The Limits of NYPD Reform: Is it Possible to Control the Police?

After a summer of protest, a number of proposals are circulating to strengthen civilian oversight of the police department. They face calls for more radical measures, doubts about effectiveness and memories of a seven-decade effort that has fallen short.

On a muggy Saturday afternoon in late May, Soraya Palmer walked along Flatbush Avenue. But she wasn’t taking a leisurely stroll. Instead, the 35-year-old Brooklyn writer was among the hundreds of demonstrators who took to the streets with a soundtrack of their own making, complete with polyrhythmic drum patterns and a stream of call-and-response chants—some profane (“NYPD Suck My —!”), others habitual (“No justice, no peace!”)

Reignited by the killings of George Floyd and Breonna Taylor, rage flowed across the five boroughs as memories of the 2014 chokehold death of Eric Garner after being confronted by NYPD officers in Staten Island reverberated inside a slew of rallies from Union Square to the South Bronx.

“It was the last straw for a lot of people,” Palmer says. “It was powerful seeing how our community, being peaceful, was rising up in that way.”

Once protesters, numbering in the hundreds, arrived to the intersection of Tilden and Bedford avenues, they were met by a massive cadre of NYPD officers—many of whom were clad in riot gear. Police formed a wall, blocking protesters from moving any further. Shortly before leaving the protest, Palmer says that she saw officers rush into crowds. “They just started pepper-spraying and striking people with batons,” she says. “Two of my friends got pepper-sprayed.”

As captured on an NYPD bodycam, Officer Michael Sher, while repeatedly yelling “Get Back!” doled out hard shoves to protesters who were either milling around or had their hands raised. At one point, the officer yanked off the face mask of a demonstrator and pepper-sprayed him. (City Limits has learned that Officer Sher is on modified duty after he was suspended without pay in June, according to the NYPD.)

Hours after the protest began, tensions ratcheted up even further after an empty squad car at Bedford and Tilden avenues was set afire. And at least two other unoccupied NYPD vehicles in the vicinity were damaged when the windows of those SUVs were smashed in. Video captured one officer, who has since been arrested, violently pushing a female protester outside the Barclays Center. Another incident showed a squad car surging into protesters while they were attempting to place barricades in front of the vehicle in Park Slope.

All told, more than 600 arrests took place between May 29 and May 30. Since then, a battery of lawsuits have emerged. And Mayor Bill de Blasio assigned Corporation Counsel James Johnson and Department of Investigation Commissioner Margaret Garnett to probe the NYPD’s handling of the protests.

Five months later, though, critics like attorney and former Civilian Complaint Review Board investigator John Teufel, dismiss the probe as “a charade” that underscores how the NYPD, for the most part, is only answerable to itself. “The monitoring that exists is completely toothless,” argues Teufel. “There are no real consequences when police officers break the rules and break the law.”

Nationwide, the summer’s street protests have—for the most part —given way to public policy maneuvers. In keeping with a decades-long narrative, it’s the civilian oversight of law enforcement agencies that is being prominently touted as one of the most crucial routes to reform.

But civilian control can take many forms, and no single model has proven itself effective in all settings. New York has been arguing for 70 years over how to police the police—a debate that, amid a bump in crime and sustained calls for meaningful reform, is likely to carry over into next year’s mayoral race.

Case history

Back in 1950, the Brooklyn District Attorney’s Office took a blockbuster case worthy of a Perry Mason episode before a grand jury. The caper involved a multimillion-dollar horse gambling ring with bookies named “Porky” and “Peppy” who placed bets at more than 100 illegal parlors across the borough. The bookmakers also stocked up on plenty of “ice”—street lingo for look-the-other-way payments to NYPD officers and commanders. Following the trial, which led to the resignation of the police commissioner and hundreds of officers being demoted, New York State Supreme Court Justice Ferdinand Pecora issued one of the earliest calls for an independent civilian body to monitor the NYPD.

But efforts to reshape policing actually emanated from elsewhere during the early-to-mid 1960s, courtesy of several landmark U.S. Court Supreme Court rulings on everything from evidence gathering to questioning suspects. In New York, however, officers acquired greater powers, beginning with a 1964 law that authorized “no-knock” warrants and stop-and-frisks.

Also that year, at the urging of civil rights groups—namely the Congress of Racial Equality (CORE)—the City Council took up a civilian oversight bill. But law enforcement officials deemed the proposal unnecessary given that a board was already fielding public grievances. Each member of that three-person faction, however, was a deputy NYPD commander.

As CORE held protests in support of the legislation, the Police Benevolent Association staged demonstrations of its own. But in short order, the Council bill imploded. Weeks later, a Black teenager was fatally shot in Manhattan by a white off-duty police lieutenant. And the wave of protests and scattered looting that followed, both in Harlem and Bedford-Stuyvesant, was met by a violent NYPD crackdown, resulting in one fatality, 400 injuries, and 400 arrests.

Outraged, CORE joined other groups like the NAACP and the Puerto Rican Committee for Civil Rights, to convene public hearings on police misconduct. Then-NYPD Commissioner Michael J. Murphy declared that no officer would appear before the ad-hoc committee. “We do not believe in kangaroo courts or public lynchings,” he vowed.

By 1965, however, amid growing public pressure for an independent oversight board, Commissioner Murphy quit. And as the City Council mulled over another proposal—this time, a body composed entirely of Council-members—the whole matter suddenly catapulted to the forefront of the city’s mayoral race when then-Manhattan Congressman John Lindsay devoted the first official speech of his nascent City Hall campaign to policing, and called for adding civilians to the NYPD board.

Civil rights groups, though, balked at the plan since it kept police commanders in place. Still, Lindsay’s remarks were an opening salvo in a pitched battle with both the NYPD and the PBA that lasted for nearly a decade.

In the 1970s and ’80s, a series of notorious incidents brought intense scrutiny upon the NYPD’s use of force—including the shooting deaths of 15-year-old Randolph Evans (1976) and 69-year-old Eleanor Bumpurs (1984); the fatal beatings of Brooklyn businessman Arthur Miller (1978) and graffiti artist Michael Stewart (1983)—which sparked protests, but little in the way of institutional change.

Instead, it was the public disclosures of police corruption that led to the most extensive, high-profile probes of the NYPD in its entire history, both in 1970 and 1992, respectively, via the Knapp and Mollen commissions. (The all-civilian review board was finally instituted in 1993—in the shadow of a bloody 1988 police riot in Thompson Square Park.)

When Frank Serpico, who was a detective in the NYPD’s narcotics unit, appeared before the Knapp Commission in 1971 with sordid tales of police wrongdoing, he famously closed his public testimony by pleading for the formation of “an independent, permanent, public investigative body” to oversee the NYPD.

Now 84, Serpico has survived a 1971 shooting, palled around with Al Pacino for an iconic 1973 biopic, and muses on current events by invoking the works of T.S. Eliot and Jean-Jacques Rousseau.

After tearing up while reflecting on the George Floyd case, during a recent City Limits interview, Serpico shared his deep skepticism as to whether ongoing protests will serve as a catalyst for the type of stringent, autonomous supervision over the NYPD that he proffered decades ago. “Enough is enough,” he says. “Sure, you have to fight the system. But what I want to know is, when is it ever gonna change?”

A system under scrutiny

It depends on whom you ask. As it stands, there’s a bevvy of entities that—to varying degrees—already monitor the NYPD outside of the department’s chain of command. In addition to the CCRB, which monitors police misconduct toward civilians, and the Commission to Combat Police Corruption, which deals with cops misusing their badge for profit, there’s City Hall, the City Council, the state attorney general, five district attorney offices, and the Office of Inspector General (OIG).

Of late, reform advocates in New York have scored some notable victories in the face of fierce opposition from the PBA. Last year, voters approved a ballot proposal to expand the CCRB’s board from 13 to 15 members. Also, Section 50-a of the state’s civil rights law, which shielded public disclosure of police disciplinary records, was repealed and the Eric Garner Anti-Chokehold Act was passed by the state legislature in June.

Moreover, the New York Civil Liberties Union, buoyed by a U.S. 2^nd Circuit Court of Appeals decision in August, has posted a database of officer complaint allegations on its website. And the NYPD—in accordance with a new city law—unveiled a draft for developing a standardized system for disciplining officers who commit acts of misconduct.

But after a public review period that concluded in September, support is largely muted for the proposed “disciplinary matrix” amid mixed reviews.

One aspect, though, that has proven to be a particular sticking point here in New York is compliance. CCRB, which did not respond to a City Limits request for comment, has a $20 million annual budget and a 200-person staff, which the city’s Independent Budget Office contends isn’t sufficient in order to tackle an ever growing caseload. Last year, CCRB received 5,236 complaints—the most since 2014—with assorted claims about improper use of force, discourteousness and abuse of authority on the part of NYPD officers. Over the summer, CCRB accumulated a massive logjam in cases after officers increasingly failed to submit to virtual questioning during a dispute with the PBA over agency’s handling of the misconduct database.

Councilman Rory Lancman, who chairs the Council’s Committee on the Justice System, blamed City Hall for the standoff. “All of the mechanisms are in place for robust NYPD oversight. But the biggest impediment is the unwillingness of the mayor to control and direct the police department to fulfill its obligations,” he says. “When the Council passed my law [in 2017], requiring the NYPD to provide data on fare evasion arrests and summonses, the NYPD simply refused to do so. I had to go to court and successfully sue to get the data. Any lack of oversight over the NYPD comes from the mayor’s refusal, or inability, to get the police department to obey the law on a consistent basis.”

Not so, argues Mayor de Blasio’s spokesman Bill Neidhardt. “At his core, the mayor believes in transparency and reform, as his record clearly shows,” Neidhardt said in a statement to City Limits. “Officers are mandated by the Mayor’s Commissioner to sit down with CCRB and show up for all interviews, both virtual and in-person. The mayor’s goal is to strengthen the bond between police and neighborhoods, and that starts with cooperation and a drive for reform.”

And yet, the proof on the limitations of civilian oversight in New York, advocates say, are revealed in the discrepancy between CCRB’s discipline recommendations and the actual outcome. In the first six months of 2019, for instance, CCRB substantiated 182 misconduct complaints against 253 officers. The agency also found that the police commissioner adhered to its recommendations for command discipline or training just 52% of the time.

Over the summer, CCRB announced that it’s been ordered to cut some $1.1 million from its coffers amid a widening COVID-related budget crisis for the city.

Lessons from out of town?

The Arizona-based National Association for Civilian Oversight of Law Enforcement (NACOLE) reports that it has received more than 100 inquiries in recent months, from Dallas to Richmond, Va., seeking consultation services, either for revamping current oversight boards or in developing new ones.

The vast majority—totaling more than 60 percent of those panels nationwide, according to NACOLE—receive and review officer misconduct allegations before turning over the substantiated cases to police departments for additional investigations and eventual reprimand.

Increasingly, though, advocates have been pressing for boards to have even greater sway over police discipline and accountability. In February, for instance, Oakland’s mayor fired the police commissioner, following a unanimous vote by the city’s civilian police commission.

But just how much power civilian oversight panels should have remains the subject of considerable legal and legislative wrangling in jurisdictions nationwide, from Newark and Philadelphia to Baltimore and Chicago.

“The same civilian oversight model isn’t always appropriate in two different places. What might be very effective in New York might not work for Chicago, or vice versa,” says Seth Stoughton, an associate professor at the University of South Carolina School of Law. “If there’s a highly contentious relationship between the police union and the city, then the oversight board might need subpoena power to demand documents that the agency or the union might not want them to turn over. In other places, they don’t need subpoena power because they already have access to that information. So, different places have different needs.”

One of the fastest growing models—which has recently been instituted by the state of Connecticut and in cities like Louisville, Ky.—are “hybrid” systems that, much like in New York City, have review panels with subpoena power and inspector generals who survey police procedures.

Yet despite the growing prevalence of such bodies, very little research about their proficiency, or lack thereof, exists. (In a forthcoming NACOLE report, funded by a U.S. Department of Justice grant, the performance of boards in nine individual case studies is explored.)

The murky evidence from other cities hasn’t deterred local proponents for robust civilian oversight from championing their own prescriptions. This includes the New York State Attorney General’s Office, which in its preliminary July report on the NYPD’s response to the George Floyd protests, called for establishing a board “that has the authority to hire and fire NYPD leadership, including the commissioner, has unfettered access to records, and approves the NYPD’s budget.”

Months earlier, Assemblywoman Nathalia Fernandez (D-Bronx) introduced legislation for developing a new independent civic body that would not only hold disciplinary trials for police officers—as CCRB currently does—but would also look into purported acts of wrongdoing by prosecutors and judges. “How can you have a system that checks itself, corrects itself, investigates itself, monitors itself and then judges itself?” asks former-cop-turned Bronx investigator Manuel Gomez, who crafted the proposal. The bill, however, failed to gain any traction in the Assembly.

Meanwhile, Palmer periodically patrols the streets of Flatbush, where she’s been recording encounters between NYPD officers and locals for E4F’s “Cop Watch” program since 2016. The current framework of civilian oversight, and the various proposals being offered up to strengthen it, make little sense to her. “What does oversight do exactly? I don’t really see how any kind of oversight is going to help when the police can just overrule a decision,” she argues. “Reform can’t really do much, at this point, until the entire idea of what a police officer is, is transformed.”

It’s a sentiment that strikes at the core of what many activists have long felt, but have often been reluctant to say in the battle for reform—namely that civilian oversight, however rigorous, invariably fails to address perennial problems, such as biased policing. And so, the argument goes, boards, by their very nature function more like umpires as opposed to disruptive, change-agents.

That realization seems to be sparking a gradual shift in strategy in some quarters. Recently, 40 former CCRB investigators co-signed a statement to the Daily News that endorses revisiting NYPD policies outlined in its patrol guide to generate greater accountability in misconduct cases. “I think people are seeing that civilian oversight is not the only solution,” says Andrew Case, a former CCRB spokesman. “It’s really important that you have different prongs of reform, which should also include addressing the rules that govern policing.”

More than 35 years after an all-civilian police review panel was instituted in New York, the very premise is now at the crossroads at the same time when CCRB has been rummaging through a backlog of more than 1,000 cases, hundreds of which have been tied to recent protests. “The question is no longer whether there needs to be civilian oversight. It’s really a question of, ‘What’s the best fit for this community?’” explains Stoughton. “You have community members who say that effective oversight means that when an officer actually does something wrong, that the case is handled appropriately. But as we’ve seen, ‘appropriately’ is something that is often subject to dispute.”