would receive more than a list of judicial findings of adverse credibility
rulings. In addition,
As part of the ongoing relationship between the Legal Bureau and the prosecutors,
the Committee1865 receives: 1) the disclosure letter where applicable, 2) all relevant
case materials, including the hearing, grand jury, and or trial transcripts, and 3) the
written decision by the Court where applicable . . . [R]eports are not limited to
judicial findings of adverse credibility . . . prosecutors may also make in-house
determinations of adverse credibility based on, for example, inconsistencies
between reports and affidavits or grand jury testimony . . . . In the event that such a
determination is made, the prosecutors are similarly expected to forward such cases
and associated case materials to the Legal Bureau for review by the
Committee . . . . When materials are received, relevant information about the case
and officer(s) involved are logged into a data base maintained by the Legal Bureau
for tracking purposes.1866
Information flowing from prosecutors to NYPD in this regard is ad hoc, typically provided
on an informal basis. Each District Attorney has their own policy and practice. To the extent that
“lists” are made by prosecutors of questionable credibility, the record is “work product” and
entitled to status as a qualified privilege.1867 This status does not preclude voluntary disclosure by
a District Attorney to NYPD, which given the necessity of a cooperative working arrangement
would seem to be common sensical.
The question arises as to what role if any this information finds its way into disciplinary
decisions. The SACDS advised:
In the rare instances when the adverse credibility finding suggests possible illegal
conduct, such as intentionally lying under oath, no notice is given to the officer and
the Committee forwards the case material to the Internal Affairs Bureau along with
a recommendation that the matter be investigated and, if appropriate, referred for
discipline.
Credibility issues arise when an officer appears before a CCRB investigator. Beginning in
2020, CCRB has the authority to investigate false statements made in the course of a FADO
investigation by an officer. In the four years prior to the amendment (2016 to 2019), CCRB
referred 65 cases to IAB where it detected mendacity. Six of those cases were substantiated. With
CCRB’s expanded authorization to conduct its own investigation and recommend discipline for
1864
Floyd, ECF Doc. No. 767 (June 20, 2020), supra, at 10.
1865
In this quote, “Committee” refers to the Adverse Credibility Committee.
1866
SACDS at 3, supra
1867
Stengel v. Vance, 192 A.D.3d 571 (1st Dep’t 2021).
458
false statements made to CCRB, it would seem appropriate for CCRB to have access to adverse
credibility determinations and the same materials made available to the Legal Bureau or, at a
minimum, the materials given to IAB.
In addition to CCRB investigations of a statement made to a CCRB investigator, it is
foreseeable that concurrent investigations of multiple statements made by an officer regarding the
same encounter will be undertaken. In such cases, it is likely that statements made in departmental
filings, in affidavits, to prosecutors, in a grand jury and in court will all relate to the same subject
matter as the CCRB investigation. It may also be that IAB is conducting its own investigation,
either sua sponte, or upon referral by a prosecutor or a court. Cooperation and sharing of
information between CCRB and IAB when both are investigating false or misleading statements
about the same encounter would seem to be essential.
The Court’s remedy opinion called for increased deference by the Department to CCRB
credibility determinations. It would be inconsistent with that mandate to have DAO dispute an
SQF case which hinged on credibility of the officer while the Department was aware of credibility
complaints by prosecutors and hid those complaints from CCRB. It would be doubly problematic
if CCRB were investigating a false statement case involving an officer but, again, the Department
knew of credibility issues (either in the same case or another case) that it would not share with
CCRB. It would be troubling, if not unethical, for a DAO attorney to seek to overturn a CCRB
credibility assessment while withholding adverse credibility information.1868
XIV. EXTERNAL OVERSIGHT BY COMPANION AGENCIES
Aside from Legislative oversight, there are four other Executive agencies with power to
review and comment on NYPD’s performance, including its disciplinary processes. Their
assigned responsibilities overlap to some degree, and redundancies and gaps exist as well. The
Department of Investigation concluded, “Having all three review models coexist in New York
City, in three separate agencies, creates the potential for dissipation of effectiveness and inefficient
use of resources as well as conflict and competition.”1869 The DOI continued:
Based on this review, we have identified five broad areas of recurring concern in
external oversight of the NYPD, which inform our ultimate conclusions and
recommendations: (i) the potential for redundancy, confusion, and conflict among
oversight agencies; (ii) the need for community engagement; (iii) identifying and
addressing perceptions of institutional bias; (iv) the challenges in accessing NYPD
1868
See, e.g., GEICO v. National Ind. Truckers, 180 A.D.3d 900, 902 (2d Dep’t 2020) (lack of candor to an arbitrator
constitutes misconduct).
1869
NYC Department of Investigation, “Investigation into NYPD Response to the George Floyd Protests 90, available
at https://www1.nyc.gov/assets/doi/reports/pdf/2020/DOIRpt.NYPD%20Reponse.%20GeorgeFloyd%20Protests.12.
18.2020.pdf. Reference is to City agencies and does not include the Office of the Attorney General.
459
records; and (iv) the effect of oversight recommendations on NYPD policy and
procedure.1870
Unfortunately, each agency has limited powers of review, and, in the end, their findings
are merely advisory. Supervision and discipline remain entirely in the hands of the Police
Commissioner. The Department may respond to inquiries and recommendations by each agency,
but the level of cooperation and response is ultimately up to the discretion of the Commissioner.
The NYC Police Reform and Reinvention Collaborative Draft Plan submitted by the City
to the Governor1871 called for an expansion of CCRB’s authority to incorporate the powers of the
Inspector General for the NYPD and the Commission to Combat Police Corruption—thereby
consolidating the separate efforts for the first time. According to the submitted plan, “Putting all
three under one umbrella will allow a new, stronger entity to establish itself as a trusted and robust
oversight voice.”1872 Consolidation would require amendments to the City Charter and
Administrative Code, which are yet to be proposed.
However, the implementing Resolution of the Plan, when adopted by the City Council
three weeks later,1873 did not go that far. Without mentioning consolidation, the adopted Resolution
merely provided:
To earn the trust of all the City’s communities, the NYPD must be transparent while
holding members accountable. New York City has an extensive set of internal and
external accountability and oversight mechanisms. These include the Commission
to Combat Police Corruption (CCPC) to monitor and evaluate anticorruption
programs; the Civilian Complaint Review Board (CCRB), to receive, investigate,
mediate, hear, make findings and recommend action on complaints against police
officers; and the NYPD Inspector General at the Department of Investigation,
charged with investigating, reviewing, studying, auditing, and making
recommendations related to the NYPD. The plan proposes strengthening some
areas and engaging in structural reform of others.1874
A brief introduction to the four companion oversight agencies is helpful.
1870
Id. at 92. Adding to the confusion, for the average citizen, is a website maintained by the NY County District
Attorney, https://www manhattanda.org/policemisconduct/, which asks for reports of police misconduct to be made
to the Police Accountability Unit within the office.
1871
NYC Police Reform and Reinvention Collaborative Draft Plan at 8, adopted by the City Council on Mar. 25, 2021,
Intro. Res. 1584/2021.
1872
Id. at 15.
1873
NYC Council Resolution 1584-2021 adopted March 25, 2021, available at https://legistar.council.nyc.gov/Legisl
ationDetail.aspx?ID=4890502&GUID=2CB9D744-6371-434F-83314A923FF529AB&Options=ID|Text|&Search=police.
1874
Id. at 13.
460
A.
Commission to Combat Police Corruption (CCPC)
Shortly after approval in 1966 of the Police Unions’ Charter Initiative prohibiting civilian
investigations of police misconduct (discussed above), Mayor John Lindsay established the
“Knapp Commission.” By Executive Order No. 11 of 1970, Whitman Knapp and four other named
private citizens were directed to “investigate the extent of police corruption in the City.”1875 They
were authorized to “hold hearings, public and private.” The Commission was further empowered
by accompanying amendments to the Administrative Code to administer oaths and to require and
enforce production of witnesses and documents.1876 The Order and Code were challenged as
violative of the newly adopted Charter Section 440 provision, on the grounds that the Mayor and
the Police Commissioner were prevented from “authoriz[ing] any person . . . to receive, to
investigate, to hear, or to require or recommend action upon, civil complaints against members of
the police department.”1877
The challenge failed. In Kiernan v. New York, the court determined that CCRB and the
Knapp Commission were of a “wholly different” character.1878 More specifically, the Knapp
Commission was to explore the “over-all situation regarding police corruption” while the CCRB
receives and investigates “specific complaints against particular members of the department.”1879
Twenty-two years later, on July 24, 1992, Mayor Dinkins issued Executive Order 42,
creating the “Mollen Commission,” named after retired Justice Milton Mollen who chaired the
commission.1880 The Executive Order mandated an evaluation of Internal Affairs procedures,
which had been publicly criticized in a series of articles by journalist Michael McAlary. The
Commission held public hearings and subpoenaed numerous documents and witnesses. Subpoena
power became available when Judge Mollen was designated a Special Deputy Commissioner of
the Department of Investigation with authority under Charter Section 802 and 805.1881
Once again, the establishment of a commission to investigate police misconduct was
challenged in court.1882 However, the Charter provision cited by the petitioners (Section 440) had
changed after amendment by the City Council in 1986. The Court held, once again, that the
creation of a commission to investigate general conditions within the Departments as opposed to
specific complaints against officers was permissible, even if it entailed public examination of
individual allegations.1883
1875
The Knapp Commission is famously remembered for the vivid testimony of Frank Serpico.
1876
NYC Admin. Code § F51-8.0 (repealed).
1877
NY City Charter § 440 (version repealed, LL 1/1993).
1878
64 Misc. 2d 617, 621 (Sup. Ct. N.Y. Cnty. 1970), aff’d 35 A.D.2d 1081 (1970).
1879
Id.
1880
The Mollen Commission extensively examined allegations regarding Officer Michael Dowd. See Kelly v. Dinkins,
155 Misc. 2d 787, 787-89 (Sup. Ct., N.Y. Cnty. 1992).
1881
Id. at 788.
1882
Id.
1883
Id. at 790.
461
One of the principal recommendations of the Mollen Commission was for the City to
establish a permanent independent oversight agency to continually investigate police misconduct.
One response to this call was Executive Order No. 18 of 1995 (February 27, 1995, Mayor Giuliani),
creating the Commission to Combat Corruption (CCPC), chaired successively by Richard Davis,
Mark Pomerantz and by Michael Armstrong until his death on October 17, 2019.1884 Kathy Hirata
Chin is the current Acting Chair. CCPC has remained in continuous existence since 1995 and has
issued 25 subject matter reports and 19 annual reports. CCPC is authorized to perform audits,
studies and analyses to assess the quality of the Department’s systems for combatting corruption.
If it receives complaints, it is to refer them to the appropriate investigating agency and then to
monitor the effectiveness of the response. It may issue subpoenas with the assistance of the
Department of Investigation and conduct hearings. However, “the Police Department remains
responsible for conducting investigations of specific allegations of corruption.”1885
Regarding its status as a non-statutory “monitor,” the Commission wrote in 1996:
The creation of this Commission, by an executive order of the Mayor on February
27, 1995, has been criticized by some. They have contended that an independent
agency to monitor the Police Department’s performance of that mission, can only
be effective if the agency is empowered to conduct its own parallel investigations
in competition with the Police Department. We regard that contention as without
merit. Indeed, we believe, and our experience has demonstrated, that the
Commission’s ability to effectively monitor the Police Department’s anticorruption activities has been enhanced substantially for the very reason that it does
not compete investigatively with the Internal Affairs Bureau, the Police
Department’s anti-corruption arm. Because it is a monitor, and not a rival
investigator, the Commission has been able to gain unprecedented and extremely
broad access to Police Department personnel, records, processes and strategy
formation. At the same time, the Commission does have the ability in extraordinary
circumstances, to conduct its own investigation of specific allegations of
misconduct.1886
The Executive Order calls for five citizen members appointed by the Mayor. With the sad
passing of long-time Chair Michael Armstrong in 2019, there are only three appointees at this
time. The Commission is authorized to “employ an Executive Director and other appropriate staff
sufficient to organize and direct audits, studies and analyses” within its mission.1887 At present it
appears it has been reduced to a staff of five, though it can work in conjunction with the DOI and
utilize DOI staff with consent of the DOI Commissioner.
1884
See About the Commission, NYC Commission
https://www1.nyc.gov/site/ccpc/about/about.page.
to
Combat
Police
Corruption,
available
at
1885
Executive Order No. 18 of 1995 at 5, available at
http://www nyc.gov/html/ccpc/assets/downloads/pdf/EXECUTIVE-ORDER-18.pdf.
1886
First Annual Report, CCPC at 2-3.
1887
Executive Order No. 18 of 1995.
462
B.
New York Police Department Office of the Inspector General
In 2013, pursuant to Local Law 70, the New York City Charter was amended to create the
Office of the Inspector General for the New York City Police Department (OIG-NYPD).1888 The
OIG-NYPD was created as a unit within the Department of Investigations (DOI),1889 which is
overseen by a Commissioner, charged with “increasing public safety, protecting civil liberties and
civil rights, and increasing the public’s confidence in the police force.”1890 In support of this
mission, the OIG-DOI must “investigate, review, study, audit and make recommendations relating
to the operations, policies, programs and practices, including ongoing partnerships with other law
enforcement agencies, of the New York city police department.”1891
The DOI Commissioner appoints the Inspector General of the New York Police
Department to implement the mandates on behalf of the DOI by filing publicly available reports
on the conduct investigated.1892 The OIG-NYPD interprets its mandate broadly—including the
authority to investigate issues involving use of force, bias and discrimination, and police response
to political protest and mass demonstration.1893 The OIG-NYPD has the ability to investigate both
individual and systemic allegations of misconduct, but generally focuses more broadly on systemic
issues in policing.1894 In its most recent annual publication, the OIG-NYPD reported having 56
open investigations, both systemic and individual.1895 Notably, under the City Charter, the NYPD
Commissioner is required to respond to each OIG-NYPD report filed within 90 days.1896
The City Charter requires establishment of a “complaint bureau . . . [which] shall receive
complaints from the public, including, but not limited to, complaints about any problems and
deficiencies relating to the New York city police department’s . . . operations, policies, programs
and practices.”1897 The OIG does not read this section as authorization to handle all individual
1888
See generally N.Y. City Charter, Chapter 34, §803(c)(1);
https://www1.nyc.gov/assets/doi/oignypd/local-law/Local-Law-70.pdf.
see
also
Local
Law
70,
1889
The Department of Investigations is considered New York’s “corruption watchdog” and is empowered to
investigate “any agency, officer, elected official, or employee of the City, as well as those who do business with or
receive benefits from the City.” About DOI, New York City’s Inspector General, https://www1 nyc.gov/site/doi/
about/about.page.
1890
N.Y. City Charter, Chapter 34, §803(c)(1).
1891
Id.
1892
N.Y. City Charter, Chapter 34.§ 803(c)(2).
1893
First Annual Report, New York City Department of Investigation – The Office of the Inspector General for the
NYPD-OIG (Mar. 2015) ii, available at https://www1 nyc.gov/assets/doi/reports/pdf/2015/2015-03-31Nypdig_annualreport_pr.pdf [hereinafter OIG-NYPD First Annual Report].
1894
See FAQ, Inspector General for the NYPD, available at https://www1 nyc.gov/site/doi/oignypd/faq.page.
1895
More specifically, the OIG-NYPD has 43 investigations that have been open for six to 12 months, 7 investigations
open for 13 to 24 months, five investigations open for 25-36 months, and one investigation open for over 36 months.
Fifth Annual Report, New York City Department of Investigation – The Office of the Inspector General for the NYPDOIG
(Apr.
2019)
4,
available
at
https://www1.nyc.gov/assets/doi/press-releases/2019/April/
08OIGNYPDAnnualReport04-01-19.Release.pdf [hereinafter OIG-NYPD Fifth Annual Report].
1896
N.Y. City Charter, Chapter 34, § 803(e)(2).
1897
N.Y. City Charter, Chapter 34 § 804.
463
civilian complaints as they come in.1898 Instead, as noted in its recent report on the NYPD’s
response to protests following the killing of George Floyd:
The OIG-NYPD . . . receives individual complaints from the public, investigates
some of them, and refers other to the CCRB or IAB, as appropriate. In 2019, for
example, the OIG-NYPD received 448 total complaints, referring 235, or more than
half, to other entities: the bulk of the referred complaints went to IAB, some to the
CCRB, and a handful to other divisions of DOI, or individual police precincts or
commands. The problem is not inter-agency referrals, per se, but rather that the
constitutionally protected right of petitioning the government about an issue with
law enforcement ought not resemble a game of telephone.1899
In 2017 the City Charter was further amended to provide that:
The inspector general for the police department shall, working with the law
department, the comptroller, the police department, the civilian complaint review
board, the commission to combat police corruption, and the commission on human
rights collect and evaluate information regarding allegations or findings of
improper police conduct and develop recommendations relating to the discipline,
training, and monitoring of police officers and related operations, policies,
programs, and practices of the police department, including, but not limited to, any
system that is used by the police department to identify police officers who may be
in need of enhanced training or monitoring.1900
In particular, among its responsibilities, the Inspector General is to look at NYPD’s
“response to actions, claims, complaints, and investigations . . . including disciplinary actions.”1901
This, theoretically, could provide a useful source for analysis of disciplinary outcomes in SQF
cases. Unfortunately, Section 808 also declares, “Nothing in this section shall be construed to
require the police department to provide any information or documents pertaining to an ongoing
criminal, civil, or administrative investigation or proceeding.”1902 As discussed earlier in this
Report, the Department has a history of limiting access to personnel data surrounding disciplinary
investigations and both OIG-NYPD as well as CCRB has found this to be frustrating as they
examine disciplinary outcomes.
As noted above, the NYPD-OIG, is charged with the responsibility of evaluating civil
claims for the purpose of developing, among other things, disciplinary recommendation based in
part on an analysis of patterns and trends.1903 Unfortunately, the OIG has run into several
1898
Because of the Covid-19 pandemic and Black Live Matters protests, statistics in 2020 are not generally consistent
with prior years or useful for trend analysis. In 2020 OIG-NYPD received 618 complaints.
1899
NYC Department of Investigation, “Investigation into NYPD Response to the George Floyd Protests,” supra at
94.
1900
N.Y. City Charter § 808(b).
1901
N.Y. City Charter § 808(b)(3).
1902
N.Y. City Charter § 808(f).
1903
N.Y. City Charter §§ 803, 808.
464
informational roadblocks when trying to fulfill its statutory duty.1904 The OIG asked the Law
Department for incident-location data in order to conduct a geographic trend analysis of cases.
However, the data provided by the Law Department “lacked sufficient specificity and could not
be geocoded with a high degree of accuracy to identify precinct-level trends.” The NYPD-OIG
also asked the Law Department to track dispositions by officer, since lawsuits often name several
officers. This would “facilitate the process of creating a dataset that can generate the most useful
information to inform both early intervention and trend analysis.”1905 The Law Department has
not, as of yet, complied with this request either.
The OIG-NYPD has run into similar obstacles in attempts at discerning trend analysis in
its dealings with NYPD. NYPD creates annual internal reports which the OIG recommended be
made available and public, but the Department “has declined to adopt this recommendation.”1906
Additionally, another investigatory unit within the Department called Police Action
Litigation Section (PALS) was established in 2015. Apparently, PALS logs detailed information
concerning claims which could be useful in identifying patterns and trends for misconduct,
including wrongful stops, frisks and searches. According to the Inspector General, however, this
happens on an ad hoc basis in response to specific requests and does not involve routine data
analysis to identify historical trends in allegations or related metrics. The OIG was unable to
specifically follow-up on this issue since the Department denied it access based on a claim of
attorney-client privilege, which OIG-NYPD refutes as inapplicable to information sharing
between OIG and NYPD.1907 According to OIG, NYPD barred interviews of employees whose job
was to monitor litigation on the ground that it would reveal “sensitive information” which is
protected by City Charter.1908 Again, NYPD-OIG argues that the “sensitive information” provision
is inapplicable. The Department denied the accusation, claiming, “In addition to making
Department executives available for interviews, and contrary to the narrative put forth by OIG,
NYPD also produced more than a hundred pages of sensitive information related to litigation data
analysis and monitoring of officer performance. Thus, OIG’s narrative that NYPD has been
1904
See,
e.g.,
Inspecting
the
NYPD
‘Puzzle
Palace”
Topher
Sanders,
ProPublica
https://www.propublica.org/article/inspecting-the-nypd-puzzlepalace?utm_source=sailthru&utm_medium=email&utm_campaign=dailynewsletter&utm_content=river-links.
Describing “Withheld record” “Canceled interviews” and “Slow-walk requests.”
1905
NYPD-OIG 2019 Assessment of Litigation Data involving NYPD at 17,
https://www1.nyc.gov/assets/doi/reports/pdf/2019/Apr/13LitData_pressrelease_report_43019.pdf.
1906
Id. at 15.
1907
Id. at 18.
available
at
1908
See N.Y. City Charter § 803(c)(3). “The Mayor, in consultation with the department and the New York City
police department, shall have the discretion to determine how sensitive information provided to the department in
connection with any investigation, review, study, or audit undertaken pursuant to this section shall be treated. The
Mayor shall provide the Council with any guidelines, procedures, protocols or similar measures related to the treatment
of sensitive information that he or she puts in place. Sensitive information shall mean information concerning (a)
ongoing civil or criminal investigations or proceedings; (b) undercover operations; (c) the identity of confidential
sources, including protected witnesses; (d) intelligence or counterintelligence matters; or (e) other matters the
disclosure of which would constitute a serious threat to national security or to the safety of the people of the city of
New York.”
465
uncooperative and non-compliant is hardly accurate as NYPD fully satisfied OIG’s requests for
litigation data to the extent possible.”1909
C.
Commission on Human Rights - Bias-based Profiling
Title 8 of the NYC Administrative Code establishes the Commission on Human Rights in
New York City (CCHR), which, among other things, is tasked with eliminating and preventing
discrimination in “employment, public accommodations, and housing and other real estate.”1910
The Commission may also act to protect civil rights threatened by intimidation, coercion, violence,
or harassment. Presumably, as with the federal Civil Rights Acts, this could cover coercion under
color of state law.1911
Title 8 has a carve-out for actions against police officers and the Department.1912 “Acts
committed by members of the police department in the course of performing their official duties
as police officers whether the police officer is on or off duty” are exempted from its ambit by
Section 8-131. Instead, a private right of action may be brought by a complaint filed with CCHR,
but only under the provisions of Section 14-151 of the Administrative Code, which prohibits “Biasbased Profiling,” against an individual officer or against the Department. Proceedings under that
section are limited to injunctive and declaratory relief. 1913
Under Section 14-151, CCHR may also receive a complaint against the Department as a
whole if a “policy or practice . . . regarding the initiation of law enforcement actions has a disparate
impact” on subjects of law enforcement action on the basis of national origin, gender, disability,
sexual orientation, immigration or citizenship status, or housing status.1914 The Department may
present an affirmative defense demonstrating that the policy or practice bears a significant
relationship to advancing a significant law enforcement objective. If CCHR proposes an
alternative policy or practice with less disparate impact, the Department may rebut with proof that
the proposed alternative would not serve the law enforcement objective as well.
1909
NYPD Response (Aug. 7, 2018) at 9, available at https://www1 nyc.gov/assets/doi/oignypd/response/Litigation
DataResponse_FINAL_80718.pdf.
1910
N.Y.C. Admin. Code § 8-101.
1911
Title 8 distinguishes between “Unlawful Discriminatory Practices,” under Section 8-107, primarily geared toward
employment and housing discrimination, and acts constituting “Discriminatory Harassment or Violence,” governed
by Section 8-602. The latter is not dissimilar to federal Civil Rights actions under 42 U S C § 1983 in that it protects
Constitutional rights and permits the Corporation Counsel, at the request of CCHR or on its own initiative, to bring a
civil action with potential monetary damages up to $100,000, and injunctive or declaratory relief.
1912
NYC Admin. Code § 8-131.
1913
Pursuant to Title 8 of the Administrative Code, the Commission has the authority to investigate the allegations
and make a final disposition. N.Y.C. Admin. Code § 8-109(g). If the Commission determines that probable cause
exists, the complaint is referred to an administrative law judge, § 8-116, and the proceedings are governed in
accordance with § 8-119. The Commission’s Law Enforcement Bureau prosecutes the matter, and the administrative
law judge issues the final Report and Recommendation. See Complaint Process - Detailed, NYC Human Rights,
available at https://www1.nyc.gov/site/cchr/enforcement/complaint-process-detailed.page. Ultimately, however, the
Commission’s Chairperson issues a Decision and Order adopting or rejecting (in whole or in part) the administrative
law judge’s report. Id.
1914
N.Y.C. Admin. Code § 14-151(c)(2).
466
On its website, CCHR offers a few examples of bias-based conduct.1915 One example given
is when an officer selectively stops and questions a transgender individual, apparently for no
reason. Bias appears to be the sole reason for the stop. (The posting is merely hypothetical, since
CCHR has never actually brought a selective enforcement case.) In the example posted, reasonable
suspicion is absent, so bias is apparent. The more difficult hypothetical, not posited on the website,
would be a case where the officer selectively stops persons in a protected class but where
reasonable suspicion exists to justify the stop.
In response to an inquiry by the Monitor Team, CCHR indicated that, as of April 2019,
they had reviewed three complaints against individual officers for profiling.1916 None have resulted
in enforcement actions by the Commission.1917 CCHR has sought a “policy or practice” complaint
against the Department.
On its website, the Commission cites examples of Bias Based Profiling which, in effect,
are examples of an officer engaging in selective enforcement. They are not cases CCHR pursued,
but rather are offered as hypothetical examples. The CCHR website describes a case where an
officer tells African-American students to leave an area, while allowing white students to remain.
It also cites a stop and questioning of a transgender woman, while not questioning the cis-gendered
woman with her. Whether these two encounters would be sufficient to substantiate a claim under
AG 304-17, absent a demonstration of motivation or intent, is uncertain.
D.
The Law Enforcement Misconduct Investigative Office – Deputy Attorney
General
In the wake of protests surrounding the death of George Floyd1918 the Legislature added a
new Section 75 to the Executive Law,1919 which established a Law Enforcement Misconduct
Investigative Office (LEMIO) headed by a Deputy Attorney General, to review “operations,
policies, programs and practices” of each police agency within the State. The office can receive
and may investigate complaints and, on its own, initiate investigations into fraud, use of excessive
force, conflicts of interest and abuse. Its designated responsibilities include “protecting civil
liberties and civil rights, ensuring compliance with constitutional protections and local, state and
federal laws, and increasing the public’s confidence in law enforcement.”1920 The first-enacted
legislation was to take effect April 1, 2021. However, with the 2021 budget, Section 75 was
1915
https://www1 nyc.gov/assets/cchr/downloads/pdf/publications/BiasBasedHarassment_Brochure%20Final.pdf.
1916
April 9, 2019, reply, Damion K.L. Stodola, General Counsel, CCHR. A fourth was received but closed
administratively.
1917
Standing was premised upon a claim of reputational injury to members of the Union. In upholding the Union’s
claim of likely injury, the Appellate Division took note of the fact that CCHR had filed complaints against two officers
as of the time of the decision (June 23, 2016—two and one-half years after the law took effect on November 20, 2013).
1918
George Perry Floyd, Jr., murdered in Minnesota in 2020, is no relation to David Floyd, the lead Plaintiff in the
present case.
1919
L. 2020, ch. 104.
1920
N.Y. Exec. Law § 85(2)(d). Note the identical language to Local Law 70, the New York City Charter amendment
to create the Office of the Inspector General for the New York City Police Department.
467
amended to take effect October 16, 2021.1921 The powers accorded the Office are sweeping.
Depending upon the budget assigned1922 and the efforts the new Office makes, this legislation has
the potential to significantly affect Fourth and Fourteenth Amendment compliance. The Office
may:
Determine if allegations warrant disciplinary action;
Investigate patterns, practices, systemic issues or trends;
Subpoena witnesses;
Require production of records;
Require officers to answer questions under oath;
Publish findings (with redactions if required by the Public Officer’s Law).
The legislation invests certain authority with the Office that empower it to overcome
identified weaknesses in CCRB’s set of tools.
The Office is empowered to investigate broader range of misconduct, since the FADO
limits imposed upon CCRB do not apply to it;
The office will have unlimited access to information and files held by NYPD many of
which are not available to CCRB;
Every officer within the police agency is mandated to report promptly to the Office any
corruption, fraud, use of excessive force, criminal abuse by another officer. The failure
to so report “shall be cause for removal from office or employment or other appropriate
penalty.”1923
The Office is empowered to investigate patterns of misconduct.
This last power (authorization to investigate patterns) is enhanced by a specific mandate
that the Police Commissioner must refer any case to the Office when there have been five or more
complaints against an officer in a two-year period. This may help in tackling a persistent problem,
under the current system, whereby patterns of stop and frisk abuse are not investigated when
complaints fail to be substantiated. This is especially true for the thousands of racial profiling
complaints, none of which have been substantiated against a Uniformed Member of the Service
(UMOS). The Executive Law now requires a search for patterns regardless of whether the prior
complaints have been substantiated.1924
1921
L. 2021, ch. 59.
1922
The enacted state budget for FY 2021-22 appropriated $573,000 for the office.
1923
N.Y. Exec. Law § 85(5). Compare with Patrol Guide § 207-21 (“All members of the service have an absolute
duty to report any corruption or other misconduct or allegation of corruption or other misconduct, of which they
become aware.”)
1924
Cf. Jenkins v. Zambrano, 1:15-cv-05889 (E D N Y. June 15, 2019), ECF No. 94. (handling of complaint, even
though unsubstantiated bespoke indifference).
468
The Office is under development and time will tell whether it can or will fulfill these
promises.1925
In its Second Annual Report, LEMIO has made several legislative recommendations,
including:
“Law enforcement agencies should track and report a standardized set of data on traffic
and pedestrian stops including the duration and location of each encounter, the reason
the encounter was initiated and its result, the perceived race, gender, and age of the
person stopped, and actions taken by the officer during the encounter such as
handcuffing, ordering a person out of a vehicle, searching people and vehicles, seizing
property, and using force.
Law enforcement agencies should also make their policies publicly available online,
except for policies that, if disclosed, would substantially undermine ongoing
investigations or endanger officers or members of the public. They also should be
required to publish collective bargaining agreements and to disclose annually the
amount they spend on settlements relating to alleged misconduct.” 1926
In 2021, LEMIO, in conjunction with the OAG Civil Rights Bureau, focused upon
“retaliation by police against people engaging in First Amendment-protected activity, particularly
in connection with racial justice protests.”1927 The OAG sued NYPD in federal court “seeking to
end the department’s pattern of using excessive force and false arrests against New Yorkers during
First Amendment protect protests.”1928 The allegations are of violations of First, Fourth and
Fourteenth Amendment Rights, in particular against persons attempting to record events. With a
claim of a “repeated failure to supervise and discipline demonstrates a de facto policy and custom
of deliberate indifference by the City, the NYPD, [the Mayor], the Police Commissioner . . . and
other NYPD supervisory personnel.”1929 Doc. 311 at 54 (Nov. 2, 2021).
1925
On December 29, 2023, the agency published the results of an investigation into an individual encounter for the
first time. It found that an officer of the Tonawanda Police Department (TPD) had wrongfully arrested two teenagers
and used excessive force in the arrest of one of the minors. LEMIO recommended that TPD “review the . . . incident
and discipline” the officer. It also recommended an update of the TPD’s use of force policy and for further training..
Report and Findings pursuant to Executive Law § 75(3) regarding July 20, 2022 incident and the City of Tonawanda
Police Department. (https://ag.ny.gov/sites/default/files/reports/753report-tonawandacity-pd.pdf).
1926
Second Annual Report Pursuant to Executive Law Section 75, at 8. https://ag ny.gov/sites/default/files/lemio2022.pdf.
1927
First Annual Report Pursuant to Executive Law Section 75, at 4. https://ag ny.gov/sites/default/files/lemio-reportfinal.pdf.
1928
Id. In re: New York City Policing During Summer 2020 Demonstrations, No. 20-cv-8924 (S.D.N.Y. 2021). (“2020
Demonstrations”)
1929
Id., Doc. 311 at 54 (Nov. 2, 2021). On March 4, 2022, the Second Circuit directed that the PBA could intervene
on behalf of represented officers, reversing a lower court order denying intervention. New York City Policing (2d Cir.
2022), ECF 21-1316.
469
XV.
RECOMMENDATIONS
Recommendations herein are meant to be specifically aimed at, and limited to, conduct and
case processing related to Floyd litigation, i.e., Fourth and Fourteenth Amendment compliance in
connection with investigative encounters. Some recommendations may address the disciplinary
process as a whole, which would include Stop/Question/Frisk (SQF) along with force, biasedbased policing, etc.
Transparency
1. Any items in the Departmental Manual pertaining to Fourth Amendment or Fourteenth
Amendment enforcement, compliance, and related discipline should be made publicly
available including: procedures, supervisory responsibility, investigations, interviews,
reporting and decision-making regarding misconduct, interaction with Civilian Complaint
Review Board (CCRB) or other investigative bodies. Such provisions in the Departmental
Manual, which includes the Patrol Guide and the Administrative Guide, should be publicly
posted and available to the public, with exceptions as provided in NYC Admin. Code § 14164 (confidential information non-routine investigative techniques, material which could
compromise safety or ongoing investigations and operations).1930
2. Proposed changes to the Disciplinary System Penalty Guidelines or the Department
Manual pertaining to Fourth Amendment or Fourteenth Amendment enforcement,
compliance, and related discipline, should be made available to the Monitor prior to
adoption. The Monitor, after consultation with the Community Liaison, may direct that
such proposed changes be made public or presented for public comment.
3. Complainants and officers should be advised every 60 days of the status of a pending
complaint, including where it is pending and causes for delay. When either CCRB or the
Internal Affairs Bureau (IAB) sends notice of an outcome to a complainant, the
complainant should be advised with particularity which allegations were substantiated
along with a listing of any other outcomes and any specific penalty or guidance ordered.
4. Upon receiving notice and a directive to impose discipline or guidance of a substantiated
SQFS (Stop, Question, Frisk, Search of Person) finding by CCRB, the CO must report back
to the Department Advocates Office (DAO) the final result, including the specific penalty
or guidance imposed and the date of imposition, within 30 days. This should be forwarded
immediately to CCRB and be made publicly available. Any complainant should be
personally advised of the penalty outcome.
1930
In the course of litigation and discovery in 2020 Demonstrations, Plaintiffs sought to obtain the entirety of the
Administrative Guide with specificity as to the timing of any amendments. The City objected for several reasons,
among them that production of the entirety of the Guide was unnecessary to the litigation and that specifying the
timing of amendments would be burdensome. In support of disclosure, the Attorney General wrote that “The Guide
is a policy document that should have long ago been produced.” Doc. No. 1004. The City’s objection was denied by
U.S. Magistrate Judge Gabriel W. Gorenstein with the caveat that production would not be deemed a waiver of any
individual claim of protection for “purportedly privileged material.” Doc. No. 1006
470
5. Command disciplines imposed for SQFS misconduct are not “technical” findings under
Public Officer’s Law § 86 and should be publicly available under FOIL. See, e.g., United
Fire Officers Ass’n v. de Blasio, 846 F. App’x 25, 33 (2d Cir. 2021).
6. NYPD’s “Officer Profile” (https://nypdonline.org/link/2) posting of “Disciplinary
History” should include all substantiated SQFS allegations accepted by the Police
Commissioner (with date of incident and specific outcome, including guidance or penalty).
This should include SQFS substantiations whether made by CCRB, IAB, or within the
Department.
7. When CCRB has referred Other Possible Misconduct Noted (OPMN) to NYPD arising
from an SQFS investigation, the Department should promptly advise CCRB of the
disposition, level of discipline, and penalty, if any, imposed. Substantiated dispositions
should be listed on the publicly posted online profile and in CCRB’s listing of MOS
disciplinary outcomes.
8. The Law Department should review and assess the accuracy of its public postings pursuant
to Admin. Code § 7-114 (Civil actions regarding the police department and covered
individuals), and update or correct if necessary:
a. The Code requires an online posting indicating whether a case was resolved by
payment by the city, employer, or covered individual (officer) or another person
paying on behalf of a covered individual and, if so, the amount of such payment.
This should specify if the Law Department declined to represent or if
indemnification was denied.
b. The Code requires a delineation of whether the complaint alleges use of force,
assault and battery, malicious prosecution false arrest or imprisonment, or
deprivation of a right pursuant to chapter 8 of title 8 of the Code (right of security
against unreasonable search and seizure and against excessive force regardless of
whether such force was used in connection with a search or seizure).
i. Included therein, the posting should include a column indicating if the
complaint alleges an illegal stop, frisk, or search.
Complaint Processing
9. CCRB and NYPD should agree upon one set of descriptions for findings and outcomes and
apply them uniformly. In particular:
a. “Exonerated” in SQFS cases should be reinstated by CCRB as a finding, and
reserved exclusively for cases where it is demonstrated that the subject officer
engaged in the alleged conduct, but the officer’s actions were lawful and proper.
b. “Unfounded” in SQFS cases should be applied in cases of misidentification or
where it is demonstrated that the officer did not perform the acts or engage in the
conduct attributed to the officer.
c. In SQFS cases, if there is insufficient evidence to determine whether or not the acts
alleged occurred or that the officer performed the acts or engaged in the conduct
attributed to the officer, the case is “unsubstantiated” not “unfounded.”
471
10. In any case containing an SQFS allegation where there is overlap of separate investigations
or a split in investigations of the same complaint, encounter or subject officer, NYPD and
CCRB should coordinate the investigations, sharing information and explaining
differences in outcome. CCRB should have access to any interview by IAB of any police
witnesses regarding the subject matter of the complaint being investigated by CCRB.
Where separate investigations (by NYPD and CCRB) of an encounter have occurred, DAO
should present both matters to the Police Commissioner for reconciliation or resolution. If
the findings regarding SQFS conduct are inconsistent, the Police Commissioner should
describe, in writing, the reasons for the final decision and CCRB should have an
opportunity to respond or publicly comment.1931
11. Deputy Commissioner of Trials should be provided with a complete CPI (not just a
Summary of Employment History) and disciplinary history, including matters which have
been sealed or did not result in discipline and including investigations by IAB. While prior
unsubstantiated allegations cannot, in and of themselves, form the basis for a finding of
misconduct, unsubstantiated matters may be considered in weighing assertions, claims or
defenses of good faith, mistake, motive, intent, identity, common scheme or plan, or in
identifying patterns of misconduct.
12. When investigating misconduct, CCRB and NYPD should examine and consider
allegations, findings, judgments and settlements, made in court or before the Comptroller,
for related complaints, inconsistent statements, and in assessing credibility, motive,
assertions of good faith or mistake, and in identifying patterns of misconduct, as well as
when recommending or imposing a penalty.
13. A CCRB panel should have available upon request a complete disciplinary history of the
subject officer, including all Departmental investigations, when recommending a penalty
for substantiated SQFS misconduct. The CCRB executive director should be able to obtain
this history at an earlier point, upon request, during investigation, when relevant to any of
the issues arising in that investigation.
14. In SQFS investigations, in light of the fact that substantiated CCRB recommendations are
reviewed after referral by Departmental employees and, in all cases, are subject to a final
outcome determination by the Police Commissioner, preliminary screening by police
designees on every CCRB panel is not necessary. In concordance with the City Charter,
CCRB should eliminate its supplemental requirement that a police designee must be one
of the members of every SQFS panel and, as well, should eliminate the two-step process
recently put in place that requires a secondary review by a panel with a police designee
before a substantiation.
1931
In its review of a draft of this Report, dated July 12, 2024, CPR expressed concern that “coordination” as
recommended herein would result in NYPD’s stripping CCRB of authority to conduct investigations. This
misapprehends the intent of Recommendation 10, which is merely that concurrent or overlapping investigations should
proceed, when appropriate, with full access to all necessary information and recommendations by both parties and
that DAO or the Police Commissioner should not judge a case solely upon the recommendation of one agency without
receiving and considering any concurrent investigation which may have been undertaken. This should be done with
transparency and with an explanation when CCRB’s recommendation is not followed. No one is suggesting that
CCRB be stripped of jurisdiction or authority. Command discipline should not be utilized to pre-empt an ongoing
CCRB investigation.
472
15. Upon substantiating an SQFS allegation, the CCRB panel should separately and clearly
delineate findings of fact.
16. When CCRB cases with SQFS allegations are “closed pending litigation,” CCRB should
review the matter upon conclusion of the litigation and determine, unless opposed by the
complainant, whether to re-open the matter for investigation or recommendation. The Law
Department should send a notice to the Legal Bureau or IAB upon conclusion of litigation,
when advised that a CCRB investigation was closed pending litigation. The IAB liaison
should be responsible for advising CCRB of the status.1932
17. Materials or statements presented to the Comptroller while processing a claim which
includes a claim of SQFS misconduct should be made available to CCRB upon request. If
needed, CCRB should seek consent from complainants to obtain GML § 50-h transcripts.
18. Materials filed or presented in the course of litigation which includes a SQFS claim, unless
privileged, should be made available to CCRB, by the Law Department upon request. Such
materials should be considered, by CCRB and the Police Commissioner, in a related
disciplinary proceeding.
19. In any SQFS investigation, when assessing the credibility of the subject officer’s
statements, CCRB should seek and have full access to the entire investigative file or court
record of any case alleging a Fourth or Fourteenth Amendment violation, where the officer
had been the subject of an adverse credibility finding or is the subject of a pending
investigation for making an untruthful, misleading, or false statement, whether sworn or
not. If IAB is investigating, or has investigated, a subject officer for an untruthful, false or
misleading statement in connection with a current CCRB case, the CCRB should have full
access to the file of such investigation and any statements the officer made regarding the
encounter for consideration in the pending matter, including pertinent officer interviews
conducted by IAB. If CCRB finds that an officer testified untruthfully about material facts
pertaining to the encounter, it may disregard the officer’s testimony. Such a determination,
if made, is entitled to deference when reviewed by the Police Commissioner.
20. “Training” as a finding should be individualized, addressing the specific circumstances of
SQFS misconduct, performed in-person (not video), and completed within a reasonably
short period of time after the misconduct finding is finalized.
21. In any case where an SQFS allegation was substantiated, when writing after a departure or
deviation from a panel recommendation or from the Penalty Guidelines, or when retaining
a case, the Police Commissioner should separately and clearly delineate findings of fact
and conclusions of law if the basis for departure is either.
a. In finding facts, CCRB’s determination is not conclusive but is entitled to deference
and weight. If the Police Commissioner does not accept material facts found by
CCRB, he should specify the facts which were not accepted. Such determination
should not be made upon a credibility assessment of a witness absent identified
1932
In its review of this Report, dated July 12, 2024, CPR recommended that “Cases should never be closed pending
litigation, they should be put on pause and reopened automatically when litigation is completed. This Report does not
recommend automatic re-opening without either consent of the complainant or a determination by CCRB.
473
inconsistent statements or extrinsic evidence, in the record, contravening or
supporting the witness’ statement. If the Police Commissioner has considered
evidence outside the record reviewed by CCRB, he should notify CCRB. Upon
such notice, CCRB should have the option to re-open the hearing or reconsider the
matter.
b. After a substantiated allegation of SQFS misconduct, if the penalty or level of
discipline imposed by the Police Commissioner is less than that recommended by
the CCRB panel, but the reason for departure or deviation is an act of lenity,
separate from a disagreement over the findings of fact or conclusions of law, the
Police Commissioner should explain the factors considered in lenity. Along with
such explanation, the statement should contain a list all prior disciplinary
investigations and their outcome, whether conducted within NYPD or at CCRB.
c. When setting aside a substantiated allegation of SQFS misconduct, or finding of
guilt, by either an NDA, DUP or “not guilty” determination, the Police
Commissioner should specify any factual finding and any legal conclusions that
form the basis for the action. This should be publicly available, and a copy should
be sent by CCRB to any complainant in the matter.
22. The Police Commissioner, upon accepting a command discipline recommendation from
CCRB in an SQFS case, may direct a specific penalty or guidance. If the choice of
penalties is referred to the Commanding Officer (CO), the CO should apply the
Disciplinary Guidelines and inform the Police Commissioner and DAO of the penalty
imposed. The CO is not free to deviate from the Guidelines without first conferring with
DAO.
23. As recommended by the Commission to Combat Police Corruption (CCPC), IAB referrals
for Charges and Specifications should be noted in the CPI, as “referred not charged,” when
DAO declines to bring charges.
“Good Faith” and “Mistakes” 1933
24. If the subject officer asserts “good faith,” “inadvertence,” “mistake,” or asserts that
misconduct was an “isolated” incident (under PG 212-11), the panel should have complete
access to all prior investigations where an SQFS allegation was investigated at CCRB
and/or within NYPD, whether or not prior cases were substantiated or “sealed.”
a. If guidance rather than discipline is recommended by CCRB or directed by the
Police Commissioner for an SQFS violation, it should be limited to “isolated cases
of erroneous but good faith stops or frisks,” as specified in PG 212-11 or when
permitted under paragraph (b) or (c). Such a finding for an improper stop or frisk,
is not permitted more than one time for an officer. The Department should include,
1933
“Good faith” and “mistakes” are commonly asserted as cause of reducing or dismissing substantiated allegations
of SQFS misconduct. The problem for CCRB, as explained by NYPD in another context (profiling), is that, “Even
the best investigative protocols . . . cannot go inside an officer’s mind to glean, and prove by a preponderance of the
evidence, intent or motivation.” NYPD response to the June 2019 Report of the Office of Inspector General for the
NYPD, August 16, 2019, https://www.nyc.gov/assets/doi/oignypd/response/FinalResponse_to_IG_v2_81619.pdf at
7.
474
in its posted officer profile, a listing, (including identification of the officer) of each
time guidance or no penalty, in lieu of an assessment of penalty days or lost time,
was ordered as a result of such finding.
b. “Good faith” or “mistakes” are to be measured objectively. The “good faith” or
“mistake” asserted in defense must not only be an honestly held belief or a
subjectively honest mistake, but it also must be an objectively reasonable belief or
an objectively reasonable mistake measured by the standard of a reasonably trained
police officer’s point of view.
c. “Good faith” or “Complexity” or “Misunderstanding of the Law” is not a basis for
NYPD to NDA, DUP, or to find an officer “Not Guilty” of an SQFS violation but
may be used in mitigation. “Good faith,” “Complexity,” or “Misunderstanding of
the Law” is not to be considered in mitigation of SQFS allegations against an officer
on more than one occasion.
d. CCRB and the Department should maintain a separate descriptive index, publicly
available and posted monthly, for each case where a finding of “mistake” or “good
faith” is utilized as justification for reducing a discipline recommendation or
excusing misconduct, specifically identifying the officer and the circumstances of
the complaint and finding.
25. When making a disciplinary recommendation, the CCRB panel should itemize, with
specificity any aggravating or mitigating circumstances found and explicitly state whether
any assertions of “good faith,” “mistake,” or “inadvertence,” were rejected or accepted.
26. Corporation Counsel’s decision to deny representation or indemnification, in litigation
involving the same encounter, based upon wrongdoing or recklessness should be taken into
consideration by CCRB and the Police Commissioner in assessing a case and should
preclude a finding of mitigation, good faith, inadvertence or mistake. Corporation Counsel
should notify NYPD Legal Bureau upon each such declination and a record should be kept
by DAO, which record will be made available to CCRB during the course of any related
investigation or prosecution. CCRB should be advised of the “general basis” for declination
or denial, i.e., a brief description of why representation was denied.
27. In cases where SQFS allegations are not substantiated, CCRB should continue to refer
failures to file a stop report to NYPD for investigation. However, if CCRB determines that
an officer has abused authority by an improper stop or frisk, it should then fully investigate
and independently determine if a stop report should have been filed and was not. In such
a case if a stop report is “missing,” CCRB should list the failure, if substantiated, as either
a separately substantiated offense under the Disciplinary System Penalty Guidelines, or as
an aggravating factor, rather than referring the matter to NYPD for later, or separate,
investigation. The determination by CCRB is entitled to deference and should only be
disregarded by the Police Commissioner in extraordinary circumstances, explained in
writing.
28. Consecutive/concurrent discipline: a stop, a failure to file a stop report, a frisk, or a search
are all separate and distinct acts. Each act should be examined individually and, if
substantiated, the penalties assigned in the Disciplinary Guidelines should be applied
475
consecutively, absent extraordinary circumstances detailed in writing by CCRB or the
Police Commissioner, as the case may be.
Bias-based Policing and Racial Profiling
29. In establishing a protocol for examination of bias-based policing, CCRB should, at a
minimum, include the protocol approved by the court in IAB Guide 620-58.
30. CCRB must affirmatively investigate and document whether slurs or profiling allegations
are part of a pattern, either by the subject officer or within a squad or group of officers
working together. When investigating a complaint with regard to one officer, CCRB
should include a review of past discourtesy, slur, and profiling complaints, whether or not
substantiated, by all officers involved in the encounter.
31. CCRB should review a past history of allegations, even if unsubstantiated, to assess
whether there exist any patterns of discrimination, as well to assess potential motivation.
All profiling investigations should state the results of the investigation for a pattern in its
closing report.
32. If IAB decides to separately investigate a profiling complaint (either concurrently with
CCRB or after the Police Commissioner receives a substantiated profiling complaint from
CCRB), the results of the investigation should be shared with CCRB. If there is a material
difference in the findings, the full investigative IAB file should be sent to CCRB for
reconsideration.
Accountability
33. In cases where CCRB has substantiated an improper stop, frisk, or search, CCRB should
review, as a potential abuse of authority, any supervisor who was present and in a position
to observe the stop, question, frisk, or search for an abuse of authority (failure to supervise),
regardless of whether the failure was active or passive. In cases where the supervisor did
not actively participate, CCRB panels should have the option to refer the matter to NYPD
as Other Misconduct Noted.
34. Any disposition by NYPD of a substantiated CCRB finding of SQFS misconduct should
be recorded in the subject officer’s Central Personnel Index (CPI). This should include
cases that result in a DUP, NDA, guidance or penalties.
35. In cases of training, the record maintained by DAO should specify the training or training
module mandated along with confirmation of where and when the training took place.
36. When an audit (RAND, PIE, QAD, Monitor) finds a deficiency in a stop report or a failure
to file a stop report, it is not enough to correct the report. A review or investigation, as
outlined in Admin. Guide § 318-02, by the Command—CO, Integrity Control Officer
(ICO) or Executive Officer (XO)—of the circumstances of the SQFS should be made with
findings recorded and maintained or forwarded as required by § 318-02. Paragraph 33 of
§ 318-02 should be amended to require recording in the CPI of all command disciplines
for SQFS misconduct (not just B-CDs). If the SQFS was found to be improper, the CO
should impose appropriate discipline or take appropriate action, applying the Disciplinary
Guidelines when applicable.
476
37. In all cases where a stop report has been or should have been completed and where a use
of force was indicated in a TRI, the CO or XO should review the propriety of the
stop/frisk/search independent of the force investigation and report the findings to DAO. If
the investigation is done by IAB or FID, there should be a review of the propriety of any
accompanying SQFS behavior with a separate recommendation, even if there is no civilian
complainant. DAO should review and assess for further investigation or discipline if
misconduct is indicated.
38. In any force investigation, whether done by the CO, IAB, or FID, there should be an inquiry
by the Department into whether there is an SQFS complaint being investigated by CCRB
for the same or a related encounter. In any SQFS investigation by CCRB where the
complainant alleges use of force, there should be an inquiry by CCRB into whether there
is a force investigation by the local command, IAB, or FID. In either instance, the two
investigations should be coordinated with information and interviews being shared. If there
are parallel investigations of racial profiling or bias-based policing, they should be
disclosed and coordinated as well.
39. Patrol Guide § 207-21 should be amended to make it clear that the duty to intervene or
report fellow officer misconduct includes a supervisor’s duty to report intentionally
wrongful SQFS encounters, bias-based policing, and racial profiling (as recommended by
OIG-NYPD).
40. As recommended by the Independent Panel, ex parte communications with the Police
Commissioner and staff reporting directly to the Police Commissioner regarding pending
disciplinary decisions should be documented.
41. 38-A RCNY should be amended to make it clear that a failure to supervise SQFS
misconduct may be considered as an abuse of authority and investigated by CCRB, whether
or not the supervisor was actively involved or passively neglected proper supervision.
42. The Department Manual should be amended to make it explicit that it is a Commanding
Officer’s obligation to monitor, investigate, and discipline SQFS misconduct even in the
absence of a civilian complaint to CCRB. Admin. Guide § 318-01 needs to be amended
accordingly. As well, the Disciplinary Guidelines, in its list of “Violations of Department
Rules and Regulations” (offenses for which command discipline can be imposed at the
precinct level), should specify that SQFS misconduct is included therein and should
explicitly mandate discipline (at levels directed in the Abuse of Authority section of the
Guidelines).
43. QAD should audit samples of TRI reports to determine if a stop/frisk occurred, and if so,
to ensure that a stop report was filed if required.
44. Commanding Officers should be required to file an annual report demonstrating
compliance with the provision in Admin. Guide § 318-01 whereby multiple command
disciplines within a six-month period are referred to the borough/bureau adjutant for
consideration of whether Charges and Specifications should be filed. The result should be
sent to DAO. A copy of the report should be sent to the Professional Standards Bureau for
consideration.
477
45. Admin. Guide § 329-15 should be amended to make it clear that the Career Advancement
Review Board will take substantiated SQFS allegations into account.
46. Notwithstanding the Administrative Guide mandate that A-CDs be expunged after one year
and B-CDs be sealed after three years, records of SQFS misconduct should be kept by
DAO and considered during the Disciplinary Guidelines prescribed look-back period (three
years for A-CDs and for five years for B-CDs) in order to determine whether to apply
progressive discipline. Similarly, such records should be made available to DAO for the
purpose of assessing whether there is misconduct “demonstrating a pattern of behavior that
indicates an inability to adhere to Department rules and standards,” as required by the
Guidelines.
47. Admin. Guide § 318-12 should be amended such that substantiated SQFS misconduct
occurring during the three-year pause period (for B-CDs), and the one-year pause period
(for A-CDs), if applicable, would toll the pause-period and delay expungement or sealing,
as the case may be, from the time of the alleged misconduct through and until the time of
final disposition of the most recent SQFS allegation(s).
48. “Progressive Discipline” as defined in the Guidelines for repeated SQFS misconduct is too
narrow.
a. The Guidelines calculate a “prior” from the date of final approval by the Police
Commissioner of the substantiated allegation. If a complaint is pending, following
substantiation by CCRB, but has not yet been finally adjudicated by the Police
Commissioner, it should be considered as a prior offense for purposes of
progressive discipline even if the Commissioner’s final approval occurred after the
date of the new wrongful act.
b. Prior substantiated allegations, for purposes of enhancing discipline, should not be
limited to the “same misconduct.” A prior violation of any of the provisions of PG
§ 212-11 (investigative encounters) should count as prior misconduct upon a
finding of a similar 212-11 violation. E.g., a prior finding of wrongful frisks, should
count as a prior offense for a new finding of an illegal stop and questioning of a
person, for purposes of progressive discipline.
c. Repeated acts of similar misconduct should call for enhanced discipline, even if the
later acts do not otherwise call for greater penalties than the earlier findings. E.g.,
a prior slur should count as a prior for purposes of progressive discipline upon a
later finding of discourtesy.
Timeliness
49. All SQFS investigations should be completed by CCRB within 120 days and, if not, the
reasons for the delay shall be explained in writing to the subject officer and the
complainant.
50. Where CCRB has recommended Charges and Specifications and APU has submitted them
to DAO, the subject officer should be notified immediately. The Police Commissioner
may delay formal service of the Charges while he considers further action, but for purposes
of the Statute of Limitations, the Department should define “commencement” of the action
478
to be upon written notice received by the subject officer of the specifications requested by
CCRB rather than delaying “commencement” while waiting for later approval by DAO
and formal service.
51. Where CCRB has recommended command discipline rather than Charges, for purposes of
the Statute of Limitations, “commencement” should be determined as of the time CCRB
notified DAO and the officer of the recommendation.
479
APPENDIX 1: EXAMINATION OF SQF CASES WHERE A PENALTY WAS
IMPOSED
2019-2021 CASES WHERE A SUBSTANTIATED SQF
ALLEGATION WAS CONTAINED WITHIN FINDINGS
AND THE OFFICER RECEIVED A PENALTY OF ONE OR
MORE VACATION DAYS.
As noted throughout the body of the Report, officers rarely, if ever, receive a penalty (lost
vacation days, suspension, dismissal probation, termination, formal reprimand) for
unconstitutional stops/frisks/or searches – even when substantiated by CCRB.
In 2019-2021, for example, as of this writing, 210 cases have been closed by the Police
Commissioner after a referral by CCRB of a misconduct complaint where at least one of the
allegations substantiated was a stop/question/or frisk violation. Of those 210, a total of 19 officers
received a penalty.
It would be misleading, however, to say that 19 officers received a penalty day for
stop/frisk misbehavior. In almost every case where a penalty is imposed, it is folded into and part
of concomitant misbehavior considered to be more serious, such as wrongful force. As well, a
penalty, if rendered, is often in conjunction with a cluster of other investigations or findings,
concurrent to or pending at the time of disposition.
The following is a description of the few cases (17) where a penalty was imposed and one
of the allegations included in the charges against the officer was for SQF misbehavior.
1.
On April 24, 2018, the complainant “HC” approached Sergeant
to ask him a
question in a subway station.
knew HC from two prior interactions, one of which
had resulted in an arrest for possession of a firearm. He frisked HC, touching his upper
thigh and moving to his groin (HC alleged a strip search and sexual harassment as well,
but the search was unfounded and the harassment was unsubstantiated).
CCRB recommended Charges and Specifications for the substantiated allegations of an
illegal stop and frisk. DAO asked for reconsideration. DAO recommended a reduction to
an A-CD. While acknowledging the impropriety of the stop and frisk, DAO argued that
the known history of firearm possession by HC provided a rationale, if not proper cause,
for the frisk.
Although the reconsideration request was denied, APU negotiated a five-day penalty, the
equivalent of an A-CD before a Trial Commissioner. The Trial Commissioner, in
accepting the plea, was advised that
had no disciplinary history.
Sergeant
, at the time of the incident, had been with the Department eighteen years.
He has subsequently left the force. The five penalty days were subtracted from his accrued
vacation time when he retired.
480
founded allegations. Under the Matrix, a substantial penalty should have ensued. Instead,
the Police Commissioner ruled that the force allegation would carry NDA and the
remaining five allegations were combined with a final penalty of one day.
Sergeant
had four prior and one subsequent CCRB complaints which were
investigated. Three were for wrongful force (the latest with a night stick) and two were for
stop and frisk violations. None were substantiated.
In a separate incident, pending concurrently,
was alleged to have wrongfully
used force and interfered with a recording by a civil complainant in a federal civil rights
action. That case was resolved on 3/21/2022 with a $25,000 award to the plaintiff.1934
Sergeant
was promoted to Lieutenant on 10/28/22.
4.
Sergeant
received Charges and Specifications in a case where CCRB substantiated
twelve allegations of abuse.
negotiated an 18-day penalty.
One allegation was for an unlawful frisk. Two substantiated allegations were for stops.
Other substantiated allegations included: an unlawful search of person, unlawful entry of
premises (2 counts); unlawful search of premises (2 counts); unlawful seizure of property;
damage to property (2 counts).
has had six CCRB complaints lodged against her. The other five were not
substantiated.
has seven lawsuits filed against her in the last five years. Two are still open. The
others settled for $2,500, $46,001, $6,500, and $55,000.
was promoted to Lieutenant on June 24, 2022.
Sergeant
was investigated for a complaint arising from an incident on 3/28/19.
Two of four allegations were substantiated—an illegal stop and a failure to provide a
business card as required. A frisk and improper question allegation were unsubstantiated,
along with an OMN for improper BWC activation.
received a 3-day deduction
and a B-CD.
In all, Sergeant
has been the subject of twelve CCRB investigations. Only four
were substantiated, including: a discourtesy allegation where APU recommended Charges,
but the Police Commissioner decided upon No Disciplinary Action; a refusal to take a
civilian complaint for which he received instructions; and a wrongful force (chokehold)
case which went to trial and he was found not guilty. A strip search case was “closed
1934
As commonly occurs and as noted in the body of the accompanying Discipline Report, the Law Department
posting for this case, which is required by NYC Admin. Code 7-114 to note if force, assault/battery/malicious
prosecution, or false arrest were alleged, affirmatively and wrongly posted an “N” in each of those columns,
notwithstanding allegations in the complaint clearly alleging such. This same criticism could be levelled in most of
the cases described herein, but to do so would be unnecessarily repetitive. Suffice it to say that it appears that that §
7-114 is customarily honored in the breach.
482
pending litigation.” Over time, twelve allegations against him were for wrongful force,
but none were substantiated.
The strip search case is still pending in Brooklyn Supreme Court.
has two other
civil actions filed against him: a federal civil rights action that ended in a $5,000 settlement
and another wrongful stop and search case still open in court as well.
A separate profiling charge, arising from a 9/18/2018 incident not included in the CCRB
investigations, went unsubstantiated.
After the CCRB disposition, on 9/30/22, Sergeant
was promoted to Lieutenant.
6.
Officer
was alleged to have improperly stopped, unjustifiably threatened the
complainant with arrest, and failed to comply with the Right to Know Act (RTKA). The
three allegations were substantiated, and
accepted a four-day penalty.
has only one prior CCRB complaint, an alleged illegal vehicle search, threat to remove
to hospital, and seizure of property in 2019. Those allegations were not substantiated.
On the surface, this would appear to be one of the rare cases where penalty days were
imposed for SQF misconduct independent of very serious accompanying charges and with
a relatively insignificant CCRB history.
However, separate from CCRB complaints,
faced Charges and Specifications twice –
once in 2015 and again in 2022. After trial in the earlier case, he was found guilty of failing
to pay a taxi fare, engaging in a fight while drunk and interfering with the departmental
investigation of the incident. For that misconduct he was suspended for 30 days and was
penalized with dismissal probation and a thirty-day suspension.
He was demoted from Detective to Police Officer in Housing PSA 2 on 3/31/2016.
Without an opportunity to review internal records, it cannot be determined if the CCRB
complaint(s) arose while
was on dismissal probation, which would seem to explain the
unusually strict 4-day penalty (notwithstanding that it falls within the presumptive range
under the disciplinary guidelines). By its terms, dismissal probation authorizes termination
for infractions occurring while on probation.
7.
alleged that on 3/28/2019, he unlawfully stopped
A complaint filed against Officer
and frisked the complainant with gun drawn, and he subsequently failed to provide an
RTKA card. He was also charged with a failure to properly activate his body-worn camera.
The frisk and gun charge were unsubstantiated, while the other allegations were
substantiated. He received an A-CD and a loss of three days credit.
PO
has been a member of the force since 2015. He has had four other CCRB
complaints—which were not substantiated. An allegation of excessive physical force was
“closed pending litigation,” a 2020 allegation of unlawful use of a nightstick as a club went
unsubstantiated, and a 2021 charge of unlawful physical force was dropped as the
complainant was unavailable.
483
had a profiling complaint, occurring on 9/30/2018, which was investigated by IAB
and went unsubstantiated.
was a defendant in a federal civil rights case alleging unlawful arrest and excessive
force. That case was dismissed in light of the fact that the complainant had entered into a
settlement in another unrelated case which covered the case against
. He was also
sued in Kings County Supreme Court in an incident arising in 2018 which, absent
verification, appears to be the same case that caused closure of the excessive physical force
CCRB complaint and appears to have been filed around the same time as the profiling
complaint.
8.
On February 26, 2019, 14-year-old jumped a turnstile in the subway.
, with another
officer, grabbed him and made him go back to pay. No other action was taken. The next
day, February 27, after school, the same officers held the exit doors open as students were
returning home from school. They were not required to pay for transit. As the complainant
passed through and was walking away, he cursed at the officers. They grabbed him and
made him go back through the turnstile to pay. The child sat down on the platform stairs
and refused to move.
testified that he seized him “for not showing me respect.” PO
arrested him for disorderly conduct.
and another officer PO
pulled him
by the arms, and he resisted.
pushed him back onto a bench and through the exit
gate. He was handcuffed. Two other officers lifted him and “dragged him down threefourths of the stairs, causing his buttocks to hit each step along the way. PO
repeatedly pushed [him] while holding his arm, causing him to stumble but not fall down.”
CCRB exonerated claims of force, but substantiated the stop for the second day’s passage
on the grounds that cursing at an officer is not disorderly conduct and, as a student, the
complainant had the right to continue without paying a fare.
CCRB substantiated an allegation of an illegal stop against both officers. As well, CCRB
referred over OMN allegations for failure to file a stop report and for Officer
failure to carry business cards as required by the RTKA.
CCRB recommended a B-CD for both officers.
has a history of two other wrongful
force complaints. Both were dropped for lack of complainant follow-through. The Police
Commissioner elected to eschew any penalty for
, ordering Training in a departure
letter that noted that
“was merely present at the scene.”
The Police Commissioner departed in
case as well, noting that he has “no prior
CCRB complaints against him and is highly rated” (
has one Departmental
recognition for “Excellent Police Duty” awarded on 1/9/2019). PO
accepted a
reduction to an A-CD and one-day forfeited.
Since 2019, Officer
has two other complaints against him, which were not
substantiated. One complaint was for excessive force and the other was for discourtesy
and use of a slur.
484
In the second case,
and other officers were responding to a noise complaint in a
backyard. Apparently, there had been numerous similar complaints of noisy parties. On
this occasion, at around 10 pm, as police approached, the speakers were shut off and
removed to a portion of the basement of the adjoining house. Officers wrongfully entered
the house, notwithstanding objections by the occupants, and seized the speakers. While
had been present and had authorized the seizure, the Trial Commissioner found him
to be Not Guilty since he was not at the scene at the moment the police entered the house.
In the only case where Lt.
received a penalty, CCRB substantiated allegations of an
illegal stop, failure to supply a business card and a violation of BWC rules. This incident
occurred in June 2019. DAO prosecuted the case at trial.
, with two other officers,
driving an unmarked car, saw the victim place something into a “dusty” car and enter the
passenger side. It was raining and shortly before midnight. They pulled him out of the car,
frisked and questioned him, then searched the car. When the victim tried to call his father
(the owner of the car), they took his cellphone. After the search, they were about to leave
the scene, but the victim called them back to complain that they had broken (“cracked”)
his cellphone.
deactivated his BWC during that portion of the encounter. DAO
recommended a 4-day penalty—3 for the stop and RTKA violation, 1 more for the BWC
violation. The Trial Commissioner reduced the penalty to 3-days because “Respondent
has a strong record . . . has been awarded numerous medal . . . and has received
consistently exceptional evaluations.” The “Summary of Employment Record” noted that
“Respondent has no adverse findings in his formal disciplinary record.” There is no
mention of
extensive history with CCRB and previous trials.
Subsequently he was the subject of three more complaints—one for an illegal
stop/frisk/search and use of force (he was exonerated on those allegations) and discourtesy
which, after substantiation, he received more Training. Another force/search/discourtesy
complaint went unsubstantiated. And in March 2020 a discourtesy complaint, when
substantiated, resulted in an A-CD with no penalty.
Shortly thereafter, in July 2020,
was promoted to Lt. Detective Commander.
10.
On the afternoon of July 10, 2018, Lt.
with two other officers in an unmarked car
approached two persons who were smoking in front of a deli.
testified that he was
familiar with one as gang member “in oppositional gang territory.”
thought the
victim was “evasive” as
approached.
lifted the complainant’s arms, and
frisked his waist area and legs. The victim told him “Before you ask me questions, turn on
the camera.”
told him, “I want to make sure you have no weapons, bro.” He then
proceeded toward the other person, a woman who had objected to the frisk. He grabbed
her, pulled her back, slammed her face against the wall, handcuffed her, and arrested her
for obstructing governmental administration for blocking his path to the first individual.
When asked why she was being arrested, he responded, “You act like an asshole, cause me
problems, no sweat.” The woman (a confidential informant according to the public online
CCRB closing report), did not file a complaint. CCRB substantiated 4 misconduct
allegations of 7 allegations in the complaint. CCRB recommended a B-CD for: two stops,
1 frisk and 1 discourtesy findings. A penalty of 10 vacation days was ordered.
486
According to
“Disciplinary History” as listed in his “Officer Profile” posted by
NYPD, “This officer does not have any applicable entries.”
In his fourteen years with the Department,
has amassed 30 separate CCRB
complaints, eight of which have been substantiated. He has received a penalty (the abovereferenced 10-day penalty) only once. CCRB has investigated 95 separate allegations of
misconduct contained within the 30 complaints. In the last 10 years, there have been 15
allegations of unlawful stops brought against him—but only two have been substantiated.
There have been 15 allegations of wrongful frisk or search of person, but again only two
have been substantiated. Three allegations of unlawful strip searches went without
substantiation. Twenty allegations of wrongful or excessive force (including one
chokehold) resulted in one substantiation.
It should not be assumed that the many allegations which were not substantiated were
decisions on the merits, i.e., exonerated, unfounded, or even unsubstantiated. Eleven
allegations failed because the complainant was unavailable, uncooperative or unidentified.
Aside from the one 10-day penalty discussed above, throughout his history, of the
substantiated allegations, the following penalties were assessed.
Vehicle search
RTKA
Frisk
Premise search
RTKA
Unlawful arrest
Threat of force
Force
Discourtesy
Discourtesy
Discourtesy
A-CD accepted, no penalty
A-CD accepted, no penalty
A-CD accepted, no penalty
B-CD, set aside by Police Commissioner, NDA
A-CD, set aside by Police Commissioner, NDA
Charges pending on 3-year old case
Charges pending on 3-year old case
Charges pending on second 3-year old case
Charges pending on second 3-year old case
A-CD, set aside by Police Commissioner, NDA
A-CD accepted, no penalty
In particular, the 10-day penalty cannot be viewed through a narrow telescope—it was not
decided in isolation. When the Police Commissioner decides whether to impose a penalty,
the PC is undoubtedly aware of other complaints in the mix. Open CCRB matters, open
profiling investigations, and open lawsuits all deserve consideration when considering
discipline upon a disposition.
While that case (the one and only case where
was penalized) was pending and
before final disposition,
picked up five new complaints with 30 allegations of
misconduct. One of those five newer cases, a discourtesy charge, was substantiated and
ended with the acceptance of an A-CD (no penalty). Two other cases, arising during the
same period, resulted in filing of Charges and Specifications which are open and pending.
Aside from CCRB complaints,
had three separate profiling complaints lodged
against him, each of which went without substantiation.
487
Finally,
had an astonishing number of cases pending against him in the 2017 to
2020 time period. Without taking the time to analyze each one, or assessing the personal
responsibility of
, it can be noted that three are still open, and nine settled for
amounts of: $20,000, $12,000, $50,000, $25,000, $17,500, $80,000, $5,000, $25,000, and
$950,000. (The $950,000 lawsuit was not aimed directly at
. It was a class action
brought to challenge arrests under NY’s Loitering for Prostitution statute, alleging
deliberate indifference to Fourth Amendment rights.
was one of five named
supervisors charged with planning, ordering, staffing, supervising and/or approving the
unlawful surveillance, stops, questioning, frisks, searches, seizures and/or arrests and
detentions” of four named plaintiffs). It is beyond the scope of this Appendix to determine
whether any, some, or all, of the twelve lawsuits overlapped with the many CCRB
complaints against him.
11.
On 12/15/19, Sgt.
, along with Police Officers
and
of the 47 precinct, all in plainclothes, stopped and frisked twin brothers
based upon a description of people involved in a fight. It was also alleged that they
interfered with a recording and searched one of the brothers, but those allegations were
unfounded by CCRB. The brothers were detained and then permitted to leave. The officers
refused a request for the officers to identify themselves. CCRB substantiated the
allegations of unlawful stop, frisk, and RTKA violations and recommended a B-CD. Each
officer was penalized with a loss of 5 days.
th
According to a sworn complaint filed in Bronx Supreme Court, the officers pushed one of
the brothers against a wall and searched the pockets of both. When one of the brothers
attempted to take a photograph of the unmarked police car, they were threatened with
arrest. These further allegations were not substantiated by CCRB, and the truthfulness of
the allegations in the complaint were not decided in court; the case was settled for $8,500.
Sergeant #1
Sgt. #1
has had 8 complaints filed against him with CCRB. They include
allegations of: stop/frisk/search (9) and; force (4, including one chokehold). This is the
only case substantiated and carrying a penalty. He had an earlier unlawful stop
substantiated with Charges and Specifications recommended, but it resulted in NDA as a
result of the statute of limitations. He had yet another force case substantiated with a
recommendation of Charges and Specifications, but the Police Commissioner retained the
matter under Provision Two of the APU memo, resulting in no discipline.
In the case retained by the Police Commissioner where Charges were dropped without
discipline, in June 2017, Sgt. #1
had responded to a call of shots fired. He pursued
in a car, crashing into a dumpster and according to the CCRB report, hitting the
complainant. The complainant’s injuries included a dislocated and fractured shoulder,
lacerations of the lip and ankle and abrasion of the elbow. In another case, on 12/15/17,
488
Sgt. #1
was alleged to have falsely stopped and arrested another individual,
which, although not investigated by CCRB, resulted in a $33,750 award.
Sgt. #1
has been a defendant in 9 civil lawsuits brought in recent years. Six have
resulted in awards in the amounts of $90,00, $25,000, $85,000, $25,000, $33,750, and
$15,000, respectively.
Sgt. #1
was promoted to Lieutenant on January 27, 2023.
PO #2
At the time of the encounter, PO #2
had another case pending with APU where
Charges and Specifications had been filed based upon an illegal entry into premises. That
case remains open at this time. PO #2
has a total of six complaints, 24 allegations,
filed against him in CCRB. They range from ten complaints of illegal SQF conduct, to four
allegations of improperly pointing a gun. None, other than the two above-described
complaints have been substantiated.
PO #2
has been the subject of six recent lawsuits for police misconduct. Three
ended with awards of $8,500, $10,000 and $77,500.
PO #2
was promoted to detective in the gun violence task force, on 10/28/2022.
PO #3
PO #3
received the five-day penalty upon findings of an improper frisk and
failure to activate his BWC. This penalty, given the information available at this time, is
unusual in light of his relatively minor history of CCRB complaints—one prior force
complaint which was dropped when the complainant failed to cooperate—and the fact that
he only had one other lawsuit filed against him. He has resigned and is no longer with the
Department. Of interest is the fact that the Law Department declined to represent him in
the lawsuit brought by the twin brothers. The reason for the declination at the current time
is unknown.
12.
In this case, the Monitor team has not been provided with the CCRB closing report or any
of the correspondence between CCRB, DAO, or the Police Commissioner. As such, it is
impossible to make any assessment or explanation regarding the penalty in this case based
on knowledge of the misconduct itself. According to the sparse files made available, it
appears that
was found by CCRB and the Department to have conducted an
illegal frisk and search and failed to present a business card upon request in violation of
the RTKA. He received a penalty of 3 vacation days and accepted a B-CD. It is unclear
whether the penalty is within the Disciplinary Systems Penalty Guidelines or whether there
was a deviation.
Officer
has been with the Department twelve years. He has remained an officer
in the 34th precinct. He has been the subject of 11 CCRB complaints. Five complaints
were of unlawful force. He has been accused of wrongful stop/frisk/search behavior in
seven allegations. Prior complaints ended without substantiation by CCRB.
489
13.
Lieutenant
has 15 CCRB complaints filed against him that were fully
investigated.1935 Ten of the complaints were lodged in 2018-2021 alone. Each complaint
contains an allegation of wrongful SQF behavior or excessive force (including a chokehold
allegation), or both. Sixteen of fifty allegations have been substantiated. Charges and
Specifications have been filed against him on four occasions. In total thus far,
has
been penalized 5 days for one case and had 5 hours of time credit deducted for another.
Two claims of excessive force were closed pending litigation and never resolved. Another
two of the substantiated cases were later set aside (NDA) by the Police Commissioner.
has also been the subject of two IAB substantiated investigations, in 2018, not
noted in his CCRB records or his “officer profile,” for “Invoice Discrepancy,” one
regarding Marijuana and the other of Controlled Substances.
He has been named as a defendant in eight lawsuits,1936 complaining of wrongful force or a
Fourth Amendment violation, some of which overlap the CCRB complaints and some of
which complain of wrongful conduct not noted by CCRB. Some are still open, but records,
as incomplete as they are, show that at least four have settled for sums of $7,500, $25,000,
$2,000, and $168,000 respectively.
After the first three complaints lodged against him, in November 2015,
was
promoted to Sergeant. On December 21, 2021, after another twelve complaints were
lodged against him and immediately following settlement of two lawsuits with monetary
awards, he was promoted to Lieutenant.
Since one might discern a pattern, involving either force or SQF misbehavior in the
complaints, lawsuits, and findings, it is worth a more detailed exploration below of a few
of the complaints—with some allegations substantiated, and some not substantiated, for a
variety of reasons.
CCRB
(Continued)
On October 1, 2019, Sgt.
and Officer
allegedly stopped,
frisked, and searched two individuals wrongfully. It was also alleged that they interfered
with a recording of the event. This was not the first time that year that the two officers were
accused of misconduct while acting together. They were named in a CCRB complaint of
wrongful use of force a few months earlier in April 2019. A lawsuit was filed regarding
the April incident on September 26, 2019, in Kings County Supreme Court, just five days
before the two frisked and searched the victims in the more recent case. CCRB has closed
the April 2019 case “pending litigation.”
In the October incident, CCRB substantiated four allegations of wrongful frisk and search
against
and, in addition, referred to NYPD allegations regarding BWC activation
1935
As explained in the body of the Report, fewer than one-half of the complaints brought to CCRB are fully
investigated.
1936
He is specifically named in seven and only identified as “Police Officer John Doe” in an eighth that matches with
an April 2019 incident, where he was identified by CCRB in the corresponding complaint.
490
failure and a missing Activity Log. CCRB recommended a B-CD, which was accepted,
and the Police Commissioner imposed a penalty of five vacation days.
The penalty, five vacation days, in this case needs to be understood in broader context. At
the time the CCRB case was pending, or shortly before, Lt.
had five other CCRB
cases—none of which have resulted in penalty days. Two cases were ultimately
unsubstantiated. One substantiated search case resulted in an A-CD with a five-hour time
deduction (CCRB had recommended a B-CD, but the Police Commissioner departed
downward).
had four lawsuits pending—again, two of them were with PO
. One of the CCRB complaints, for wrongful use of force, was closed pending
litigation and another complaint for wrongful use of force, filed in June 2020, was also
closed pending litigation.
CCRB
On May 6, 2018, PO
, an officer with five-year’s experience on the force,
improperly stop and frisked the complainant who had an “undefined bulge” in his pocket.
The bulge was a cellphone. CCRB recommended a B-CD. A reconsideration request for
training was declined. Nonetheless, the Police Commissioner imposed training instead of
discipline.
The complainant swore that three officers jumped out of an unmarked car. One, Officer
, grabbed him by the neck and arm, while another “checked” his body and pockets.
They “got back in they [sic] car and drove away screaming and yelling You a FAGGOT.”
One of the three officers was Sergeant
.
Sgt.
was alleged to have made the remark and was investigated for the slur and a
refusal to provide his name or shield number. The allegations against Sgt.
were not
substantiated.
Officer
Stop Report described a “bulge in his front hoodie pocket that appeared to
be a weapon.” When the officer yelled “stop” the complainant continued walking saying,
“I don’t have to stop for you” which, according to the officer, caused him “to fear for his
safety as well as the safety of other.” Sgt.
, the supervising officer, approved the
stop report as “Accurate and Complete” writing that it provided a “Sufficient Basis” for
both the stop and the frisk.
CCRB recommended a B-CD for Officer
. On November 11, 2018, DAO requested
CCRB reconsideration and training. DAO asserted that he had no prior formal disciplinary
history and that there was no pattern of similar misconduct in his background. CCRB
denied the request, by a vote of 2-1, on April 24, 2019, no disciplinary action was taken
against Sgt.
for approving the improper activity and report.
CCRB
(Continued)
Thirteen days after the above incident, on May 19, 2018, four officers, including
,
responded to a call regarding a group of individuals drinking, smoking and gambling in
front of an apartment building. As they approached, they noticed some men outside the
building and some in the lobby area. The complainant, according to
was inside the
building, holding a cup and yelling at the officers. (Two other officers and the complainant
491
said that he was not holding a cup).
approached and demanded identification.
When that was refused,
patted him down and reached into his pocket, retrieving
his wallet.
handed the wallet to another officer who took it to his car to run a
warrant check. After a tenant came downstairs to say that the complainant was a relative
and legitimately in the building, the officers left without issuing any summonses or making
an arrest.
Both CCRB and DAO recommended a B-CD for the unlawful frisk and search. However,
the Police Commissioner reduced the penalty to an A-CD and a time deduction of 5 hours
credit.
In the time since the 2019 case where 5 days were assessed,
new complaints:
has accumulated five
A chokehold case went unsubstantiated.
An unlawful frisk allegation went unsubstantiated, but CCRB recommend an A-CD for
a RTKA violation. The Police Commissioner, instead, dismissed it with NDA.
Another stop, frisk and refusal to obtain medical treatment case was substantiated by
CCRB, which recommended Charges and Specifications. That case has lingered for
almost three years without decision.
A search/unlawful force case was closed pending litigation.
Another frisk and discourtesy case which was substantiated by CCRB with a
recommendation of Charges and Specifications has remained open and unresolved for
20 months.
14.
In the afternoon of September 25, 2019, two officers (PO #1
and PO #2
) from the 45 Precinct entered a building in response to a domestic
incident. They encountered the complainant (“AS”) who was not connected to the incident.
They demanded ID, which AS refused to produce. AS began to record the incident with a
cellphone. The officers took the phone, placed him in handcuffs, frisked him, and took his
wallet. AS was kept in handcuffs by PO #2
for 10 minutes until a Lieutenant arrived.
PO #2
returned his wallet by throwing it on the ground. No summonses were issued,
and no arrest was made.
CCRB substantiated allegations of improper stop and questioning by PO #1
.
CCRB recommended a B-CD.
Absent mitigating circumstances, aggravating
circumstances, or progressive discipline, PO #1
would presumptively receive
three penalty days under the revised Discipline Guidelines since illegal stops and
questioning are combined and treated as one misconduct allegation.
PO #1
has been an officer for almost nineteen years. Nine civilian complaints
have been filed against him, primarily alleging wrongful use of force, gun drawn, pepper
spray, and forcible removal to a hospital. This is the first substantiated complaint.
The Police Commissioner, in a departure letter, reduced the B-CD to an A-CD and imposed
a three-day penalty. The Police Commissioner found that the officer acted in “good faith.”
492
Since illegal stops and illegal questioning are combined in the Guidelines, this would
appear to be a proper resolution.
CCRB substantiated allegations of question, stop, threaten arrest, interference with use of
a recording devise, frisk, search and discourtesy against PO #2
. PO #2
had a
CCRB history of five complaints. Earlier allegations of discourtesy, chokehold, and
wrongful threat of arrest were not substantiated. PO #2
, an officer who had been on
the force twenty years, was served with Charges and Specifications, but negotiated a loss
of 18 days accrued vacation time as she retired.
493
APPENDIX 2: GLOSSARY
APU
Administrative Prosecution Unit of CCRB.
BIU
Bureau/Borough Investigating Units within NYPD
BWC
Body-Worn Camera
“C” cases
Corruption Investigations by IAB.
CAR
Case Analysis and Recommendation Report from DAO to Police Commissioner
CARB
Career Advancement Review Board
CBA
Collective Bargaining Agreement
CCRB
NYC Civilian Complaint Review Board
CCPC
Commission to Combat Police Corruption
CD
Command Discipline, at 3 levels: A-CD, B-CD, C-CD
CCHR
Commission on Human Rights
CPI
Central Personnel Index
CJA
NYC Criminal Justice Agency
CRAFT
Cop’s Rapid Assessment Feedback Tool
CTS
Complaint Tracking System (CCRB)
DADS
Disciplinary Administrative Database System (DAO)
DAO
NYPD Department Advocates Office
DAS
Domain Awareness System
DCT
Deputy Commissioner of Trials
DOI
NYC Dep’t of Investigation
OIG-NYPD
Office of the Inspector General for NYPD
DUP
Department Unable to Prosecute
494
DeBour Levels
Described in P.G. 212-11; People v. De Bour, 40 N.Y.2d 210 (1976)
Departmental Manual
Patrol Guide
Administrative Guide
Finest Messages
FADO
Force, Abuse of Authority, Discourtesy, Offensive Language
FADOU
FADO + Untruthful Statements
FID
Force Investigation Division
IAB
Internal Affairs bureau
ICO
Integrity Control Officer
ICAD
Improved Computer Aided Dispatch System
JRP
Joint Remedial Process
LEMIO
Law Enforcement Misconduct Investigative Office, NYS OAG
Liability Opinion
Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013)
“M” cases
Misconduct Investigations by IAB or BIU
MATRIX
NYPD Disciplinary System Penalty Guidelines
MOS
NYPD Member of Service
MOU
Memorandum of Understanding
Matrix -MOU
BWC access MOU
Discipline Matrix
APU MOU
NDA
No Disciplinary Action
OATH
Office of Administrative Trials and Hearings
OCD
Office of the Chief of Department
OCD-IRS
Investigation Review Section
OG
Outside Guidelines
495
OMN
Other Misconduct Noted
OPMN
Other Possible Misconduct Noted
PBA
Police Benevolent Association (formerly Patrolmen's Benevolent Assn.)
QAD
Quality Assurance Division
RAND Audits
Reviews of radio dispatches (ICADs)
RMB
Risk Management Bureau (now Professional Standards Bureau)
SEH
Summary Employment History
SQF
Stop, Question, Frisk
SQFS
Stop, Question, Frisk, Search of Person
TAP
Trespass Affidavit Program
Terry Stop
Terry v. Ohio, 392 U.S. 1 (1968)
TRI
Threat, Resistance, Injury Report
Unions
PBA
SBA
LBA
CBA
DEA
Police Benevolent Ass’n
Sergeants Benevolent Ass’n
Lieutenants Benevolent Ass’n
Captains Endowment Ass’n
Detectives’ Endowment Ass’n
W&A
Warning and Admonition (“Warnings”)
XO
Executive Officer
496
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