On December 21, Councilmember Ritchie Torres responded to this article. His letter is copied below.
A session of the New York City Council that had been characterized by cohesion displayed an unusual degree of division on Tuesday as the city legislature passed 38 pieces of legislation but saw a close vote on a controversial police reform measure.
The vote on Intro. 182-D, the more scrutinized of the two bills that made up the Right to Know Act, was 27-20 with three abstentions, one of the closest votes in the Council in years. By comparison, the 2008 vote to override two citywide referenda and extend term limits was 29-22. The votes in 2015 on the mayor’s two citywide zoning overhauls, the mandatory inclusionary housing policy and the “zoning for quality and affordability” law, were 42-5 and 40-6, each with one abstention, respectively.
The Council on Tuesday approved the other part of the Right to Know Package—Intro. 541-C—by a margin of 37-13.
Tuesday’s meeting was the last general Council meeting of the 2014-2017 session, meaning it was the last official gathering for several members leaving the body because of term limits (as was the case for Daniel Garodnick, Vincent Gentile, Rosie Mendez, Darlene Mealy, Anabel Palma and James Vacca), career change (why David Greenfield is leaving) or election defeat (which is why Elizabeth Crowley bade farewell). It was also the last act for Melissa Mark-Viverito, term-limited off the Council and handing over her speaker’s post.
“Above all else, justice has been the driving force behind every single step or decision I have made as speaker,” she said in brief remarks at the start of the meeting. Citing the Council’s work to provide lawyers to people deportation, invest in youth services and press Mayor de Blasio to agree to close the jails on Rikers Island, Mark-Viverito told her colleagues: “We’re making the city a better city for all New Yorkers. … Our work has been to really make it a more equitable city.”
Mark-Viverito presided over a remarkably productive session of the Council in which progressive legislation on immigration, housing, work, health, gender and more become law without a single mayoral veto. In part, this was accomplished because of the ideological alignment of the speaker, the mayor, and the bulk of the Council—especially the increasingly influential Progressive Caucus that helped Mark-Viverito become the Council leader. There also was a concerted effort to find consensus and avoid public fights in the name of achieving concrete, if sometimes incremental, goals and denying tabloid editorial pages the opportunity to deride a divided left-wing government.
Sometimes that quest for compromise frustrated people seeking deeper reforms, and Intro. 182-D embodied that conflict.
The two Right to Know Act measures were initially proposed as part of the Community Safety Act,but was left out when that bill—which created the NYPD inspector general—passed in 2013, during the last Council. Councilmembers Ritchie Torres of the Bronx and Antonio Reynoso of Brooklyn reintroduced them in 2014.
Torres took the lead on a bill to require police officers to provide business cards to residents when they stop them. It is intended to keep police accountable by allowing people to make accurate complaints about stops; many civilian complaints are never resolved because the cop involved cannot be identified.
Reynoso’s measure requires police officers, in many circumstances, to inform people that they have the right to refuse a search.
Both ideas met fierce opposition from the NYPD and its unions.Mark-Viverito struck a deal to have the measures adopted by the NYPD as internal rules rather than imposed on the force via legislation. But Torres and Reynoso kept pushing to codify them into law. Both bills underwent revisions to try to placate the NYPD, but Torres’ changed more dramatically: The final version omitted traffic stops and so-called “level 1” or “request for information” encounters between cops and civilians, which the NYPD patrol guide defines this way:
A request for information is an encounter between a civilian and a uniformed member of the service conducted for the purpose of requesting information from the civilian. The uniformed member of the service must have an objective credible reason to approach the civilian. This type of encounter does not require any suspicion of criminal activity. The objective is to gather information and not to focus on the person as a potential suspect. A police officer may seek information related to the reason(s) the person was approached, such as the person’s name, address and destination if those questions are related to the objective credible reason for the approach. The officer may not ask accusatory questions. The person may refuse to answer questions and/or walk or even run away. Refusal to answer questions and/or walking or running away does not escalate the encounter. At this level, the officer may not seek consent to search, may not use force, and may not create a situation (either by words or actions) where a reasonable person would not feel free to leave.
Torres defended the compromise, noting that the law would still break ground by inserting legislators into day-to-day street encounters between police officers and civilians, and affect the encounters most likely to escalate. Saying that the discomfort of unjustified policy stops “is a pain that I have felt deeply and repeatedly in my own life,” he argued, “Intro 182 will improve the kind of street-level policing that I have painfully experienced” and called it “the most comprehensive police reform the Council has ever passed.”
“Progress in the present does not foreclose the poss of more progress in the future,” he continued. “Young people of color who live the reality of street encounters every day cannot afford to wait.”
He added that including traffic stops “could have the unintended effect of generating hundreds of thousands of summonses” if officers seek to generate a paper trail to justify encounters where they’ve had to hand over a business card.
But Donovan Richards, a candidate for speaker like Torres and six others, said the bill simply didn’t go far enough. “Let’s be clear. The most common interaction between police and my constituents are level 1 and traffic stops, whether the data shows it or not,” he said. And Jumaane Williams, also a speaker hopeful, argued, “This is not about compromise. This about compromise that’s worth it. We should not make the perfect the enemy of the good. We should also not make the good the enemy of what’s needed.”
Williams attempted to make a broader case against the bill during the opening portion of the meeting, hoping to counter a lengthy statement Torres was permitted to read. But Williams was shut down by Mark-Viverito and Public Advocate Letitia James, who presides at Council meetings. Mark-Viverito insisted that longer comments be reserved for later in the meeting when members explain their votes. But since those votes are recorded in alphabetical order, that meant that Williams (the last member on that alphabetical roll call) would get to speak only after everyone else had cast their votes. Williams denounced the lack of debate as a “sham and a shame.”
Whoever becomes speaker of the next City Council (besides Torres, Richards and Williams, the hopefuls are Robert Cornegy, Corey Johnson, Mark Levine, Ydanis Rodriguez and James Van Bramer) will likely preside over a Council that is more contentious. Term limits will force out most of the membership in 2021, elevating the stakes. There are dicey issues around Rikers closure and homeless shelters to decide. There will even be an additional Republican on the body.
That raises the question of whether there will be a place for the kind of open debate that Tuesday’s stated meeting did not permit. The Council under Mark-Viverito staked a claim to being a serious incubator of progressive policy. If it’s going to achieve an even higher status as a deliberative body where the people’s opinions are presented and debated, there will sometimes need to be a place where elected officials can have an argument in front of the cameras — and without the arbitrarily short time limit that the Council oddly imposes on members’ speeches but not on the extensive ceremonies that precede each general meeting.
An even deeper question was framed by the debate, such as it was, over Torres’ bill on Tuesday. One of the Bronx Democrat’s arguments in favor of the compromise version of Intro. 182 was that the NYPD would simply not abide by anything more aggressive.
Had the Council forced the issue, “the mayor would have refused to implement the law, which is his legal right,” Torres said. And if the mayor sued, “there is a real risk that a court would have struck down these laws.”
“Real reform not only requires a change in law. It requires a deeper shift in culture” and the “buy-in of the very institutions whose culture you seek to change,” he added. “We can only change the status quo at a rate that the system can absorb. We are inevitably dependent on agencies like the NYPD for the implementation of our laws. And that dependency requires compromise and cooperation.”
This proposition might be true. But if so, it raises a basic separation-of-powers question that the Council ought to explore. As the National Action Network’s Kirsten Foy said at a press conference on the City Hall steps earlier on Tuesday, “I don’t know any job in the world where I can go to my employer and dictate the terms of my work.” And sometimes, he indicated, that’s what it sounds like the NYPD can do.
Response from Councilmember Ritchie Torres
In your article, you wrote “both bills underwent revision to try to placate the NYPD, but Torres’ changed more dramatically.” Respectfully, I would beg to differ. The City Council’s Legislative Division, which took the lead in negotiating Intro 182 and 541, would emphatically tell you that the latter underwent even more dramatic revision. Intro 541 went from requiring Consent to Search to requiring guidance on Consent to Search. Even though the Administration proposed a comparable change for Intro 182, I rejected the proposal as too dramatic a departure from the original.
Toward the end of your article, after quoting Kirsten Foy, you seem to wonder aloud whether the NYPD is “dictating the terms of its work.” I have two responses to offer. First, no one is suggesting that the NYPD should dictate the terms on which it operates. If the NYPD were “dictating,” neither bill would have gone forward, because the NYPD, from day one, has been loath to concede the Council’s authority to regulate police-civilians interactions. There is a reason the NYPD once denounced the Right to Know Act as an “unprecedented intrusion.”
Second, as you know, the relationship between an employer and employee is hardly analogous to the relationship between the Legislature and the Executive. Unlike the clear-cut power dynamic between an employer and an employee (an employer simply tells an employee what to do), the Executive and the Legislature are independent institutions with independent powers. Each side is fiercely protective of the legal perogatives it possesses under both the Charter and State Law. Neither side gets to freely dictate to the other. Both sides have to negotiate with each other and figure out together the legal terms on which city agencies operate.
Negotiating with the Executive, to which the NYPD belongs, is hardly the same as allowing an employee the power to freely and fully dictate the terms of his employment. That analogy seems faulty to me.