Police Practices and Civil Rights in New York City
Appendix C
U.S. Commission on Civil Rights, Office of General Counsel, Response to NYPD Comments on Draft Police Practices and Civil Rights in New York Report
This memorandum responds to the Affected Agency Comments submitted by the New York Police Department (NYPD) regarding the draft report entitled Police Practices and Civil Rights in New York City ( Draft Report ). The Comments were reviewed by OGC staff and the contractor, resulting in this response. After addressing a few general points, the memorandum sets out, in point form, suggested responses to each NYPD Comment in the NYPD Response.
First, we believe that many of the NYPD affected agency comments are unfounded, immaterial, or not relevant to the points to which they allegedly respond. The NYPD comments, at times with a shrillness that reveals a lack of objectivity, unfairly attack the Draft Report. These attacks often begin by mischaracterizing the Draft Report, which allows the NYPD to respond to straw-man arguments. In other instances, the NYPD clearly just disagrees with the conclusions reached, and uses inflammatory language rather than logic or fact to support its position. Despite these problems, however, there are a number of points raised in the NYPD Comments that merit consideration.
Second, these comments are extremely critical of the Draft Report's reliance on statements of various witnesses made during Commission hearings. However, the Commission has historically cited the sworn testimony of hearing witnesses in its reports to ensure that there is some consideration of the views and perceptions of members of the community about tensions that perpetuate problems of discrimination and inequality.
Third, the NYPD Response contains considerable information that was not previously available to the Commission. Although it may be the case that much or all of this information should have been provided by the NYPD to the Commission prior to the NYPD Response (pursuant to the subpoena), it nevertheless remains true that in order for the Commission to produce the most accurate and balanced report possible much of this new information should be included in the Draft Report. In deciding whether and in what form to include the new information, we emphasize that most of the new information provided does not undermine the Draft Report's conclusions. We also have taken into consideration the fact that much of the information is not supported by any underlying documentation the NYPD Response contains primarily assertions of fact without citation. Still, for much of the new information, there is no reason to question its accuracy or validity and, in such cases, it will simply be added.
Fourth, the NYPD Response alleges certain errors and inconsistencies in the statistics and other facts included in the Draft Report. In most cases, these errors and inconsistencies are apparently the result of erroneous information contained in NYPD documents relied upon by the contractor in writing the initial version of the Draft Report. Regardless, the following point-by-point discussion of the NYPD comments indicates, among other things, instances where it appears that these comments have accurately asserted errors of fact and inconsistencies that should be corrected in the Draft Report.
POINT-BY-POINT OGC RESPONSES
I. INTRODUCTION
NYPD Comment #1 (p. 4; re: p. 6, 1): The Draft Report states that according to the NYPD, the use of deadly force by the city's police officers is no more prevalent than in other major cities. The NYPD asserts that the use of deadly force is substantially lower than in other major cities.
OGC Response: The Draft Report will be revised to add the following statement: 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.
NYPD Comment #2 (p. 7; re: p. 9, 2): The NYPD has correctly stated that all City Council members represent distinct districts. None of the City Council members represent an entire borough. Also, the President of the City Council is the Public Advocate.
OGC Response: The Draft Report will be changed to reflect the NYPD's Comments.
NYPD Comment #3 (p. 7; re: p. 12, 2): The NYPD offers information about its newly developed Streetwise cultural diversity curriculum.
OGC Response: The information provided here by the NYPD is not necessarily relevant to the statements that are being made by the Commission. The Commission's statements remain accurate and this information is not required to be added. No change in the Draft Report is necessary.
NYPD Comment #4 (p. 7; re: p. 14, line 1): The NYPD correctly notes that the Commission should amend the 4,000,000 number to 400,000 population figure.
OGC Response: The Draft Report will be revised to reflect the correct population figure.
NYPD Comment #5 (p. 7; re: p. 14, 2): The Draft Report states that the NYPD is one of the largest police departments in the country. The NYPD points out that they are at least three times larger than the next largest department.
OGC Response: The Draft Report will be revised to state that the NYPD is the largest police department in the United States.
NYPD Comment #6 (p. 7; re: p. 15, 2): The NYPD essentially argues and disagrees with the Commission's characterization of the Department's emphasis on quality of life crimes. The NYPD also notes that quality of life initiatives are routinely demanded by the communities.
OGC Response: No change to the Draft Report is necessary.
NYPD Comment #7 (p. 8; re: p.16, 1): The NYPD has provided updated numbers concerning crime rates.
OGC Response: The numbers in the Draft Report are accurate. The NYPD's updated numbers, however, will be substituted.
NYPD Comment #8 (p. 8; re: pp. 16 17): The NYPD offers information that provides a more favorable picture of the number of civilian complaints the Department has faced and attempts to explain these numbers.
OGC Response: This NYPD Comment is more directly relevant to Chapter 4 where they are addressed.
NYPD Comment #9: (p. 13; re: p. 16, 2): The main criticism here is that the Draft Report does not reflect the fact that an increasing percentage of cases referred to the NYPD by the CCRB have resulted in disciplinary action.
OGC Response: The NYPD Comment does not contradict or alter anything stated in the Draft Report. No change in the Draft Report is necessary.
NYPD Comment #10 (p. 15; re: p. 17, 2): The NYPD is essentially asserting that the Commission has failed to make the NYPD's defense in this section.
OGC Response: The information presented does not contradict any facts in this section of the Draft Report. No change in the Draft Report is necessary.
NYPD Comment #11 (p. 16; re: p. 17, 3): The NYPD asserts that this passage wrongly implies that complaints are increasing and that the NYPD's programs are new.
OGC Response: The paragraph is accurate and requires no revision. No change in the Draft Report is necessary.
NYPD Comment #12: (p. 16; re: p. 18, 2): The NYPD asserts that the Draft Report mischaracterizes the 48-hour rule.
OGC Response: The statement in this section concerning the 48-hour rule is accurate as drafted. No change in the Draft Report is necessary.
NYPD Comment #13 (p. 17; re: p. 18, 2): The NYPD asserts that they have responded to the OGC Response here about bi- or multilingual receptionists in precincts with large non-English-speaking populations.
OGC Response: While the information provided by the NYPD is interesting, the point raised by the Commission is accurate as drafted. No change in the Draft Report is necessary. This information will be added into the Police-Community Relations section as a footnote.
NYPD Comment #13a (p. 17 re: p. 18, 3): The NYPD points out that the Mollen Commission was prompted by the discovery that several officers, not entire precincts, were selling drugs and beating suspects.
OGC Response: The Draft Report will be revised to state: NYPD officers in several New York precincts were discovered selling drugs and beating suspects.
NYPD Comment #14 (p. 17; re: p. 19, 1): The NYPD asserts that the Draft Report fails to include the Mollen Commission's strong endorsement of internal reforms that were put in place by the Department. While accurate, this NYPD Comment is not related to the point being made in the Draft Report.
OGC Response: The Draft Report is accurate and the proposed insertion by the NYPD is not necessary. No change in the Draft Report is necessary.
NYPD Comment #15 (p. 17; re: p. 23): The NYPD asserts that the Commission's discussion of the New York Attorney General's Report fails to include numerous objections raised by the NYPD. Although a number of specific objections are raised, none of them makes any of the Draft Report's statements incorrect or false.
OGC Response: No change in the Draft Report is necessary. However, the following footnote will be inserted: Not surprisingly, the NYPD objects to much of the analysis and conclusions in the Attorney General's Report.
II. RECRUITMENT, SELECTION, AND TRAINING
NYPD Comment #1 (p. 23; re: p. 25, 2): This NYPD Comment misrepresents the Draft Report, which explicitly notes numerous factors important to effective policing (see, e.g., Commission Report, p. 25). The NYPD Comment is correct that no specific proposal is made regarding the form of affirmative action.
OGC Response: No change in the Draft Report is necessary. However, in response to a request by Commissioners, there will be specific OGC Responses regarding the form of affirmative action that the NYPD might use added to the Draft Report.
NYPD Comment #2 (p. 24; re: p. 26, 2): The statistics on pages 11 and 26 of the Draft Report are somewhat inconsistent.
OGC Response: This inconsistency will be eliminated.
NYPD Comment #3 (p. 24; re: p. 26, graph): The Draft Report is accurate. If anything, the Draft Report's numbers are more favorable to the NYPD than those of the NYPD Comments.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #4 (p. 24; re: p. 27, 1): The Draft Report is accurate.
OGC Response: A statement will be added regarding the representation of recruits of color in the Police Academy.
NYPD Comment #5 (p. 26; re: p. 27, 2): The Draft Report is correct; the updated numbers reflected no material change. The statistics included in the NYPD Comments do not suggest that Minorities are appointed to discretionary ranks in greater proportion than their representation in the Department, e.g., 13% of officers are African American, but only 2.4% of captains are African Americans. New statistics are included regarding the shorter time for promotion of minorities.
OGC Response: The new information forwarded by the NYPD pointing out the shorter time period for promotion of officers of color and women will be added.
NYPD Comment #6 (p. 29; re: p. 29, 3): The NYPD Comment suggests that the Draft Report misstates the pass rate for minority takers of the 1999 exam, and includes new statistics for the October 1999 exam.
OGC Response: The correct minority pass rate for the January 1999 exam (43.66%) will be substituted and the new information regarding the October 1999 minority pass rate (68.12%) will be added.
NYPD Comment #7 (p. 29; re: pp. 31 and 32): This NYPD Comment is critical of the Draft Report's use of statements by a sergeant within the NYPD about the Department's hiring process.
OGC Response: The sworn testimony of this NYPD insider is not offered to prove the truth of the statement asserted but to reveal the perceptions of officers of color within the NYPD. The Draft Report clearly provides sufficient detailed information about these processes for a reasonable person to reach proper conclusions about the witness perceptions. No changes are necessary.
NYPD Comment #8 (p. 31; re: p. 32, 2): This NYPD Comment is semantic.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #9 (p. 31; re: p. 33, 1): This NYPD Comment addresses a section regarding college education requirements for officers.
OGC Response: This section of the Draft Report will be revised consistent with the comments of Commissioners.
NYPD Comment #10: (p. 33; re: p. 35, 2): This objection contains statistics of questionable relevance.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #11 (p. 35; re: p. 37): The Draft Report clearly addresses the 1998 recruitment drive. That drive was the last drive for which the Commission was provided information. The NYPD Comment contains a detailed account of the 1999 drive.
OGC Response: A section will be added describing the 1999 recruitment drive, which appears to have helped to increase the level of minority exam filers.
NYPD Comment #12 (p. 50; re: p. 39, 2): The Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #13 (p. 51; re: p. 40, 3): The NYPD provides more information about its Recruitment Drive and points out that the services by the advertising agency were a gift to the City.
OGC Response: A summary of this additional information will be added and the agency services will be properly referred to as a gift to the city.
NYPD Comment #14 (p. 51; re: p. 41, 1): The NYPD argues that the police commissioner did not contradict his own statement as a witness claimed.
OGC Response: The text in this section will be clarified to show that the Department disputes the witness assertion.
NYPD Comment #15 (p. 51; re: p. 42, 1, 2): This NYPD Comment addresses the discussion in the Draft Report regarding proposals for a police officer residency requirement.
OGC Response: This section of the Draft Report will be revised in accordance with comments on this point by Commissioners.
NYPD Comment #16 (p. 52; re: p. 45, 4): This NYPD Comment states that the Mayor s proposal to establish a Law Enforcement High School is already in place. No details are provided.
OGC Response: A footnote will be inserted to point out that the NYPD states that the proposal is already in place.
NYPD Comment #17 (p. 52; re: p. 48, 3): The NYPD Comment includes new information about the writing of the promotional exams.
OGC Response: This newly presented information will be incorporated into the Draft Report.
NYPD Comment #18 (p. 53; re: p. 49, 3): The NYPD Comment includes new information about the writing of the promotional exams.
OGC Response: A footnote will be added to the Draft Report incorporating the new information.
NYPD Comment #19 (p. 53; re: p. 49, 4): The NYPD Response's conclusion that there is no evidence of bias in the promotion system is contradicted by the statistics. Additional information is given regarding the criteria considered for promotion.
OGC Response: New information regarding promotion will be added to the Draft Report.
NYPD Comment #20 (p. 54; re: p. 50, 2): This NYPD Comment argues against and misinterprets statements in this section of the Draft Report by claiming that these statements imply that police officers are rewarded for abusing the public.
OGC Response: Instead, the statements of this witness, who is an officer in the NYPD, are clear about the types of police conduct that engender incentives and those that do not. No changes are necessary.
NYPD Comment #21 (p. 54; re: pp. 51, 52): This NYPD Comment disputes the sworn testimony of Commission witnesses, who are employed by the NYPD.
OGC Response: The Draft Report will clarify that these statements are unsubstantiated but that they are relevant to an understanding of the perceptions and tensions within the NYPD involving officers of color.
NYPD Comment #22 (p. 56; re: p. 53, 1): The NYPD Comment indicates that the Commission did not request additional data on OEEO complaints The NYPD Comment includes 1999 data. Why is no data provided for 1997 and 1998? The statistics provided are of limited usefulness without more information about each complaint and disposition.
OGC Response: The Commission's subpoena duces tecum issued to the NYPD encompassed this additional data. A footnote will be added to the Draft Report discussing the 1999 statistics and noting their limitations.
NYPD Comment #23 (p. 57; re: p. 53, 1): This NYPD Comment discusses measures taken by the Department to reduce retaliation for making complaints. These measures are not particularly strong, and no statistics are provided.
OGC Response: A footnote will be added to discuss these measures.
NYPD Comment #24 (p. 58; re: p. 53, 1): The NYPD indicates that such surveys have been conducted. This information was not provided to the Commission.
OGC Response: The Report will indicate that, according to the NYPD, the OEEO has elected to conduct written confidential inquiries of controlled groups to ascertain if employment discrimination has occurred, but that the results were not provided to the Commission.
NYPD Comment #25 (p. 58; re: p. 55, 2): The NYPD provides information about additional measures to reduce sexual harassment; none of these measures is particularly significant.
OGC Response: A listing of these measures will be added to the Report.
NYPD Comment #26 (p. 60; re: p. 58, 1): The Draft Report is accurate. The Commission issued a subpoena duces tecum to the NYPD for the following documents: Any document, including but not limited to, reports, studies, compilations, press releases, orders or special orders, regulations, rules, directives, guidelines, and policy statements generated, issued, and/or collected by the NYPD relating to the number of harassment and/or discrimination complaints based on gender, race, or ethnicity within the NYPD from 1993 to the present. The Department agreed to comply with the subpoena and was legally obligated to submit the requested information.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment # 27 (p. 60; re: p. 58, 2): This NYPD Comment contains additional information about training requirements for OEEO investigators.
OGC Response: The new information will be summarized in the Draft Report.
NYPD Comment #28 (p. 60; re: p. 59, 1): The NYPD includes new information about additional OEEO staffing.
OGC Response: The new information will be added to the Draft Report.
NYPD Comment #29 (p. 61; re: p. 59, 2): The Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #30 (p. 61; re: p. 59, 2): The NYPD Comment contains alternative explanations for an increase in complaints to outside agencies.
OGC Response: These alternate explanations will be summarized in the Draft Report.
NYPD Comment #31 (p. 61; re: p. 60, 1): This NYPD Comment states that no information was requested on this point. Otherwise, the Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #32 (p. 62; re: p. 60, 2): The NYPD Comment states that no information was requested on this point. OEEO reports, from which this data may be culled, were clearly covered by the Commission's subpoena duces tecum issued to the NYPD. The NYPD Comment includes additional statistics regarding disposition of OEEO complaints; however, these statistics are of little relevance without knowing the basis of the claims.
OGC Response: The Draft Report will be revised to include a discussion of the new statistics.
NYPD Comment #33 (p. 62; re: p. 62, 1): The Draft Report is accurate. Some new statistics are provided in the NYPD Comment.
OGC Response: The Draft Report will be revised to include a discussion of the new statistics.
NYPD Comment #34 (p. 63; re: p. 62, 3): The NYPD updates information contained in the Draft Report.
OGC Response: The updated information will be included in the Report.
NYPD Comment #35 (p. 63; re: pp. 64 67): The NYPD mentions the Visiting Professors Program and Behavioral Science Advisory Board, but no detail is given.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #36 (p. 63; re: p. 65): The NYPD provides some new information about the training materials, including information about different forms of training.
OGC Response: Although the Draft Report contains a fair and accurate description of NYPD diversity training, new information contained in the NYPD Comment will be added.
NYPD Comment #37 (p. 67; re: p. 66): The Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #38 (p. 67; re: p. 66, 2): The Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comments #39 (p. 67; re: pp. 66 68): The Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #40 (p. 68; re: p. 68): The NYPD claims that references to assimilation are no longer included in the training materials.
OGC Response: A clarification will be added in the text that the assimilation references existed in the training materials until May 1998.
NYPD Comment #41 (p. 68; re: p. 68): The NYPD offers additional information about the development of training materials, and claims regarding their specific purpose. These appear to be ex post facto rationalizations of materials that contain ridiculous racial stereotypes.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #42 (p. 69; re: pp. 68 69): The NYPD Comment claims that negative references to certain ethnic groups are no longer included in the training materials.
OGC Response: A clarification will be added in the text that the negative references existed in the training materials until May 1998.
NYPD Comment #43 (p. 69; re: p. 69): The Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #44 (p. 69; re: p. 70): The Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #45 (p. 69; re: p. 70): This comment focuses on a criticism by Norman Siegel about the limited information about Dominicans contained in NYPD training materials.
OGC Response: Mr. Siegel's comments are accurate. The Report will be revised, however, to indicate that, according to the NYPD, all recruit officers are require[d] . . . to purchase and read New Immigrants in NY (Foner, 1988), which includes an entire chapter on the Dominican immigrant (27 pages of text).
NYPD Comment #46 (p. 70; re: p. 71, 1): The Draft Report is accurate.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #47 (p. 70; re: p. 72, 1): The NYPD alleges that the Draft Report alleges inconsistency without support.
OGC Response: The first paragraph on page 72 of the Draft Report will be revised to read: . . . the materials are internally inconsistent because they send a confusing message should officers treat each individual differently according to the training he or she has received about the individual's ethnicity, or should the officer treat everyone the same?
NYPD Comment #48 (p. 70; re: p. 73): The NYPD states that the Draft Report expresses the need for cultural and language sensitivity training, but fails to include the current curriculum consisting of the Interactive Language Workshop. In addition, the Response points out that the NYPD provides all recruits with a book of Spanish phrases at Department expense.
OGC Response: A footnote will be added to include this new information.
NYPD Comment #49 (p. 70; re: p. 74, 1): The NYPD takes issue with a witness s claim that instructors are not qualified and some only get one day of training prior to teaching.
OGC Response: The Draft Report will be revised to add that the NYPD maintains that each Police Academy instructor has completed a two-week method of instruction class and is certified by New York State Division of Criminal Justice Services, Bureau of Municipal Police.
NYPD Comment #50 (p. 70; re: p. 74, 2): The NYPD attempts to explain a witness s observation that officer trainers in an audience for a hate crimes seminar appeared to be unfamiliar with the material presented, by stating that this seminar was a new training initiative, and the material was being presented to the audience for the first time.
OGC Response: The witness's statement will be eliminated.
NYPD Comment #51 (p. 71; re: p. 74, 2): The NYPD notes that the Draft Report fails to point out that all officers, including veterans, have been trained in Verbal Judo, which is essentially a course built on respect ; further, the NYPD claims that there is a cultural awareness component in every training course and that the NYPD has conducted training courses for new promotees for may years.
OGC Response: The Draft Report will be revised to address these points.
NYPD Comment #52 (p. 71; re: p. 74, 3): This comment contains new information regarding the role of minority community members and specialists in various ethnic and cultural groups within the City in the preparation of training materials.
OGC Response: This information will be incorporated into the Draft Report.
NYPD Comment #53 (p. 73; re: p. 75, 2): The NYPD offers additional information about the Streetwise program.
OGC Response: A sentence will be added to the Draft Report explaining that almost 3,000 newly graduated officers in the June 1998, February 1999, and April 1999 recruit classes received the Streetwise: Language, Culture and Police Work in New York City training, which includes role plays, videotapes, and language-training audio tapes.
NYPD Comment #54 (p. 74; re: p. 77, 2): The NYPD argues that characterizations of NYPD diversity training efforts as inadequate by Department critics are without factual support.
OGC Response: This section of the Draft Report includes the perceptions of community representatives who are familiar with NYPD training efforts. No change to the Draft Report is necessary.
NYPD Comment #55 (p. 74; re: pp. 78 79): This comment lists types of sexual harassment training provided to officers, but does not make clear whether this training is the same as or different from the training listed on pages 79 to 80 of the Draft Report.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #56 (p. 74; re: pp. 80 81): The NYPD provides information about the ethnic and gender makeup of the Behavioral Science Department of the Police Academy and the qualifications of certain members of the academy.
OGC Response: The Draft Report will be revised to discuss the ethnic and gender makeup of the academy's Behavioral Science Department, noting that minority staff in this Department is far greater than in the Police Academy generally.
[NYPD Comments ##57 66 (NYPD Comments pages 76 81) See Response to Chapter 5]
NYPD Comment #67 (p. 81; re: p. 89): The NYPD discusses measures already taken by the NYPD to implement certain suggestions of the Mayor's Task Force Report.
OGC Response: The Draft Report will be revised to indicate what new information has been provided by the NYPD regarding the progress it has made in implementing the Mayor's Task Force OGC Responses listed on pages 89 to 90.
NYPD Comment #68 (p. 83, re: p. 90): This comment is argumentative.
OGC Response: No change in the Draft Report is necessary.
III. POLICE-COMMUNITY RELATIONS
NYPD Comment #1 (p. 84; re: p. 94, fn. 412): The NYPD asserts that it provided all requested information to the Commission. The NYPD misses the point of footnote 412. Footnote 412 states that the information provided by the NYPD lacked specificity.
OGC Response: No change in the Draft Report is required. However, the Draft Report will be revised to reflect new information submitted by the NYPD.
NYPD Comment #2 (p. 84; re: p. 97, 3): The NYPD has provided additional and updated information concerning Precinct Community Councils. The NYPD Comment does not contradict any information contained in the Report.
OGC Response: The Draft Report is accurate. No change in the Draft Report is necessary. The information provided here and in Attachment K by the NYPD would seem to show the NYPD's commitment to this program. The new information provided by the NYPD will be addressed below where certain OGC Responses concerning Precinct Community Councils are discussed.
NYPD Comment #3 (p. 85; re: p. 99, 2): The NYPD has provided additional information concerning the Model Block Program. The information does not contradict anything in the Draft Report. The NYPD Comments provided here by the NYPD appear factual in nature and could be used by the Commission to add information to the Model Block section.
OGC Response: While no change in the Draft Report is necessary, some of the information provided on pages 85 86 of the NYPD Comments will be added to the Draft Report.
NYPD Comment #4 (p. 86; re: pp. 102 03): The NYPD asserts that the Commission's criticisms of the CPR program must be viewed in light of the purported drop in the number of civilian complaints. The Commission's points in the Draft Report are not contradicted by this information. Moreover, there is no way to determine at this juncture whether the numbers are accurate or are being accurately portrayed. The Draft Report remains accurate without change. The NYPD also attaches its Code of Professional Standards at Attachment L. Nothing in this Code contradicts anything that the Commission has stated in this section.
OGC Response: No change is necessary.
NYPD Comment #5 (p. 86; re: p. 103, 2): The Draft Report states that there was a 99% acceptability rating in testing for the CPR program. The NYPD asserts that the number is slightly more than 98%. Regardless, the Commission's substantive point remains accurate. The NYPD also provides additional information about disciplinary actions taken in the cases of NYPD CPR test failures. This information is new; however it does not change the Commission's substantive point.
OGC Response: The Draft Report will be revised to substitute slightly over 98% for 99%. The new information provided by the NYPD will be added in a footnote.
NYPD Comment #6 (p. 87; re: p. 105, 2): The NYPD states that they have drafted a procedures manual for Precinct Community Councils. This was one of the comments discussed in the Draft Report.
OGC Response: A footnote will be added in this section that states: Since the hearing in this matter, the NYPD has adopted a mandatory polices and procedures manual for Precinct Community Councils that address many of the points raised by the Mayor's Task Force. No changes to the text are necessary.
NYPD Comment #7 (p. 87; re: p. 106, 4): This NYPD Comment discusses the Youth Academy. No new information is presented here and no changes are necessary.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #8 (p. 87; re: p. 107, 1): This NYPD Comment provides information concerning some preliminary steps that the Department is taking relating to role playing interactions between youth and the police. Nothing in this NYPD Comment contradicts anything in the Draft Report.
OGC Response: No change in the Draft Report is necessary. However, a footnote will be added to the Draft Report to address the post-hearing, preliminary steps by the NYPD relating to police/youth relations.
NYPD Comment #9: (p. 87; re: p. 107, 2): This NYPD Comment lists several new initiatives taken by the NYPD in the community policing area.
OGC Response: While no change in the Draft Report is necessary, the Draft Report will be revised to add the information here into the text since these represent new community policing initiatives taken by the NYPD since the hearing.
NYPD Comment #10 (p. 90; re: p. 108, 2): This NYPD Comment does not provide any relevant information for this section.
OGC Response: No change in the Draft Report is necessary.
IV. MONITORING OF CIVILIAN COMPLAINTS
NYPD Comment #1 (p. 110; re: p. 117, 1): This technical NYPD Comment concerning the structure of the NYPD appears to be correct.
OGC Response: The first sentence of the paragraph will be modified to read: The New York City Police Department and external oversight entities share. . . .
NYPD Comment #2 (pp. 110, 112 n.476, 114; re: pp. 117, 1, 119 n.476, 121): Although the NYPD asserts that data concerning IAB and the Commission to Combat Police Corruption were never requested from the Department, the subpoena duces tecum issued to the Mayor encompassed [a]ny document . . . relating to allegations of excessive force, harassment or mistreatment of residents of New York City by [NYPD] officers, broken down by race, ethnicity, and gender of officer(s) and complainants.
OGC Response: The Draft Report will be revised to add to the discussion in footnote 476 some mention of the specific attempt by the Commission to obtain this information from the Mayor's office.
NYPD Comment #3 (p. 111; re: p. 118, 2): This objection correctly notes that a new unit within the NYPD has become responsible for investigation of retaliation complaints.
OGC Response: The sentence beginning at the bottom of page 118 will be modified to read: The NYPD has authorized its Employee Relations Section to investigate allegations of retaliation. . . .
NYPD Comment #4 (p. 112; re: p. 120, 1): The Department's contention that the Commission never sought information concerning the role of IAB is contrary to our understanding.
OGC Response: Addressed above in response to NYPD Comment #2.
NYPD Comment #5 (p. 113; re: p. 120): The Department appears to be correct that Mayor Giuliani authorized creation of a Commission to Combat Police Corruption (CCPC). However, the Mayor s Office was asked to provide information on this subject, but apparently declined to do so.
OGC Response: Immediately following footnote 481, a sentence will be added, stating: The Mayor, however, vetoed that legislation. Following that sentence, the following footnote will be added to discuss the CCPC:
Although there has been no completely independent oversight of IAB, a mayoral commission does review IAB procedures. In 1995, Mayor Giuliani created the Commission to Combat Police Corruption (CCPC) to assess the Department's anti-corruption efforts. Although critics have criticized the CCPC as in its most recent annual report, the CCPC gave IAB only a passing grade in investigating officer misconduct. See N.Y. L.J. at 1 (Nov. 17, 1999). More recently, the CCPC found that although IAB did a reasonably good job of investigating misconduct, IAB was an undesirable assignment that officers were anxious to leave. See IAB Cops Can't Wait to Get Out, Study Says, N.Y. Daily News, Mar. 24, 2000, p. 7. Although the CCPC has been criticized as ineffective, the Department appears to have been somewhat responsive to CCPC reports. For example, in response to a CCPC report documenting the Department s failure to punish officers who lie under oath, the Department promised to terminate officers who lie. See See-No-Evil Officers Should Pay, New York Times, Aug. 24, 1997, sec. 4, p. 3. Finally, the last two sentences of this paragraph that currently follow footnote 481 will be removed.
NYPD Comment #6 (p. 114; re: p. 122, 1): The NYPD incorrectly states that the Commission never requested information concerning OCD and IAB investigations. The information that the NYPD has provided in its response, however, is consistent with the Report.
OGC Response: The following additional information will be added to the Report in a footnote at the end of the first paragraph on p. 122: Although the Mayor's office initially declined to provide the Commission with additional information concerning OCD investigations, some information has been provided to the Commission following the initial drafting of this Report. In particular, the Department noted that about 25% of civilian complaints are referred to the OCD for review. After being referred to the subject officer's borough command, the subject officer s commanding officer is then usually designated to conduct an investigation of the complaint. The NYPD also contends that dispositional data for all OCD claims is kept by the Department. This data, however, have not been provided to the Commission.
NYPD Comment #7 (p. 118; re: p. 125, 2): This objection concerns a quote by the Public Advocate citing a 44% increase in civilian complaints from 1992 to 1998 without noting the increased numbers of police officers from 1992 to 1998, suggesting that the rise in complaints may be attributable to the increased size of the police force. However, the Report cites directly to Mayor Giuliani s testimony on the increased size of the police force.
OGC Response: No change is necessary; however, a footnote will be added to acknowledge the increased size of the police force over the same period of time.
NYPD Comment #8 (pp. 118 19; re: p. 125): The NYPD contends here that citation to the high number of complaints is unfair because most were not substantiated.
OGC Response: No changes are necessary.
NYPD Comment #9 (p. 119; re: p. 126, 2): This objection to the discussion of the 48-hour rule is baseless and fails to address the fundamental objection to the rule, that it gives officers the opportunity to get their stories straight.
OGC Response: No changes are necessary.
NYPD Comment #10 (p. 121; re: p. 128, 2): This objection is directed to the statement that the NYPD rarely disciplines officers.
OGC Response: The statement is the sworn testimony of a single witness under a section of the Report concerning perceptions of police misconduct. A footnote will be added to explain that the officers involved in the Diallo shooting have been involved in previous shooting incidents, yet, according to NYPD records, that prior to the Diallo shooting, none of the officers involved ever received charges and specifications or were the subject of any formal discipline.
NYPD Comment #11 (p. 122; re: p. 129, 1): This objection is to the factors involved in police misconduct, which are provided through the sworn testimony of witnesses in a section of the Report that concerns perceptions of police misconduct.
OGC Response: The Draft Report will be revised to emphasize that these factors represent the collective perceptions of knowledgeable witnesses.
NYPD Comment #12 (p. 125, n.521; re: p. 133, n.521): The NYPD objection that the officer receiving a civilian complaint must report it to the CCRB, if the complaint falls within CCRB jurisdiction, misses the point of this footnote, which is that it is still the officer who makes the initial determination whether the CCRB has jurisdiction.
OGC Response: The footnote is entirely accurate, but can be clarified easily. The footnote will be revised by changing the period to a semicolon at the end of the last substantive sentence of this footnote, and add the following text: if the officer determines that the complaint is within the jurisdiction of the CCRB, then he must forward that complaint directly to the CCRB.
NYPD Comment #13 (p. 127; re: p. 134, 2): This objection lacks substance, as the information the NYPD seeks to provide is squarely within the text of the Report.
OGC Response: No change is necessary.
NYPD Comment #14 (p. 130; re: p. 137, 2): The NYPD is correct that mediated complaints remain on the officer s record as mediated, with the allegations removed.
OGC Response: That information, however, is already contained in the Report, at n.534. No change is necessary.
NYPD Comment #15 (p. 131; re: p. 138, 1): The NYPD correctly notes that the CCRB discontinued conciliation of complaints last year.
OGC Response: Although the Report does not contain any factual inaccuracies, the following clarification will be added at the top of footnote 538, after the Ibid. cite: The CCRB suspended the conciliation process on May 12, 1999.
NYPD Comment #16 (p. 133; re: p. 140, 2): This NYPD objection incorrectly states that the Report discusses the CCRB's adjudication of cases not within its jurisdiction. In fact, the Report states exactly the opposite when the CCRB concludes that an officer has committed misconduct not within its jurisdiction, the Report states, that information is forwarded to the Department.
OGC Response: No change is necessary.
NYPD Comment #17 (p. 134; re: p. 134, 2): This objection concerns the Draft Report's description of a Police Department team making comments regarding disciplinary action. The description is based on information from the Public Advocate's Interim Report.
OGC Response: A statement will be added to show the different description provided by the NYPD.
NYPD Comment #18 (p. 135; re: p. 142, 1): The NYPD contends that the description of the DAO as advocate for the officers is misleading. The Report correctly states that the DAO is charged with making sure that charges filed against an officer are legally sufficient. However, the Report can be misinterpreted because the use of the term advocate might suggest (incorrectly) that the DAO actually represents officers when charges are filed against them. The Department also asserts that Patrol Guide section 118-05 has been superseded by Patrol Guide section 206-05, but the Department did not provide that section with its Response, so it is impossible to evaluate the validity of this assertion.
OGC Response: The phrase acts as advocate for the officer since it will be deleted from the first sentence in this paragraph on page 142.
NYPD Comment #19 (p. 136; re: p. 143, 1): The NYPD contends that it no longer reinvestigates substantiated complaints, due to the improved nature of CCRB investigations; however, the NYPD has not provided any documentation to back up this assertion.
OGC Response: The following text to footnote 557 will be added: Following the initial drafting of this Report, the NYPD informed the Commission that the Department discontinued its practice of reinvestigating substantiated complaints in September of 1999. The Department contends that this change in policy is due to the improved quality of CCRB investigations. The Department, however, did not produce any documents to substantiate these contentions.
NYPD Comment #20 (p. 136; p. 143, 3): The NYPD objection seeks to clarify the officials responsible for conducting administrative trials of officers charged with misconduct.
OGC Response: This paragraph will be clarified. Following the first sentence on page 143, 3, the following additional text will be inserted to state: The Deputy Commissioner, Trials also conducts formal disciplinary hearings. Once a trial has been conducted, those findings are reviewed by the Department. In addition the end of next sentence, will be modified to read: the first deputy commissioner reviews the findings. Finally, the fourth sentence will be edited to read: In all cases, the commissioner has final authority to determine the discipline that will be imposed, if any.
NYPD Comment #21 (p. 137; re: p. 144, 2): This NYPD Comment by the Department seeks to introduce new information concerning the Department's cooperation with the CCRB.
OGC Response: Although some of the information in this NYPD Comment is, in essence, contained in the Report, much of the new information is not. In order to reflect fully the steps that the Department has taken to cooperate with the CCRB, the following footnote will be added at the end of the first sentence on page 158: Following the initial drafting of this Report, the Department informed the Commission that it had undertaken additional steps to assist the CCRB. In particular, the Department has assigned a police Lieutenant to serve as a full-time liaison to the CCRB, the Department has instituted a four-day training program for newly assigned CCRB investigators, and CCRB investigators now participate in the Internal Investigations course that IAB conducts.
NYPD Comment #22 (p. 138; re: p. 145, 2): This NYPD Comment provides redone statistics for 1996 CCRB investigations.
OGC Response: On page 145 and the top of 146, the percentages for full investigations, ADR, administratively closed, and truncated will be changed to: 27.4%, 13.7%, 47.0%, and 11.0%, respectively.
NYPD Comment #23 (p. 140; re: p. 147): This NYPD Comment contends that 81 substantiated complaints from 1995 were not referred to the Department until 1998. The Department does not offer any documentation to support this assertion. This assertion, even if true, does not undermine anything in the Report.
OGC Response: No change is necessary.
NYPD Comment #24 (p. 143; re: p. 150, 1): The Department contends that this paragraph contains incorrect statistics. The data contained in the Report, however, are taken directly from the Department's own CCRB statistical analysis.
OGC Response: No change is necessary.
NYPD Comment #25 (p. 144; re: p. 150, 2): This NYPD Comment that the Department takes strong measures against officers guilty of misconduct is simply argumentative; nothing in the Report is incorrect or misleading.
OGC Response: No change is necessary.
NYPD Comment #26 (p. 144; re: p. 151, 3): This comment clarifies that the percentages of dismissals based on statute of limitations grounds were for closed cases, not for all substantiated complaints.
OGC Response: At the bottom of page 151, and the top of page 152, the Draft Report will change substantiated complaints referred to the Department and substantiated referrals to cases closed by the Department.
NYPD Comment #27 (p. 145; re: p. 152, 2): This NYPD Comment states that the Report's statistics are incorrect. According to the semiannual CCRB reports, however, the Department's statistics appear, for the most part, to be incorrect. The numbers in the Report match exactly the Department's own data from its CCRB Statistical Summary, which was prepared last year by the DAU. The Department has offered no documents that contradict that report.
OGC Response: No change is necessary.
NYPD Comment #28 (p. 150; re: p. 157, 1): The NYPD states that the Report should contain additional details concerning disposition of substantiated complaints.
OGC Response: Material will be added to footnote 610 to reflect the fact that the low percentage of cases disciplined in 1996 and 1997 may have been the result of poor investigations by the CCRB before it improved its investigations. Text will be added to the end of the footnote: For much of the first 2 years of the Giuliani administration, the Department disciplined officers based on complaints substantiated by the old CCRB that was part of the Department. The low percentage of cases in which discipline imposed over the next 2 years may have been caused, in part, by untimely and relatively poor quality investigations from the newly independent CCRB.
NYPD Comment #29 (p. 150; re: p. 157, 3): The NYPD objects to the assertion that the police commissioner does not explain cases in which no discipline is imposed.
OGC Response: Most of this objection lacks substance, but the Report should be modified to reflect the Department's new practice of providing disposition data to the CCRB. Furthermore, the Report, in note 622, acknowledges the agreement to provide the CCRB with information. In the interest of removing any possible objection to this part of the Report, however, this fact will be mentioned earlier on in the Report. At the end of footnote 611, the new text will be added to state: During 1999, however, the Department did initiate the practice of providing the CCRB with disposition data pertaining to the specific penalties imposed on officers with complaints substantiated against them.
NYPD Comment #30 (p. 151; re: p. 158, 1): This objection notes new data for disciplined officers.
OGC Response: At the end of footnote 613, additional text will be inserted to reflect more recent figures: Following the initial drafting of this Report, the Department informed the Commission that the percentage of cases in which discipline was imposed rose significantly again in 1999. According to Department statistics, 292 out of 482 officers (60.5%) received some form of discipline in cases closed last year.
NYPD Comment #31 (p. 152; re: p. 159): The NYPD states that the Draft Report should reflect that the police commissioner was responsible for creation of the DAU within the Department Advocate's office.
OGC Response: In paragraph 1, page 159, the fourth sentence will be revised to read: During the same year, the police commissioner created a Disciplinary Assessment Unit (DAU) to coordinate the disciplinary system and act as liaison to the CCRB.
NYPD Comment #32 (p. 153; re: p. 160, 2): The NYPD objects to the Draft Report's statement that the DAO often fails to discipline officers in substantiated cases. The objection provides new data suggesting that discipline is imposed more than half the time; however, the NYPD does not contend that the numbers contained in the Report are incorrect.
OGC Response: Footnote 621 will be revised to reflect the new information. This was the most recent half-year period for which data were available during the initial drafting of this Report. Since that time, the Department has provided the Commission with data stating that more than 60% (292 of 482) of closed cases in 1999 resulted in some form of discipline for the officer. Over the last several years, therefore, the Department has shown significant improvement in prosecution of misconduct cases.
NYPD Comment #33 (p. 154; re: p. 161, 2): The Department contention is without merit. Since a commissioner designee sits on every CCRB panel, it seems likely that the commissioner designee is concurring in at least a majority of substantiated dispositions. Moreover, the Department has offered no evidence to the contrary.
OGC Response: No change is necessary.
NYPD Comment #34 (p. 158; re: p. 165, 2): This objection concerns an unsupported allegation from a Commission hearing witness. The statement is not offered to prove that this particular incident occurred, but rather to describe the types of complaints that prompt elected officials and community leaders to express concerns about the impartiality of the CCRB.
OGC Response: A statement will be added to refer to this particular anecdote as an unsubstantiated, second-hand account of an event.
NYPD Comment #35 (pp. 159 60; re: pp. 166 67): The NYPD suggests that in that case, the Department dismissed the substantiated charge without even interviewing the subject officer. The Department does not offer any documentation to support this assertion.
OGC Response: No changes are necessary.
NYPD Comment #36 (p. 164; re: p. 171, 1): The NYPD contends that the statement that an investigation mechanism independent from the Department would minimize the likelihood of the NYPD mishandling or destroying evidence of police misconduct is simply an unfounded assertion by an NYPD critic. They fail to point out that this critic is an NYPD officer testifying under oath. The NYPD then asserts, without documentation, that CCRB investigators gather all evidence of police misconduct and keep all originals in their files and send only copies to the NYPD.
OGC Response: The Draft Report will be revised to more fully identify Lt. Adams and to refer to the NYPD assertion concerning the retention of original evidence by CCRB investigators.
V. STOP, QUESTION, AND FRISK
NYPD Comment #1 (p. 76; re: p. 82): The NYPD argues that the Draft Report fails to provide evidence for the assertion that NYPD's training fails to instill respect for constitutional procedures with regard to stop and frisk.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #2 (p. 77; re: p. 83): This objection claims that NYPD training materials stress the need for balance between personal safety and individual rights and is not tilted, as alleged in the Draft Report, toward personal safety.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #3 (p. 77; re: p. 83): The NYPD contends that the quoted material is from a study guide, not the NYPD Patrol Guide.
OGC Response: The citation will be changed. The NYPD does not deny that this study guide is in standard use, so the point is unchanged.
NYPD Comment #4 (p. 77; re: p. 84): This objection concerns the Draft Report's implication that the listed factors provide grounds for reasonable suspicion which the Patrol Guide does not do.
OGC Response: No such implication is made; therefore, no change in the Draft Report is necessary.
NYPD Comment #5 (p. 78; re: p. 85): The NYPD correctly notes that the wrong court is cited in the text of the Draft Report while the footnote is correct.
OGC Response: The reference in the text to the Court of Appeals will be changed to Appellate Division.
NYPD Comment #6 (p. 78; re: p. 85): This NYPD Comment states that the material mentioned as appearing in the Legal Bureau Bulletins is wrongly cited.
OGC Response: The Draft Report will be revised to cite the material as follows: (for the first quote) New York City Police Department Legal Bureau, Street Encounters, NYP 017631; (for the second quote) NYP 017632.
NYPD Comment #7 (p. 78; re: p. 86): This objection concerns a statement in the Draft Report, which states that it is unclear when officers must attend In-Tac training. The NYPD maintains that in fact all officers must attend In-Tac, which supplanted borough-based training in 1996. Also, the lesson plans quoted make the point that police officers must make quick decisions while judges may deliberate.
OGC Response: The first paragraph on page 86 will be revised to state that In-Tac training is mandatory for all officers under designated commands. No other change is necessary.
NYPD Comment #8 (p. 79; re: p. 87): The NYPD claims that the Commission uses one episode to indict the general system of training in legal standards.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #9 (p. 104; re: p. 181): The response states that the Draft Report discusses the challenging dilemma of balancing individual rights and government duties but does not factor this into the remainder of the Draft Report.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #10 (p. 104; re: p. 181): The Commission is accused of using numerous instances of opinion-based, superficial analysis and defamatory, unsubstantiated anecdotes in the Report. Also, the response alleges that the Report fails to consider the opinion of some criminal justice experts who consider the NYPD an example of proper policing. Examples of these expert opinions were not provided.
OGC Response: A footnote will be added that some experts have considered the NYPD an example of proper policing, including appropriate citations.
NYPD Comment #11 (p. 105; re: pp. 182 89): The NYPD argues that the standard for proper stop and frisk actions is unclear and that the Draft Report is unclear on the subject as well.
OGC Response: A footnote will be inserted, stating that some, such as Governor Pataki and former New York Supreme Court Judge Harold Rothwax do consider current stop and frisk law unclear, but that the latest U.S. Supreme Court decision on the stop and frisk doctrine was unanimous, not indicative of an unclear doctrine.
NYPD Comment #12 (p. 105; re: p. 183): The NYPD argues that the Equal Protection Clause has no bearing on the Terry analysis.
OGC Response: The first sentence beginning The Equal Protection Clause . . . will be deleted. In the second sentence beginning Although neither the Fourth . . . replace Constitution will be substituted for Equal Protection Clause of the 14th Amendment.
NYPD Comment #13 (p. 106; re: p. 185): The NYPD states that a quotation in the Draft Report improperly cites a law review article and represents the quoted material as fact rather than opinion.
OGC Response: The sentence beginning When police officers are permitted to rely heavily on race will be replaced with While Oneonta permits police officers to use race as a factor in establishing reasonable suspicion, such reliance creates the potential for police abuse. Although this permissible use of race as an identifying characteristic serves as a necessary and efficient means for police to narrow their investigative efforts, police often lower their standards of investigation when a suspect has been described as a minority, thus intruding upon a greater number of individuals who meet the racial description than if the suspect had been described as white. The following citation will be inserted: Developments in the Law Race and the Criminal Process, Section III: Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct, Harvard Law Review, 1988, pp. 1472, 1505. The Sack citation of the same material will then be inserted.
NYPD Comment #14 (p. 106; re: p. 187): This objection argues that the sentence beginning Likewise, New York Courts . . . has no cite and improperly states the law on the use of less intrusive means of assuring safety.
OGC Response: The sentence will be deleted.
NYPD Comment #15 (p. 106; re: p. 189): The NYPD argues that the Draft Report incorrectly states that the degree of articulable suspicion must increase during a street encounter when the proper rule is that the requisite level must exist at the time enhanced police action is taken.
OGC Response: A simple modification will be made in the Draft Report text to clarify that the standard is that the degree of intrusion must be in relation to the degree of articulable suspicion at the time of the intrusion and that any increased intrusion requires an increased level of articulable suspicion.
NYPD Comment #16 (p. 106; re: p. 190): The NYPD states that the Commission should state that the NYPD rule on who may be stopped and frisked is above the requirements of the law.
OGC Response: A footnote will be inserted, stating that the NYPD standard is above the Constitutional requirement.
NYPD Comment #17 (p. 107; re: p. 191): The NYPD maintains that the UF-250 form has been mandated since 1964, not 1986 as stated in the Report.
OGC Response: A footnote will be inserted, stating that the Department has asserted that the UF-250 form has been mandatory since 1964 and was amended in 1973, but the earliest written reference that the Commission has found on the form is from 1986. Also begin the paragraph text with The number of UF-250 forms . . . eliminating the language before the comma.
NYPD Comment #18 (p. 107; re: p. 191): This objection claims that the Draft Report failed to use the UF-250 tabulations from the database, which are more accurate than the April 1999 memorandum from the Central Records Division. This failure is indicative of sloppy methodology by the Commission.
OGC Response: A footnote will be added that the use of the NYPD's suggested information does not change the fact of an increase in UF-250 filings. The source of the NYPD data is unclear since the database contained only information for 1998. The database also uses a different system of tabulation than the data previously used. This makes a 10-year study inaccurate, as 1997 to 1998 would show an increase that is due to methodology change. The footnote will also make clear that the number used in the graph may contain duplicate filings as no system was in place prior to 1998 to determine duplicate filings.
NYPD Comment #19 (p. 109; re: p. 192): The NYPD objects to the Commission's assertion, that many stops are unreported, claiming that it should be explained that this is because not all stops require the filing of form UF-250.
OGC Response: The Draft Report will be revised with the insertion of a definition of unreported stops as those for which a UF-250 should have been filed according to NYPD guidelines but was not.
NYPD Comment #20 (p. 109; re: p. 193): This objection argues that two critics of NYPD conduct cited in the Draft Report make claims that lack evidence and that a more accurate method of determining the behavior of officers would have been to survey a random sample of officers.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #21 (p. 109; re: p. 193): This NYPD Comment states that the reliability of UF-250 data is questionable if utilized in ways other than the original intent.
OGC Response: A footnote will be inserted, noting that the Department has stated that data from the UF-250 forms may be inadequate for purposes other than those originally intended.
NYPD Comment #22 (p. 110; re: p. 194): The NYPD argues that the Department does not maintain quotas on the filing of form UF-250 as is stated in the Report.
OGC Response: The Draft Report will be revised to note that the NYPD asserts that it does not maintain formal or informal quotas on the filing of UF-250s.
NYPD Comment #23 (p. 110; re: p. 195): This NYPD Comment claims that the Draft Report improperly states the procedure for filling out and recording UF-250s.
OGC Response: A footnote will be inserted, stating that the procedure for the processing of UF-250 forms was changed May 4, 2000, after the Draft Report was submitted. The new procedure requires the forms to be completed in units and sent to the precinct for processing. Non-patrol precinct commands submit forms through the precinct concerned.
NYPD Comment #24 (p. 110; re: p. 195, fn. 782): The NYPD asserts that the number of stop and frisk reports stated for the Street Crime Unit was incorrect in the Report and is available through the database.
OGC Response: A footnote will be added that the database breaks down filings into precincts, but does not allow for the screening of Street Crime Unit filings from other filings within a precinct. The footnote will also note that 3,863 in 1997 as of . . . should read 3,863 in 1999 as of . . .
NYPD Comment #25 (p. 111; re: pp. 196 97): The response states that all stop and frisk reports are processed through the precinct of occurrence regardless of unit.
OGC Response: A footnote will be added that the NYPD process has now been changed to uniformly process filings through the precinct of occurrence, but this change did not take place until May 4, 2000.
NYPD Comment #26 (p. 111; re: p. 197): This objection argues that the Draft Report apparently criticizes units of the Department as failing to maintain adequate information; yet the units had the appropriate forms and used them as intended.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #27 (p. 111; re: pp. 197 98): The NYPD argues that the Commission has all UF-250 data but has failed to analyze the data properly.
OGC Response: A footnote will be inserted that the data concerning arrests are sporadic and incomplete. Many of the arrest fields of the database were left blank, making an accurate determination of arrests impossible.
NYPD Comment #28 (p. 112; re: p. 198): The Department claims here that the Draft Report incorrectly states that the number of UF-250 forms filed in 1998 was 147,787 and that this number should be 138,872 because of the erroneous inclusion of duplicate reports.
OGC Response: In the text of the Report, it will be stated that the Commission will agree to use the NYPD computations for the total number of unique UF-250 forms filed in 1998. The number of unique filings for 1998 is 138,872 out of a total of 147,787 UF-250s filed. But it will also be noted that for years prior to 1998 no means for the screening of duplicate reports exists. Therefore, in examining the data for the 10 years ending 1998, the larger 147,787 figure for 1998 must be used in order to accurately display the growth trend in the filings. The borough and precinct data appearing on pages 197 209 will be recalculated to screen out duplicate filings. These recalculations do not change any of the findings of the Draft Report.
NYPD Comment #29 (p. 112; re: pp. 198 201, 204 09): The response criticizes Commission charts showing the relationship between UF-250 percentage and percentage population because "such a depiction completely fails to address more complex operational relationships which can better explain what is taking place."
OGC Response: The Draft Report will be revised to point out that the Commission was unable to confirm whether stop and frisks were predicated on victim identifications since the NYPD never provided the necessary information. The precinct demographics cited were those provided to the Commission by the NYPD, which characterized the census data as precinct not boroughwide census data.
NYPD Comment #30 (p. 115; re: p. 202): The Department criticizes the Draft Report for citing an improper number of stop and frisk incidents for 1998, using numbers that were subsequently revised, and fails to explain why this was done.
OGC Response: A statement will be added to emphasize that regardless of whether the database numbers are used or not, the trend of the numbers is substantially upward.
NYPD Comment #31 (p. 116; re: p. 203): This objection states that the Draft Report implies that the Street Crime Unit was deployed disproportionally to minority neighborhoods for a sinister purpose when in fact the SCU was deployed to these neighborhoods because of higher crime rates there.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #32 (p. 116; re: p. 203, fn. 801): The NYPD claims that the database should have been used for 1998 stop and frisk numbers rather than using the data from the top 25 precincts in which the SCU was deployed.
OGC Response: A footnote will be added that the Department claims that database information can be used to determine the number of stops performed by the Street Crime Unit. However, since according to the NYPD's policy this unit should submit reports to the precinct in which the encounter occurred, the stops of the unit could not be separated from those of the precinct in the database provided to the Commission. The NYPD provides numbers that show 9,004 stops by the SCU in 1997 and 15,324 stops in 1998. Even accepting these numbers a sharp increase can be seen.
NYPD Comment #33 (p. 117; re: p. 210): According to the NYPD, the Draft Report fails to state that the police commissioner has acknowledged that blacks and Hispanics are stopped in numbers greater than their proportion to the population, but that this can be explained by officers stopping individuals who meet victim descriptions or pattern descriptions.
OGC Response: It will be noted that the Department in its response to the Draft Report gives reasons officers may use for stopping citizens. One of these reasons is termed pattern descriptions. The use of the term pattern descriptions appears to indicate the use of profiling. The police commissioner's acknowledgment will also be included in the text.
NYPD Comment #34 (p. 118; re: pp. 210 11): This objection argues that statements in the Draft Report should have been taken from a random sampling of the population rather than just individuals who had negative contact with police.
OGC Response: The Commission received random sworn testimony from persons who had relevant experiences involving the NYPD. No change in the Draft Report is necessary.
NYPD Comment #35 (p. 118; re: p. 213): This objection concerns the deletion of the word not from Commissioner Safir's quote and the apparent exclusion of evidence of the NYPD position from the Report.
OGC Response: The word not will be reinserted in the text of the quote. A footnote will be added, stating that the word not was originally deleted to avoid a double negative, but that the point remains the same regardless of the quote.
NYPD Comment #36 (p. 118; re: pp. 213 14): The NYPD argues that the Commission fails to understand the nature of police work as officers make stops based upon observations, known patterns, and crime problems. Officers who observe quality of life violations certainly have reasonable suspicion for a stop and frisk.
OGC Response: The text of the Draft Report will be revised to note that the Department has responded that observations may be used in tandem with known patterns to provide the basis for reasonable suspicion. The use of the term known patterns again may be indicative of profiling. It will also be noted that stops or arrests for quality of life violations may show discriminatory enforcement if not uniformly applied to the population.
NYPD Comment #37 (p. 119; re: p. 215): The NYPD argues here that the standards for a warrant search requiring description with particularity do not apply to stop and frisk encounters.
OGC Response: No change in the Draft Report is necessary.
NYPD Comment #38 (p. 119; re: p. 236): The Department asserts that the Draft Report's contention that the NYPD uses racial profiling in stop and frisk practices is without proof and fails to consider that stop and frisk encounters mirror the description given by victims.
OGC Response: A footnote will be added that points out that the Department argues that the stop and frisk encounters mirror the victims accounts. It will also note that information on the details of victim's accounts was subpoenaed from the NYPD, however, none was provided. The NYPD now criticizes the Draft Report based on victim's identifications data without noting the source of this new information. It will also be noted in a footnote that the NYPD criticizes the Draft Report's concluding line of the paragraph which mentions historic crime data when the Department itself must be using such data to create the crime patterns mentioned on page 117 of the Response.
NYPD Comment #39 (p. 121; re: p. 237): The Department argues that the assertion in the Draft Report that an increasing number of declined prosecutions is due to improper arrests is erroneous and that other causes may be to blame.
OGC Response: In the paragraph beginning In addition on page 237, the Draft Report will be revised by changing there is a likelihood to it is possible.
NYPD Comment #40 (p. 123; re: p. 216): The Department objects to the assertion that increased demands for arrests may result in officers using racial profiling taught to the officers through cultural training classes.
OGC Response: The portion of this line mentioning the cultural training classes will be modified as follows: . . . which were introduced to them through . . . will be replaced with . . . unless . . . The remaining portion of the sentence will be replaced with the Department's cultural training practices are strengthened and complex police investigative techniques are uniformly employed.
NYPD Comment #41 (p. 123; re: p. 237): The NYPD objects to the Draft Report's use of an unsubstantiated statement of a Police Department critic that officers routinely call in phony 911 calls to supply a description.
OGC Response: The following will be added after the quote: In March of this year, the U.S. Supreme Court, noting the unreliability and unaccountability of anonymous tips, held that an anonymous tip giving the race, gender, clothing and location of an individual, absent other information, clearly was insufficient to provide reasonable suspicion to stop and search the individual. Florida v. J.L., 120 S.Ct. 1375 (2000).