Police Practices and Civil Rights in New York City

Chapter 4

Monitoring of Civilian Complaints 

The New York City Police Department and external oversight entities share the responsibility of investigating and disciplining New York City police officers who are accused of police misconduct. The initial section of this chapter discusses monitoring responsibilities assigned to the NYPD, principally, detecting illegal activities through its Internal Affairs Bureau (IAB). Although the chief task of Internal Affairs is monitoring corruption, due to the lack of data provided to this Commission relating to the Internal Affairs Bureau, it is difficult to ascertain the exact role IAB plays in monitoring civilian complaints.

The subsequent section of this chapter discusses the Civilian Complaint Review Board (CCRB), which is the independent agency charged with oversight of the police for most categories of civilian complaints. This discussion of the CCRB begins with an overview of its history and jurisdiction over civilian complaints. It includes a description of each of the CCRB’s major functions—investigation of civilian complaints, statistical tracking of civilian complaints, consideration of particular police abuses, and community outreach. Although the CCRB experienced difficulties during its first few years in operation, its record has improved significantly since 1996. This chapter then concludes by recommending changes that the CCRB, the NYPD, and the city government can make to improve monitoring of civilian complaints against the department.

Internal Monitoring

Although much of the responsibility for investigating civilian complaints now lies with agencies that are independent of the NYPD, the department does remain responsible for investigating allegations of police corruption and negligent conduct in the line of duty. The department offices responsible for investigating these allegations, the Internal Affairs Bureau and the Office of the Chief of Department, therefore, are primary areas to analyze civilian complaints of police misconduct.

Internal Affairs Bureau

In 1993, the NYPD, in an effort to battle corruption and other serious misconduct by officers within the department more effectively, established the Internal Affairs Bureau and eliminated the Inspectional Services Bureau, Internal Affairs Division, and field internal affairs units.[1] The role of IAB is to investigate allegations of corruption and other “serious misconduct” by police officers, whether raised by civilians or members of the force.[2] As the NYPD is currently structured, the IAB appears to be concerned primarily with rooting out corruption and other related offenses such as bribery.[3] The NYPD has authorized its Employee Relations Section to investigate allegations of retaliation against officers who volunteer evidence in misconduct investigations concerning other officers in certain cases.[4]

Any investigation of abuses of citizens by police officers is incomplete without at least some discussion of police procedures for preventing (and punishing) acts of police brutality. Investigating high-profile acts of police corruption in 1993 and 1994, the Mollen Commission noted that police corruption and brutality are closely bound together.[5] The Mollen Commission acknowledged that corruption-prone officers were more than five times as likely than other officers to have excessive force allegations filed against them.[6] And, for many officers, commission of brutal acts toward innocent civilians is a critical step on the path toward corruption.[7] Furthermore, the Mollen Commission found that often other police officers tolerate this brutality.[8] Because of this link between brutality and corruption, the Mollen Commission concluded that the NYPD’s efforts to combat corruption must play an important part in ensuring that NYPD residents are free from police brutality.[9]

Recognizing the importance of this link, the New York City Council has attempted to create a mechanism for citizen oversight of IAB.[10] In 1995, the City Council authorized legislation to create an Independent Police Investigation and Audit Board (IPIAB).[11] The board would monitor the internal anticorruption efforts of IAB and the NYPD, conduct independent investigations of allegations of corruption, and formulate recommendations for conduct of anticorruption investigations by the NYPD.[12] The mayor has not implemented the IPIAB, and the New York Court of Appeals held that the law, as initially drafted, violated the City Charter by giving the City Council, rather than the mayor, the power to appoint the members of the IPIAB.[13] In response, the New York City Council redrafted the legislation to give the mayor the authority to appoint the members of the board, while retaining the authority to designate several of those appointees.[14] The mayor, however, vetoed that legislation.[15]

Without thorough information describing IAB’s structure, operations, and disposition of allegations it is charged with investigating, the Commission is unable to determine the role that IAB should play in combating police abuses.[16]

Office of the Chief of Department

Allegations of police misconduct that are neither within the purview of IAB nor within the CCRB’s jurisdiction are referred to the Office of the Chief of Department (OCD) for resolution. These claims usually allege behavior such as insubordination, sleeping or hiding out while on duty, or other failures to act while on duty. Under the current protocol, the NYPD apparently has given local commanders the responsibility for investigating most complaints.[17] These complaints are only referred back to the officer in charge of the subject officer’s command, who is then required to conduct an appropriate investigation.[18] When the investigation produces evidence to suggest that disciplinary measures may be warranted, the case may be referred to the Department Advocate’s Office for further investigation or the development of charges as may be warranted.

Given the nature of these claims, complaints falling within the jurisdiction of OCD are less likely to implicate civilian civil rights concerns. However, the NYPD has provided little information on the exact structure of OCD, the requirements for conducting investigations, and the manner in which OCD cases have been handled. The production of such information would permit the U.S. Commission on Civil Rights to perform a meaningful review, and be useful in determining whether OCD reform is warranted to improve the handling of civilian complaints.[19]    

External/Civilian Monitoring and Oversight

The majority of complaints raised by civilians against NYPD officers are within the jurisdiction of the city’s main agency charged with oversight of civilian complaints of the police force, the Civilian Complaint Review Board. Although the CCRB was once a part of the NYPD, New York City officials consider it as an independent mayoral organization, charged with reviewing civilian complaints, making disciplinary recommendations to the NYPD, and identifying noteworthy trends in civilian complaints.[20]

Perceptions of Police Misconduct

Number of Civilian Complaints

Varying estimates exist of the true scope of police misconduct in New York City. Witnesses who testified at the Commission hearing in May of 1999 similarly reflected a range of perceptions of the frequency of this problem. In order to determine the magnitude of police misconduct, several witnesses examined the number of public complaints against New York City police officers that have been filed with the Civilian Complaint Review Board.[21] According to Mayor Giuliani, there was a decline in the number of CCRB complaints per police officer from 1984 to 1999, even though the current police complement has increased by about 8,000 additional officers since the beginning of this time period.[22] Moreover, the mayor explained:

When . . . you look at the number of complaints per police officer last year and the year before, [they] were two of the lowest years that we’ve had in about 15 or 20 years. . . . [W]e divide our complaints into different categories, the most serious of which is the use of force when someone alleges that they were beaten or they were hit unnecessarily. In that area, there’s been a really substantial decline in the number of complaints made against police officers and that goes back to before the [Civilian Complaint Review] Board was independent in 1993, 1994.[23]

In contrast, some witnesses maintained that there are other ways to determine the scope of police misconduct. For example, Eliot Spitzer, attorney general for the State of New York, testified that the actual magnitude of police misconduct is unknown. As a result, the Attorney General’s Office, Civil Rights Bureau, is using various mechanisms, such as its own data collection form, to capture this information. He told the Commission:

It is our belief that there are a significant number of allegations that do not at this point end up either within the CCRB or any of the other institutions that exist to collect reports of alleged impropriety. . . . [I]t is our view that there are a sufficient number of such alleged incidents so that by reaching out into various communities at speak-outs, for instance, where we have listened to such allegations, if we’d reach out into various communities and distribute the [com­plaint] form, we will receive an important body of data, which we can then use to try to determine again the scope of the alleged incident and improper contact between police and citizens.[24]

Similarly, the testimony of Rev. Calvin Butts, pastor of the Abyssinian Baptist Church, suggested that the CCRB may not have an accurate assessment of the magnitude of police misconduct in New York City:

[P]eople don’t complain to the Civilian Complaint Review Board any more. They don’t want to go to the precincts to be harassed. They complain more to us. They come into my office and they say, “I’ve been stopped by the police, I’ve been harassed, I’ve been pushed around, I’ve been cursed out, my apartment was broken into.” Because they don’t believe that the Civilian Complaint Review Board, based on past experience is going to do anything to help.[25]

In addition, Rev. Butts indicated that in the past, the CCRB received fewer complaints due to the staffing changes in the city’s administration and the Police Commission. However, he also noted that since then, there has been an increase in the number of complaints to the CCRB.[26]

Another witness, Norman Siegel, executive director of the New York Civil Liberties Union, observed that while the crime rate has declined in New York City, there has also been a 39 percent increase in CCRB complaints.[27] He noted the following: “Between 1994 and 1998, there were 26,000 complaints containing 40,000 allegations of police misconduct with almost 15,000 allegations of excessive force filed at the CCRB. . . . This is a pervasive problem, not the result of a few bad apples.”[28] Moreover, Mark Green, public advocate for the City of New York, recognized that the crime rate has decreased during the past 6 years in New York City. However, he contended that between 1992 and 1998, there was a 44 percent increase in civilian complaints of police misconduct.[29] According to a 1997 Public Advocate study, this growth in the number of civilian complaints was concentrated in minority communities.[30] Mr. Green also explained that during former mayor David Dinkins’ administration in 1993, there were 125 civilian complaints per 1,000 police officers. During the first year of Mayor Giuliani’s administration, there were 160 complaints per 1,000 police officers. The current data indicate that there are 128 complaints per police officer.[31]

Possible Causes of Police Misconduct

There are numerous factors that may contribute to the incidence of police misconduct in New York City. Testimony elicited from several witnesses summarized these factors into several overall categories: an NYPD internal procedure, the “48-hour rule”;[32] racism; the lack of discipline for recalcitrant police officers; as well as little incentive to protect civilians’ civil rights. In reference to the 48-hour rule, Rev. Al Sharpton, president and chief executive officer of the National Action Network, remarked that “no one is given 48 hours in this country to decide whether to answer a criminal allegation, a policeman that is trained should be able to describe it more quickly than a regular civilian. . . .”[33] Margaret Fung, executive director of the Asian American Legal Defense and Education Fund, offered additional comments:

[T]he 48-hour rule was secured through the union contract with the PBA [Police Benevolent Association] which permits police officers not to speak about incidents for which they’re being questioned. It doesn’t deal with the situations where a crime is being investigated and a police officer may wish to invoke his or her constitutional rights. The problem with the 48-hour rule and the reason why it’s become such a big issue in communities is the clear perception that police officers are taking their time to get their stories together and you never have a clear understanding of what has occurred. That’s why the community consistently will question why police officers are allowed to get away with incidents time and time again. Now it’s obvious that the mayor had said in the past that he wants to eliminate the 48-hour rule in the next contract negotiations and that will be one step . . . in trying to be sure that police are held accountable for their actions, but it’s only one small step I would say in security and restoring public confidence in the police as well as assuring that there’s police accountability.[34]

However, James Savage, president of the Patrolmen’s Benevolent Association, maintained that the 48-hour rule is included as a negotiated clause in New York City police officers’ employment agreement. According to Mr. Savage, this regulation facilitates the police union’s and the NYPD’s investigations of alleged administrative violations.[35] He also noted that the 48-hour rule serves as a mechanism to protect police officers’ Fifth Amendment rights.[36]

Secondly, some observers maintained that the presence of racism and bias are other possible factors in incidents involving police misconduct in New York City. In light of the Abner Louima, Amadou Diallo, and Anthony Baez cases, authorities and community groups have closely examined and questioned the NYPD’s protocols and procedures. For example, according to Norman Siegel, executive director of the New York Civil Liberties Union, “[i]n 1988, African Americans, who represent about 25 percent of this city, filed 50 percent of the almost 5,000 complaints filed at the CCRB. For the 5-year period [of] 1994 to 1998 [it was] 51 percent. Three out of every four complainants are African American or Latino.”[37] Another witness, Sergeant Anthony Miranda, president of the Latino Officers Association, also confirmed that blacks and Latinos register a disproportionate number of civilian complaints. Moreover, he contended that white police officers are often the subject of these allegations.[38]

Other witnesses contended that additional factors may contribute to the incidence of police misconduct. For example, James Savage contended that positive performance eval­uations are not issued to police officers when they protect civilians’ civil rights.[39] Instead, they are rewarded for activities such as seizing sizable amounts of narcotics, issuing a significant number of summonses, and making a substantial number of arrests.[40] One witness testified that the NYPD rarely disciplines those police officers who have been involved in previous wrongdoing. Specifically, according to William Harrell, vice president of the National Lawyer’s Guild and executive director the guild’s National Police Accountability Project, three of the four officers who allegedly shot Amadou Diallo were previously involved in police misconduct incidents and had earlier complaints filed against them with the CCRB.[41]

Thus, there are differing perspectives of the actual level of police misconduct in New York City, which are derived from the number of complaints registered against police officers either with the CCRB or local community organizations. According to the collective perceptions of several witnesses at the hearing, factors such as the 48-hour rule, the possible presence of racism in the NYPD, infrequent discipline of officers involved in misconduct incidents, and little incentive for police officers to enforce civilians’ civil rights, contribute to the incidence of police wrongdoing.

Overview of the CCRB

The CCRB as Part of the NYPD

The Civilian Complaint Review Board has overseen the investigation of civilian complaints against police officers in New York City since 1953.[42] Originally, the board consisted of three deputy police commissioners who reviewed the reports of investigations by the board’s staff. They provided the police commissioner with their recommendations for disciplinary action.[43] In 1966, four private citizens were appointed to the board, but that was eliminated later the same year, returning the CCRB to an entirely NYPD operation.[44]

In 1986, then-mayor Ed Koch, in accordance with City Council legislation, appointed six civilians to the board, and the police commissioner appointed another six members. A year later, the CCRB’s investigative unit, the Civilian Complaint Investigation Bureau (CCIB), began hiring civilian investigators. The CCRB staff, however, remained composed entirely of police department employees.

Creation of an Independent Civilian Review Board

In 1993, the New York City Council, working with then-mayor David Dinkins, voted to replace the internal police Civilian Complaint Investigation Bureau with an external monitoring Civilian Complaint Review Board.[45] This amendment to the City Charter became effective on July 5, 1993, the date on which an independent CCRB composed entirely of private citizens became a functioning agency. Since that time, the CCRB has been made up entirely of private citizens.

Jurisdiction and Authority of the CCRB

The CCRB is authorized to investigate allegations of police misconduct involving (1) force, (2) abuse of authority, (3) discourtesy, and (4) offensive language.[46] The agency has jurisdiction over officers of all ranks who are members of the NYPD, with respect to these types of complaints.[47] However, the CCRB has no authority to impose discipline on an officer.[48] When the CCRB determines that an allegation in a substantiated case is meritorious, it refers that complaint to the NYPD for disciplinary action. The CCRB’s authority is limited to recommending disciplinary action; only the department is empowered to discipline officers.

CCRB Function, Operations, Staffing, and Resources

As previously noted, the Civilian Complaint Review Board is charged with investigating allegations of police misconduct against civilians and recommending action. Frank H. Wohl, chairman of the Civilian Complaint Review Board, testified about the overall function and composition of the organization:

The board is comprised of 13 members. The mayor appoints members of the board who, as required by the authorizing statute, must be residents of New York City, must not work for any governmental agency, and must reflect the diversity of the city’s population. The City Council designates five members of the board: one representative from each of the city’s five boroughs. The police commissioner designates three members of the board, who are the only members who may have previously worked as law enforcement professionals. And the mayor designates the remaining five board members, including the chair. Board members serve for 3-year terms. The board hires the executive director, who, in turn, hires and supervises the agency’s staff. The CCRB’s staff is comprised solely of civilians.[49]

The CCRB currently employs a staff of 163 of an authorized complement of 171 positions. The agency has on staff 107 investigators of the 115 who have been authorized and an administrative and clerical staff which at full capacity number 56. By June 1999, we expect to bring the number of investigators up to the full authorized 115.[50]

Further, the number of CCRB investigators has also risen from 87 to 115 since 1997. Chairman Wohl added, “Eight investigative team managers with substantial law enforcement experience have been hired as well as eight additional investigative supervisors. These improvements have allowed the number of cases per investigator to drop significantly from 85 cases in January 1994 to 22 cases per investigator in May of 1999.”[51] Moreover, Mayor Giuliani noted that his administration has increased the CCRB’s financial resources by 30 to 40 percent.[52]

Complaint Procedures

The CCRB investigates allegations of force, abuse of authority, discourtesy, and offensive language. It does not have the authority to discipline recalcitrant officers.[53] However, NYPD police officers of all ranks are subject to the CCRB’s jurisdiction.[54] According to the agency, individuals who are victims of or witnesses to a police misconduct incident are urged to file a complaint with the Civilian Complaint Review Board in a timely manner. Complainants are encouraged to collect various types of information before filing a complaint, such as “any identifying characteristics of the police officers, the names, addresses, and telephone numbers of witnesses and/or victims, and the time, date, and location of the incident.”[55] Civilians can file complaints through the CCRB’s Internet complaint form; or its telephone hotline, which operates 24 hours a day and 7 days a week. Other methods include mailing the complaint; or presenting the allegations to the IAB, the CCRB’s office, or at police precincts and facilities.[56] It is also not required for complainants to be New York residents or U.S. citizens, in order to register a complaint of police misconduct.[57]

Once a complaint has been filed, the complainant meets with a CCRB investigator to review the details of the allegation. The investigator then begins to collect factual evidence relating to the complaint by interviewing victims as well as civilians and police officers who may have been possible witnesses to the incident, obtaining relevant police reports and records, observing the scene of an incident, and reviewing medical records.[58] If necessary, the CCRB can employ subpoenas to gain access to NYPD documents and police officers’ testimonies.[59]

The CCRB considers some cases as high-priority situations. In these instances, the NYPD promptly furnishes pertinent documents and records and forwards them to the CCRB. According to CCRB’s chairman Frank Wohl, these situations are “cases involving serious force or cases in which the subject officer has six or more complaints in 5 years or cases which involve a subject officer appearing on the police department’s CCRB profiling and assessment program.”[60] Moreover, police officers involved in (or having knowledge of) alleged police misconduct incidents cannot rely upon the Fifth Amendment’s constitutional protection against self-incrimination.[61] Specifically, “[i]f an officer fails to answer a question, his or her failure can result in immediate suspension without pay from the police department and formal charges of insubordination. The officer’s failure to cooperate with the CCRB could lead to the officer’s termination.”[62]

Complaint Disposition

Once information pertaining to the complaint has been obtained, CCRB investigative staff submits the cases for disposition to a monthly case review panel. These panels are composed of representatives from the mayor’s office, the New York City Council, and the police commissioner.[63] They examine “full investigation cases,” “truncated investigation cases,” and “alternative dispute resolution cases.” Chairman Frank Wohl’s testimony provided further information about these cases:

[Full investigation cases] begin as soon as the case is filed. The complaint is assigned directly to an investigative team. A supervisor then reviews the case and assigns it to an investigator, who must attempt immediately to contact the complainant within 24 hours of receipt to schedule an interview. When the complaint is made in person at the CCRB, an intake interview takes place immediately. During the interview, the complainant is asked to give a complete statement concerning the alleged misconduct. . . .

In its review of fully investigated cases, the board uses the preponderance of the evidence standard of proof. This standard simply means that the board must perceive the weight of the credible evidence as favoring its findings. The authorizing statute of the CCRB mandates that the board may not make any finding or recommendation based solely upon an unsworn complaint or statement, nor may the board base any present finding or recommendation based on prior unsubstantiated, unfounded, or withdrawn complaints.

The board notifies the parties to a complaint by letter of its findings and recommendations. Substantiated dispositions, those in which the investigation establishes to the board’s satisfaction that the misconduct occurred, are forwarded to the police commissioner along with recommendations regarding disciplinary measures.

Truncated investigations are cases in which the investigations are started but do not reach completion. Beginning in January 1, 1998, the category of truncated cases incorporated cases that would have previously been disposed of as administratively closed. Since the new classification has been implemented, the CCRB has been in a better position to track reasons why investigations are not completed. . . . The truncated category distinguishes between cases in which complainants were uncooperative, those who were unavailable, and those who decide to withdraw their complaints.[64]

Alternative dispute resolution (ADR) is suggested for less serious cases that are amenable to resolution through either conciliation or mediation. Cases involving allegations of excessive force resulting in injury or property damage are not eligible for ADR, nor are cases involving allegations against an officer with a lengthy history of CCRB complaints.[65]

During mediation, complainants and police officers attempt to settle their disputes.[66] The outcome of this voluntary and confidential process cannot be used in any subsequent judicial or administrative proceeding. In addition, only the complainant, the officer, and the mediator may be present in the mediation room, although the parties may have legal counsel available to them outside the mediation room.[67] If the parties can settle their differences, then a resolution agreement is signed.[68] In the event the parties agree that the matter is resolved, then the allegations are removed from the police officer’s CCRB record. In 1998, 14 of 5,312 complaints (0.3 percent) were successfully mediated.[69] However, if mediation does not resolve the issue, then the CCRB can continue to investigate the complaint.[70]

Conciliation attempts to reinforce proper police conduct and procedure without going through formal disciplinary mechanisms. The complainant must agree to resolve the complaint through conciliation, but the consent of the subject officer is unnecessary.[71] The conciliation consists of a meeting between the subject officer and a senior member of the CCRB staff.[72] The officer and staff member discuss the alleged incident and review proper police conduct in those circumstances. The conciliated complaint remains on the officer’s record, along with a notation that the complaint was resolved through conciliation. In 1998, 5.8 percent of closed cases (309 of 5,312) were resolved through conciliation.[73]

CCRB Findings and Standards of Proof

After an investigation is completed, the CCRB identifies each complaint as one of the following dispositions:

Complaints and their dispositions usually remain on the subject officers’ records, regardless of the board’s resolution.[75] If the board (or panel of the board) concludes that an allegation is substantiated, the allegation is forwarded to the NYPD for possible disciplinary action. When the board refers such a case, it may also recommend a disciplinary measure.[76] Three types of discipline are possible:

Other than making a recommendation to the police department, however, the CCRB can take no action against the subject officer. Pursuant to the City Charter, the authority to discipline officers rests solely with the police commissioner.[81] Moreover, in addition to the “substantiated,” “unsubstantiated,” “exonerated,” and “unfounded” dispositions, the CCRB can also conclude that a complaint meets the criteria for an “other misconduct” category. In these instances, it is determined that a police officer provided false information during the CCRB’s investigation, or neglected to complete required stop and frisk reports.[82] The CCRB then forwards the names of police officers in these cases to the police commissioner for disciplinary action.[83]

NYPD Responses to Substantiated Complaints

The NYPD’s first deputy commissioner is administratively responsible for managing the disciplinary system of the police department.[84] The first deputy commissioner oversees the Disciplinary Assessment Unit, which is charged with ensuring that the NYPD’s discipline system responds accurately and equitably.[85] Ultimately, substantiated allegations of police misconduct are referred to the NYPD’s Department Advocate’s Office (DAO):[86]

The primary mission of the Department Advocate’s Office is to prosecute disciplinary cases brought against members of the Department. . . . Each year, in excess of one thousand disciplinary cases are processed through the system. This includes both administrative trials and negotiated settlements. The goal of the Department Advocate’s Office is to maintain an efficient disciplinary system that effectively deters misconduct and corruption while remaining cognizant of individual member’s rights.[87]

In order to determine the specific course of action for substantiated complaints, the DAO also considers the CCRB Steering Committee’s recommendations relating to disciplinary actions. This committee is composed of the first deputy commissioner, members of his staff, representatives from the DAO, representatives from the Disciplinary Assessment Unit, and the Special Prosecutor’s Office.

The Administrative Officer, Managing Attorney, Commanding Officer, the Director of the DAO, and the Advocate all make recommendations as to what action should be taken, including whether charges should be brought and the reasons for the recommendation made. The Police Commissioner ultimately decides whether Charges and Specifications should be filed against the police officer.[88]

Although the DAO is responsible for the “prosecution” of the complaint against the subject officer, the DAO also ensures that a sufficient legal basis exists for any charge brought against a police officer.[89] The NYPD contends that even at this point in the process, many of the complaints do not warrant disciplinary action because the evidence adduced is insufficient to support a prima facie case.[90] Howard Safir, commissioner of the NYPD, described his role in the disciplinary process in further detail:

If the [CCRB] substantiates a complaint, it is referred to me for further action. . . . I must work carefully within legal parameters established by the civil service law in the New York City Administrative Code, which provides for full evidentiary hearings to ensure that police officers accused of misconduct are disciplined in a fair and equitable manner. My staff reviews the cases. And if a prima facie case exists, the office, represented by counsel, has the option to demand the full administrative trial prosecuted by a department advocate. The trial commissioner makes a recommendation of finding and penalty, and I make the final decision. My decision must be supported by a preponderance of the credible evidence in order to satisfy applicable law. You can see from this description of the process that a substantiated complaint may not result in disciplinary action for many reasons, including the difference in our statutory requirements.[91]

After referral to the DAO, therefore, a team of police investigators assigned to the CCRB unit of the DAO often conducts additional investigations to determine whether disciplinary action is appropriate.[92] The DAO also reviews the charge to determine whether the allegation must be dismissed on other nonsubstantive grounds, such as expiration of the 18‑month statute of limitations.[93]

After evaluating the referred complaint and any additional evidence gathered through additional investigation, the DAO’s CCRB team makes a disciplinary recommendation to the department advocate, who may choose to implement discipline ranging from dropping the complaint to serious disciplinary action such as formal charges and specifications. If the complaint is dropped, no further action is taken. In the event that the department advocate maintains that informal discipline is appropriate, the subject officer is referred to his or her commanding officer for action. Lastly, if the department advocate contends that charges and specifications are warranted, then an administrative trial will be initiated.

 New York City’s Office of Administrative Trials (OATH) conducts formal administrative proceedings for accused NYPD staff who are not above the rank of police officer. OATH is not a part of the NYPD. The deputy commissioner also conducts formal disciplinary hearings. Once a trial has been conducted, those findings are reviewed by the department. If any of the accused are above the rank of officer, then the first deputy commissioner reviews the findings. The first deputy commissioner then refers his decision to the police commissioner for approval. In all cases, the commissioner has final authority to determine the discipline that will be imposed, if any.[94] In any event, the substantiated CCRB charge remains on the officer’s record, along with any disciplinary determination.

CCRB Complaint Investigation and NYPD Disciplinary Proceedings

During its initial years as an independent agency, the CCRB experienced difficulties in conducting efficient and effective investigations. In a number of cases, the CCRB failed to conduct complete investigations. Similarly, the NYPD’s low rate of discipline issued to police officers in the CCRB’s substantiated cases featured the CCRB as an ineffective entity.

Starting with changes made in 1997, however, the CCRB may be reversing that trend. After hiring more investigators, some of whom had extensive previous law enforcement experience, the CCRB completed more investigations—and substantiated more allegations of misconduct—than ever before. The NYPD has also stepped up its efforts since that time, as an increasing percentage of complaints that the CCRB deemed substantiated resulted in disciplinary action. Recent figures for both the CCRB and the NYPD, however, suggest that this reversal is far from complete.

Early CCRB Investigation Practices

Several problems plagued the CCRB during the first couple of years after the independent CCRB began its operations on July 5, 1993. Initially, the agency was understaffed, underfunded, its investigators were inexperienced, and the agency was burdened by various administrative barriers. Discontinuity in leadership roles also plagued the CCRB during its initial years, since the board had four different chairpersons in its first 6 years of existence.[95] The critical result of these problems may have been the ineffectiveness of investigations conducted during those years. For the vast majority of complaints, a full investigation was never conducted. For example, during the second half of 1996, only 773 of the complaints (27.4 percent) closed during that period received a full investigation.[96] Another 387 cases (13.7 percent) were resolved through alternative dispute resolution.[97] The majority of investigations, however, were either administratively closed (47 percent) or truncated (11 percent) for unspecified reasons.[98]

In the relatively few cases where a complete investigation was conducted, that inquiry often lasted more than a year. In January 1996, a full investigation of a CCRB complaint took an average of 16½ months. This prolonged investigation time, which characterized CCRB complaints from its 1993 independence through the end of 1996, adversely affected the ability of the CCRB to substantiate complaints and refer them to the NYPD. As is the case with any inquiry, investigators are challenged by witnesses’ fading memories and lost evidence. Any delay, therefore, will almost always result in a lower percentage of substantiated cases. Secondly, in cases where misconduct occurs, delays may provide police officers with the opportunity to ensure that their accounts are consistent.[99]

Finally, the slow pace of CCRB investigations led to a very low percentage of complaints being substantiated by the CCRB. During the second half of 1994, less than 4 percent (3.8 percent) of civilian complaints closed were deemed substantiated.[100] During the first half of 1995, only 3 percent of civilian complaints closed during that period were deemed substantiated.[101] Fewer than half of the cases considered during this period were investigated fully.[102]

This trend continued through the end of 1996. For example, during the second half of 1995, 18.1 percent of fully investigated complaints were substantiated, suggesting that many of the filed complaints may have had merit.[103] In 68.5 percent of cases reviewed by the CCRB during this period, either the CCRB did not conduct an investigation or the investigation was closed prematurely.[104] However, the substantiation rate of complaints cannot be the only measure of the CCRB’s success or failure. Such a low substantiation rate over an entire year and a half suggests that many complaints that should have been investigated more thoroughly received only cursory attention and an incomplete investigation.

This failure to substantiate large numbers of civilian complaints may reflect the CCRB’s inability, as an institution, to effectively investigate large numbers of claims during the period from July 1993 through December 1996.[105] Over that time period, the CCRB received approximately 18,300 misconduct complaints. Only 28 percent of those complaints received a full investigation; the vast majority of complaints were either “administratively closed” due to the uncooperativeness of the complainant, or the investigation was ruled “inconclusive,” that is, the investigation was concluded without substantial evidence to conclude either that misconduct had or had not occurred.[106] By the end of 1996, the CCRB had accumulated a backlog of 2,517 cases, in which the investigations had not been completed.[107] As a result, by any measure, the first 3½ years of CCRB investigation produced unsatisfactory results.[108]

NYPD Disposition of Substantiated Complaints through 1996

Accordingly, the CCRB’s ineffectiveness in investigating claims influenced the amount of actual discipline imposed against officers with substantiated misconduct complaints. In 1996, for example, the police department disposed of only 176 substantiated complaints. One hundred and one of those complaints were dismissed on the grounds that the evidence against the officer was insufficient to support a prima facie case even though the CCRB had previously investigated the complaint and concluded that credible evidence supported it.[109]

This low percentage of substantiated cases resulting in police officer discipline may have been, in part, a reaction by the NYPD to the relocation of the CCRB outside the police department.[110] Before the creation of a wholly independent CCRB, the department dismissed relatively few substantiated charges. In 1992, for example, the last entire calendar year during which the CCIB resolved civilian complaints, Police Commissioner Kelly dismissed 30 of 176 substantiated complaints; previously in 1991, 26 substantiated complaints, out of a total of 183, were dismissed after the CCIB concluded that evidence substantiated the charges at issue.[111] It appears, therefore, that the newly independent CCRB had a different view of the sufficiency of a complaint than the department did during the years immediately preceding the creation of the CCRB.

More significantly, the length of time that the CCRB was required to conduct investigations significantly reduced the department’s ability to act on substantiated complaints. In 1995, for example, the CCRB referred 250 substantiated complaints to the DAO for disciplinary action. Of those referrals, the 18-month statute of limitations had already expired in 59, or 23.6 percent, of those cases.[112] Specifically, the NYPD was precluded from acting on almost one-quarter of the cases that the CCRB was able to substantiate. Furthermore, an additional 137 cases (54.8 percent of the total referred) were between 15 and 18 months old, leaving the DAO little time to investigate and prepare charges against the officers involved.[113] In 1996, the CCRB reduced substantially the number of substantiated complaints lost on limitations grounds: 9.7 percent of substantiated referrals, or 28 out of a total of 290 referrals, were older than 18 months at the time of referral.[114] However, 60.3 percent of all referrals (175 out of 290) were between 15 and 18 months old, leaving the NYPD less than 3 months to investigate and act on the referral.

Even in cases where the limitations period had not expired at the time of referral, however, the DAO and the NYPD often failed to take any disciplinary action against the subject officers. During the first half of 1996, for example, the DAO closed 98 cases involving 134 subject officers. The DAO dismissed the complaint with respect to 52 officers (38.8 percent), concluding that the evidence was insufficient to support a prima facie case. The DAO recommended that charges and specifications be brought against only 47 officers (35.1 percent).[115] Even aside from the CCRB’s problems, therefore, the NYPD may not have taken strong measures to ensure that proper discipline was meted out to officers who were guilty of misconduct.

The CCRB’s Effectiveness: 1997 to the Present

After 1996, the CCRB improved both the quality and efficiency of its investigations. The most telling indication of early CCRB inefficiency may be the constantly rising rate of “affirmative” findings—that is, cases in which, following an investigation, the board concluded that a case was either substantiated, exonerated, or unfounded.[116] For example, in 1995, the board reached an affirmative conclusion in only 21.9 percent of all fully investigated cases. This percentage rose to 26.9 percent in 1996, to 38 percent in 1997, and to 43 percent in 1998.[117]

Similarly, the reduced number of substantiated complaints dismissed by the NYPD due to expiration of the 18-month statute of limitations is another indicator that the CCRB has improved its operations over the past few years. In 1995, the DAO dismissed 52 complaints on limitations grounds, representing 19.5 percent of cases closed by the department that year.[118] In 1998, however, that percentage dropped in half, as the number of dismissals dropped to 37, representing 9.9 percent of cases closed by the department.[119]

These improvements are likely the direct result of better trained and more CCRB investigators. After complaints are registered with the CCRB, they are now assigned directly to an investigator, rather than being processed administratively before being assigned to an investigator. This allows investigations to proceed more quickly, before trails get cold or complainants become more difficult to track down. More importantly, the CCRB expanded its investigative staff. During the second half of 1996, the CCRB added 13 new investigators to its staff, resulting in a 50 percent reduction of the average investigator’s caseload, from 46 to 23.[120] As a result, the CCRB improved on its late referrals in 1997.[121] That year, 9.8 percent of all referred substantiated complaints were older than 18 months, while 23.2 percent of substantiated referrals were between 15 and 18 months old.[122] That trend continued in 1998,[123] as only five referrals, or 2.5 percent of the pool, were past the limitations period, while six referrals, comprising 3 percent of the pool, were between 15 and 18 months old. By 1997, the CCRB reduced its backlog to 1,045 cases, which constituted 41.9 percent of its then-current docket.[124] Significantly more cases received a full investigation, as the number of truncated cases fell to 2,127 from 3,075 in 1996.[125] The CCRB reduced its backlog even more in 1998, lowering the number of backlog cases to 890, which constituted 42.2 percent of its docket.[126]

Moreover, after the brutal attack on Abner Louima, the mayor’s Task Force on Police/Community Relations was created in March of 1996.[127] The task force issued a report that included recommendations to improve the civilian complaint process.[128] As a result of the task force’s guidance, the mayor provided a $1.5 million budget increase in the CCRB’s budget, and a 20 percent increase of its investigation staff.[129] Similarly, during the U.S. Commission on Civil Rights New York hearing, the chairperson of the CCRB also commented on the improved quality of the CCRB’s investigations:

The quality of the CCRB’s investigations . . . has improved dramatically, particularly since the increased funding of 1997 and ‘98, which . . . decreases the number of cases per investigator very significantly. . . . [A]s a consequence . . . the number of cases in which the police commissioner has accepted the . . . recommendation of the CCRB has increased dramatically, going from 32 percent of those cases referred by the CCRB in . . . 1995 or ‘96 to 58 percent in the second half of 1998, and 52 percent thus far this year [1999].[130]

The additional allocation of funds, however, still left the CCRB underfunded, considering the size of the police department. In 1998, the CCRB’s budget was $6.7 million, which was $700,000 more than the CCIB was allocated in 1992, its last full year of existence.[131] That budget increase, however, fails to match the 27 percent increase in the size of the police force between 1992 and 1998. Assuming that the 1992 CCIB budget of $6 million was adequate, a budget of no less than $7.62 million was required for 1998. Hence, the CCRB should have received at least 1 million additional dollars that year.

It appears that the 1999 budget came close to meeting this target; for fiscal year 1999, the CCRB operating budget was $7,432,792.[132] That budget increase allows the CCRB to increase the size of its investigative staff to 115, including 8 team managers with at least 15 years of law enforcement experience.[133] The new budget also allows the CCRB to retain highly trained personnel; the CCRB has promoted other investigators to assistant supervisor and to salary levels above the entry-level position.[134]

The movement toward closing cases earlier continued in 1998, as only five of the cases (2.5 percent) referred during that year were past the limitations period, while another six referrals, constituting 3 percent of the substantiated complaints, were between 15 and 18 months old.[135]  Furthermore, the percentage of cases that the CCRB referred to the NYPD with more than 6 months left on the statute of limitations increased from 47.5 percent in 1997 to 79 percent in 1998. Some critics have asserted, however, that after showing signs of improvement in 1997, the 1998 CCRB statistics indicate that trend has been reversed. The substantiation rate for all complaints dropped to 5.6 percent in 1998.[136] Norman Siegel, executive director of the New York Civil Liberties Union, also testified during the Commission’s hearing about this problem:

In its almost 6-year existence, [the CCRB] has largely failed in its mission. From July 1993 when it opened its doors to December 1998 . . . there were 28,104 complaints filed at the CCRB. Only 10,177, which is 36 percent of the complaints, were fully reviewed. Only 1,438, which is 5 percent, were substantiated and only 504, 2 percent of the cases, led to a police officer being disciplined. . . . [C]ases are filed and they sit for months and months and sometimes years before the PC [police commissioner] acts on them. And then when the PC acts on them, more often than not, he dismisses the case. That is an extremely important problem.[137]

In addition, the number of closed cases in which the CCRB did not conduct a full investigation rose in 1998, reaching 2,405 cases.[138] At the same time, the number of fully investigated cases decreased from 3,141 in 1997 to 2,584 in 1998.[139] As a result, the percentage of cases that the CCRB investigated fully fell from 56.3 percent of all cases closed in 1997 to 48.6 percent of all cases closed in 1998.[140] The percentage of cases that the board substantiated also fell in 1998. While 14.3 percent (448) of all fully investigated cases were substantiated in 1997, only 11.6 percent (300) of fully investigated cases were substantiated in 1998.[141] As a result, the board substantiated almost 150 fewer cases in 1998 than in 1997.[142]

Improvements in Police Responses to Substantiated Referrals since 1997

During the Commission’s hearing, Mark Green, public advocate for the City of New York, stated that in January of 1997 the Public Advocate’s Office began to examine the number of cases that received discipline as a disposition.[143] He indicated that less than half of the civilian complaints that are substantiated by the Civilian Complaint Review Board resulted in discipline from the NYPD.[144] In his interim report, Mr. Green noted the decline in the number of disciplinary actions imposed by the CCRB:

During the first two years of the Giuliani Administration—which coincided with the first two full years of an independent CCRB—46% of police officers with substantiated complaints were disciplined. During the next two and a half years—which largely coincided with the first two and a half years under Commissioner Howard Safir—just 27% of all officers with substantiated CCRB complaints were disciplined, with a low of just 21% in 1996. Consequently, in this two and a half year period, civilian complaints against police abuse led to disciplinary action in under 2% of all cases.[145]

Secondly, Mr. Green observed that often there is a lack of communication between the CCRB and the police commissioner regarding the particular reasons for the disposition of substantiated cases. He noted that often when the police commissioner disposes of substantiated complaints through either imposing discipline or not, he does not offer an explanation to the CCRB for the specific disposition (i.e., “[the] evidence was dated, . . . inadequate, etc.”)[146]

Over the past few years, the department has made some strides to improve its response to substantiated referrals from the CCRB.[147] The increased rate at which the department is taking disciplinary action on substantiated referrals suggests not only that the NYPD has taken a more serious view of substantiated complaints, but also that the quality of CCRB investigations has improved as well. Last year, the DAO dismissed far fewer substantiated referrals on the grounds that the evidence failed to present a prima facie case than had been dismissed for similar reasons in previous years. In 1995, the DAO dismissed 34 cases for failure to state a prima facie case, representing 12.8 percent of the substantiated cases referred to DAO that year. In 1998, on the other hand, only 24 cases, representing 6.4 percent of the substantiated cases, were dismissed for that reason.[148] In 1998, the department administered some type of discipline in 176 out of 374 substantiated cases disposed of during the year.[149] Internal NYPD documents also suggest that civilian confidence in the ability of the NYPD to resolve (or at least process) incidents of police misconduct is on the rise.[150]

Concomitantly, the NYPD has taken steps to more expeditiously and efficiently deal with CCRB complaints referred to the department for discipline. In December 1995, the Department Advocate’s Office created a separate CCRB team with responsibility for dealing with complaints substantiated by the CCRB.[151] That team is assigned its own investigators.[152] During the same year, the police commissioner created a Disciplinary Assessment Unit to coordinate the disciplinary system and act as liaison to the CCRB.[153] Over the past 3 years, the DAO increased staffing within the CCRB unit of the DAO to help curb nonmerits dismissals as well as to deal with a large number of referrals that have come as the CCRB has dealt with a backlog of previously uninvestigated complaints.[154] Since its creation in December 1995, the CCRB team within the DAO team has grown from 7 members to 24 members. As of February 1999, the team included 1 attorney/team leader, 14 assistants, 1 supervisor investigator, 7 investigators, and 1 clerical worker.[155] In December 1996, Police Commissioner Safir also instituted a zero tolerance policy for officers lying in judicial or administrative actions.

As the mean time for investigating CCRB complaints has decreased, the percentage of substantiated complaints resulting in disciplinary action has increased, from a low of 20.7 percent in 1996 to 47.1 percent in 1998 and 52.6 percent for the first 4 months of 1999.[156] As a result, more officers appear to have been disciplined as the result of substantiated CCRB complaints.

These reforms, however, are far from complete. Even in cases where the limitations period has not yet expired, the DAO often fails to take action against the officers involved. During the latter half of 1998, for example, the department closed 78 cases that did not result in disciplinary action.[157]

The NYPD continues to decline to provide the CCRB and the public with detailed information on its disposition of referred cases. In cases where disciplinary measures are imposed, the department often does not indicate the penalty imposed. For example, in the second half of 1998, the department imposed penalties in 128 cases. In 82 of these cases, the officers pled guilty and accepted command discipline. However, in none of these cases did the department reveal the specific penalty that was imposed.[158] The NYPD has provided less information in cases where it declined to take any disciplinary action. In 44 of the 78 substantiated cases that the department closed without imposing any discipline, the department did not identify any reason for that disposition.[159] As the CCRB notes, when a panel of the CCRB substantiates a complaint, it does so almost always with the consent of one of the police commissioner’s designees to the board.[160] The prevalence of these unexplained dismissals is disturbing because it undermines public confidence that officers who have committed misconduct are receiving appropriate discipline.

Furthermore, the DAO has not dealt with substantiated referrals in an expeditious manner. Cases referred to the DAO are usually not acted upon within the same year. For example, during the first half of 1997, only 2 of the 281 substantiated complaints referred to the DAO were resolved.[161] The NYPD closed only 19, or 6.3 percent, of the 300 cases referred to the NYPD in 1998 during that same year.[162] Although the department has indicated that it requires 3 months to investigate a referral and additional time to close it,[163] in practice, the department takes much longer to dispose of cases. In 1996, the CCRB referred 256 substantiated cases to the NYPD; by the end of 1998, 23 cases (9 percent) had not yet been closed.[164] While the NYPD has indicated that several months are necessary to close a case, it has offered no rationale for why it should take more than 2 years to close a case that the CCRB has already investigated fully. In addition to ensuring that officers who commit misconduct are disciplined, and explaining the reasons why discipline is not imposed when appropriate, the department should also make every attempt to resolve substantiated referrals as expeditiously as possible.

The Public Concern about Misconduct Investigations

CCRB Complaint Procedures

The ultimate indicator of effectiveness may lie in the local communities’ opinion of the CCRB’s ability to address their concerns of alleged police misconduct. According to Chairman Frank Wohl, most of the public’s current dissatisfaction with the agency stems from its initial impressions of the CCRB as a fledgling and underfunded organization. These views of the CCRB as an ineffective agency are no longer accurate, due to the presence of additional funding and more investigators.[165] However, Chairman Wohl noted that several barriers exist which affect the organization’s image and effectiveness. These include conflicting accounts of misconduct allegations, the public’s failure to report incidents to the CCRB, and the intense disappointment of complainants when the CCRB does not substantiate their complaints.[166] Moreover, he maintained that the CCRB should improve upon responding to complainants in those situations where complaints are made in good faith, yet they are not substantiated due to the justified actions of the police officer(s) involved or the insufficiency of the evidence.[167]

Similarly, other witnesses described their various impressions of the CCRB. Lorraine Cortes-Vazquez, president of the Hispanic Federation, reviewed survey findings in the organization’s report, Police and Quality of Life Issues, and provided the following testimony to the Commission:[168]

The thing that was the most alarming . . . for us was the number of Latinos who did not even know where to take their complaints about the police department. When . . . asked, “Do you know that there is a Civilian Complaint Review Board?” 73 percent said no. That is of serious concern because people do not even know what the options are available to them. That is not to say that the police or the Civilian Complaint Review Board may be the most effective, but not even knowing that that option is available to you is of real concern to us.[169]

Iris Baez, mother of Anthony Baez (who died as a result of being put in a choke hold by an NYPD officer in 1994) reiterated Ms. Cortes-Vazquez’s observations:[170]

[Police Commissioner] Safir did nothing until the community came out and started protesting, then he read the papers . . . after 15 complaints, and we proved that [then-officer Livoti] had done this before, he had choked other people, he had a history of choking people, he liked to take them by the neck. . . . Why do the victims have to prove anything when it is documented. . . . ? [T]he CCRB is a rubber stamp; that is number one. So nobody goes to the CCRB, because I didn’t even go to the CCRB to report this [incident relating to the death of her son]. . . . It got to the CCRB, but I didn’t even go to report it. So it is that the people don’t have trust, anymore, in the community, in the precinct. . . . And the other officers that lied to protect Livoti are not doing one minute of their time in jail, and they are still working in the city.[171] 

Moreover, Andrea Payne, a congressional caseworker for Representative Gregory W. Meeks (D-NY, 6th District), indicated that factors such as inaccessible complaint forms and insensitive police staff inhibit the CCRB’s efficacy: 

I don’t see how we could have an impartial Civilian Complaint Review Board when the forms are available at the local police precincts; when people are attacked, or they have experienced some brutality, and they go into the precincts to even ask for the form they are intimidated. In one case an evangelist went to a precinct to ask for such a form [and] she was shoved down a flight of stairs by a captain.[172]

Ms. Payne also stressed that the lack of communication between the CCRB and community members is a lingering issue that should be addressed. Specifically, she asserted that when many serious cases of police misconduct are presented to the CCRB, they are often found to be unsubstantiated:

There was an egregious case where two pre-teenage youth were strip searched by police officers in a narcotics operation. Their parents were never notified that they were, first, taken into custody and, secondly, that they were strip searched. When the children complained to their parents, it was attempted to be covered up. And when they reported this to the Civilian Complaint Review Board, of course it was unsubstantiated. When we inquired to them as to what constitutes a substantiated versus an unsubstantiated complaint, we received no response. We are still awaiting that response, and this is more than a year now.[173]

Additionally, Robert Feldstein, Esq., a tenants’ rights advocate, informed the Commission that civilians also fear retaliation from the NYPD if they file any complaints of police misconduct with the CCRB.[174] For example, Mr. Feldstein repeatedly has been the victim of various misdemeanor crimes. When he attempted to inform the NYPD of these incidents, the police officers allegedly refused to receive his report of these crimes, and encouraged him to accept mediation.[175] In response, Mr. Feldstein filed a complaint with the CCRB:

I also embarrassed the police because of their inaction and ineffectiveness. I put up my own reward poster that if anyone was witness to the persons who were committing these misdemeanors, that there would be a reward. Only a few days after I met with the captain of the 61st Precinct, and I explained about my pending CCRB complaint. The captain said he would look into it. A few days later a detective came to my door and said, “You are making a lot of trouble for us with your complaint, and if you don’t withdraw it, you and your wife are both going to be arrested.” I refused to withdraw it, and he did, in fact, arrest both me and my wife.[176]

In contrast, one witness maintained that in the past, the CCRB has done an admirable job in addressing and substantiating complainants’ allegations of police misconduct. Antonio Rosario, a representative from Parents Against Police Brutality, testified before the Commission about the January 1995 shooting deaths of his son and nephew by NYPD officers.[177] Mr. Rosario stated that the CCRB substantiated his family’s complaint and determined that the police officers exhibited unnecessary force.[178] However, he maintained that former police commissioner William Bratton disregarded the CCRB’s findings relating to this incident, and a significant number of the agency’s staff and administrators were eventually forced to resign. As a result, the CCRB became more deferential to the NYPD’s political philosophy.[179]

Response of Local Authorities to Civilian Complaints

Local community residents were often disenchanted with the responses of prosecuting authorities to their complaints of police misconduct.[180] According to Hyun Lee, program director of the Committee Against Anti-Asian Violence,

[m]ore than 90 percent of cases brought before grand juries result in indictments, but of the more than 60 cases of police killings in New York City since Giuliani took office in 1994, only 2 cases have resulted in indictments against the officers on murder charges. That’s Baez and Diallo. Both indictments came only after mass protest and sustained public attention on the allegation of police misconduct. We have not yet seen any convictions. The huge discrepancy between the rate of indictments of civilian defendants and police officers raises doubts in New York City about equal protection under the law.[181]

In reference to the Rosario and Vega incident, Antonio Rosario noted that the local Bronx prosecutor failed to indict the police officers who were responsible for the shooting:

They [the prosecution] presented a different picture to the grand jury. They withheld evidence from the grand jury, they did not let the key witness, Eddy Bonilla, the only survivor, testify in the grand jury. . . . And because my wife was fighting out in the street, giving out leaflets, she met the grand jurors, and they told her their agenda was not to indict the officers. And still the vote was 12 to 8—12 not to indict, and 8 to indict, because with the ballistic reports, alone, they said there is something wrong here. And they withheld the evidence from the grand jury.[182]

Furthermore, in 1995, the U.S. Department of Justice began an investigation to determine whether the NYPD violated Anthony Rosario’s and Hilton Vega’s civil rights. In January 2000, Manhattan U.S. Attorney Mary Jo White informed the Rosario family that there was insufficient evidence to support these charges.[183] Ms. White’s statement surmised that “after an extensive investigation, prosecutors concluded they could not prove beyond a reasonable doubt that the detectives acted ‘with the specific intent to use unreasonable force.’ ”[184] Hence, it is reported that the Rosario family will pursue a civil case that has been filed in the Bronx Supreme Court.[185] 

Determining the Need to Reform the CCRB

Independent Structure

One of the most contentious issues in discussions designed to assist the CCRB in achieving its mission is determining whether the agency is actually an independent entity that is not affected by the influences of New York City politics. According to CCRB Chairman Frank Wohl,

I think it [the CCRB] absolutely is independent. There is no question about the fact that the members of the CCRB are not appointed by the police commissioner. They are appointed by the mayor. . . . The mayor is obviously directly elected by the City of New York. . . . [T]he closest to any impact on the CCRB that the police commissioner has is that three of the members are appointed by the police commissioner, but they are not current members of the police department. So once they are appointed, they are free to use their expertise and knowledge about the police department to assist in the mission of the CCRB. And the police commissioner has no control over them of any kind at all. . . . And the question I suppose of whether the entire and total disciplinary process is independent of the police department is a completely different question in my view from whether the CCRB is. If you wanted to entertain the idea of moving the entire disciplinary process out of the police department, that is an extremely different process from what we have and obviously one that would be something that people would have to think about and decide about.[186]

Secondly, Mayor Giuliani stressed the need for a CCRB that has some reliance on the NYPD to uncover police misconduct:

I believe that in trying to obtain the political independence for the Civilian Complaint Review Board, you rob it of one of the things that it needs to effectively investigate something as complex as the police department, which is police officers. I at one time investigated and prosecuted over 70 police officers and convicted many of them and sent them to prison for selling drugs and for being involved in corruption. I would not have been able to make any of those cases without having police officers in the police department, not independent and outside, working with me to investigate the cases.[187]

The mayor emphasized that although the public has more confidence in a truly independent civilian complaint process, it is difficult to effectively corroborate the large volume of misconduct allegations if preliminary investigations are impeded by the inability to penetrate the police department’s domain.[188]

In contrast to the mayor’s views, Margaret Fung, executive director of the Asian American Legal Defense and Education Fund, maintained that restoring the public’s confidence in the civilian complaint process is essential to the investigation of police brutality incidents. In order to accomplish this, Ms. Fung supported the establishment of an oversight procedure that is independent from the police department.[189] Additionally, both Eliot Spitzer, attorney general for the State of New York, and Mark Green, public advocate for the City of New York, endorsed the concept of an independent CCRB that has the authority to conduct investigations of police officers and to prosecute.[190] Further, NYPD Lieutenant Eric Adams, cofounder of 100 Blacks in Law Enforcement Who Care, testified that the presence of an investigation mechanism that is independent from the police department would minimize the likelihood of the NYPD mishandling or destroying evidence of police misconduct.[191]

CCRB Statistical Tracking

The second major function of the CCRB is tracking civilian complaints to determine particular areas of concern and to monitor the agency’s progress. Semiannual reports are the primary method of monitoring complaint and disposition activity.[192] In addition to tracking the total number of complaints filed, these reports also monitor complaints according to the race and gender of the complainant and the subject officer(s), the type of misconduct that the complainant alleged, the location where the incident was alleged to have taken place (usually by precinct), and by the number of officers who have had more than one complaint filed against them.

Civilian complaints reached a peak in 1995, when civilians filed 5,618 complaints.[193] Civilians filed fewer complaints in each of the next 2 years: 5,550 in 1996 and 4,768 in 1997. The CCRB report for the last half of 1998, however, indicates an increasing rate of civilian complaints against NYPD officers. For the calendar year 1998, complaint activity rose 4.1 percent, to 4,877, when compared with complaints filed in 1997.[194] Furthermore, it is possible that many incidents go unreported, so that the number of complaints may be substantially lower than the number of persons who feel they have been aggrieved.[195]

Statistics can also suggest that incidents of police misconduct are decreasing, instead of becoming more frequent. Both the mayor of New York City and the police commissioner noted that any recent rise in the number of civilian complaints does not account for the corresponding increase in the size of the police force.[196] In 1994, civilians filed 160 complaints per 1,000 police officers; in 1998, civilians filed 128 complaints for every 1,000 police officers.[197] Statistical data do indicate that a downward trend in civilian complaints per officer may be taking place.[198]

Allegations by Category

Of the four major categories of CCRB jurisdiction (i.e., force, abuse of authority, discourtesy, and offensive language), the rise in the total number of allegations appears to be attributable to an increase in the number of complaints alleging an abuse of authority.[199] If data are examined from 1994 (the first full calendar year for the independent CCRB) to 1998, for example, most types of allegations declined: allegations of unnecessary force decreased 22.2 percent from 1994 levels; allegations of discourtesy were down 13.3 percent from 1994; and allegations of offensive language decreased 39.1 percent from 1994.[200] In contrast, allegations of abuse of authority increased 30.5 percent from 1994 to 1998.[201] As a result, allegations of abuse of authority became the most frequent type of allegation raised in CCRB complaints in 1998.

Over the past 5 years, the most common type of “abuse of authority” allegation has been an unnecessary search of the person. In 1998, for example, civilians asserted 565 such allegations, constituting 21.4 percent of all abuse allegations.[202] Threat of arrest was the second most frequent allegation, comprising 18.9 percent of abuse allegations in 1998.[203] The third major category of abuse allegations was unlawful threat of force, which comprised 13.3 percent of 1998 abuse allegations.[204] Each of the remaining 11 subcategories accounted for less than 10 percent of the abuse allegations received in 1998.[205]

Analysis of the “force” category complaints suggests that, in the majority of cases, the force about which the civilian complained was blunt force applied without a weapon. Within the force category of allegation, the most common allegation has been that the subject officer engaged in unnecessary pushing and/or shoving, which accounts for almost 30 percent of force allegations.[206] The next most common subcategories were complaints of “punch[ing]/kick[ing],” “beat­[ing],” and “drag[ging]/pull[ing],” each of which had between 200 and 300 allegations during 1998.[207] The next most frequent categories were “gun pointed,” which accounted for 185 allegations and “pepper spray,” which accounted for 75 allegations. The final six categories of force allegations (“slap[ping],” “nightstick,” “radio used as club,” “gun used as club,” “gun fired,” and “flashlight used as club”) constituted only a small percentage of the force complaints.[208]

Despite being distinct from the “offensive language” category of allegations, most allegations classified as “discourtesy” seem to involve offensive language of some sort. Complaints of discourtesy, in the vast majority of cases, allege either cursing or using other “nasty words.” Cursing has been the most frequent complaint since 1994, representing more than two-thirds of all discourtesy allegations.[209] The use of nasty words, however, became the most common type of discourtesy complaint in 1998, representing 39.9 percent of discourtesy allegations in 1998.[210] The “profane gesture” and “rude gesture” represented only 1.8 percent and 4.5 percent of 1998 discourtesy complaints, respectively.[211] Within the offensive language category, allegations of slurs against African Americans were the most common, both in 1998 and over the last 5 years (although the number of complaints in this subcategory has declined each year since 1995).[212] The only other categories of offensive language allegations were for Latino and “other,”[213] which comprised 10.2 percent and 29.4 percent of 1998 complaints, respectively.

Analysis of Complaints by Race and Gender

One clear disparity exists when the race of the complainant is considered—African Americans have filed a number of complaints that is disproportionately larger than their representation in the population.[214] African Americans and Hispanics file three out of every four complaints with the CCRB.[215] The majority of those complaints, however, have come from African American civilians. During 1998, African Americans filed just over half (50.1 percent) of all complaints registered with the CCRB (in which the race of the complainant is identified), while African Americans constituted just over one-quarter of the New York City population in the 1990 census.[216] The level of Latino complainants, on the other hand, was relatively commensurate with the Latino population in the city.[217] Finally, whites filed far fewer complaints (in which the race of the complainant is identified) than their representation in the general population would predict.[218]

The reason for this apparent disparity in the level of complaints that different racial groups have filed is not immediately clear. For example, African American complainants do not appear to be more or less likely to file complaints against officers of any particular racial group (including African American officers). The percentages of complaints that African Americans filed against African American, Latino, and white officer