Chapter 4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the relatively few cases where a complete investigation was conducted, that inquiry often lasted more than a year. In January 1996, a full investigation of a CCRB complaint took an average of 16 months. This prolonged investigation time, which characterized CCRB complaints from its 1993 independence through the end of 1996, adversely affected the ability of the CCRB to substantiate complaints and refer them to the NYPD. As is the case with any inquiry, investigators are challenged by witnesses fading memories and lost evidence. Any delay, therefore, will almost always result in a lower percentage of substantiated cases. Secondly, in cases where misconduct occurs, delays may provide police officers with the opportunity to ensure that their accounts are consistent.[99]

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

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

This failure to substantiate large numbers of civilian complaints may reflect the CCRB s inability, as an institution, to effectively investigate large numbers of claims during the period from July 1993 through December 1996.[105] Over that time period, the CCRB received approximately 18,300 misconduct complaints. Only 28 percent of those complaints received a full investigation; the vast majority of complaints were either administratively closed due to the uncooperativeness of the complainant, or the investigation was ruled inconclusive, that is, the investigation was concluded without substantial evidence to conclude either that misconduct had or had not occurred.[106] By the end of 1996, the CCRB had accumulated a backlog of 2,517 cases, in which the investigations had not been completed.[107] As a result, by any measure, the first 3 years of CCRB investigation produced unsatisfactory results.[108]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The reason for this apparent disparity in the level of complaints that different racial groups have filed is not immediately clear. For example, African American complainants do not appear to be more or less likely to file complaints against officers of any particular racial group (including African American officers). The percentages of complaints that African Americans filed against African American, Latino, and white officers in 1998 were relatively close to each racial group's representation on the force.[219] Although the number of complaints that African Americans filed is disproportionate with respect to their representation in the community, it is proportionate with respect to NYPD arrest records. In 1995, for example, 52.5 percent of all CCRB complainants were African American.[220] This percentage corresponds closely to arrest records: that same year, 49.6 percent of all persons that the NYPD arrested were identified as African American.[221]

On the other hand, CCRB complaint tracking statistics suggest that an officer's race is not relevant to the likelihood that civilians filed complaints against him or her.[222] While white officers constituted approximately 67 percent of the uniformed police force in 1997 1998, the percentage of civilian complaints that were filed against them ranged from 65 to 68 percent.[223] Complaints against African American and Latino members of the department likewise approximated their representation on the force. Approximately 14 to 15 percent of complaints in 1997 1998 for which the racial identity of the officer was available were filed against African American members of the force. This percentage was almost equivalent to the 13 to 14 percent African American representation in the NYPD over that same time period.[224] Similarly, Latino officers constituted 17 to 19 percent of the police force during 1997 1998 and accumulated 18 to 19 percent of the civilian complaints filed during those 2 years.[225]

The relationship between gender and civilian complaints has remained relatively constant over the 5-year period from 1994 through 1998. During that period, men were more likely to file complaints, and to have complaints filed against them, than their representation in either the general population or on the police force would normally suggest. While men accounted for 84.8 percent of the police force in 1997 and 1998, male officers have received over 90 percent of the civilian complaints filed during those years.[226] Similarly, while men constituted 47.3 percent of the New York City population in the 1990 census, males registered approximately 60 percent of the civilian complaints in 1997 and 1998.[227]

No significant correlation appears to exist between the probability that an officer will have complaints filed against him and whether that officer lives within New York City. The incidence of complaints against resident and nonresident officers has virtually matched the actual composition of the NYPD.[228] In 1998, 54 percent of uniformed officers were New York City residents; 56 percent of all civilian complaints were filed against officers who were New York City residents.[229]

The CCRB has noted that officers with less education are more likely to have complaints substantiated against them. At the end of 1998, for example, 71.7 percent of the police force had less than an associate degree. Those officers, however, were responsible for 80.9 percent of the substantiated complaints in 1997 and 82.2 percent of the substantiated complaints in 1998.[230]

The CCRB has also attempted to identify particular classes of officers who have been most responsible for civilian complaints. For example, in its January June 1996 report, the CCRB concluded that officers with 3 to 5 years of service in 1996 accounted for approximately 45 percent of civilian complaints in 1995 to 1996.[231] However, that conclusion does not identify specific graduating classes, and does not indicate that 43 percent of the police officers in 1996 had 5 years of experience or less.[232]

CCRB statistical tracking has also identified some trends with respect to how many complaints are filed against officers with a history of previous complaint activity. Overall, the CCRB data suggest that there are fewer officers with multiple complaints: in 1994, 566 officers had more than one complaint filed against them. That figure rose to 599 in 1995, but has fallen each year since then.[233] The number of officers accumulating multiple complaints in a single year fell to 541 in 1996, to 392 in 1997, and to 322 in 1998.[234] Manhattan was the borough that had the most officers with more than one complaint in 1998 (102); along with Staten Island, Manhattan seems to have an increasing number of officers with multiple complaints.[235] In July 1997, the CCRB passed a resolution which provided that investigative priority would be given to any claims made against officers who had accumulated six or more complaints within the past 5 years.[236] The CCRB appears to be committed to continued monitoring of officers who are repeatedly the subject of civilian complaints.[237]

In a significant number of cases, critical information is not collected. Specifically, detailed information on the type of misconduct incident is not documented.[238] In 1995, for example, 75.3 percent of force complaints and 43.6 percent of abuse of authority allegations did not identify the sort of improper act that was committed.[239] During the later half of 1996, the other subcategory comprised 29.8 percent of all force allegations.[240] The lack of detailed information concerning allegations has not been included during recent CCRB reporting periods, as a large number of force and abuse of authority complaints are still classified as other. [241] This omission of specific information makes it more difficult for the NYPD to use complaint data to reduce future incidents of misconduct through training and other appropriate initiatives.

Similarly, the CCRB's complaint data do not indicate the command assignment in a large number of cases 41 percent in 1995.[242] The CCRB ceased reporting this information at the end of 1995, and the percentage of cases in which an officer's command was unidentified dropped considerably in 1996 and 1997.[243] However, in 1998 the number of complaints in which the officer's command was unidentified rose 40.2 percent.[244] Continuing to reduce the number of cases in which an officer's command is unidentified is essential to monitoring potential problem areas within the city.

After receiving a sharp increase in complaints alleging improper use of pepper spray,[245] the CCRB analyzed its current use within the NYPD and issued a report recommending that the NYPD continue to use pepper spray as a form of nonlethal force.[246] In formulating its recommendations, the CCRB pepper spray committee reviewed training and guidelines on its use, civilian complaints relating to use of pepper spray, and extensive medical literature. The CCRB determined that the risk of severe harm from pepper spray is minimal, if it is used correctly.[247] In order to ensure that pepper spray would cause minimal harm to the persons sprayed, the report recommended that the NYPD prohibit employing the substance as a crowd control device; that the NYPD maintain and tabulate accurate statistics on its use; and that officers using pepper spray request medical attention for anyone sprayed, regardless of whether the individual suffered an adverse reaction to it.[248] The NYPD responded to this report by implementing several of the CCRB's recommendations. Various organizations approved of this report, stating that it made a positive contribution to an area that otherwise might cause more complaints of police misconduct.

The CCRB also issued a report that reviewed the NYPD's decision to employ hollow-tip, rather than full-metal-jacket bullets.[249] Several CCRB members analyzed evidence which suggested that hollow-tip bullets, while possessing increased stopping power and a possible greater chance for injury, were also less likely to injure bystanders by ricocheting or passing through the target.[250] In addition, the CCRB report noted that these factors influenced a number of jurisdictions to switch to hollow-point bullets.[251] As a result, the board's report concluded that the switch to hollow-point bullets was prudent.

Moreover, the CCRB also conducted a detailed review of precincts that generate a significant number of civilian complaints.[252] Reacting to the high number of complaints filed against officers in the 75th and 81st Precincts, the CCRB examined some of those precincts civilian complaints and operations. In particular, the CCRB noted that the officers against whom complaints were filed matched the composition of the force at those precincts.[253] Other factors, such as a strict antidrug initiative, however, may have produced more forceful police tactics.[254] The CCRB did not formulate any definitive conclusions or recommendations, but forwarded this information to the NYPD so that it could address civilian complaints in those precincts in the future.[255]

Finally, the CCRB has taken positive steps to reach out to the community, in order to investigate and resolve specific complaints of police misconduct. For example, in response to a May 19, 1996, altercation between police and residents within the 120th Precinct, the CCRB's executive director and several representatives attended a meeting at a local community center the next evening to encourage those with complaints to file them with the CCRB.[256] During 1998, the CCRB made extensive attempts to disseminate information to the public. To make the public aware of the board's existence and mission, CCRB staff provided more than 100 public information sessions at community board meetings, high schools, and church organizations.[257] At these meetings, community residents were informed of the function of the CCRB, as well as how civilians could file complaints. Finally, during the second half of 1998, the CCRB also developed a Web site on the Internet.[258] The Web site contains general information about the CCRB, publications, semiannual and topical reports (e.g., the Pepper Spray report), and the CCRB brochure in several languages.

The increased number of substantiated civilian complaints and the implementation of disciplinary measures for recalcitrant police officers over the past few years suggest that some of the CCRB's initial inefficiencies may have been due to its status as a newly independent agency. In important respects, the CCRB has improved the efficiency and quality of its investigations, while the DAO has taken stronger measures to hold officers accountable when the CCRB substantiates civilian complaints against them. Nonetheless, there remain several improvements that the CCRB, the NYPD, and other city officials could implement to further improve oversight of police misconduct against civilians.

This Commission believes while it appears that the CCRB has taken some major steps forward in the past couple of years, it can better accomplish its mission by considering and implementing the following recommendations:

Finding 4.1: As the above analysis of the Civilian Complaint Review Board semiannual reports suggests, the board relies on data derived from the number of complaints it receives, rather than information from cases it actually investigates, where much more is known about the alleged incident.[259] As a result, many of the CCRB analyses are based on incomplete or false data. Data are likely to be more reliable after a claim has been fully investigated. Therefore, it would be useful for the CCRB to generate statistics derived from fully investigated claims in addition to the analyses that it currently conducts.

The NYPD, for example, has asked the CCRB to document the circumstances in which complaints arise, such as whether the complaint occurred in an arrest situation, a situation in which an officer is attempting to serve a summons, or a situation in which an officer is executing a search.[260] Finally, CCRB data do not appear to track the numbers of cases that have resulted in observable, actual physical injuries requiring medical attention.

Recommendation 4.1: The CCRB should report data and perform analyses based on fully investigated complaints as well as based on all complaints. In addition, the CCRB complaint form should track other types of information that might be useful.

Finding 4.2: Less serious allegations could be referred to mediation or conciliation, allowing CCRB investigators to concentrate on the most serious civilian complaints.[261]

Recommendation 4.2: The CCRB should continue to use its resources more efficiently by screening out less serious allegations at an early point in the investigative process.

Finding 4.3: Although CCRB board meetings are currently open to the public, local perception of the CCRB could be improved further by holding town hall meetings. Hence, the CCRB and the NYPD would have a scheduled opportunity to address the concerns of community residents.[262] Continued outreach efforts are critical to ensuring that New York City residents are aware of the CCRB's existence. Ultimately, this will increase the public s trust in the agency's ability to effectively investigate complaints of police misconduct and to recommend the appropriate discipline.

Recommendation 4.3: The CCRB and the NYPD should establish town hall meetings in each borough at least once a year, which should be attended by upper management officials of both agencies.

Finding 4.4: The rising percentage of substantiated cases in which discipline is imposed does suggest that the NYPD is responding to substantiated complaints more seriously than it has in the past. However, the department's failure to act on a considerable percentage of substantiated referrals, combined with its reluctance to inform the public of the reasons that it declined to act in many cases, suggests that additional measures are necessary.

Recommendation 4.4: Oversight might be improved if the NYPD better specified the types of conduct (with regard to civilian complaints) that are subject to disciplinary action. The NYPD Patrol Guide Manual indicates that actions such as unnecessary conversations and a failure to maintain a neat and clean appearance are susceptible to command discipline, but does not state the types of abusive language, discourteous conduct, or abuse of force or authority that are subject to discipline.[263] This additional specificity would provide both uniformed officers and the CCRB with more detailed information as to the kinds of misconduct (particularly with regard to allegations of discourtesy and offensive language) that can lead to disciplinary action. Not only would officers have additional guidance, but fewer substantiated cases would later be dismissed because the DAO concluded that discipline was not warranted.

Informing the CCRB and the Public about Why Disciplinary Action is Not Warranted in Cases

Finding 4.5: The low number of substantiated complaints upon which the police commissioner has acted contributes to the pervasive public perception that the CCRB is an ineffective mechanism to control police abuse of authority.[264] Informing the public as to why no discipline was imposed in a particular case would improve not only public confidence in the NYPD, but also future CCRB investigations. For example, when the department declines to impose disciplinary measures or resorts to command discipline because a critical witness has become unavailable, this knowledge would justify the action taken and indicate that the CCRB investigation was probably adequate.[265] On the other hand, if the department dismisses a substantiated complaint because of an inadequate investigation, explaining to the CCRB the manner in which the investigation was deficient would improve future investigations.

Recommendation 4.5: The NYPD would improve both future CCRB investigations and public confidence in NYPD handling of civilian complaints by providing explanations as to why the department imposed no disciplinary measures in a particular case.

Finding 4.6: The department has indicated that it needs 3 months to investigate a substantiated referral, as well as additional time to actually close a case. The NYPD has not provided any evidence that it should take more than 2 years to dispose of a complaint.[266]

Recommendation 4.6: In the absence of delineated exceptional circumstances, the NYPD should attempt to resolve all substantiated complaints within 6 months of referral from the CCRB.

Finding 4.7: The COMPSTAT system is a computerized system that monitors crime rates in each precinct area. Precinct commanders are evaluated monthly based on statistics generated by the COMPSTAT system to determine whether their precinct has effectively addressed issues of crime. Frank Fenucio, legislative advisor to Bronx borough president Fernando Ferrer indicated that the CCRB should use the COMPSTAT system to monitor civilian complaints on a police precinct level, which would ultimately hold precinct commanders accountable for the number of CCRB complaints issued against their respective precincts each month.[267] However, Police Commissioner Safir testified before the Commission that this is already being done.[268]

Recommendation 4.7: Continue to use the COMPSTAT system to monitor and reduce civilian allegations of police misconduct.

Finding 4.8: New York has an 18-month statute of limitations on civilian complaints of misconduct by police officers. The police department, therefore, can only initiate formal proceedings against an officer if the CCRB forwards the results of its investigation to the police department within 18 months of the date on which the incident occurred. City Council speaker Vallone has proposed increasing the staff of the NYPD Advocate's Office by 5 attorneys, 10 investigators, and 3 support staff to ensure that the DAO is better able to deal with substantiated complaints forwarded from the CCRB.[269]

Recommendation 4.8: Increase the size of the CCRB team within the DAO to allow the NYPD to respond more quickly to substantiated referrals.

Finding 4.9: A police officer's record of interacting with the public should be considered as a performance indicator, just as the current factors of making arrests and reducing crime are being used for decisions concerning promotions, pay raises, and other benefits. Moreover, Police Commissioner Safir commented during the Commission's hearing, I certainly support incentives for excellent police performance. And what that requires is no abuse of civil rights. [270]

Recommendation 4.9: Create promotional and other incentives for officers who do not have civilian complaints filed or substantiated against them.

As critics have noted, one potential structural weakness of the CCRB, as referenced in the City Charter, is that its success is heavily dependent on mayoral support for its budget and other resources.[271] The CCRB has sufficient authority to effectively oversee civilian complaints, provided that it receives sufficient support from the administration.[272] The mayor, therefore, must support the CCRB and its mission. In addition, the city government can improve the CCRB and the disciplinary process in several ways.

Finding 4.10: As noted above, the CCRB budget for 1999 appeared to reflect the board s needs for the first time, especially given the expansion of the police force in recent years. As the police force expands and the need for more investigations increases, the city government must continue to appropriate sufficient funds for the CCRB to carry out its mission.

Earlier this year, City Council speaker Vallone offered a plan that would prevent the CCRB from reacquiring the backlog of cases which hampered its effectiveness from 1993 through 1996. Speaker Vallone's plan would add 22 investigators and 12 support staff to the CCRB, as well as 5 attorneys, 10 investigators, and 3 support staff to the NYPD Advocate's Office to ensure that substantiated complaints are dealt with in a timely fashion.[273]

Recommendation 4.10: The CCRB's funding should be commensurate to the NYPD's police officer complement. Similarly, the city must remain committed to providing the CCRB with an adequately sized and skilled staff to perform its oversight function.

Finding 4.11: The 48-hour rule is another factor that often impedes the progress of the CCRB's investigations. Under police department regulations and the collective bargaining agreement between the city and rank-and-file police officers, police officers suspected of wrongdoing are not required to speak to ranking officers until 48 hours after they are identified as suspects.[274]

The 48-hour rule impedes CCRB investigations in several ways. This 48-hour delay permits occasions for details to be forgotten and the loss of other evidence. Secondly, 2 days creates opportunities for subject officers to corroborate their versions of the alleged misconduct incident. Finally, this delay undermines public confidence in the CCRB's ability to conduct a thorough and efficient investigation. As a result, some police misconduct may never be reported because civilians feel the CCRB will be unable to conduct an efficient investigation.

The 48-hour rule seems to have few defenders. The current mayor, police commissioner, City Council speaker, and community leaders have all advocated its elimination.[275] The Police Benevolent Association president described it as little more than a bargaining chip that could be negotiated in the next police contract.[276] As others have noted, the protections of the 48-hour rule are redundant. If the rule is eliminated, NYPD officers will remain entitled to the same Fifth Amendment protections afforded to any other suspect.[277] When the city next has the opportunity to modify its collective bargaining agreement with the PBA, therefore, elimination of the 48-hour rule should be a priority.

Recommendation 4.11: Enhance CCRB investigations by eliminating the 48-hour rule.

Finding 4.12: During recent years, NYPD officials have imposed disciplinary measures in a higher percentage of substantiated CCRB referrals, but a large number of substantiated cases remain in which the NYPD takes no action against the officers involved. In particular, the NYPD has taken no steps to explain why it dismisses a significant number of cases that the CCRB has deemed to be substantiated.[278] Furthermore, Norman Siegel, executive director of the New York Civil Liberties Union, voiced his support of the need for continued monitoring of police misconduct incidents, as well as requesting President William Clinton s intervention in solving this problem.[279]

Finding 4.13: Some have suggested that the independence of a special prosecutor is necessary to ensure that where credible evidence exists to support a charge against an officer, that charge is pursued in as vigorous a fashion as possible.[282] For example, two witnesses who testified at the Commission's hearing supported this idea. Specifically, Hyun Lee, program director of the Committee Against Anti-Asian Violence, emphasized that a special prosecutor should be appointed for police brutality cases in New York City. She believes that past cases that involved police officers killing civilians should be reopened and reinvestigated.[283] Rev. Al Sharpton, president and chief executive officer of the National Action Network, maintained that there was a need for federal intervention to prosecute police brutality cases, as well as the establishment of a federal monitor to oversee the NYPD's operations.[284] At this point, it appears that the department is taking constructive steps to improve the disposition of misconduct complaints. Then, the NYPD must continue to improve the rate at which it addresses substantiated complaints.[285]

Recommendation 4.13: A public perception that police misconduct cases place a tremendous strain on local government prosecutors, who rely routinely on the police to provide the evidence to prosecute criminal violations, often exists. Therefore, the City Council should appoint an independent prosecutor in cases alleging serious police misconduct.[286] If finances are a barrier to such an appointment, law firms could be asked, on a pro bono basis, to oversee an investigation of allegations that the killing of an allegedly unarmed individual was unnecessary.

[1] See New York City Police Department, Interim Order 65 (June 24, 1994).

[2] See New York City Police Department, Patrol Guide Manual, 118-07 (hereafter cited as Patrol Guide).

[3] Ibid., 110-35.

[4] See New York City Police Department, Interim Order 70, Investigation of Incidents of Retaliation Against Members of the Service (Nov. 16, 1998).

[5] See Milton Mollen et al., Report of the Commission to Investigate Allegations of Police Corruption & the Anti-Corruption Procedures of the Police Department, 1994 (hereafter cited as Mollen Commission Report), pp. 43 46.

[6] Ibid., p. 46.

[7] Ibid., p. 47.

[8] Ibid., pp. 47 49.

[9] Ibid., p. 50. The Mollen Commission expressly recommended that the NYPD Internal Affairs Bureau establish a civil rights division to investigate, among other things, allegations of police brutality. The commission also recommended that the Internal Affairs Bureau examine the relationship between its investigations of corruption and allegations of excessive force that civilians have filed with the CCRB. Although in the preparation of this report, the Commission's subpoena duces tecum that was issued to the mayor requested all documents related to allegations of excessive force, none was provided from IAB, and therefore, it is difficult to determine whether the NYPD adopted these recommendations, or what these measures revealed. Ibid., p. 142.

[10] See ibid., p. 47.

[11] See also New York City Local Law 91 (McKinney, 1997). It provides a description of the refining authority and powers of IPIAB.

[12] Similar to the CCRB, the IPIAB would be an oversight body that would not have the authority to discipline officers on its own.

[13] See Rob Seixas, Can We Make the Blue Wall of Silence Crash? New York Amsterdam News, Oct. 1, 1997, p. 1.

[14] Ibid.

[15] 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 police department's anticorruption efforts. Although critics have questioned the CCPC's effectiveness and independence in reviewing corruption cases, in its most recent annual report, the CCPC gave IAB only a passing grade in investigating officer misconduct. See New York Law Journal, Nov. 17, 1999, p. 1. 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, New York 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, The New York Times, Aug. 24, 1997, sec. 4, p. 3.

[16] As of this writing, the NYPD has not provided the Commission with any documents describing, in detail, IAB structure, operations, or disposition of allegations falling under its jurisdiction.

[17] See Orientation to the Internal Affairs Bureau, sec. V. One exception to this general rule seems to be with regard to civilian complaints against off-duty officers, which appears to fall within the purview of IAB. Ibid. [T]he patrol supervisor (you) will handle less serious domestic violence cases, or perform summary arrests of members of the service. Ibid.

[18] Ibid.

[19] 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 percent 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 are kept by the department. These data, however, have not been provided to the Commission.

[20] But see testimony in the Determining the Need to Reform the CCRB section of this chapter.

[21] New York City Civilian Complaint Review Board Web site (visited Nov. 8, 1999) <http://www.ci.nyc.ny.us/html/ccrb/ home.html>. The Civilian Complaint Review Board is an independent, non-police city agency with the authority to investigate allegations of police misconduct filed by members of the public against New York City police officers. The board receives, investigates, makes findings, and recommends discipline to the Police Commissioner on complaints alleging Force, Abuse of Authority, Discourtesy and Offensive Language. Ibid.

[22] Rudolph W. Giuliani, mayor of the City of New York, testimony before the U.S. Commission on Civil Rights on Police Practices and Civil Rights in New York City, hearing, New York, NY, May 26, 1999, transcript, pp. 44 45 (hereafter cited as New York Hearing Transcript). See ibid., p. 62; James Savage, president of the Patrolmen's Benevolent Association, Testimony, New York Hearing Transcript, p. 167.

[23] Giuliani Testimony, New York Hearing Transcript, p. 45.

[24] Spitzer Testimony, New York Hearing Transcript, pp. 236, 239 40.

[25] Butts Testimony, New York Hearing Transcript, p. 145.

[26] Ibid., pp. 144 45.

[27] Siegel Testimony, New York Hearing Transcript, p. 127.

[28] Ibid., pp. 100 01.

[29] According to the NYPD, there was a corresponding 40.5 percent increase in department's uniform staffing during this time.

[30] Green Testimony, New York Hearing Transcript, pp. 259 61.

[31] Ibid., pp. 277 78.

[32] Tim Whitmire, Panel on Police Brutality Urges Higher Pay, No 48-Hour Rule (visited Nov. 18, 1999) <http://www.Bergen.com/region/louima199803259.htm>. The 48-hour rule prohibits police officers from responding to questions relating to their actions in alleged police misconduct incidents for 2 days.

[33] Sharpton Testimony, New York Hearing Transcript, p. 381.

[34] Fung Testimony, New York Hearing Transcript, pp. 120 21.

[35] Savage Testimony, New York Hearing Transcript, pp. 188 89.

[36] Ibid., p. 189.

[37] Siegel Testimony, New York Hearing Transcript, pp. 100 01.

[38] Miranda Testimony, New York Hearing Transcript, p. 291.

[39] Savage Testimony, New York Hearing Transcript, p. 169.

[40] Ibid.

[41] Harrell Testimony, New York Hearing Transcript, p. 478. Since the initial drafting of this report, the NYPD has noted that prior to the Diallo shooting, none of the officers involved ever received charges and specifications or were the subject of any formal discipline.

[42] New York City Civilian Complaint Review Board, January December 1998 Report, p. 1 (hereafter cited as CCRB Report, January December 1998). See Wohl Testimony, New York Hearing Transcript, pp. 175 76.

[43] Ibid.

[44] Ibid.

[45] See New York City Local Law 1 (McKinney, 1993) (amending 440 of New York City charter).

[46] The CCRB and the NYPD frequently abbreviate the four major categories that constitute the CCRB's jurisdiction as FADO. The CCRB also tracks other police misconduct that it discovers as the result of its investigations; evidence of this misconduct is turned over to the police commissioner. See Wohl Testimony, New York Hearing Transcript, p. 227. Under this jurisdiction, the CCRB may also investigate complaints of hostile or disparaging language directed by one officer at another officer. See Patrol Guide 118-07.

[47] See, e.g., CCRB Report, January December 1998, p. 2.

[48] New York Civil Liberties Union, Five Years of Civilian Review, A Mandate Unfulfilled, 1998, p. 4. The CCRB does not usurp power of the police commissioner because authority to discipline police officers remains with the commissioner. Mark Green, public advocate for the City of New York, Office of the New York City Public Advocate, Investigation of the New York City Police Department's Response to Civilian Complaints of Police Misconduct Interim Report (New York, 1999), p. ii (hereafter cited as Green, Interim Report). See also New York City Charter 434.

[49] Wohl Testimony, New York Hearing Transcript, p. 176. But see ibid., pp. 185 86. Mr. Wohl also stated: I believe that there are two mayoral appointee vacancies or maybe one at the current moment and about to be an additional one because one member of the CCRB is leaving because he is moving outside New York City and you have to be a resident of New York City in order to be a member of the CCRB. And there is also a vacancy in one of the City Council designees, and I believe that that is a Bronx designee. Ibid. See New York City Local Law 1 (McKinney, 1993). See also CCRB Report, January December 1998, p. 2.

The commissioner's designees are the only board members who are allowed to have previous experience as law enforcement professionals. The board hires an executive director, who is responsible for management of the investigative staff. That staff is composed entirely of nonpolice officers. Ibid. According to Chairman Wohl, two board vacancies have been filled since the Commission hearing, including a Bronx City Council designee and a mayoral appointee.

[50] Ibid., pp. 176 77. See Giuliani Testimony, New York Hearing Transcript, pp. 45 46.

[51] Wohl Testimony, New York Hearing Transcript, p. 184.

[52] Giuliani Testimony, New York Hearing Transcript, p. 45.

[53] New York City Civilian Complaint Review Board, What You Need to Know Before Filing a Complaint (visited Nov. 8, 1999) <http://www.ci.nyc.ny.us/html/ccrb/home.html> (here after cited as CCRB, Filing a Complaint ). The CCRB defines the following terms: force an act of unnecessary or excessive force, including deadly force ; abuse of authority the improper use of police powers to threaten, intimidate or otherwise mistreat a civilian ; discourtesy rude or profane gestures and/or language ; and offensive language a slur that refers to a person's race, ethnicity, religion, gender, age, disability, or sexual orientation. Ibid. Wohl Testimony, New York Hearing Transcript, pp. 178, 183. Other matters of police misconduct that do not fall under the CCRB's jurisdiction are referred to the police department's Internal Affairs Bureau; if the officer determines that the complaint is within the jurisdiction of the CCRB, then he must forward that complaint directly to the CCRB. Ibid.

[54] Wohl Testimony, New York Hearing Transcript, p. 178.

[55] CCRB, Filing a Complaint.

[56] New York City Civilian Complaint Review Board, How to File a Complaint with the CCRB (visited Feb. 4, 2000) <http://www.ci.nyc.ny.us/html/ccrb/home.html>; Wohl Testimony, New York Hearing Transcript, p. 177. Police departments send these complaints to the CCRB. Ibid., p. 177. See Patrol Guide 118‑07; Interim Order 67 (Oct. 21, 1996). When a citizen raises an allegation against an officer by filing a complaint in a police precinct, the officer taking the complaint is charged with making the initial determination as to whether the complaint arises under the jurisdiction of the CCRB. Ibid.

[57] Wohl Testimony, New York Hearing Transcript, p. 177.

[58] New York City Civilian Complaint Review Board, What Happens After You File a Complaint? (visited Feb. 4, 2000) <http://www.ci.nyc.ny.us/html/ccrb/home.html> (hereafter cited as CCRB, What Happens? ).

[59] Wohl Testimony, New York Hearing Transcript, pp. 180 81. The NYPD s Interim Order 51 mandates that subpoenaed police officers must appear at the CCRB to answer all inquiries. Ibid.

[60] Ibid., p. 180.

[61] U.S. Const. amend. V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Id.

[62] Wohl Testimony, New York Hearing Transcript, p. 181.

[63] CCRB, What Happens?

[64] Wohl Testimony, New York Hearing Transcript, pp. 181 83 (emphasis added). CCRB Report, January December 1998, p. 3. Of the 5,312 closed cases, 2,584 were fully investigated. Ibid. See CCRB Report, January December 1998, p. 28. The category of truncated investigations includes administratively closed cases. These cases, which were phased out beginning in 1997, are cases that were closed before being assigned to an investigator, whether the complaint was withdrawn by the complainant or closed for some other reason. Because the CCRB initiated the practice of immediate assignment of cases to investigators in 1997, the administratively closed designation has been phased out and is not commonly used in recent cases. Ibid. See also ibid., pp. 3 4. The CCRB determines a case should be closed only after the investigative staff has followed a set protocol and the board has reviewed the case. Investigators are required to send at least two letters and make a minimum of five telephone calls before a case may be truncated. At the conclusion of this process, if the investigator is unable to reach the complainant, a final letter is sent to the complainant attempting to set up an interview date. If no response is received within 10 business days, the case will be truncated. Similarly, if the complainant fails to appear for the scheduled interview, a letter is sent promptly, advising the complainant, victim, or witness cannot be contacted, or refuses to cooperate without giving any specific reason. Such cases are also truncated, but the board may reopen the case. In certain other circumstances, the complainant may decide not to pursue a complaint. For instance, subsequent to the intake interview, a complainant may be advised by his or her attorney not to cooperate with the CCRB because of pending litigation. When a complainant elects to withdraw a complaint, the investigator obtains an initial verbal confirmation of this intent and then mails the complainant a withdrawal form. If the written consent to withdraw is not received within a 2-week waiting period, the case is nonetheless closed as complaint withdrawn. See Letter to Mary Frances Berry, chairperson, U.S. Commission on Civil Rights from Frank H. Wohl, chairman, CCRB, May 15, 2000, re: Affected Agency Review, p. 2 (hereafter cited as Wohl Letter). During 1998, 44.9 percent of the cases that the CCRB closed were truncated cases. Of the 5,312 closed cases, 2,384 were truncated. The CCRB does not take any further action in these cases. CCRB Report, January December 1998, pp. 3 4.

[65] CCRB Report, January December 1998, p. 9. An officer may be involved in only one mediation and one conciliation during a 12-month period. Ibid.

[66] Wohl Testimony, New York Hearing Transcript, p. 182.

[67] CCRB Report, January December 1998, p. 9. Interpreters (as necessary) and parents/guardians of a minor child who is a complainant may also be present in the mediation room. Ibid.

[68] New York City Civilian Complaint Review Board, Alternative Dispute Resolution (visited Feb. 4, 2000) <http://www.ci.nyc.ny.us/html/ccrb/home.html> (hereafter cited as CCRB, ADR ).

[69] See CCRB Report, January December 1998, p. 9. The low number of mediated complaints may be attributed, in part, to the newly implemented mediation program, which began in 1997. See also New York City Police Department, Interim Order 24 (Apr. 9, 1998). If allegations are removed from an officer's record, a notation of a successfully mediated complaint is then included. Successfully mediated allegations cannot be considered in future personnel reviews of an officer's performance. Ibid.

[70] CCRB, ADR.

[71] CCRB Report, January December 1998, p. 9.

[72] Ibid. The complainant is not present during the conciliation process.

[73] Ibid. The CCRB suspended the conciliation process on May 12, 1999.

[74] CCRB, What Happens?

[75] CCRB Report, January December 1998, p. 5.

[76] See ibid.

[77] Ibid. In 1998, the CCRB recommended instructional discipline for 30 cases involving 39 subject officers.

[78] Ibid.

[79] Ibid. Command discipline is divided into two schedules. Schedule A, which applies to less serious misconduct, carries penalties of up to forfeiture of 5 days vacation time. Schedule B, which applies to more serious misconduct, carries penalties of up to forfeiture of 10 days vacation time. See Patrol Guide 118-03, 118-21. Although these disciplinary measures carry permanent notations on an officer's record, they may be sealed if the officer receives no other discipline for a period of 1 to 3 years (depending on the severity of the conduct).

[80] See CCRB Report, January December 1998, p. 6.

[81] See New York City Charter 434. This provision gives the police commissioner the authority to discipline officers.

[82] Wohl Testimony, New York Hearing Transcript, p. 227.

[83] Ibid.

[84] New York City Police Department, First Deputy Commissioner (visited Mar. 12, 2000) <http://www.ci.nyc.ny.us/html/nypd/html/1stdep/1stdepindex.html>.

[85] New York City Police Department, Commands of the First Deputy Commissioner: Special Prosecutor's Office, Disciplinary Assessment Unit (visited Mar. 12, 2000) <http://www.ci.nyc.ny.us/html/nypd/html/1stdep/1stdep4.html>. The Disciplinary Assessment Unit also has a liaison relationship with the CCRB and the mayor's Commission to Combat Police Corruption. Ibid.

[86] Green, Interim Report, p. 9.

[87] New York City Police Department, Commands of the First Deputy Commission: Quality Assurance Division, Department Advocate's Office (visited Mar. 12, 2000) <http:// www.ci.nyc.ny.us/html/nypd/html/1stdep/1stdep3.html>.

[88] Green, Interim Report, p. 9.

[89] See Patrol Guide 118-05.

[90] See New York City Office of Management and Planning, Civilian Complaint Statistical Summary (hereafter cited as Civilian Complaint Statistical Summary ). In most cases, substantial enhancement and/or reinvestigation is necessary.

[91] Safir Testimony, New York Hearing Transcript, pp. 155 56. Note that the percentage of CCRB referrals which result in disciplinary dispositions has steadily risen over the last 3 years, from 20.7 percent in 1996 to 32.2 percent in 1997 to 47.1 percent in 1998. In fact, through May 5 of this year [1999], a total of 52.6 percent of CCRB referrals have resulted in a disciplinary disposition. We continue to work closely with the CCRB to improve the process in a frank and open dialogue. Ibid., p. 157. See also ibid., p. 226. Commissioner Safir established a zero tolerance policy for police officers who make false statements in administrative or judicial proceedings of misconduct. He testified that he has fired 54 police officers because of this policy since December of 1996. Ibid.

[92] Civilian Complaint Statistical Summary. The DAO prioritizes civilian complaints alleging use of excessive force and allegations of use of ethnic racial slurs. Ibid. 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.

[93] See below. Completing an investigation within the limitations has been a chronic problem for the CCRB, especially during the first 3 years of CCRB operations. That problem has been reduced substantially, but not eliminated; through the first 4 months of 1999, only two referrals had to be dismissed due to expiration of the statute of limitations. In another two cases, less than 1 month remained in the statute of limitations. In those cases, the DAO prepared charges and specifications (which are similar to an informal indictment; see below) against the subject officer prior to expiration of the limitations period to extend the deadline for disciplinary action. See Civilian Complaint Statistical Summary. The 18-month statute of limitations restriction controls in all cases except for cases alleging criminal activity. In these instances, the applicable penal statute of limitations governs.

[94] See Montella v. Bratton, 93 N.Y.2d 424, 430 (1999). If the subject officer disagrees with the commissioner's disciplinary decision, he may institute an Article 78 proceeding (a review of administrative proceedings) in New York State Supreme Court to have that decision ruled invalid. It appears that statistics on the frequency with which officers opt for such an appeal are not kept.

[95] See New York Civil Liberties Union, Five Years of Civilian Review, p. 10.

[96] See New York City Police Department, Office of Management and Planning, A Review and Analysis of the Civilian Complaint Review Board's January December 1996 Report, p. 7 (hereafter cited as Review and Analysis, 1996). Of those 773 complaints, 100 (13 percent) were found to be substantiated, 525 (68 percent) were found to be unsubstantiated, 99 (13 percent) were closed as unfounded, and the officer was exonerated in 49 cases (6 percent). The complainant must voluntarily agree to an ADR process before the CCRB pursues this route.

[97] Ibid.

[98] Ibid. Administrative closure refers to cases closed due to the unavailability or uncooperativeness of the complainant. The separate categories of truncated and administratively closed cases reported in 1996 are no longer reported separately. The CCRB now considers any case closed before receiving a full investigation or being resolved through ADR to be truncated.

[99] This is further exacerbated by the 48-hour rule, which allows an officer to decline to speak with interviewers for 48 hours from the time that he or she is identified as the subject of an investigation.

[100] See New York City Police Department, Office of Management and Planning, A Review and Analysis of the Civilian Complaint Review Board's Semi-Annual Report for the Period July December 1995 and Calendar Year 1995, p. 11 (hereafter cited as Review and Analysis, 1995).

[101] Ibid.

[102] Ibid. In fact, 54.8 percent of cases reviewed during this period were not investigated fully.

[103] Ibid. For that period, there were 828 complete investigations, in which the CCRB concluded that 150 complaints were substantiated by credible evidence.

[104] Ibid. Of the 3,897 cases that the CCRB considered during this period, 2,670 were not investigated fully.

[105] According to Chairman Wohl, the report correctly states that the slow pace of CCRB investigations led to a very low percentage of complaints being substantiated by the CCRB [page 146] and this failure to substantiate large numbers of civilian complaints may reflect the CCRB's inability, as an institution, to investigate effectively [page 147]. He states, however, that the CCRB has a slightly different view in that the real issue is the dispositive disposition rate, which includes not only substantitate findings but also exonerated and unfounded findings. He further acknowledges that he agrees as the report states that the investigation time has adversely impacted the ability of the CCRB not only to substantiate complaints but to exonerate and to unfound complaints when that is appropriate. In sum, Chairman Wohl states that the CCRB attaches equal importance and value to substantiated, exonerated and unfounded cases because those are the cases decided on the underlying merits. See Wohl Letter, pp. 1, 2

[106] See CCRB Report, January December 1998, p. 11. In 1995, for example, the CCRB had truncated closings in 4,661 cases; in 1996, the number was 3,075.

[107] See ibid., p. 27. The total number of cases before the CCRB at the end of the 1997 reporting period was 3,325; the vast majority of the CCRB s cases, therefore, were backlog cases.

[108] The 3 -year period includes the time from July 5, 1993, through Dec. 31, 1996.

[109] See New York City CCRB Semiannual Status Report, January June 1996, pp. 37 38; New York City CCRB Semiannual Status Report, June December 1996, pp. 45 46.

[110] See Captain George Grasso, letter to CCRB executive director Hector Soto, July 28, 1995. It is worth noting, however, that discipline often was not implemented against subject officers for complaints filed before the creation of the independent CCRB as well. For complaints registered during the first half of 1993, the last period in which the NYPD investigated civilian complaints, the NYPD disciplinary assessment unit noted that less than half of concluded referrals resulted in discipline (44 out of 96 referrals). The discipline for those officers ranged from referral of the officer to command for instructions or loss of 4 hours of vacation time to termination. Those punishments correspond to the range of punishments that officers received after being found guilty of charges substantiated by the independent CCRB. In more than half of the cases referred to the Disciplinary Assessment Unit, however, the complaint against the officer was either dismissed or the officer was found not guilty following a departmental trial. Ibid.

[111] See New York City Civilian Complaint Investigation Bureau, 1992 Annual Report, p. 16; New York City Civilian Complaint Investigation Bureau, 1991 Annual Report, p. 16.

[112] NYPD Disciplinary Assessment Unit, C.C.R.B. Statistical Information (rev. ed. May 12, 1999) (hereafter cited as CCRB, Statistical Information ).

[113] Ibid.; CCRB Report, January December 1998, p. 49. This high number of 15-month-old cases may explain why the DAO dismissed so many cases otherwise scheduled for an administrative trial. To prevent having too many cases dismissed on statute of limitations grounds, the DAO implemented a policy of automatically filing charges and specifications whenever it received a substantiated complaint more than 15 months old, as such an action effectively tolled the statute of limitations. See Task Force on New York City Police/Community Relations: Report to the Mayor, March 1998, p. 85 (hereafter cited as March 1998 Task Force Report). After filing charges, the DAO conducted its own investigation, from which it may have concluded that disciplinary action was unwarranted. In such a case, the DAO would have the charges dismissed.

[114] See CCRB Statistical Information.

[115] Ibid.

[116] The CCRB considers these to be affirmative findings because they indicate that the evidence was sufficient for the board to reach an affirmative conclusion as to what happened and whether those events constituted an act of misconduct on the part of the subject officer. Complaints that are unsubstantiated, by contrast, are those in which, after a full investigation, the board is still unable to reach a conclusion as to what happened.

[117] See CCRB Report, January December 1998, p. 29. Because some fully investigated cases are closed without any finding by the board, 1998 marked the first year in which the percentage of affirmative findings actually exceeded the number of unsubstantiated cases. Ibid., pp. 29 30.

[118] See Civilian Complaint Statistical Summary, Closing Comparison.

[119] Ibid.

[120] See New York City Police Department, Office of Management and Planning, A Review and Analysis of the Civilian Complaint Review Board's January December 1997 Report, p. 7 (hereafter cited as Review and Analysis, 1997).

[121] See CCRB Report, January December 1998, p. 27. The statistics for 1997 were consistent with a trend that saw the total number of cases that the CCRB closed decline each year from 1996 through 1998. Because the sheer number of cases closed indicates nothing about the quality of those closings i.e., number of full investigations conducted, complaints substantiated, and discipline imposed this statistic figures to be relatively insignificant.

[122] Ibid. The precise numbers were 45 referrals older than 18 months and 109 referrals between 15 and 18 months out of a total of 471 substantiated referrals for 1997.

[123] Ibid. In 1998, however, the CCRB referred far fewer complaints to the DAO than in 1997 (201 in 1998, 471 in 1997).

[124] See CCRB Report, January December 1998, p. 27. The previous year, backlog complaints had constituted 75.7 percent of the CCRB docket.

[125] Ibid.

[126] Ibid.

[127] Katherine Lapp, director and commissioner of Criminal Justice Services, State of New York, Testimony, New York Hearing Transcript, pp. 171 72. Previously, Commissioner Lapp served as the executive director of the Task Force on Police/Community Relations for 5 months. Ibid., p. 170.

[128] Ibid.

[129] Ibid., p. 174.

[130] See Wohl Testimony, New York Hearing Transcript, p. 185.

[131] See also New York Civil Liberties Union, Five Years of Civilian Review, p. 9, n. 25.

[132] See CCRB Report, January December 1998, p. 7.

[133] Ibid.

[134] Ibid.

[135] Ibid. In 1998, however, the CCRB referred far fewer substantiated complaints to DAO than it had in 1997 (down from 471 in 1997 to 300 in 1998).

[136] See New York City Police Department, Office of Management and Planning, A Review and Analysis of the Civilian Complaint Review Board's January December 1998 Report, p. 15 (hereafter cited as Review and Analysis, 1998).

[137] Siegel Testimony, New York Hearing Transcript, pp. 101 02. See also Christine Quinn, member of the New York City Council, Westside of Manhattan, Testimony, New York Hearing Transcript, p. 566. I was the original sponsor of the Civilian Complaint Review Board legislation, and have watched it in the recent years been ignored, diluted, weakened, and ridiculed, and am most unhappy about it. Ibid.

[138] Review and Analysis, 1998. In 1997, there were 2,127 truncated cases.

[139] Ibid., p. 28. The numbers for both 1997 and 1998 were significantly higher than previous years. This suggests that the direct assignment of all complaints to investigators has been a very positive improvement for CCRB investigations.

[140] Ibid.

[141] See CCRB Report, January December 1998, p. 29.

[142] Ibid., pp. 30 31. In many substantiated cases, the board also recommends the level of discipline that should be imposed. In 1997, following the directive of the City Council, the CCRB issued a disciplinary recommendation in 97.8 percent of all substantiated cases; in 1998 the CCRB made a recommendation in all substantiated cases. The severity of these recommendations has fluctuated over the past 4 years and does not appear to follow any discernible pattern. When broken down by category, however, it appears that the CCRB seems to recommend the most severe discipline where the primary allegation is unnecessary force. In such cases, the board was very likely to recommend charges and specifications. Allegations of abuse of authority were the next most serious; although the board recommended charges and specifications in some of these cases, a recommendation of command discipline was more common. Allegations of discourtesy and offensive language were considered less serious and generally carried a recommendation of command discipline or instructions. Ibid.

[143] Green Testimony, New York Hearing Transcript, p. 258.

[144] Ibid.

[145] Green, Interim Report, p. 4 (emphasis in original). In the last six months of 1998, only after the Abner Louima case and after the commencement of this investigation and others, the disciplinary rate increased to 58.4%. Ibid., p. 4. 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 percentages of cases in which discipline was imposed over the next 2 years may have been caused, in part, by untimely and relatively poor quality investigations from the newly independent CCRB.

[146] Green Testimony, New York Hearing Transcript, pp. 266 67. 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.

[147] 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 4-day training program for newly assigned CCRB investigators, and CCRB investigators now participate in the Internal Investigations course that IAB conducts.

[148] See Review and Analysis, 1998, p. 15.

[149] Ibid., p. 16. An additional 24 cases were filed rather than reaching an ultimate disposition due to resignation, death of the officer, or other circumstances. No discipline was administered in 174 cases. Ibid. Following the initial drafting of this report, the department informed the Commission that the percentages of cases in which discipline was imposed rose significantly again in 1999. According to department statistics, 292 out of 482 officers (60.5 percent) received some form of discipline in cases closed last year.

[150] See Civilian Complaint Statistical Summary. The statistics on which that conclusion is based seem to support that conclusion only indirectly. The NYPD Statistical Summary notes that civilian complaints filed with the NYPD in 1998 were up 84 percent over 1997, while complaints filed directly with the CCRB declined 26 percent over the same period. These statistics appear to suggest that civilians have not necessarily increased their confidence in the NYPD's ability to resolve civilian complaints, but that it is more convenient for a complainant to go to his or her local precinct instead of to the CCRB. However, these statistics also indicate that the CCRB has not adequately informed the public about what is the most efficient method for registering a civilian complaint i.e., calling the CCRB directly. The NYPD maintains that police officers seem to have become more willing to accept and properly process a civilian complaint, as the sharp decrease in complaints concerning NYPD officers in the complaint-taking process illustrates. See Review and Analysis, 1995, p. 9. The NYPD's statistics also report that in 1998, nearly half (48.1 percent) of all civilian complaints were filed with the NYPD (before being referred to the CCRB), while only about one‑quarter (27.2 percent) of all complaints were filed with the NYPD the year before. Ibid. That increase may be due, in part, to the fact that a low percentage of people seemed willing to file complaints in person at NYPD precincts the year before. See March 1998 Task Force Report, p. 95.

[151] See New York City Police Department, Executive Development Program, Disciplinary System Reforms, 1995.

[152] See ibid.

[153] Ibid.

[154] See Civilian Complaint Statistical Summary. The NYPD notes that since its creation in 1995, the size of the CCRB unit has been increased from 7 to 24 officers. That increase in staffing allowed the CCRB unit to dispose of 136 referrals in the first 4 months of 1999. Ibid.

[155] See CCRB Statistical Information, Department Advocate's Office CCRB Team Staffing.

[156] See Civilian Complaint Statistical Summary ; Safir Testimony, New York Hearing Transcript, p. 157. See CCRB Report, January December 1998, pp. 29 30. CCRB data indicate that almost half of substantiated referrals in 1998 were met with discipline by the commissioner.

[157] This was the most recent half-year period for data available during the initial drafting of this report. Since that time, the department has provided the Commission with data stating that more than 60 percent (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.

[158] See CCRB Report, January December 1998, pp. 32 33. The department did agree to provide information on whether an officer received Schedule A or Schedule B command discipline. The NYPD has also agreed to provide information on penalties that result from cases where charges and specifications are filed in 1999.

[159] Ibid., p. 33. The department declined to impose discipline for unknown reasons in 67 cases during the first half of 1998.

[160] Ibid. For the period ending December 1998, the commissioner's designees to the CCRB had all supervised the disciplinary process as members of the NYPD.

[161] See New York City Police Department, Office of Management and Planning, A Review and Analysis of the Civilian Complaint Review Board's January June 1997 Report, pp. 6, 11 (hereafter cited as Review and Analysis, January June 1997). Neither of those cases resulted in any disciplinary action. Ibid., p. 11. The recent progress that the CCRB has made in conducting timely and efficient investigations should alleviate NYPD criticisms that slow CCRB investigations make it more difficult to act on substantiated complaints.

[162] See CCRB Report, January December 1998, p. 32.

[163] Ibid.

[164] Ibid., p. 31. The percentage of 1997 cases open at the end of 1998 was even higher; 238 of 448 (53.1 percent) of 1997 referrals remained open at the end of 1998. Ibid., pp. 31 32.

[165] Wohl Testimony, New York Hearing Transcript, p. 205.

[166] Ibid., pp. 205 06.

[167] Ibid., p. 206.

[168] Cortes-Vazquez Testimony, New York Hearing Transcript, pp. 363 64. The Hispanic Federation is a not-for-profit organization of 62 Latino community-based organizations throughout the New York/New Jersey area. . . . The Hispanic Federation has done a survey on Hispanic New Yorkers for the past 7 years. And for the first time since the Hispanic Federation began its annual survey in 1993, police brutality emerges as the most important problem facing New Yorkers according to Hispanic New Yorkers. Ibid.

[169] Ibid., p. 366.

[170] United States v. Livoti, 196 F.3d 322 (2nd Cir. 1999), cert. denied, 120 S.Ct. 1961, 146, L.Ed.2d 793 (2000). The court summarized the events that led to the death of Anthony Baez: At around 1:30 a.m. on Dec. 22, 1994, then-officer Francis Livoti of the New York City Police Department . . . , and three other officers parked their two patrol cars on a street near the South Bronx home of Anthony Baez. Baez and his three brothers were playing football in the street. After two errant passes struck the patrol cars, Livoti yelled and cursed at the brothers, ordering them to go home. After some discussion among themselves, the Baez brothers decided to continue their game, playing in the opposite direction. Before they could continue, however, Livoti again got out of the patrol car, cursing at the brothers and challenging them to a fight. The situation escalated when Baez s brother David openly defied Livoti's orders to leave. Livoti announced that David would be spending Christmas at Rikers Island [prison], cuffed him, and put him in the back of a patrol car.

Livoti then turned to Anthony Baez, who had been protesting his brother's arrest. Livoti pushed Baez across the street and attempted to cuff his hands behind his back. Baez resisted Livoti's efforts to handcuff him behind his back, holding his hands to his chest. Baez's father (who had come out of the house) and brothers then saw Livoti put Baez in a choke hold, hooking the crook of his arm around Baez's neck and pulling Baez upward and backward. Baez's father shouted at Livoti, pleading with him to stop choking his son. After some time, Livoti lowered the by then limp Baez to the ground and cuffed his hands behind his back. Meanwhile, four additional officers had arrived on the scene in two more patrol cars. Baez remained motionless on the ground until police officers carried him to a patrol car and drove him to a nearby hospital. He was pronounced dead shortly thereafter. Id. at 324 25.

[171] Iris Baez, South Bronx resident and mother of Anthony Baez, Testimony, New York Hearing Transcript, pp. 431 33. See Livoti, 196 F.3d at 325 27. Livoti was indicted for violating Baez's civil rights pursuant to 18 U.S.C. 242. During the trial, the government presented evidence inter alia, that Baez died as a result of a choke hold; eyewitness accounts of Livoti's use of the choke hold; and Livoti's knowledge of the NYPD s policy prohibiting choke holds, due to previous complaints of excessive force against him and subsequent warnings from his superiors. The United States Court of Appeals affirmed the sufficiency of this evidence. Id. at 325 27. On Apr. 17, 2000, the mayor signed a bill (introductory no. 510) sponsored by City Council members Carrion, Henry, and Linaris that would name Cameron Place, between Jerome Avenue and Morris Avenue in the Bronx, as Anthony Baez Place. In signing the bill, the mayor stated, While nothing can compensate for the loss of a son or a brother, this small act in commemoration of Anthony's life will hopefully demonstrate the City's profound sorrow for the loss that the Baez family has suffered. Remarks by Mayor Rudolph W. Giuliani at Public Hearing on local laws, Press Office Release # 135.00, Apr. 17, 2000 <www.ci.nyc.ny.us>.

[172] Payne Testimony, New York Hearing Transcript, p. 436. This particular anecdote is an unsubstantiated, second-hand account of an event.

[173] Ibid., pp. 435 36. See also Siegel Testimony, New York Hearing Transcript, p. 99. The Civilian Complaint Review Board hears only 5 percent of all complaints and only 2 percent of all complaints lead to a discipline of a police officer. The police commissioner fails to act for months and in some instances, even years, on the substantiated CCRB complaints he receives. Ibid.

[174] Feldstein Testimony, New York Hearing Transcript, pp. 488 89.

[175] Ibid., p. 489.

[176] Ibid., pp. 489 90.

[177] Rosario Testimony, New York Hearing Transcript, p. 548. See Juan Gonzalez, 4 Deaths But Few Answers, New York Daily News, Sept. 20, 1996, p. 8; Tom Hays, Bronx Shooting Sparks Mother's Crusade Against Cops, The Associated Press, Aug. 6, 1995, Sunday A.M. cycle. Two detectives from the 46th Precinct shot Anthony Rosario and Hilton Vega during an alleged robbery in the Bronx. The medical examiner's findings indicated that Mr. Rosario and Mr. Vega were shot by a hail of bullets in their backs and sides, some of which occurred while they were on the ground. Ibid.

[178] Rosario Testimony, New York Hearing Transcript, p. 549.

[179] Ibid.; Juan Gonzalez, CCRB's Big Majority of 1, New York Daily News, Aug. 27, 1996, p. 8.

[180] Gadsden Testimony, New York Hearing Transcript, pp. 469 70. Mr. Gadsden testified that prosecutors of the Queens, Brooklyn, Manhattan, and Staten Island district attorney's offices usually do not seek indictments of police officers for complaints of police brutality against people of color. He noted that from 1991 to 1999, the Bronx District Attorney's Office was the exception to this trend. Ibid.

[181] Lee Testimony, New York Hearing Transcript, p. 351. In listing reasons why she believes the community she serves has lost faith in the integrity of past investigations in police-killing cases by district attorneys, Lee testified that [r]ecords at the Board of Elections show that all five New York City [district attorneys] received campaign contributions from the PBA or other police organizations during their election campaigns. Ibid.

[182] Rosario Testimony, New York Hearing Transcript, pp. 550 51.

[183] Greg B. Smith, No Charges vs. Cops in Fatal 95 Shooting, New York Daily News, Jan. 8, 2000, p. 5. But see Rosario Testimony, New York Hearing Transcript, pp. 551 52. [T]he floorboards, evidence, key evidence is missing from the police department to [the] CCRB. But the CCRB has pictures and videotapes of the whole crime scene. . . . Ibid.

[184] Rosario Testimony, New York Hearing Transcript, pp. 551 52.

[185] Ibid.

[186] Wohl Testimony, New York Hearing Transcript, pp. 200 02. Mr. Wohl did not have a position on whether the police misconduct disciplinary process should be removed from the NYPD. He indicated that his major duty as chairman of the CCRB entails substantiating civilian complaints and forwarding them to the police commissioner for the appropriate action. Ibid., p. 204.

[187] Giuliani Testimony, New York Hearing Transcript, pp. 46 47.

[188] Ibid., pp. 47, 82.

[189] Fung Testimony, New York Hearing Transcript, pp. 96 97. See Frank Fenucio, legislative advisor to Bronx borough president Fernando Ferrer, Testimony, New York Hearing Transcript, p. 503; Dennis Walcott, president of the New York Urban League, Testimony, New York Hearing Transcript, p. 108.

[190] Spitzer Testimony, New York Hearing Transcript, pp. 245 46; Green Testimony, New York Hearing Transcript, p. 262. See Fenucio Testimony, New York Hearing Transcript, pp. 302 04. Mr. Fenucio suggested that the mayor should implement the recommendations of the Mollen and the Louima Commissions, which would establish the CCRB as an independent investigatory body with subpoena power and the jurisdiction over police corruption and brutality cases. Ibid. Rosario Testimony, New York Hearing Transcript, p. 550. The Mollen Commission recommended that the CCRB be formed and separated from the NYPD. Ibid.

[191] Adams Testimony, New York Hearing Transcript, pp. 302 03. Following the initial drafting of this report, the NYPD informed the Commission that the CCRB keeps all originals of evidence of police misconduct that its investigators gather and that the department is only forwarded copies.

[192] As a response to each of the CCRB reports, the NYPD produces a Review and Analysis of each CCRB report. These reports cite the same statistics found in the CCRB reports, and do make some useful suggestions on how the CCRB could more meaningfully track civilian complaints. The statistics that these NYPD reports cite, however, are selected so as to best maintain that civilian complaints are not a major problem. In fact, none of these semiannual NYPD documents concedes that any of these statistics show that problems exist within the NYPD; instead, they use statistics to maintain that any problems (if they exist) are attributable to other factors.

[193] See CCRB Report, January December 1998, p. 20. That level marks the highest during the tenure of the independent CCRB, which came into existence on July 5, 1993. The high number of complaints recorded that year may also be attributable to the merger that year between the NYPD and the city's transit and housing police forces. The NYPD estimates that 400 600 complaints that might otherwise have been attributable to those divisions were included in the 1995 complaint statistics. See New York City Police Department, Office of Management and Planning, A Review and Analysis of the Civilian Complaint Review Board's Semi-Annual Report for the Period July December 1995 & Calendar Year 1995, p. 2.

[194] See CCRB Report, January December 1998, pp. 13, 15. The number of uniformed police officers rose 2.3 percent over the same period. In addition, the number of individual allegations of misconduct declined in 1998 to 7,443, from 7,933 in 1997 and 8,060 in 1994. Ibid., p. 20.

[195] See Spitzer Testimony, New York Hearing Transcript, p. 240. New York Attorney General Elliot Spitzer, for example, has expressed a belief that many individuals who feel they have been the victim of police misconduct decline to present their complaint to the police or to the CCRB.

[196] Giuliani Testimony, New York Hearing Transcript, pp. 44 45; Safir Testimony, New York Hearing Transcript, pp. 161 62.

[197] Green Testimony, New York Hearing Transcript, p. 277.

[198] See Civilian Complaint Statistical Survey. A downward trend in registered complaints does not necessarily indicate a corresponding reduction in police abuse of power. A perception that the CCRB does not effectively investigate claims of police misconduct might also be responsible for a downward trend in the number of complaints filed, because persons who might otherwise file a complaint might not bother, believing it to be futile to do so. The numbers, however, do indicate a drop in the incidence of complaints filed per uniformed police officer, down from a high of 160 complaints per 1,000 officers in 1994 and 1995 to approximately 130 complaints per 1,000 officers in 1997 and 1998.

[199] Because complaints may contain more than one allegation of misconduct, the number of allegations is greater than the number of complaints filed during any one period, and the correlation between allegations and complaints should not be considered exact.

[200] See CCRB Report, January December 1998, p. 20; Review and Analysis, 1998, p. 7.

[201] CCRB Report, January December 1998, p. 20. Allegations of abuse of authority did decrease 13.1 percent from 1996 to 1998.

[202] See CCRB Report, January December 1998, pp. 22, 78.

[203] Ibid. The actual number of threat of arrest allegations was 499.

[204] Ibid., pp. 22, 78, 79. A fourth major category of allegations was the other category, which includes allegations not falling into one of the defined subcategories. In 1998, the other category encompassed 417 allegations, or 15.8 percent of the total. It is not clear whether this high number of undefined complaints is due to imprecision in the category definitions, imprecision on the part of persons receiving complaints, or imprecision in data entry.

[205] Ibid., p. 78. This is consistent with the historical trend of abuse complaints, which have historically been dominated by the person searched, threat of arrest, and threat of force subcategories.

[206] See CCRB Report, January December 1998, pp. 21, 77. There were 699 such allegations during 1998, which was lower than during any of the previous 4 years, but more than twice as many as any other subcategory of force allegations.

[207] Ibid., p. 21. This does not include the other subcategory, which accounted for 528, or 21.8 percent of force allegations in 1998. Ibid. These subcategories consistently were the most common force allegations after push/shove ; the common thread that these four subcategories share is that they allege an improper use of force without a weapon. During the period from 1994 through 1998, these four most frequent categories comprised 62 percent of all force allegations.

[208] Ibid., pp. 21, 76, 77. Those six categories constituted 6.1 percent of force allegations in 1998.

[209] Ibid., pp. 22, 80. Of the 11,743 discourtesy allegations, 67 percent, or 7,888, were for cursing.

[210] Ibid. Cursing was second, representing 37.1 percent of all discourtesy allegations during 1998.

[211] Ibid. A fair number of discourtesy allegations, however, were not counted as part of one of the defined subcategories; they were instead counted as other allegations. Together these allegations made up 16.7 percent of 1998 discourtesy allegations.

[212] Ibid., pp. 23, 81.

[213] Ibid., p. 49. Other defined categories include Jewish, Asian, white, gay/lesbian, and sexist remark, so the other category presumably covers anything not encompassed by all of the above-mentioned categories. Together these less common categories made up only 3 to 4 percent of all offensive language complaints where the content of the allegation was defined during 1997 and 1998.

[214] In both 1997 and 1998, more than 1,000 complainants declined to provide the CCRB with their racial information; as a result, the available statistics may not be entirely accurate.

[215] See New York Civil Liberties Union, Five Years of Civilian Review, p. 5.

[216] See CCRB Report, January December 1998, pp. 23, 49. In 1997, African Americans filed 1,976 of the 3,698 complaints where the complainant is identified by race (53.4 percent). The percentage of the New York City African American population may have changed since 1990, so the actual size of this disparity is not entirely clear.

[217] Ibid., p. 23. The CCRB noted that in 1998, as has historically been the case, Latino complaints were close to the percentage of the New York City population that is Latino. For both 1997 and 1998, Latino-filed complaints were 22.9 percent of the complaints in which the complainant's racial background is identified (822 of 3,586 in 1998; 847 of 3,698 in 1997). In the 1990 census, Latinos constituted 24.4 percent of the New York City population. Ibid., p. 49.

[218] In both 1997 and 1998, whites filed fewer than one-quarter of all racially identified civilian complaints (22.8 percent in 1998; 20.3 percent in 1997), even though whites were 43.2 percent of the New York City population in the 1990 census.

[219] Ibid., p. 51. In 1998, 66 percent of the African American complaints were filed against white officers, who were 67.4 percent of the force that year. African Americans registered 16.2 percent of their complaints against African American officers, who constituted 13.4 percent of the force. Finally, African Americans filed 16.5 percent of their complaints against Latino officers, who made up 17.4 percent of the force.

[220] See Review and Analysis, 1995, p. 6. This percentage includes only the complaints where the racial identity of the complainant was identified. In 1995, 78 percent of the complainants (4,426 of 5,689) were identified by race.

[221] Ibid. This percentage reflects the 348,748 arrests that the NYPD (including the transit and housing divisions) made for felonies, misdemeanors, and violations.

[222] Ibid., p. 7. See also CCRB Report, January December 1998, p. 23. As is the case with statistics dealing with the race of the complainant, these may be somewhat unreliable because, in some cases, the race of the subject officer was not identified (39 percent of all complaints in 1998 and 32 percent of all complaints in 1997). It is not clear why the race of the subject officer was unidentified in such a high proportion of cases, but one could assume that many of these incidents are administratively closed cases. If so, little or no investigation was conducted and the subject officer was never identified due to an unavailable or uncooperative complainant. The available statistics do not give any readily apparent method of ascertaining whether the unavailable information would skew the data in a particular direction. Data from 1995, however, suggest the same conclusions; the percentages of complaints filed against African American, Latino, and white members of the NYPD closely matched their representation on the force.

[223] See CCRB Report, January December 1998, p. 49; Civilian Complaint Statistical Summary. In 1998, that percentage was 67.4 percent; in 1997, that figure was 67.8 percent (mirroring exactly the percentage of the police force that was white that year). See ibid., p. 7. The NYPD asserts that for the first half of 1998, the percentage of claims brought against white officers (62.6 percent) was significantly lower than the percentage of police officers that were white for that time period (67.8 percent).

[224] See ibid., p. 49. In 1998, African Americans were 13.4 percent of the city's police force and had 14.7 percent of the civilian complaints lodged against them. In 1997, African Americans constituted 13.5 percent of the NYPD and had 13.7 percent of all civilian complaints registered against them.

[225] Ibid. Latino officers were 19.4 percent and 17.1 percent of the uniformed force during 1998 and 1997, respectively. During those 2 years, the percentages of civilian complaints that Latino officers accumulated were 19.4 percent and 17.7 percent, respectively.

[226] Ibid., p. 52. In 1998, male officers received 91.4 percent of all complaints; in 1997, male officers received 90.9 percent of all civilian complaints.

[227] Ibid. The exact percentages were 60 percent in 1997 and 58.3 percent in 1998.

[228] See ibid., p. 31. The percentage of substantiated complaints for nonresident officers also closely matched their representation on the force. In 1997, 45.9 percent of substantiated complaints were against nonresident officers, while 46.2 percent of the force were not New York City residents. In 1998, the percentage of substantiated complaints that were against nonresident officers rose to 49.2 percent.

[229] See Civilian Complaint Statistical Summary, Residency/Race of Officers Receiving Civilian Complaints. The numbers for 1997 were similar. New York City residents made up 55 percent of uniformed officers that year, and 56 percent of all civilian complaints were filed against New York City residents.

[230] See CCRB Report, January December 1998, p. 31.

[231] See Review and Analysis, 1996, p. 10. In 1997 and 1998, the CCRB continued this trend of identifying broad classes of officers that were responsible for the bulk of civilian complaints. See, e.g., Review and Analysis, January June 1997, p. 12.

[232] See Review and Analysis, 1996, p. 11.

[233] See Review and Analysis, January June 1997, p. 13. One hundred twenty-six police officers had four or more complaints filed against them during the period from July 1, 1995, through June 30, 1997. That statistic does not account for complaints where the officer was unidentified. If CCRB statistics were able to identify all subject officers, the number of officers with multiple complaints might rise considerably.

[234] See Review and Analysis, 1998, p. 14; CCRB Report, January December 1998, p. 24.

[235] See CCRB Report, January December 1998, pp. 24 25. In contrast, Brooklyn and the Bronx appear to have a decreasing number of officers with multiple complaints. See Review and Analysis, 1998, p. 11. It appears that the Street Crime Unit (SCU) was more responsible for complaints than any of the geographic commands. The rate of complaints filed against members of the Street Crime Unit was substantially higher than the average rate of approximately .12 complaints per officer during the last 5 years. In 1996, the SCU had a complaint rate of .31 complaints per officer, more than twice the forcewide average. Ibid. That rate declined slightly, and fell to .16 complaints per officer in 1998; a level much closer to the forcewide average.

[236] See Review and Analysis, 1997, p. 13.

[237] See Chief of Patrol Louis R. Anemone, letter to Commanding Officers, Mar. 2, 1994. The joint NYPD/CCRB Civilian Complaint Reduction program identifies officers who meet any of the following criteria: (1) three complaints within the previous 12 months; (2) five complaints within the previous 24 months; or (3) six career complaints and at least one complaint within the past 36 months. Ibid. Commanding officers, after identifying officers who meet those criteria, are responsible for monitoring those officers and taking steps to prevent future complaints.

[238] See Review and Analysis, 1995, pp. 13 14.

[239] Ibid., p. 13. On the CCRB complaint form, force allegations are broken down into 12 subcategories, while abuse of authority allegations are broken down into 14 subclassifications.

[240] See Review and Analysis, January June 1997, p. 4.

[241] See CCRB Report, January December 1998, pp. 21 23.

[242] Ibid.

[243] See New York City Police Department, Office of Management and Planning, A Preliminary Analysis of the Civilian Complaint Experiences of the New York City Police Department, January June 1996, p. 4. For the first half of 1996, for example, the officer's command was unidentified in 22.1 percent of complaints received during that period. According to the CCRB chair, the CCRB does not always know the officer's assignment, and for that reason, provides statistics by the location of occurrence in addition. See Wohl Letter, p. 3.

[244] See Review and Analysis, 1998, p. 11.

[245] See Review and Analysis, 1995, p. 8. During 1995, there was a 254 percent increase in allegations concerning use of pepper spray. In 1996, there was a 150 percent increase in allegations relating to the use of pepper spray. Review and Analysis, 1996, p. 4.

[246] See David Scott and Charles M. Greinsky, Report of the Pepper Spray Committee of the Civilian Complaint Review Board, May 14, 1997. The CCRB also reexamined certain aspects of the NYPD's pepper spray policy. Ibid.

[247] Ibid., pp. 14 15.

[248] Ibid., pp. 10 11.

[249] See New York City Civilian Complaint Review Board, Hollow Point Bullet Report, July 8, 1998, pp. 2 3.

[250] Ibid., p. 3.

[251] Ibid.

[252] See Mel P. Barkan, Report to Commissioners on 75th and 81st Precincts, Aug. 11, 1998.

[253] Ibid., p. 3.

[254] Ibid., pp. 5 6.

[255] Ibid., p. 6.

[256] See New York City Police Department, Office of Management and Planning, A Preliminary Analysis of the Civilian Complaint Experiences of the New York City Police Department, January June 1996, p. 4.

[257] See CCRB Report, January December 1998, p. 11. The CCRB claims that the exact number of meetings attended was 106.

[258] New York City Civilian Complaint Review Board Web site (visited Apr. 6, 2000) <http://www.ci.nyc.ny.us/html/ccrb/home.html>.

[259] See New York City Police Department, Office of Management and Planning, A Review and Analysis of the Civilian Complaint Review Board's January June 1998 Report, pp. 5 6.

[260] Ibid., p. 14.

[261] See March 1998 Task Force Report, p. 75.

[262] Ibid., p. 106.

[263] See Patrol Guide 118‑02.

[264] As previously discussed, Mark Green, public advocate for the City of New York, is currently conducting an investigation that is focusing expressly on why such a low percentage of substantiated complaints translates into actual disciplinary action. See Green Testimony, New York Hearing Transcript, pp. 258 59.

[265] See March 1998 Task Force Report, p. 87.

[266] This seems to be particularly true in light of the fact that the CCRB has conducted a complete investigation prior to referral, and that the evidence developed from this investigation is forwarded to the department.

[267] Fenucio Testimony, New York Hearing Transcript, p. 503. Currently, precinct commanders are responsible for the number of arrests and parking tickets that their police officers issue each month. Ibid.

[268] Safir Testimony, New York Hearing Transcript, pp. 218 19. If civilian complaints are going up, they [precinct commanders] have to explain to us what they're doing about them. We measure them from each 5-week period that they come in on how they're doing. And if they don't reduce civilian complaints, it has a significant impact on their career or their ability to continue as a precinct commander. Ibid.

[269] See Peter F. Vallone, The NYPD: Blueprint for Reform (May 12, 1999), p. 12 <http://www.council.nyc.ny.us/loi/blueprint.htm>.

[270] Safir Testimony, New York Hearing Transcript, p. 219.

[271] See New York Civil Liberties Union, Five Years of Civilian Review, p. 9. [T]he institutional weakness of New York's CCRB is, in important part, a function of the mayor s authority to influence the agency's operations through budgetary allocations and appointments of board members and chairperson. Ibid. The other major area of potential weakness is probably the advisory nature of the CCRB; because it cannot actually impose any disciplinary measures, it depends on the police department to implement its recommendations.

[272] See Michael Meyers, Margaret Fung, and Norman Siegel, Deflecting Blame: The Dissenting Report of the Mayor's Task Force on Police/Community Relations (New York Civil Liberties Union: March 1998), p. 47 (hereafter cited as Meyers et al., Deflecting Blame). The CCRB's failings are not attributable to a flaw in the concept of civilian oversight. The City Charter gives the CCRB sufficient authority to perform its mission. Ibid.

[273] See Vallone, Blueprint for Reform, p. 2.

[274] See Patrol Guide 118‑9.

[275] Vallone, Blueprint for Reform, p. 12. The mayor's task force recently advocated its elimination. Sharpton Testimony, New York Hearing Transcript, p. 381. See March 1998 Task Force Report, pp. 73 74.

[276] See Savage Testimony, New York Hearing Transcript, p. 189. This wasn t something we invented. This was something that the police department invented many years ago.

[277] See Wohl Testimony, New York Hearing Transcript, p. 181. Although the officer can be required to cooperate with a CCRB investigation, the officer can be forced to answer questions only subject to a grant of use immunity, so the officer's Fifth Amendment protections remain intact.

[278] See also Walcott Testimony, New York Hearing Transcript, p. 108. Dennis Walcott, president of the New York Urban League, embraced the idea of strengthening the police commissioner s role in removing and issuing discipline to errant police officers. Ibid.

[279] Siegel Testimony, New York Hearing Transcript, pp. 127 28.

[280] See March 1998 Task Force Report, p. 76. The mayor's task force made this recommendation part of its report.

[281] The CCRB may not be the entity most suited for this oversight function for two reasons. Additional oversight responsibilities might severely restrict the CCRB's resources. Secondly, assigning this function to the CCRB could increase tension between it and the DAO, which is responsible for enforcing substantiated complaints.

[282] See, e.g., Meyers et al., Deflecting Blame, pp. 59 63.

[283] Lee Testimony, New York Hearing Transcript, pp. 351 52.

[284] Sharpton Testimony, New York Hearing Transcript, pp. 376 77, 380. See also Gadsen Testimony, New York Hearing Transcript, p. 474. The police commissioner has too much discretion in determining whether he will act on substantiated complaints. Therefore, there is a need for federal oversight to monitor police brutality in the New York City. Ibid.

[285] Additionally, the CCRB and the NYPD are negotiating terms under which the NYPD may give the CCRB access to additional information, such as the reasons for not taking disciplinary measures on a particular complaint.

[286] The City Council passed legislation last year that would create the independent police investigation and audit board, which would be separate from the CCRB. It was upheld in September 1999 by the State Supreme Court in Manhattan, but the ruling was appealed by the mayor and District Attorney Robert M. Morgenthau of Manhattan, who said it would undermine their power and violates the City Charter. See Thomas J. Lueck, Vallone Revives His Call for Local Police Monitor, The New York Times, May 17, 2000, sec. B, p. 3