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What It Looks Like When the New York City Police Commissioner Has “Unchecked Power” Over Officer Discipline

11 Dec 2020

New York City’s Civilian Complaint Review Board is an independent agency charged with investigating complaints of abuse by police officers. While the board can recommend penalties and, in some cases, can present evidence directly to a New York Police Department hearing officer, the police commissioner has the final say. By law, the commissioner has the power to downgrade or even dismiss discipline, even in the most serious cases handled by the CCRB.

Those decisions have long been shielded from scrutiny by state law.

Through records made public this summer, ProPublica has pieced together details of dozens of cases in which the police commissioner stepped in after the CCRB concluded that officers had wrongly punched, kicked, choked, pepper-sprayed, tasered, searched or otherwise abused civilians. See the CCRB’s summaries of over 80 of these cases, or keep scrolling for a more detailed look at some of the more notable ones.Substantiated CasesMost Serious CasesCommissioner imposedno disciplineCommissioner imposeddifferent disciplineafter guilty pleaCommissioner imposeddifferent disciplineDifferent Discipline

Between 2014 and 2018, the CCRB substantiated allegations in about 2,400 cases out of the approximately 8,000 it was able to fully investigate, meaning the board concluded that misconduct occurred.

In about 600 of those cases, the CCRB took the most serious level of disciplinary action available: recommending "charges.” After recommending charges, if a plea cannot be negotiated, the CCRB usually prosecutes its case in front of an NYPD lawyer who serves as a hearing officer (and is often called a department “judge”).

But in at least 260 of those 600 most serious cases, the police commissioner disagreed with the CCRB on the final discipline. This included downgrading or dismissing penalties, overturning plea agreements by officers and overruling NYPD judges who review cases. Let’s take a look at some of these cases.

In June 2014, narcotics Detective Thomas Ramirez and his partner stopped a car in Queens for a traffic infraction. Ramirez slammed the driver against the hood of the police car. When the driver’s 18-year-old sister touched the officer on the shoulder and asked why he was hurting her brother, Ramirez punched her twice in the face, according to the CCRB. Ramirez’s attorney said the sister jumped on the detective’s back; she disputed this. After she fell to the ground, Ramirez pepper-sprayed her. She was found guilty of obstructing governmental administration and resisting arrest and ordered to do community service.

Then-Commissioner James O’Neill took control of the case before trial and imposed no discipline on Ramirez. He said allowing the CCRB to prosecute the case would be “detrimental” to the disciplinary process — a vague rationale that the NYPD often cites. Ramirez’s attorney called it a “perfect case” for the commissioner to assert his authority because the detective had already been cleared by the NYPD’s Internal Affairs Bureau.

Between 2014 and 2018, nearly 40 of the most serious cases handled by the CCRB ended up like the Ramirez case: The commissioner imposed no discipline at all.

In August 2015, Sgt. Mark Sinatra stopped a couple leaving a methadone clinic in Queens. Sinatra forced them out of their car, pushed the man, damaged the car’s interior and didn’t provide his current badge number, according to the CCRB. Six months later, Sinatra chased down a man who he believed was smoking marijuana and punched him in the face. The cases were prosecuted together and Sinatra pleaded guilty to using unnecessary force and abusing his authority. He agreed to give up 18 vacation days.

Commissioner O’Neill rejected the plea deal and reduced the discipline to 10 lost vacation days, noting that Sinatra was a “highly-rated officer.” Sinatra had eight previous CCRB complaints against him, one of which had been substantiated. Neither Sinatra nor his union, the Sergeants Benevolent Association, responded to requests for comment on the case.

Between 2014 and 2018, just over 60 of the most serious cases brought by the CCRB ended up like the Sinatra case: Even after the officer pleaded guilty and agreed to specific discipline, the commissioner imposed something different, almost always lowering the punishment.

In October 2016, NYPD Officer Jose Moreno pulled his gun on an 11-year-old boy and a 13-year-old girl who were playing basketball in a Harlem park, according to the CCRB. Moreno was responding to a 911 call about a gun and had been given a description of two Black men in hoodies.

O’Neill dismissed the CCRB’s charges and imposed “formalized training.” NYPD officials said that Moreno’s pointing the gun did not constitute physical force. The CCRB registered its frustration with the final outcome, saying the incident should have merited “the strictest form of punishment.” Neither Moreno nor his union, the Police Benevolent Association, responded to requests for comment on the case.

Between 2014 and 2018, the remaining 160 cases ended up like Moreno’s: The commissioner departed from the CCRB and imposed his own discipline — often training or a reprimand.

Like most police departments across the country, the NYPD historically has handled officer discipline internally. But since the city established the CCRB nearly 70 years ago, police reform advocates have worked to expand external oversight. In 1993, under Mayor David Dinkins, the CCRB was made independent of the Police Department and given subpoena powers. In 2012, the CCRB secured what seemed like another victory: the ability to prosecute the most serious cases in front of the NYPD’s hearing officers. Before that change, the agency sent such cases to NYPD prosecutors, who would present the evidence to an NYPD hearing officer.

The 2012 agreement between the CCRB and NYPD allows CCRB lawyers to argue for penalties in cases where the civilian board determines misconduct has occurred and “charges” are warranted. The agreement did not — and could not — change a key step though, codified in state law and the city’s charter: The police commissioner maintains final say over discipline.

On the surface, the NYPD process for cases that go to a disciplinary trial mirrors the criminal justice system. There is the hearing officer, who functions as a judge; a court reporter; and prosecutors, including some who have worked in district attorneys’ offices. Hearings are conducted in a tribunal at NYPD headquarters with a witness stand and other trappings of a courtroom. But after the NYPD judge issues a decision or an officer agrees to a plea, the case lands on the commissioner’s desk. The commissioner meets with an internal discipline committee and reviews the officer’s performance and any past discipline and examines how similar misconduct cases have been handled.

When the commissioner decides to disregard the recommendations of the CCRB or the department's own trial judges, no substantive explanation is required to the public or even to the complainant.

After ProPublica asked about the CCRB’s disciplinary recommendations, the NYPD put out a news release saying the current commissioner, Dermot Shea, has “meted out tough discipline when needed yet delivered tempered justice as the facts warrant.” The department's “longstanding, paramilitary style justice system” affords “wide latitude for rapid accountability and for real time operational maneuverability in times of public need,” the release said.

But the current system of discipline hasn’t deterred some officers from racking up multiple substantiated complaints.

In August 2015, Sgt. John Mejia and two narcotics detectives stopped a man in Harlem who they believed had drugs, although they later told the CCRB his only suspicious activity was walking to and from a phone booth, according to the board’s summary of the case. The man said he unintentionally spit on the officers while speaking to them. Mejia handcuffed him so tightly it fractured his wrist.

Mejia agreed to give up 20 vacation days in a plea deal. O’Neill reduced the plea to 10 days, saying the original discipline was excessive.

In April 2017, just over a year after the commissioner downgraded Mejia’s discipline, the CCRB again found Mejia abused his authority, this time for refusing to get medical attention for a 43-year-old man. For this, he received what is known as “command discipline,” which means a supervisor decides the penalty, ranging from “instructions” on proper procedures to a loss of 10 vacation days. Neither Mejia nor his union, the Sergeants Benevolent Association, responded to requests for comment on the incidents.

The Commissioner's Unilateral Control Over Cases

In 2018, O’Neill appointed an outside panel to review the NYPD’s disciplinary system following a series of stories in the Daily News. The panel’s report criticized the sparse explanations provided by the commissioner when changing discipline and described the commissioner’s decisions as an “unchecked power.”

“The Commissioner’s unilateral ability, without explanation, to overturn a trial judge’s detailed findings can create the perception that the fact-intensive, adversarial trial process is a mere formalism devoid of real consequence,” the panel wrote.

The NYPD said it has “substantially implemented” recommendations made by the panel, including adding more detail to decision memos written when the commissioner disagrees with the CCRB on discipline. While the CCRB’s chair, Fred Davie, told ProPublica the memos have improved, they “don’t yet meet the standard” set by the panel.

In 2018, the CCRB analyzed its own role in this process and found its recommendations were inconsistent, with what it called “varied disciplinary recommendations for similar allegations."

But even after the CCRB created a written framework for assessing cases, the CCRB’s process can lead to “inconsistency,” said NYPD Assistant Chief Matthew Pontillo, who oversees disciplinary procedures. Rotating three-person panels of the civilian board vote on whether cases merit charges.

Davie, who took over as CCRB chair in 2018, said there is “always room for improvement” in the CCRB’s process but is satisfied with the changes the board has made. He remains concerned though about the persistent disagreements with the commissioner on final discipline for the most serious cases.

“For the department to flip verdicts and undo pleas goes to the heart of undermining the public’s confidence in the process,” Davie said in an interview this week. “Thoughtful consideration is given to penalties that are recommended at the end of the disciplinary process, and we believe that the department should honor that, should give deference to that.”

Davie said he has had “intentional, directed and focused” conversations with the NYPD about CCRB recommendations in disciplinary cases. He said the NYPD could improve public confidence immediately by honoring those recommendations.

“All of these things they could change today if they wanted to,” Davie said.

According to CCRB data, from 2013 to the present, the commissioner has outright reversed the guilty finding of an NYPD judge in 13 cases the agency prosecuted — including three under Shea, who succeeded O’Neill in December 2019.

In addition to those three cases — which all stemmed from one incident — Shea has reduced five pleas and taken seven cases back from the CCRB.

While the NYPD and CCRB agree on when to hand out discipline in the vast majority of lower-level misconduct cases, when the CCRB tries to push for more severe consequences for serious incidents, the agency’s recommendations are less likely to be followed.

In one 2016 case, the CCRB recommended termination for an officer. Instead, he lost 10 vacation days. Similarly, two cases from 2014 and 2015 where CCRB called for a termination ended with five and four days of lost vacation time respectively.

State Sen. Zellnor Myrie, who has proposed legislation to remove some Police Department control over discipline, said he doesn’t expect the CCRB and NYPD to agree all the time since they play different roles. But Myrie said he finds it alarming how often the two “not only arrive at a different conclusion” but that the NYPD decides “a lesser consequence is necessary.”

Myrie, whose district covers part of Brooklyn, said this “erodes trust in the process” for civilians. Right now, the only check on the police commissioner’s power over discipline is the mayor.

Fight Over Former Law Still Impeding Transparency

While the NYPD declined to comment on specific incidents, a spokesperson said cases often have “important circumstantial distinctions.” But that circumstantial information is not available for the public to assess.

Under New York State’s 50-a statute, the particulars of what commissioners decided, most notably the officer’s name and disciplinary history, were secret. The law was repealed this summer, but the city’s police unions are fighting in court to prevent further release of records.

This opacity can be frustrating not only for victims but for some officers, said Rae Koshetz, who was the NYPD’s deputy commissioner for trials from 1988 to 2002.

Now a lawyer in private practice, Koshetz has represented officers in NYPD trials and said the lack of transparency undermines officers’ due process rights. If officers don’t know how the department has decided similar cases, they can’t tell if they are being treated fairly. “Sunlight is the best treatment for all of this,” Koshetz said.

In a handful of cases where the commissioner has disagreed with his trial judges, the final outcome has been an increased penalty: In eight cases between 2014 and 2018, the commissioner imposed final discipline higher than what his trial judge recommended. More frequently though, the consequences are lowered.

The NYPD says that, pending the outcome of the 50-a litigation, it intends to make public disciplinary data of active-duty officers, including trial outcomes and commissioner decisions.

ProPublica has worked to piece that information together independently.

Some Officers Have a History of Complaints

Pontillo said that having a substantiated civilian complaint, regardless of final discipline, is “very impactful” for officers. But it doesn’t always mean they avoid similar behavior. By matching officer names to specific cases, we found at least 19 officers who had new, substantiated civilian complaints against them even after being charged by the CCRB.

At least 20 officers whose recommended discipline was downgraded by the commissioner have been the subject of 10 or more complaints throughout their time with the NYPD.

Even when the commissioner imposes more substantive penalties, like lost vacation days, civilian complainants can be left feeling frustrated with the process.

On Aug. 15, 2014, Jarreth Joseph was sleeping in his Brooklyn apartment when Lt. Mauvin J. Bute and two other officers yelled "Police" and pushed open the door. Bute searched Joseph’s home and then pressured him to sign papers authorizing the search after the fact. When Joseph refused, the officers arrested him. Criminal charges against Joseph, then 31, were dismissed. The CCRB did not describe the officers’ reasoning for searching the home.

Bute pleaded guilty and agreed to forfeit eight vacation days for the misconduct, but the commissioner, citing “the interest of justice,” reduced the penalty to five days of lost vacation. Richard J. Washington, who represented Joseph in a civil suit over the incident, called the reduction in discipline “shameful.”

“These issues will never be remedied if we continue to allow the police to police themselves,” said Washington. Without the ability to enact discipline, he said, “the CCRB does not have the authority to bring justice to those who have been aggrieved by the police.”

The city settled Joseph’s lawsuit for $15,000 plus an additional $3,000 paid directly by Bute, with neither the city nor Bute admitting fault. A year after entering Joseph’s home, the CCRB found that Bute had made an abusive stop of a 37-year-old Black man.

Cities Try Out Alternatives to Absolute Power

Some other big cities impose a check on disciplinary decisions involving police. In Chicago, if the police superintendent proposes lighter discipline than the civilian oversight board, a member of the board gets the final say on whose recommendation to accept. In cases of suspension or termination, though, officers in Chicago can sometimes appeal the outcome through arbitration — a process that has been blamed for keeping problematic officers on the job.

In Seattle, the chief of police is required to send a letter to the mayor and City Council if departing from a disciplinary recommendation made by the city’s Office of Police Accountability. The explanations, which do not name officers, are posted online.

New York City is moving toward changes. Over the summer, the City Council passed a law — originally introduced in 2018 — requiring the NYPD to outline presumptive penalties for certain types of misconduct as well as factors that could justify lesser or greater discipline. The NYPD accepted public comment on its draft of this planned “matrix,” which it intends to publish in January. Myrie, the state senator, hopes the new guidelines provide clarity on the disciplinary process, but he is waiting to see whether it changes the process significantly given that the commissioner maintains final discretion.

Mina Malik, the CCRB’s executive director from 2015 to 2016, said the diverging decisions between the CCRB and the NYPD’s commissioner can diminish the value of having an independent agency investigating misconduct.

“It sends a message to the public that police accountability isn't being taken seriously, police misconduct isn't being taken seriously, and it can also send a message to the masses in law enforcement that ‘We can do whatever we want to do, and we won’t be held accountable,’” Malik said.

Help Us Hold the NYPD Accountable

Tell us about your experience with the NYPD. Have you ever filed a complaint? Was the officer involved in your complaint disciplined? Have you ever been harassed and wanted to file a complaint but didn’t? Are you a police officer who’s tried to call out misconduct? We want to hear from you.

About the Data

New York City’s CCRB publishes quarterly reports covering the outcomes of disciplinary cases it has prosecuted — or intended to prosecute. Since 2014, the agency has published 13 such reports, describing 84 of the approximately 600 cases in which it has recommended charges.

Those descriptions do not include officers’ names. Over the summer, New York repealed the law, known as 50-a, which shielded officers’ identities. After the repeal, some records of civilian complaints against NYPD officers were briefly made public, but police unions are fighting the release of such information and a federal court has banned the further release of information until the case is resolved. During the brief period when records were made available, ProPublica was able to get the names associated with the quarterly reports. You can now view the summaries of over 80 of these cases, and the officers involved in them, through ProPublica’s NYPD Files database.

To gather additional information on officers’ histories of misconduct and the locations of incidents, ProPublica cross-checked each case through our NYPD Files database as well as the New York Civil Liberties Union’s complaint database, both of which were created when CCRB disciplinary complaints were briefly available. For every officer involved in these incidents, we tracked whether they had any prior complaints that were fully investigated and substantiated or any such complaints after the prosecuted case described by the CCRB. We also researched each incident to find any associated civil lawsuits and news reports, and we examined how long it took to close each case.

In order to contextualize the cases covered in the CCRB’s quarterly reports, we requested data from the agency on case outcomes for all complaints it has prosecuted, including those not yet covered in the reports. ProPublica also utilized data from the CCRB’s 2018 annual report, which covers the frequency of disagreements between commissioner decisions and the CCRB on discipline since 2014. To better understand the trial process, we reviewed copies of NYPD judges’ decisions and a set of memos showing the deliberations over a sample case before the commissioner made his decision.


Read the full article here.
This content was originally published by Propublica. Original publishers retain all rights. It appears here for a limited time before automated archiving.By Propublica

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