Police Practices and Civil Rights in New York City
Dissenting Statement of Commissioners Carl A. Anderson and Russell G. Redenbaugh
This report, Police Practices and Civil Rights in New York City, falls far short of the standards for thoroughness and balance which should guide the Commission. It “profiles” the police, politicizes the debate, manipulates the data provided to the Commission, and misses an important opportunity to make a valuable contribution to the NYPD. As Alexis de Tocqueville once observed, a political institution is never more vulnerable to criticism than when it has recognized the need for reform and has set about to implement it. This report’s treatment of the NYPD is ample proof of de Tocqueville’s insight.
When the Commission decided to hold its May 1999 hearing, it was a crucial and highly volatile moment in time: Headlines reflected the public outcry over the tragic shooting of Amadou Diallo by four police officers in the Bronx in February 1999. The verdicts were imminent in the trial of another highly publicized case—the August 1997 assault on Abner Louima by police officers in Brooklyn. Several different inquiries, local, state and federal, had been launched. And, to the extent that the successful strategies of New York City’s mayor and police commissioner in both reducing crime and addressing police misconduct were now under attack, the public debate on those issues quickly became caught up in the whirlpool of election-year politics.
At that time, we were concerned that holding a Commission hearing on police practices in New York would open the Commission to charges of politicization while seriously impairing progress on other projects already underway. Overriding those concerns, the Commission voted 3 to 2 to proceed with this initiative. More than a year has passed since the hearing on May 26, 1999. After a year of work—work that has involved the expenditure of substantial sums for outside contractors to help examine hundreds of pages of documents and prepare this report—the Commission has issued a sweeping indictment of the New York Police Department.
But the indictment is flawed, in several respects. First, it is not based on a comprehensive, sound methodology. The report reflects an over-reliance on anecdotal testimony, a lack of expert testimony on policing and how police departments should be run, and inadequate follow-up and research (other than selected newspaper articles and the Internet) in the year since the hearing occurred. At the same time, the report dismisses much of the relevant data that has been provided to the Commission on the substantial improvements by the NYPD in recruitment and training, the dramatic reduction in the use of force by NYPD officers, and the decline in the number of civilian complaints. Finally, the report neglects an important context of discussion for all of these developments—a decline in crime in New York City to levels not seen in 30 years.
What the report does provide is a one-sided portrayal of the NYPD, which will perpetuate many negative stereotypes of the police. It paints the NYPD as rife with problems that the department is unwilling to address. The report’s final verdict, that the NYPD has engaged in an extensive practice of racial profiling, is captured in this one sentence from the Executive Summary: “They simply stop who they think they should stop.” Instead of providing a “meaningful discourse” on police-community relations in New York (the stated intent of our hearing), the report is, itself, an exercise in profiling. The attack it makes is based not on evidence, but on conjecture, opinion, and “perception as reality.”
The response that the Commission has received from the NYPD and the City of New York provides extensive information and additional data. The Commission has rightly decided to honor our commitment to append the NYPD’s comments to the final document. However, we are disappointed that the Commission has summarily dismissed so much of the new information from the NYPD, thereby foreclosing a full and objective discussion of the issues. To cite some examples:
On the number of fatal shootings by New York police officers:
The report now states: “According to New York police officials, the use of deadly force by the city’s police officers occurs less than in other major cities, when measured in terms of fatal shootings per 1,000 officers.” The report presents this as something that is “asserted” by the NYPD. What it leaves out is the data showing that, compared to other large urban police departments, the NYPD had the lowest rate of fatal shootings per 1,000 officers. These numbers are either accurate or they are not. And if our staff believes they are not accurate, then they ought to state that and conduct additional research and not just characterize this important data as an undocumented assertion by the NYPD.
The report also dismisses NYPD statistics showing the dramatic decline in the numbers of fatal shootings by police officers over the past 25 years. This decline in NYPD fatal shootings has been widely cited and corroborated by experts like Dr. James Fyfe. (Attached to our dissent is a copy of the chart distributed by Dr. Fyfe during the Commission’s recent briefing on national police issues.) This significantly positive trend does not mean that there is no room for improvement within the NYPD, but it does provide the context in which these issues should be considered.
That context is one that has seen the incidence of fatal police shootings decline from 93 in 1971 to 11 in 1999. Since the early 1990s, the crime rate in New York City has fallen in an equally dramatic fashion. It is also perhaps worth bearing in mind that in 1998 the probability of a 15-year-old African American male being murdered before reaching his 45th birthday was 8.47 percent in Washington, D.C., compared to only 1.89 percent in Brooklyn, New York. Moreover, during the Vietnam War, 1.2 percent of those who served in the United States military were killed in action. Thus, it was safer for a young African American to serve in the U.S. armed military in Vietnam than it is for him now to live in our nation’s capital or within sight of the Statue of Liberty. This is also the environment in which daily decisions are made by the “cop on the beat” in New York City. The national death rate from homicide remains alarmingly high, but the evidence does suggest that sound law enforcement policy changes—such as those implemented in New York—can be effective in reducing violent crime.
On recruitment and training:
The report frequently relies on outdated information. For example, it criticizes at length training materials which at the time of our May 1999 hearing, the police commissioner himself testified were no longer in use. On the other hand, the report totally dismisses as “not necessarily relevant,” the information submitted by the NYPD regarding its more recent Streetwise cultural diversity curriculum. According to Dr. Robert Louden of John Jay College, who also testified at our recent briefing, the Streetwise curriculum has been enormously successful and is now being marketed internationally for police training in emerging democracies and elsewhere. By refusing to include even a brief discussion of this new curriculum, our report does a disservice.
Other sections in the report reflect an excessive reliance on inflammatory, anecdotal assertions. For example, the report quotes a witness (a police sergeant who is a frequent critic of the NYPD) who testified that the recruitment and hiring process “is already prostituted and it’s already corrupted.” The report goes on to say that this same witness “opined” that an increase in the number of applicants is unlikely to affect the number who actually become officers “because of the biases built into the system.” The report then complains that because of a lack of information from the NYPD, the Commission “is unable to evaluate these assertions.” The discussion concludes, however, with the following: “The information the NYPD did provide to the Commission . . . suggests that people of color were not disproportionately disqualified for appointment to police officer on the basis of psychological and character screening in 1997.”
This discussion of charges about bias within the NYPD recruitment and hiring process is important because it illustrates the extent to which this report relies on opinion and on “perceptions” which are not supported by the evidence at hand. From the thousands of pages of testimony, the report tends to quote from the most inflammatory testimony, almost totally ignoring the NYPD’s response to these charges. In this case, the Commission’s response to the NYPD’s objections is to say that the testimony of the police sergeant is included “not to prove the truth” of his assertion, but rather “to reveal the perceptions of officers of color within the NYPD.”
But of the nearly 41,000 police officers in the NYPD, there are more than 5,000 African American officers. There is no way of knowing whether the “perception” relayed here is representative of all people of color on the force, or even a majority of them. Certainly, the perception or allegation that candidates tend to be screened out on the basis of race is refuted by the data showing that on the basis of psychological screening in 1997, 65 percent of those disqualified were white, compared to 14 percent who were African American. On the basis of the 1997 character review, 56.2 percent of disqualified candidates were white and 18.7 percent were African American.
Allegations of discrimination within the NYPD are entitled to more than mere repetition. More should be have been done on this question to determine the degree to which discrimination may have been or continues to be a problem. But to treat the issue in the cursory manner of this report does a disservice to both the NYPD and the Commission’s own mandate.
On NYPD “stop and frisk” practices:
The report’s discussion of the NYPD’s “stop and frisk” practices is the most serious example of slipshod analysis, because this is what forms the basis for the allegations that the NYPD is guilty of racial profiling. The section on stop and frisk is conclusory, relies on faulty analysis, and does not give sufficient credit to possible alternative explanations for data on NYPD stop and frisk encounters. The report concludes that because the percentage of people stopped and frisked who are people of color is higher than the percentage of people of color within the general population of New York City, the NYPD therefore is engaging in racial profiling.
This logic is simply wrong. First, it is an improper comparison. The relevant comparison would be between the ethnicity of those stopped and the ethnicity of those committing crimes in New York City as described by crime victims. In fact, the City provided the Commission with data demonstrating that the ethnicity of those stopped closely matched the ethnicity of those committing violent crimes. Second, the NYPD uses a highly sophisticated computer tracking system (COMPSTAT) to track reports of crime and complaints made by crime victims. COMPSTAT helps ensure that officers are sent to areas where more violent crime occurs. Since, unfortunately, minority neighborhoods are disproportionately plagued by violent crime, the NYPD sends more officers to those neighborhoods. The report summarily dismisses this historic crime data, and it is impossible to draw any meaningful conclusions about racial profiling from the report’s analysis.
On recommended reforms:
The main problem with the report’s recommendations is that they appear to be based on an approach that was described during our recent briefing as “policy change by crisis.” The Commission agreed before proceeding with its hearing that the Diallo case would not be a focus of its investigation. Nonetheless, it pervades this report as a leitmotif. The report tries to use Diallo, and the other recent high-profile cases, to build its charge that the NYPD is biased against minorities, that it engages in racial profiling, and that it tolerates police violence and misconduct. But the Diallo shooting was not the example of a trend that the report tries to make it out to be, nor was it the result of some misguided NYPD policy involving racial profiling, as the report alleges. As it stands, this report compounds the tragedy of the Diallo incident by undermining efforts both to rebuild public trust in the police and to seek needed revision of police procedures.
For the most part, the Commission’s recommendations embody a heavy-handed approach of external controls that might only thwart the goals of enhancing accountability, improving performance, and restoring public trust in the New York Police Department. For example, the report calls for an independent commission to review NYPD training; an independent board to oversee the NYPD’s disposition of Civilian Complaint Review Board complaints; and an independent prosecutor to investigate serious misconduct cases.
Such additional bureaucratic controls and mechanisms appear to be, at best, unnecessary and of questionable value. For example, the NYPD already has a Board of Visitors to review police training. With respect to review of the civilian complaint process, the Commission’s report acknowledges not only that the CCRB has significantly improved its operations over the last several years, but that the NYPD has been taking disciplinary action based on CCRB complaints in a steadily rising percentage of cases. It is difficult, therefore, to understand why the Commission now recommends an independent board to oversee this independent board.
Finally, in regard to the call for a special prosecutor, it must be noted that the NYPD is already the most scrutinized police department in the country. Besides the CCRB, there is also an independent Commission to Combat Police Corruption that oversees the NYPD’s anti-corruption efforts. New York City also has five elected district attorneys, one for each borough, and two federal prosecutors, for New York’s eastern and southern districts. Without even the most cursory analysis of whether these prosecutors effectively handle cases of police misconduct, however, the Commission summarily concludes that they cannot do so and recommends an independent prosecutor. As New York County District Attorney Robert M. Morgenthau wrote to the Commission on April 28, 2000:
[I]t is disheartening that no one from the Commission even bothered to speak to representatives of this Office, or the other local prosecutors’ offices, prior to the Commission reaching its conclusions. Nor did the Commission even ask to review any records of this, or any other, Office pertaining to such matters. If anyone from the Commission had taken the trouble to ask, it would have become readily apparent that this Office has a long and distinguished record of prosecuting cases of police brutality and corruption.
The district attorney’s comments are instructive, because they point to the report’s fundamental weakness. The findings and recommendations are not the product of careful consideration or rigorous analysis of how the NYPD can improve, which is what the people of New York City deserve. Rather, they appear to be the result of the Commission’s own biases and predispositions. As District Attorney Morgenthau remarked in his letter to the Commission, it is “hard to avoid the conclusion that the Commission is more interested in publicizing and politicizing its views than it is in solving real problems.”
Instead of adding new layers of government review, we believe the Commission’s focus should be on greater internal accountability and enhancing reforms from within the NYPD. We should encourage the efforts already underway within the NYPD for a better educated and better trained force, one that is responsive to community needs and concerns. As our recent panel also observed, there must be a continued focus on attracting and retaining qualified police officers, which will entail a more concerted effort to promote a view of law enforcement as an essential, first-rate career.
The New York City and NYPD officials who testified at our hearing last year underscored their commitment to striking an essential balance between crime reduction and protection of basic civil rights. Certainly, this is an ongoing challenge. But the crucial question this report fails to address is this: Are police shootings in New York an anomaly or the norm? The evidence shows that, clearly, they are not the norm. Nor is there any evidence that the NYPD engages in racial profiling. As one New York journalist recently noted, what is needed is “some sort of perspective that clarifies how extraordinary a job our cops have done and why they, like any minority, should not be judged as an entity by the worst among them . . .”
Police practices are a legitimate and even an essential concern of this Commission. Unfortunately, by stigmatizing the police in one of America’s largest cities, the Commission has missed a unique opportunity. Our real mission should be to promote reform within the New York Police Department in a way that enhances public trust in the police. This report falls far short of that objective; and for that reason we respectfully dissent.
June 30, 2000