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 Commi]]> 
