New York is often held up as a city with “civilian oversight” of its police department. But if the word “oversight” is taken to imply the ability to enforce rules and mete out punishment, this is false. There is no civilian oversight of the New York Police Department, and until the City Council recognizes this fact and legislates accordingly, there will continue to be no accountability for NYPD officers who break the rules, sometimes with fatal consequences.
Contrary to popular belief, the police unions are not the problem here. In New York City, issues of police discipline cannot, as a matter of law, be negotiated in collective bargaining. Instead, disciplinary issues are dealt with by statute. The primary statute – the Rosetta Stone of NYC police discipline – is Administrative Code 14-115. This law mandates that any discipline of an NYPD officer – from firing, to docking pay, to formal reprimand – is at the sole discretion of the Police Commissioner. There are no exceptions.
“But wait,” you may now be saying, “What about the Civilian Complaint Review Board?” The CCRB, the source of the civilian oversight myth, was created in its current form by the City Council in 1993 to investigate police misconduct. Since that time, it has played the critical role of helping politicians pretend New York City’s government has any control whatsoever over the NYPD.
The City of New York has constructed an elaborate procedure, from investigations to Board votes to trials, to obscure the disturbing fact that only the NYPD itself holds any disciplinary authority over the NYPD. The CCRB is an impotent observer, and just the first stop in this bureaucratic maze.
Here is what the CCRB does: when civilians make a complaint about police misconduct involving excessive force, abuse of authority (illegal searches, for example), discourtesy (things like rudeness and profanity), or offensive language (usually slurs or other comments targeted against minority groups), the CCRB conducts an investigation. Many investigations end without the CCRB coming to any conclusion at all – in 2019, 2,379 allegations of misconduct were “unsubstantiated,” meaning the CCRB declined to conclude whether an officer was guilty of misconduct or not.
When the CCRB “substantiates” an allegation of misconduct – meaning it finds that misconduct did occur – the CCRB’s board of 13 directors then votes on whether to recommend discipline of a police officer. In less serious cases, the CCRB will recommend anything from no punishment, to training, to a formal reprimand. Pursuant to Administrative Code 14-115, the Police Commissioner is free to reject these recommendations.
In serious cases, the CCRB will recommend that a formal disciplinary process be instituted against an officer, which the CCRB calls “charging” an officer. Serious cases may involve “chokeholds, strip searches, warrantless entries, offensive language, excessive force with serious injury, and sexual misconduct,” or officers with checkered disciplinary histories. Note that in these cases, the CCRB does not recommend any actual punishment, such as suspension or termination. Instead, it recommends a further bureaucratic process, which is referred to by the city government as a “trial.”
The judge in these “trials” is always an NYPD employee, usually the Deputy Commissioner of Trials, who is appointed directly by the Police Commissioner. It is at this point in the process that the power of the CCRB is extinguished, and the Police Department moves into the driver’s seat.
These so-called trials, and the verdicts that come out of them, are notoriously secretive, with records sealed by the recently repealed Civil Rights Law § 50-A. The decisions are not published. The disciplinary recommendations are not published. The legal reasoning behind the decisions is unknown. We have no idea if the NYPD judge is recommending terminations of officers, and if not, why not.
That said, the decisions themselves are not very important, legally. As noted, the Police Commissioner has the authority to reject punishments recommended after trial. And he frequently does so – in 2018, the last year the CCRB has made statistics publicly available, the Police Commissioner instituted the recommended punishment in only 38% of cases that were serious enough to warrant a trial. Toothless reforms instituted in 2019 mandated that the Police Commissioner provide a written statement explaining these deviations. If he has done so, they haven’t been made public.
It is depressingly ironic that NYPD apologists constantly refer to the importance of “due process” for accused officers, when the system in place more closely resembles the kangaroo courts of foreign dictatorships than any first-world democratic justice system. Bill de Blasio, when asked why Daniel Pantaleo was allowed to remain on the force for five years after killing Eric Garner, insisted that Pantaleo needed “due process.” But is it truly due process when the accused is judged by a coworker, or when the accused can have the trial verdict abolished entirely by his boss?
In truth, Pantaleo could have legally been fired by the Police Commissioner the day the video of his chokehold occurred. Alternately, even after his trial– de Blasio’s vaunted “due process” – the Police Commissioner could have decided not to fire him at all. This is not due process, it is smoke and mirrors.
The system has worked to protect officers from firing nearly always, no matter their misconduct.
In 2019, the CCRB substantiated 872 allegations of misconduct. (These statistics are contained in this CCRB report.) 98 allegations of excessive force were substantiated, including 12 uses of illegal chokeholds. The CCRB also substantiated 6 racist comments by officers toward the public. In total, the CCRB in 2019 recommended that 82 police officers be charged and brought to trial.
In that same year, here are the punishments eventually handed down in serious cases: 23 officers lost some vacation days. 3 were given reprimands or less. One was temporarily suspended. And one – Daniel Pantaleo – was fired, after five years of headlines, protests, a grand jury, and countless chants of “I can’t breathe.” To get fired by the NYPD, you need to kill an unarmed man on video.
Pantaleo’s firing made 2019 a banner year for NYPD discipline. In 2018, despite 545 substantiated allegations of misconduct including 73 substantiated claims of excessive force, not a single officer was fired. In 2017, 83 substantiated claims of excessive force, zero terminations. As a matter of practice, NYPD officers who use excessive force do not get fired.
How can we fix this broken system? A radical restructuring of police discipline in New York – one that removes the NYPD from the process entirely – is vital. That will take time. But there are steps the City Council can take right away to insert real accountability into the law.
First, any officer with three or more substantiated excessive force claims should be fired, immediately. The decision should be an automatic one, removed from the discretion of any NYPD employee. Officers with repeated excessive force violations are dangerous to our community. Three strikes, and they are out.
Second, any officer who has been found by the CCRB to have made an unambiguously racist comment on the job should be fired – slurs, for example, would be grounds for immediate firing. There is no excuse for even one racist comment to a member of the public. If you accept the “bad apples” framing, racist officers are the bad apples. Again, this would happen automatically, by law, and without any discretionary authority either for the NYPD Commissioner of Trials or the Police Commissioner.
Third, the rulings that emerge from disciplinary trials must be made final. For those cases of serious misconduct, the Police Commissioner must no longer be permitted to substitute his own judgment for that of the Court. In the cases of minor misconduct that do not require trials, the Police Commissioner’s authority can reign, for now – but in serious cases, this is completely inappropriate and counterproductive to the goal of ridding the NYPD of bad actors.
Each of these changes could be done with a relatively simple redrafting of Administrative Code 14-115. Each is uncomplicated and understandable to lay observers. None of these changes step on the police unions’ contracts in any way. They can be passed tomorrow.
New York City’s rotten system has real-world implications. This week, the Police Commissioner testified that the officers who drove two police cars into a crowd of demonstrators acted appropriately. No doubt, the CCRB will investigate these officers. There may be a trial. Discipline may be recommended. The process will play out over years. But it will all be a farce – the Commissioner has spoken, and so no matter what agencies or judges uncover, no matter what processes are followed, these officers will never be disciplined. The verdict is already in, and the trial has not even started.
We talk, endlessly, about how to avoid the next Eric Garner, the next George Floyd. Some believe policing needs to be rethought and restructured entirely. Some believe the problem with policing is the relatively small number of officers who can’t follow the rules. Both of these groups should support the changes outlined above, which target solely “bad apples,” and would do a lot to avoid another unarmed black man lying dead on the concrete at the hands of a cop.
John Teufel is a freelance writer, attorney, and former investigator for the Civilian Complaint Review Board.