HUMAN RIGHTS WATCH Shielded from Justice: Police Brutality and Accountability in the United States
New York:

Civilian Complaint Review Board
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When former New York Mayor David Dinkins supported an independent civilian complaint review board in September 1992, police protested violently and engaged in actions, according to a police department report, that were "unruly, mean-spirited and perhaps criminal."38 An officers' protest, sponsored by the police union, involved thousands of officers demonstrating at City Hall, blocking traffic to the Brooklyn Bridge, and shouting racial epithets; current Mayor Rudolph Giuliani participated in the protest.39

Some officers involved in the protest's offensive acts were disciplined, and the police commissioner stated that the nature of the demonstration "raised serious questions about the department's willingness and ability to police itself."40 If further evidence of violent propensities were needed, an incident right after the City Hall protest provided it. As police were leaving the protest, several off-duty officers, all in civilian clothes, assaulted a man on the subway who had stepped on one of the officer's feet. The man claimed that when he attempted to apologize, the offended officer tried to punch him, and that in self-defense he then pulled out a razor and cut the officer's face. Six officers then reportedly beat and kicked him, and he suffered a broken jaw; several witnesses went directly to the police station to complain. In this case, the department did provide some accountability. Two of the officers were charged with felony assault, leading to one conviction on a misdemeanor charge that led to the officer's dismissal.

In July 1993, the CCRB was reorganized and made independent from the police department. Members of the thirteen-person board, including its chair, are appointed and approved by the mayor: five members are designated by the mayor; five representing the five boroughs are designated by the City Council; and three are designated by the police commissioner.41 The CCRB investigative staff is made up entirely of civilians. The board has the authority to compel witness testimony. As of fiscal year 1997, it had a staff of approximately 128 (including approximately eighty investigators), with a budget of approximately $5.2 million to monitor alltypes of misconduct allegedly involving members of the 38,000-strong NYPD.42 In September 1997, Mayor Giuliani, while continuing to disagree with the mission of the CCRB, agreed to provide an overdue budget increase of $1.5 million and to increase its staff.43

The CCRB publishes reports with statistical data on the number, type and disposition of complaints. It is prohibited from making its findings public regarding individual cases under confidentiality laws.44 CCRB complaint forms are only in English, although informational brochures are available in several languages (Creole, Spanish, Chinese, and Korean). CCRB staff report that they engage in extensive community outreach to inform residents of their rights and about the CCRB's operations.45

When the CCRB receives a complaint, the complainant is given the name and telephone number of the investigator handling the case, and is told that he or she can call at any time. In a recent change, the CCRB now assigns an investigator to each case for its duration, so the investigation is not passed from one to another without any knowledge of the background.46 The CCRB claims this new practice has expedited investigations. The CCRB also reports that it sends a letter after ninety days have passed, advising complainants of the status of the investigation, or whenever there is a change in the status of the complaint. If a criminal investigation has begun, the CCRB defers to the relevant district or U.S. attorney.

Once CCRB investigators complete a full investigation, the findings are reviewed by a case review panel, made up of three board members or the full board. Review panels or the full board also review truncated investigations (cases in which a full investigation is truncated due to a variety of reasons), and alternative dispute resolution cases. The latter are cases that are not investigated or kept on the subjectofficer's record but where the subject officer is required to discuss the complaint with a CCRB staff member who instructs the officer about proper procedures.

Fully investigated complaints made up approximately 25 percent of the cases disposed of by the CCRB between July 1993 and December 1996.47 During the same period, truncated cases (when the CCRB found complainants "uncooperative" or "unavailable") or administratively closed cases (when complainants fail to arrange or appear for an interview) made up approximately 61 percent of the cases; and alternative dispute resolution (such as conciliation) made up approximately 9 percent.48

In 1996, there were 5,596 total complaints received by the CCRB, and 5,716 complaints were disposed of during the year (including some from 1996 and previous years). The board substantiated 259 complaints during the year, for an approximately 4.6 percent substantiation rate.49

The CCRB's regular reports contain information about officers who have been the subject of repeated complaints. For example, there were 126 police officers with four or more complaints lodged against them from July 1, 1995 to June 30, 1997.50 The report notes that about 40 percent of those officers are assigned to Brooklyn commands, with officers assigned to the 75th Precinct making up 8 percent of all officers receiving four or more complaints during this time period.51

The system of oversight breaks down most notably at the discipline stage. The board uses a "preponderance of the evidence" standard of proof. The board forwards its recommendation to the police commissioner, who is not bound by the CCRB's findings. If the CCRB recommends disciplinary sanctions against an officer, the police commissioner must report back to the CCRB on the action taken.52 The CCRB receives a monthly report from the police department, advising the board about police action on CCRB referrals. Outside police-abuse experts have expressed concern that the internal police department procedures have all but guaranteed that even cases sustained by the CCRB do not lead to adequate discipline, or any at all. (See IAB section, below.)

Nor is there oversight of CCRB's own competence. If a complainant is dissatisfied with the outcome of a CCRB investigation, he or she can "appeal" only by providing new information or witnesses. There is no procedure by which a complainant can question the thoroughness of the CCRB's investigation. It is up to the board to determine whether its own investigation was complete.

One significant criticism of the CCRB's operations relates to the way it notifies a complainant about the final status of his or her complaint. In many cases, one complainant may file a complaint detailing more than one allegation against an officer. For example, a complainant may allege an officer used excessive force and a racial epithet. When the CCRB responds, it may merely state that the complaint has been substantiated "in part" without noting which part was sustained. Further, while the police department must notify the complainant of the final outcome of the complaint, it provides no information about whether or how the officer was disciplined when the board has substantiated the complaint.53

The CCRB claims that it investigates each complaint it receives, but there are several situations in which complaints are resolved or shelved without full investigation. Complaints are reviewed by an investigator when the complaint is initially filed, with some less serious complaints resolved at that time.54 Some complaints are resolved by conciliation, a process criticized by civil liberties advocate as an unacceptable way to handle the board's backlog. In this process, the accused officer simply meets briefly with a CCRB senior staff member who instructs the police officer as to the nature of the complaint and the proper conduct expected under police department guidelines.55 Cases are not fully investigated if the complainant fails to appear for a face-to-face interview with the investigator; those cases are considered administratively closed. Cases are also closed prior to a full investigation if the complainant withdraws his or her complaint, or if a complainantfails to appear or arrange for an interview within ten days of written notice from the CCRB.

The CCRB reports that CCRB and the police department's Internal Affairs Bureau (IAB) investigations are often concurrent. And, although not frequently, the CCRB states that it does refer cases to local or federal prosecutors.56 In the CCRB's periodic reports, however, there is no mention of such referrals.

CCRB is entirely complaint-driven. It will not pursue a case unless a complaint is filed with the board. It does not receive notification from the City Attorney's office or from court when a civil lawsuit is filed against a police officer or when one is settled or judged in favor of the plaintiff, and no investigation is initiated as a result. There is no provision for the CCRB to respond to particularly serious complaints made in such lawsuits on its own initiative where the complainant's inaction or withdrawal of the complaint with the CCRB has led to its closure.

Since the CCRB became independent from the police department in 1993, the total allegations (and total excessive force allegations) received are as follows:57

1993: 5,487 (excessive force: 2,173)

1994: 7,648 (excessive force: 3,079)

1995: 8,776 (excessive force: 3,528)

1996: 8,869 (excessive force: 3,139)

1997: 7,183 (excessive force: 2,626)58

Between the initiation of more aggressive policing policies in 1993 and 1996, complaints against the police rose by 56 percent.59CCRB Status Report, July-December 1994, p. 42.0 In response, PoliceCommissioner Howard Safir initiated a program promoted as teaching courtesy, professionalism and respect ("C.P.R."). During the first five months of 1997, complaints dropped by 21 percent, leading the commissioner to credit the C.P.R. program - which attempts to hold police commanders responsible for citizen complaints - for the drop. In response to the reported drop in complaints during first months of 1997, critics claimed that residents were not filing complaints because information about the oversight procedure's ineffectiveness had been made public by civil rights groups.60 Others explain the drop by questioning the transparency of the complaint process - pointing out that as soon as citizen complaints were to be included in reports on captains' performances (as part of the Compstat data-management program) beginning in the second half of 1996, the number of complaints recorded as received at police stations and forwarded to the CCRB dropped dramatically.61 In 1995, the NYPD received 1,955 civilian complaints during the year; in 1996, the number dropped to 1,349. During the same period, the CCRB directly received a total of 3,544 civilian complaints in 1995, with the number increasing in 1996 to 4,228.

Following the August 1997 Louima incident, there was a sharp increase in the number of citizen complaints filed with the CCRB. The number of complaints was initially undercounted by the CCRB due to a "clerical error," with the actual, higher number discovered a week after the November elections. The apparent confusion over the number of complaints stemmed from a February 1997 change in procedures that led to confusion between the CCRB and the police department.62 The CCRB claims that its staff misunderstood the procedure and believed that the IAB's written reports about complaints were duplicates of calls recorded as received by the CCRB, thus undercounting the total. The IAB explains that it changed its procedures to allow senior officers to review all allegations and to decide which ones were serious enough to warrant an IAB investigation. Of course, even with the decrease in total reported complaints during 1997, as compared to 1996, complaints are still beingfiled at a higher rate than in the four years prior to the initiation of more aggressive policing tactics.63

The New York Civil Liberties Union was instrumental in the push for, and creation of, an independent CCRB, but it has since made some of the most detailed and scathing criticisms of the CCRB's operations. In July 1996, the group reviewed the CCRB's first three years as an independent entity and found it had "largely failed in its mission." Among the reasons cited were inadequate funding, insufficient staff, and mismanagement.64

Since the CCRB became independent from the police force in 1993 until December 1996, it received 18,336 complaints against police officers, yet only one officer was dismissed as a result of a CCRB investigation.65 According to press reports, of 972 cases of alleged brutality and other misconduct since 1993 confirmed by the Civilian Complaint Review Board, the department disciplined just 215 of the officers (only one resulting in the officer's dismissal).66

City and police officials have expressed a lack of confidence in the CCRB. NYPD Commissioner Howard Safir has explained the department's inaction in CCRB-substantiated cases by stating that the CCRB investigations are of a lowquality.67 Mayor Giuliani apparently shares that view, stating in July 1997, "[A]n independent body has a very hard time effectively investigating an organization of 38,000 people that is expert at investigating itself....A much better way to improve the Police Department is to get it to investigate itself."68

Following the Louima case, the City Council held hearings on the CCRB in August 1997. City Council members reportedly criticized the CCRB as inefficient and ineffective.69 The CCRB's executive director acknowledged some of the shortcomings, yet neither he nor the board's chairman were able to answer basic questions posed by the council. The executive director stated that the CCRB's record-keeping system was not as "sophisticated as you or I would hope."70 The councilmembers urged the CCRB leaders, in the face of police department resistance to accepting and acting on the board's findings, to at least provide information about patterns and trends in violations around the city. Yet, according to press reports, neither CCRB leader put forward ideas about how to make the police department take the CCRB's findings more seriously or how to complete more thorough investigations; they did ask for additional funding, however.

Many police-abuse experts in New York City believe the mayor has too much control over the CCRB's composition and, as a consequence, may unduly influence its performance. Citing this lack of independence, they note that the current city administration often appoints ex-prosecutors and others who may be biased in favor of police officers and skeptical of complainants' allegations. Others note that many investigators are ex-police who are not always trusted by victims or witnesses. According to these observers, CCRB contact with complainants, in practice, is sporadic at best.

The board's internal politics also affect its performance. The CCRB has long been disrupted by political disputes among board members and between boardmembers and investigators. Board members, executive directors and investigators have periodically resigned in protest when cooperation has not been forthcoming within the CCRB or from the city's administration. And there have been disputes over investigators' findings in high-profile cases. Hector Soto, executive director of the CCRB until February 1996, reportedly left his post due to disputes with the police department and CCRB's chair over high-profile cases. Zornow, in turn, reportedly left his position after receiving inadequate support from the Giuliani administration.71 In mid-1996, a senior investigator and others reportedly left the CCRB after they found an officer responsible in a high-profile fatal shooting but the board did not substantiate the case.72 According to some reports, the head of the investigative team was fired, and others quit in solidarity.73

Other problems include the eighteen-month statute of limitations from the time of the incident until commencing disciplinary proceedings. The Mollen Commission called for extending the statute of limitations to three years, and Mayor Giuliani has backed this revision.74 In 1995 and 1996, a total of sixty-three cases were not pursued because the statute of limitations had expired.75

Some police abuse experts in the city have suggested that the NYPD's Advocates' Office, responsible for administratively prosecuting officers accused of serious abuses investigated and substantiated by the CCRB at departmental trials, should be abolished.76 They note that the office has traditionally failed to uphold many of the CCRB-sustained cases and question whether its role is necessary or helpful. These observers believe that the CCRB's findings should be submitted directly to the police commissioner and that CCRB staff should prosecute the case,thereby eliminating the Advocates' Office budget and providing it to the CCRB. In any case, these same observers believe that disciplinary sanctions should be made public with descriptions of cases and explanations for sanctions, while maintaining only the required privacy protections for the individual officers.

In September 1997, the City Council voted to create a five-member independent review board with subpoena power and investigators intended to investigate systemic problems within the police force, including corruption and brutality.77 The bill's sponsors hoped officers would use the new review board to report corruption in the police ranks. After the new board was approved, the mayor vetoed the bill, but the City Council overrode the veto; the mayor reportedly has threatened to go to court over the bill.78

38 George James, "Police dept. report assails officers in New York rally," New York Times, September 29, 1992.

39 Ibid. and Chevigny, Edge of the Knife, pp. 64-65.

40 Ibid., p. 65.

41 The three named by the police commissioner are the only ones allowed to have law enforcement backgrounds. CCRB Status Report, January-June 1996, p. 6.

42 NYCLU, July 1996 report; and Jane H. Lii, "How to Complain," New York Times, May 18, 1997.

43 Michael Cooper, "Giuliani to aid police-monitoring agency he had fought," New York Times, September 17, 1997.

44 CCRB Semiannual status report, January - June 1996, p. 15.

45 Telephone interview with Sherman Jackson of the CCRB, January 29, 1997. Jackson said that in a six-month period beginning in July 1996, CCRB made presentations to about forty groups, distributed signs, and brochures, and also used Public Service Announcements.

46 Ibid.

47 NYCLU report, September 1997, p. 6.

48 Ibid., Table II.

49 Ibid., Table II.

50 CCRB Semiannual status report, January - June 1997, p. 41.

51 Ibid.

52 Without providing an explanation, the CCRB stopped making recommendations in most substantiated cases during 1994-1995, but has since resumed making them. The CCRB's January-December 1996 report, states, "[S]ince October 1996, the Board has made recommendations in virtually all cases that have been substantiated." CCRB Semiannual status report, January - December 1996, p. 14.

53 Dan Barry, "Independent agency isn't policing the police, critics say," New York Times, July 13, 1997.

54 CCRB is reportedly developing a mediation program using outside mediators to discuss complaints with complainants and officers to resolve less serious cases.

55 CCRB Semiannual status report, January - June 1997 pp. 9-10.

56 Telephone interview with Sherman Jackson of the CCRB, January 29, 1997.

57 Each complaint may contain several allegations. 1993-1995 figures compiled in NYCLU July 1996 report, Table V, from CCRB reports.

58 According to CCRB's community outreach coordinator, telephone inquiry, March 16, 1998.

59 Jane H. Lii, "When the saviors are seen as sinners," New York Times, May 18, 1997. City officials claim that effective, aggressive policing was the cause of the increase in complaints. But the last time statistics were provided in this regard by the independent Civilian Complaint Review Board (CCRB), 88 percent of complaints came from individuals who were neither arrested nor ticketed (cited for some minor violation).

0 It would appear that many of the people filing complaints are not engaged in criminal conduct, but that "aggressive" policing may involve the harassing and questioning of individuals who later file complaints. CCRB statistics since 1995, however, exclude these data and according to local advocates, the CCRB has never explained why it stopped providing this information.

60 Michael Cooper, "Complaints About Police Fell 21 Percent in Year's First Five Months," New York Times, June 20, 1997.

61 Wayne Barrett, "Brutal Reality," Village Voice, September 16, 1997. During 1996, the number of complaints reported as received by the NYPD dropped during the second part of the year, with 945 complaints recorded in the first six months, and just 404 during the second six months.

62 Michael Cooper, "Undercount found in civilian complaints about NYC police," New York Times, December 11, 1997; Cooper, "Error in counting complaints prompts steps by police review board," New York Times, December 12, 1997.

63 NYCLU July 1996 report, Table V.

64 If the difficulty in interviewing CCRB members and getting information from the agency is any indication, it may be understaffed; it was, for whatever reason, uncooperative with Human Rights Watch. CCRB staff would not meet with Human Rights Watch, and CCRB staff denied that the 1996 annual report was available long after its release. Human Rights Watch submitted questions to the board in writing, but it took more than four months and many phone calls to obtain even oral answers to some of the questions, and no response by mail, as promised, has been forthcoming as of this writing.

65 NYCLU report: a fourth anniversary overview of the Civilian Complaint Review Board, July 5, 1993 - July 5, 1997; Dan Barry, "Independent agency isn't policing the police, critics say," New York Times, July 13, 1997. In that case, Officer Stephen Morrissey reportedly used unnecessary force in a February 1994 encounter with a garage manager. Dan Barry, Deborah Sontag, "New York dismisses police, but rarely for brutality," New York Times, October 6, 1997.

66 David Kocieniewski, "The trial room; system of disciplining police assailed from inside and out," New York Times, December 19, 1997.

67 The commissioner made this observation on a Black Entertainment Television talk show, August 18, 1997. In a written statement submitted to the New York Advisory Committee to the U.S. Commission on Civil Rights, he wrote that CCRB investigations referred to the department have been "very old, typically 15 months old or older, and they have contained serious deficiencies." Statement dated October 29, 1997.

68 Randy Kennedy, "Giuliani favors internal police inquiries over review board's," New York Times, July 14, 1997.

69 Randy Kennedy, "Civilian police review unit is criticized as ineffectual," New York Times, August 29, 1997.

70 Ibid.

71 Clifford Krauss, "Head of Complaint Board Quietly Resigns," New York Times, June 13, 1996.

72 See below, Carasquillo case.

73 Juan Gonzalez, column, New York Daily News, August 27, 1996.

74 Mollen Commission report, p. 143; Michael Cooper, "Giuliani to aid police-monitoring agency he had fought," New York Times, September 17, 1997.

75 NYCLU report, September 1997, Table III, citing CCRB's 1995 and 1996 annual reports.

76 See, for example, Joel Berger, attorney, speech to the Staten Island NAACP, October 1996. Berger is a former senior litigator with the New York City Law Department.

77 Vivian S. Toy, "New police review board approved by city council," New York Times, October 1, 1997.

78 Vivian S. Toy, "Veto of police review board overridden," New York Times, November 26, 1997.

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Human Rights Watch