The NYPD declines to pursue a growing share of misconduct cases against police officers substantiated by the Civilian Complaint Review Board, even as the board moves ahead with reforms intended to ensure that fewer police misconduct cases fall through the cracks.
A recent CCRB report says the NYPD declined to prosecute 28 percent of all substantiated misconduct cases from January to August of this year, a 13 point increase over the same period last year. The upward spike continued into September, the CCRB says, with 40 percent of cases deemed substantiated by the review board dropped by the NYPD Advocate’s Office, which serves as an internal prosecutor.
The CCRB screens and reviews thousands of unnecessary force and abuse of authority allegations against police officers annually, and forwards a sliver of those cases to the police department as substantiated allegations for prosecution, with recommendations for discipline. With this week’s federal court decision suspending appointment of a special monitor overseeing the NYPD, the CCRB remains the top watchdog of police conduct in New York City.
“We’ve been seeing an upward trend in the number of cases where the police department is declining to impose any discipline,” said CCRB spokesperson Linda Sachs. “These are cases where the board has substantiated misconduct by an NYPD officer.”
For the CCRB, substantiated complaints are allegations that are accompanied by credible and sufficient evidence of police misconduct. The CCRB forwarded 189 substantiated complaints against 265 officers in 2012, and recommended punishment in 68 percent of them. In the remaining cases, the board advised the NYPD to provide training or other corrective action to officers.
In August, the most recent month for which detailed statistics are available, the NYPD dismissed 11 out of 15 allegations it closed out that month, categorizing them as “unable to prosecute.”
Those include cases of substantiated misconduct against 10 officers over complaints ranging from stop-question-and-frisk encounters to allegations of excessive force. In the three cases in which the NYPD did pursue discipline against officers, it issued the least serious punishment, against the recommendations of the CCRB.
The NYPD declined to respond to a request for comments for this story.
The rate at which the police department declines to prosecute cases became a focal point during two days of testimony at the trial over the NYPD’s use of stop-and-frisk in federal court this past spring. Under cross-examination, NYPD Advocate Julie Schwartz testified that the CCRB and her office sometimes disagreed over whether a case should be prosecuted, especially in cases that pit an officer’s word against that of a complainant.
“Sometimes it’s just a faulty investigation,” Schwartz said. “Sometimes it’s a poor legal analysis. Sometimes it’s a credibility determination.”
A similar spike in 2007 — dozens of cases the police watchdog substantiated but the NYPD then refused to pursue — prompted civil rights groups to demand reforms. Those came into fruition last spring when the CCRB and the NYPD announced an agreement that granted the CCRB powers to prosecute, independent of the NYPD, substantiated cases in which it recommended the most serious level of discipline, which can lead to terminations and suspensions of police officers.
The CCRB’s new prosecutorial unit began receiving cases in April and has trials scheduled in the coming weeks. It will prosecute cases before administrative judges who report to the NYPD’s deputy commissioner of trials.
In the meantime, however, New York City residents have turned to a far more costly forum for fighting police misconduct — the courts. In fiscal year 2012, the city doled out $151.9 million in legal settlements involving misconduct and civil rights lawsuits against the NYPD.
Advocates who pushed for reforms at the CCRB hoped the new prosecutorial unit would help drive down the rate of declined prosecutions, said Christopher Dunn, the associate legal director at the New York Civil Liberties Union, because the NYPD no longer has control of over the most serious disciplinary cases.
“When the department dismisses a case, a police officer who has been found to engage in misconduct by the CCRB is going to go unpunished,” Dunn said. “That eliminates any possibility of changing the officer’s behavior, and it completely undercuts the notion of civilian oversight by the police department. In short, it means an officer walks away scot-free even though they did something wrong.”
In the four months ending in August, CCRB officials found that the types of prosecutions that continue to be controlled by the NYPD — those that involve less-serious disciplinary recommendations, in which officers face losing vacation days or be required to receive training — are being dropped at a strikingly high rate. They accounted for 40 percent of the cases the NYPD closed in that period but the majority — two in three — of those the department deemed “unable to prosecute.”
“That is precisely our concern,” said Marcos Soler, the deputy executive director for policy at the CCRB and author of the report on declined prosecutions. “A lot of people felt this problem would go away.”
The dismissed cases with more serious discipline recommended, which ranged from complaints over ethnic comments to physical force, pre-dated the April launch of the CCRB’s prosecutorial unit and therefore fell out of its grasp, Sachs said.
Soler said the CCRB stands by its decision to find misconduct in the cases that the NYPD declined to prosecute in August.
“It’s quite clear to me in many of these cases, the board would have still found the same thing,” Soler said. “They would have found misconduct.”
Bob Gangi, director of the Police Reform Organizing Project at the Urban Justice Center, said he still remains skeptical of the CCRB’s new prosecution powers and its effect on dismissed complaints. He said the real issues lie in “structural” deficiencies within its relationship with the NYPD: Above all, because the police commissioner still holds the ultimate decision in any disciplinary proceedings.
“Our very strong sense is that until they or some similar body gets what might be the final director’s cut, that their findings will largely be ignored by the NYPD,” Gangi said. “It’s a structural deficit as long as the final decision is in the hands of the police commissioners.”