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**PolicePractices and Civil Rights in New York City**

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**Chapter4**

**Monitoringof Civilian Complaints **

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The New YorkCity Police Department and external oversight entities share the responsibilityof investigating and disciplining New York City police officers who are accusedof police misconduct. The initial section of this chapter discusses monitoringresponsibilities assigned to the NYPD, principally, detecting illegal activitiesthrough its Internal Affairs Bureau (IAB). Although the chief task of InternalAffairs is monitoring corruption, due to the lack of data provided to thisCommission relating to the Internal Affairs Bureau, it is difficult to ascertainthe exact role IAB plays in monitoring civilian complaints.

Thesubsequent section of this chapter discusses the Civilian Complaint Review Board(CCRB), which is the independent agency charged with oversight of the police formost categories of civilian complaints. This discussion of the CCRB begins withan overview of its history and jurisdiction over civilian complaints. Itincludes a description of each of the CCRB�s major functions�investigationof civilian complaints, statistical tracking of civilian complaints,consideration of particular police abuses, and community outreach. Although theCCRB experienced difficulties during its first few years in operation, itsrecord has improved significantly since 1996. This chapter then concludes byrecommending changes that the CCRB, the NYPD, and the city government can maketo improve monitoring of civilian complaints against the department.
**InternalMonitoring**

Althoughmuch of the responsibility for investigating civilian complaints now lieswith agencies that are independent of the NYPD, the department does remainresponsible for investigating allegations of police corruption and negligentconduct in the line of duty. The department offices responsible forinvestigating these allegations, the Internal Affairs Bureau and the Office ofthe Chief of Department, therefore, are primary areas to analyze civilian complaintsof police misconduct.

**InternalAffairs Bureau**

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

Anyinvestigation of abuses of citizens by police officers is incomplete without atleast some discussion of police procedures for preventing (and punishing) actsof police brutality. Investigating high-profile acts of police corruption in1993 and 1994, the Mollen Commission noted that police corruption and brutalityare closely bound together.[5]The Mollen Commission acknowledged that corruption-prone officers were more thanfive times as likely than other officers to have excessive force allegationsfiled against them.[6]And, for many officers, commission of brutal acts toward innocent civilians is acritical step on the path toward corruption.[7]Furthermore, the Mollen Commission found that often other police officerstolerate this brutality.[8]Because of this link between brutality and corruption, the Mollen Commissionconcluded that the NYPD�s efforts to combat corruption must play an importantpart in ensuring that NYPD residents are free from police brutality.[9]

Recognizingthe importance of this link, the New York City Council has attempted to create amechanism for citizen oversight of IAB.[10]In 1995, the City Council authorized legislation to create an Independent PoliceInvestigation 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 formulaterecommendations for conduct of anticorruption investigations by the NYPD.[12]The mayor has not implemented the IPIAB, and the New York Court of Appeals heldthat the law, as initially drafted, violated the City Charter by giving the CityCouncil, 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 themayor the authority to appoint the members of the board, while retaining theauthority to designate several of those appointees.[14]The mayor, however, vetoed that legislation.[15]

Withoutthorough information describing IAB�s structure, operations, and dispositionof allegations it is charged with investigating, the Commission is unable todetermine the role that IAB should play in combating police abuses.[16]

**Officeof the Chief of Department**

Allegationsof police misconduct that are neither within the purview of IAB nor within theCCRB�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 theresponsibility for investigating most complaints.[17] These complaints are onlyreferred back to the officer in charge of the subject officer�s command, whois then required to conduct an appropriate investigation.[18]When the investigation produces evidence to suggest that disciplinary measuresmay be warranted, the case may be referred to the Department Advocate�s Officefor further investigation or the development of charges as may be warranted.

Given thenature of these claims, complaints falling within the jurisdiction of OCD areless likely to implicate civilian civil rights concerns. However, the NYPD hasprovided little information on the exact structure of OCD, the requirements forconducting investigations, and the manner in which OCD cases have been handled.The production of such information would permit the U.S. Commission on CivilRights to perform a meaningful review, and be useful in determining whether OCDreform is warranted to improve the handlingof civilian complaints.[19]    

**External/CivilianMonitoring and Oversight**

The majorityof complaints raised by civilians against NYPD officers are within thejurisdiction of the city�s main agency charged with oversight of civiliancomplaints of the police force, the Civilian Complaint Review Board. Althoughthe CCRB was once a part of the NYPD, New York City officials consider it as anindependent mayoral organization, charged with reviewing civilian complaints,making disciplinary recommendations to the NYPD, and identifying noteworthytrends in civilian complaints.[20]

**Perceptionsof Police Misconduct**

***Number ofCivilian Complaints***

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

When . . .you look at the number of complaints per police officer last year and the yearbefore, [they] were two of the lowest years that we�ve had in about 15 or 20years. . . . [W]e divide our complaints into different categories, the mostserious of which is the use of force when someone alleges that they were beatenor they were hit unnecessarily. In that area, there�s been a reallysubstantial decline in the number of complaints made against police officers andthat goes back to before the [Civilian Complaint Review] Board was independentin 1993, 1994.[23]

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

It is ourbelief that there are a significant number of allegations that do not at thispoint end up either within the CCRB or any of the other institutions that existto collect reports of alleged impropriety. . . . [I]t is our view that there area sufficient number of such alleged incidents so that by reaching out intovarious communities at speak-outs, for instance, where we have listened to suchallegations, if we�d reach out into various communities and distribute the[com�plaint] form, we will receive an important body of data, which we can thenuse to try to determine again the scope of the alleged incident and impropercontact between police and citizens.[24]

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 ofpolice misconduct in New York City:

[P]eopledon�t complain to the Civilian Complaint Review Board any more. They don�twant to go to the precincts to be harassed. They complain more to us. They comeinto my office and they say, �I�ve been stopped by the police, I�ve beenharassed, I�ve been pushed around, I�ve been cursed out, my apartment wasbroken into.� Because they don�t believe that the Civilian Complaint ReviewBoard, based on past experience is going to do anything to help.[25]

In addition,Rev. Butts indicated that in the past, the CCRB received fewer complaints due tothe 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 numberof complaints to the CCRB.[26]

Anotherwitness, Norman Siegel, executive director of the New York Civil LibertiesUnion, observed that while the crime rate has declined in New York City, therehas also been a 39 percent increase in CCRB complaints.[27]He noted the following: �Between 1994 and1998, there were 26,000 complaints containing 40,000 allegations of policemisconduct 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 thatthe 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 incivilian complaints of police misconduct.[29]According to a 1997 Public Advocate study, this growth in the number ofcivilian complaints was concentrated in minority communities.[30] Mr. Green also explainedthat during former mayor David Dinkins� administration in 1993, there were 125civilian complaints per 1,000 police officers. During the first year of MayorGiuliani�s administration, there were 160 complaints per 1,000 policeofficers. The current data indicate that there are 128 complaints per policeofficer.[31]

***PossibleCauses of Police Misconduct***

There arenumerous factors that may contribute to the incidence of police misconduct inNew York City. Testimony elicited from several witnesses summarized thesefactors into several overall categories: an NYPD internal procedure, the�48-hour rule�;[32]racism; the lack of discipline for recalcitrant police officers; as well aslittle incentive to protect civilians� civil rights. In reference to the48-hour rule, Rev. Al Sharpton, president and chief executive officer of theNational Action Network, remarked that �no one is given 48 hours in thiscountry to decide whether to answer a criminal allegation, a policeman that istrained should be able to describe it more quickly than a regular civilian. . ..�[33]Margaret Fung, executive director of the Asian American Legal Defense andEducation Fund, offered additional comments:

[T]he48-hour rule was secured through the union contract with the PBA [PoliceBenevolent Association] which permits police officers not to speak aboutincidents for which they�re being questioned. It doesn�t deal with thesituations where a crime is being investigated and a police officer may wish toinvoke his or her constitutional rights. The problem with the 48-hour rule andthe reason why it�s become such a big issue in communities is the clearperception that police officers are taking their time to get their storiestogether and you never have a clear understanding of what has occurred. That�swhy the community consistently will question why police officers are allowed toget away with incidents time and time again. Now it�s obvious that the mayorhad said in the past that he wants to eliminate the 48-hour rule in the nextcontract negotiations and that will be one step . . . in trying to be sure thatpolice are held accountable for their actions, but it�s only one small step Iwould say in security and restoring public confidence in the police as well asassuring that there�s police accountability.[34]

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

Secondly,some observers maintained that the presence of racism and bias are otherpossible factors in incidents involving police misconduct in New York City. Inlight of the Abner Louima, Amadou Diallo, and Anthony Baez cases, authoritiesand community groups have closely examined and questioned the NYPD�s protocolsand procedures. For example, according to Norman Siegel, executive director ofthe New York Civil Liberties Union, �[i]n 1988, African Americans, whorepresent about 25 percent of this city, filed 50 percent of the almost 5,000complaints 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 orLatino.�[37]Another witness, Sergeant Anthony Miranda, president of the Latino OfficersAssociation, also confirmed that blacks and Latinos register a disproportionatenumber of civilian complaints. Moreover, he contended that white police officersare often the subject of these allegations.[38]

Otherwitnesses contended that additional factors may contribute to the incidence ofpolice misconduct. For example, James Savage contended that positive performanceeval�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 ofnarcotics, issuing a significant number of summonses, and making a substantialnumber of arrests.[40]One witness testified that the NYPD rarely disciplines those police officers whohave been involved in previous wrongdoing. Specifically, according to WilliamHarrell, vice president of the National Lawyer�s Guild and executive directorthe guild�s National Police Accountability Project, three of the four officerswho allegedly shot Amadou Diallo were previously involved in police misconductincidents and had earlier complaints filed against them with the CCRB.[41]

Thus, thereare differing perspectives of the actual level of police misconduct in New YorkCity, which are derived from the number of complaints registered against policeofficers either with the CCRB or local community organizations. According to thecollective perceptions of several witnesses at the hearing, factors such as the48-hour rule, the possible presence of racism in the NYPD, infrequent disciplineof officers involved in misconduct incidents, and little incentive for policeofficers to enforce civilians� civil rights, contribute to the incidenceof police wrongdoing.

**Overviewof the CCRB**

**TheCCRB as Part of the NYPD**

The CivilianComplaint Review Board has overseen the investigation of civilian complaintsagainst police officers in New York City since 1953.[42] Originally, the boardconsisted of three deputy police commissioners who reviewed the reports ofinvestigations by the board�s staff. They provided the police commissionerwith their recommendations for disciplinary action.[43]In 1966, four private citizens were appointed to the board, but that waseliminated later the same year, returning the CCRB to an entirely NYPDoperation.[44]

In 1986,then-mayor Ed Koch, in accordance with City Council legislation, appointed sixcivilians to the board, and the police commissioner appointed another sixmembers. A year later, the CCRB�s investigative unit, the Civilian ComplaintInvestigation Bureau (CCIB), began hiring civilian investigators. The CCRBstaff, however, remained composed entirely ofpolice department employees.

**Creationof an Independent Civilian Review Board**

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

**Jurisdictionand Authority of the CCRB**

The CCRB isauthorized 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 theNYPD, 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 ismeritorious, it refers that complaint to the NYPD for disciplinary action. TheCCRB�s authority is limited to recommending disciplinary action; only thedepartment is empowered to discipline officers.

**CCRBFunction, Operations, Staffing, and Resources**

Aspreviously noted, the Civilian Complaint Review Board is charged withinvestigating allegations of police misconduct against civilians andrecommending action. Frank H. Wohl, chairman of the Civilian Complaint ReviewBoard, testified about the overall function and composition of the organization:

The board iscomprised of 13 members. The mayor appoints members of the board who, asrequired by the authorizing statute, must be residents of New York City, mustnot work for any governmental agency, and must reflect the diversity of thecity�s population. The City Council designates five members of the board: onerepresentative from each of the city�s five boroughs. The police commissionerdesignates three members of the board, who are the only members who may havepreviously worked as law enforcement professionals. And the mayor designates theremaining five board members, including the chair. Board members serve for3-year terms. The board hires the executive director, who, in turn, hires andsupervises the agency�s staff. The CCRB�s staff is comprised solely ofcivilians.[49]

The CCRBcurrently employs a staff of 163 of an authorized complement of 171 positions.The agency has on staff 107 investigators of the 115 who have been authorizedand an administrative and clerical staff which at full capacity number 56. ByJune 1999, we expect to bring the number of investigators up to the fullauthorized 115.[50]

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

**ComplaintProcedures**

The CCRBinvestigates allegations of force, abuse of authority, discourtesy, andoffensive language. It does not have the authority to discipline recalcitrantofficers.[53]However, NYPD police officers of all ranks are subject to the CCRB�sjurisdiction.[54] According to the agency,individuals who are victims of or witnesses to a police misconduct incident areurged to file a complaint with the Civilian Complaint Review Board in a timelymanner. Complainants are encouraged to collect various types of informationbefore filing a complaint, such as �any identifying characteristics of thepolice officers, the names, addresses, and telephone numbers of witnesses and/orvictims, and the time, date, and location of the incident.�[55] Civilians can filecomplaints through the CCRB�s Internet complaint form; or its telephonehotline, which operates 24 hours a day and 7 days a week. Other methods includemailing the complaint; or presenting the allegations to the IAB, the CCRB�soffice, 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 acomplaint has been filed, the complainant meets with a CCRB investigator toreview the details of the allegation. The investigator then begins to collectfactual evidence relating to the complaint by interviewing victims as well ascivilians and police officers who may have been possible witnesses to theincident, obtaining relevant police reports and records, observing the scene ofan incident, and reviewing medical records.[58]If necessary, the CCRB can employ subpoenas to gain access to NYPD documents andpolice officers� testimonies.[59]

The CCRBconsiders some cases as high-priority situations. In these instances, the NYPDpromptly furnishes pertinent documents and records and forwards them to the CCRB.According to CCRB�s chairman Frank Wohl, these situations are �casesinvolving serious force or cases in which the subject officer has six or morecomplaints in 5 years or cases which involve a subject officer appearing on thepolice department�s CCRB profiling and assessment program.�[60] Moreover, police officersinvolved in (or having knowledge of) alleged police misconduct incidents cannotrely upon the Fifth Amendment�s constitutional protection againstself-incrimination.[61]Specifically, �[i]f an officer fails to answer a question, his or her failurecan result in immediate suspension without pay from the police department andformal charges of insubordination. The officer�s failure to cooperate with theCCRB could lead to the officer�s termination.�[62]

**ComplaintDisposition**

Onceinformation pertaining to the complaint has been obtained, CCRB investigativestaff submits the cases for disposition to a monthly case review panel. Thesepanels are composed of representatives from the mayor�s office, the New YorkCity Council, and the police commissioner.[63]They examine �full investigation cases,� �truncated investigationcases,� and �alternative dispute resolution cases.� Chairman FrankWohl�s testimony provided further information about these cases:

[*Fullinvestigation cases*] begin as soon as the case is filed. The complaint isassigned directly to an investigative team. A supervisor then reviews the caseand assigns it to an investigator, who must attempt immediately to contact thecomplainant within 24 hours of receipt to schedule an interview. When thecomplaint is made in person at the CCRB, an intake interview takes placeimmediately. During the interview, the complainant is asked to give a completestatement concerning the alleged misconduct. . . .

In itsreview of fully investigated cases, the board uses the preponderance of theevidence standard of proof. This standard simply means that the board mustperceive the weight of the credible evidence as favoring its findings. Theauthorizing statute of the CCRB mandates that the board may not make any findingor recommendation based solely upon an unsworn complaint or statement, nor maythe board base any present finding or recommendation based on priorunsubstantiated, unfounded, or withdrawn complaints.

The boardnotifies the parties to a complaint by letter of its findings andrecommendations. Substantiated dispositions, those in which the investigationestablishes to the board�s satisfaction that the misconduct occurred, areforwarded to the police commissioner along with recommendations regardingdisciplinary measures.

*Truncatedinvestigations* are cases inwhich the investigations are started but do not reach completion. Beginning inJanuary 1, 1998, the category of truncated cases incorporated cases that wouldhave previously been disposed of as administratively closed. Since the newclassification has been implemented, the CCRB has been in a better position totrack reasons why investigations are not completed. . . . The truncated categorydistinguishes between cases in which complainants were uncooperative, those whowere unavailable, and those who decide to withdraw their complaints.[64]

*Alternativedispute resolution* (ADR) is suggested for less serious cases that areamenable to resolution through either conciliation or mediation. Cases involvingallegations of excessive force resulting in injury or property damage are noteligible for ADR, nor are cases involving allegations against an officer with alengthy 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 anysubsequent judicial or administrative proceeding. In addition, only thecomplainant, the officer, and the mediator may be present in the mediation room,although the parties may have legal counsel available to them outside themediation room.[67] If the parties can settletheir differences, then a resolution agreement is signed.[68]In the event the parties agree that the matter is resolved, then the allegationsare removed from the police officer�s CCRB record. In 1998, 14 of 5,312complaints (0.3 percent) were successfully mediated.[69]However, if mediation does not resolve the issue, then the CCRB can continue toinvestigate the complaint.[70]

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

**CCRBFindings and Standards of Proof**

After aninvestigation is completed, the CCRB identifies each complaint as one of thefollowing dispositions:
-   *Substantiated**:*There is sufficient credible evidence to believe that the subject officerengaged in misconduct. *Unsubstantiated:*There isinsufficient evidence to determine whether an act of misconduct did or did notoccur. *Exonerated*: The subjectofficer was found to have committed the act but it was determined to be lawfuland proper. *Unfounded*: The act ofmisconduct did not occur.[74]
Complaintsand 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 issubstantiated, the allegation is forwarded to the NYPD for possible disciplinaryaction. When the board refers such a case, it may also recommend a disciplinarymeasure.[76]Three types of discipline are possible:
-  *Instructions.*The least punitive measure is requiring the subject officer�s commandingofficer to reinstruct the subject officer on proper conduct and procedures withrespect to the substantiated allegations.[77]�Instructions� is considered akin to training and constitutes informaldiscipline�i.e., no formal administrative hearing is required before suchdiscipline may be imposed. Instruction is noted in the officer�s CCRB history.*Commanddiscipline.* Command discipline, although still an informal disciplineimposed by the commanding officer without an administrative trial is morepunitive than instruction.[78] Command disciplinepenalties range from an oral warning to forfeiture of 10 days of vacation time,depending on the severity of the misconduct, the officer�s past disciplinaryrecord, and the officer�s past performance record.[79]*Chargesand specifications.* Charges and specifications are the most seriousdisciplinary measure. These constitute formal administrative charges which, ifadopted by the department, are prosecuted by the Department Advocate�s Office.Recommended penalties in these proceedings can include termination; althoughloss of vacation time or pay are more common disciplinary actions.[80]
Other thanmaking a recommendation to the police department, however, the CCRB can take noaction against the subject officer. Pursuant to the City Charter, the authorityto 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 foran �other misconduct� category. In these instances, it is determined that apolice officer provided false information during the CCRB�s investigation, orneglected to complete required stop and frisk reports.[82]The CCRB then forwards the names of police officers in these cases to the policecommissioner for disciplinary action.[83]

**NYPDResponses to Substantiated Complaints**

The NYPD�sfirst deputy commissioner is administratively responsible for managing thedisciplinary system of the police department.[84]The first deputy commissioner oversees the Disciplinary Assessment Unit, whichis charged with ensuring that the NYPD�s discipline system responds accuratelyand equitably.[85] Ultimately, substantiatedallegations of police misconduct are referred to the NYPD�s DepartmentAdvocate�s Office (DAO):[86]

The primarymission of the Department Advocate�s Office is to prosecute disciplinary casesbrought against members of the Department. . . . Each year, in excess of onethousand disciplinary cases are processed through the system. This includes bothadministrative trials and negotiated settlements. The goal of the DepartmentAdvocate�s Office is to maintain an efficient disciplinary system thateffectively deters misconduct and corruption while remaining cognizant ofindividual member�s rights.[87]

In order todetermine the specific course of action for substantiated complaints, the DAOalso considers the CCRB Steering Committee�s recommendations relating todisciplinary actions. This committee is composed of the first deputycommissioner, members of his staff, representatives from the DAO,representatives from the Disciplinary Assessment Unit, and the SpecialProsecutor�s Office.

TheAdministrative Officer, Managing Attorney, Commanding Officer, the Director ofthe DAO, and the Advocate all make recommendations as to what action should betaken, including whether charges should be brought and the reasons for therecommendation made. The Police Commissioner ultimately decides whether Chargesand Specifications should be filed against the police officer.[88]

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

If the [CCRB]substantiates a complaint, it is referred to me for further action. . . . I mustwork carefully within legal parameters established by the civil service law inthe New York City Administrative Code, which provides for full evidentiaryhearings to ensure that police officers accused of misconduct are disciplined ina fair and equitable manner. My staff reviews the cases. And if a prima faciecase exists, the office, represented by counsel, has the option to demand thefull administrative trial prosecuted by a department advocate. The trialcommissioner makes a recommendation of finding and penalty, and I make the finaldecision. My decision must be supported by a preponderance of the credibleevidence in order to satisfy applicable law. You can see from this descriptionof the process that a substantiated complaint may not result in disciplinaryaction for many reasons, including the difference in our statutory requirements.[91]

Afterreferral to the DAO, therefore, a team of police investigators assigned to theCCRB unit of the DAO often conducts additional investigations to determinewhether disciplinary action is appropriate.[92]The DAO also reviews the charge to determine whether the allegation must bedismissed on other nonsubstantive grounds, such as expiration of the18‑month statute of limitations.[93]

Afterevaluating the referred complaint and any additional evidence gathered throughadditional investigation, the DAO�s CCRB team makes a disciplinaryrecommendation to the department advocate, who may choose to implementdiscipline ranging from dropping the complaint to serious disciplinary actionsuch as formal charges and specifications. If the complaint is dropped, nofurther action is taken. In the event that the department advocate maintainsthat informal discipline is appropriate, the subject officer is referred to hisor her commanding officer for action. Lastly, if the department advocatecontends that charges and specifications are warranted, then an administrativetrial will be initiated.

 NewYork City�s Office of Administrative Trials (OATH) conducts formaladministrative proceedings for accused NYPD staff who are not above the rank ofpolice officer. OATH is not a part of the NYPD. The deputy commissioner alsoconducts formal disciplinary hearings. Once a trial has been conducted, thosefindings are reviewed by the department. If any of the accused are above therank of officer, then the first deputy commissioner reviews the findings. Thefirst deputy commissioner then refers his decision to the police commissionerfor approval. In all cases, the commissioner has final authority to determinethe 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.

**CCRBComplaint Investigation and NYPD Disciplinary Proceedings**

Duringits initial years as an independent agency, the CCRB experienced difficulties inconducting efficient and effective investigations. In a number of cases, theCCRB failed to conduct complete investigations. Similarly, the NYPD�s low rateof discipline issued to police officers in the CCRB�s substantiated casesfeatured the CCRB as an ineffective entity.

Startingwith changes made in 1997, however, the CCRB may be reversing that trend. Afterhiring more investigators, some of whom had extensive previous law enforcementexperience, the CCRB completed more investigations�and substantiated moreallegations of misconduct�than ever before. The NYPD has also stepped up itsefforts since that time, as an increasing percentage of complaints that the CCRBdeemed substantiated resulted in disciplinary action. Recent figures for boththe CCRB and the NYPD, however, suggest that this reversal is far from complete.

**EarlyCCRB Investigation Practices**

Severalproblems plagued the CCRB during the first couple of years after the independentCCRB began its operations on July 5, 1993. Initially, the agency wasunderstaffed, underfunded, its investigators were inexperienced, and the agencywas burdened by various administrative barriers. Discontinuity in leadershiproles also plagued the CCRB during its initial years, since the board had fourdifferent chairpersons in its first 6 years of existence.[95] The critical result ofthese problems may have been the ineffectiveness of investigations conductedduring those years. For the vast majority of complaints, a full investigationwas never conducted. For example, during the second half of 1996, only 773 ofthe complaints (27.4 percent) closed during that period received a fullinvestigation.[96]Another 387 cases (13.7 percent) were resolvedthrough alternative dispute resolution.[97]The majority of investigations, however, were either administratively closed (47percent) or truncated (11 percent) for unspecified reasons.[98]

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

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

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

This failureto substantiate large numbers of civilian complaints may reflect the CCRB�sinability, as an institution, to effectively investigate large numbers of claimsduring the period from July 1993 through December 1996.[105]Over that time period, the CCRB received approximately 18,300 misconductcomplaints. Only 28 percent of those complaints received a full investigation;the vast majority of complaints were either �administratively closed� due tothe uncooperativeness of the complainant, or the investigation was ruled�inconclusive,� that is, the investigation was concluded without substantialevidence 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 whichthe investigations had not been completed.[107]As a result, by any measure, the first 3� years of CCRB investigation producedunsatisfactory results.[108]

**NYPDDisposition of Substantiated Complaints through 1996**

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

This lowpercentage of substantiated cases resulting in police officer discipline mayhave been, in part, a reaction by the NYPD to the relocation of the CCRB outsidethe police department.[110]Before the creation of a wholly independent CCRB, the department dismissedrelatively few substantiated charges. In 1992, for example, the last entirecalendar year during which the CCIB resolved civilian complaints, PoliceCommissioner Kelly dismissed 30 of 176 substantiated complaints; previously in1991, 26 substantiated complaints, out of a total of 183, were dismissed afterthe CCIB concluded that evidence substantiated the charges at issue.[111]It appears, therefore, that the newly independent CCRB had a different view ofthe sufficiency of a complaint than the department did during the yearsimmediately preceding the creation of the CCRB.

Moresignificantly, the length of time that the CCRB was required to conductinvestigations significantly reduced the department�s ability to act onsubstantiated complaints. In 1995, for example, the CCRB referred 250substantiated 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 thecases that the CCRB was able to substantiate. Furthermore, an additional 137cases (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 theofficers involved.[113]In 1996, the CCRB reduced substantially the number of substantiated complaintslost on limitations grounds: 9.7 percent of substantiated referrals, or 28 outof 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 18months old, leaving the NYPD less than 3 months to investigate and act on thereferral.

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

**TheCCRB�s Effectiveness: 1997 to the Present**

After 1996,the CCRB improved both the quality and efficiency of its investigations. Themost telling indication of early CCRB inefficiency may be the constantly risingrate of �affirmative� findings�that is, cases in which, following aninvestigation, 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 21.9percent of all fully investigated cases. This percentage rose to 26.9 percent in1996, to 38 percent in 1997, and to 43 percent in 1998.[117]

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

Theseimprovements are likely the direct result of better trained and more CCRBinvestigators. After complaints are registered with the CCRB, they are nowassigned directly to an investigator, rather than being processedadministratively before being assigned to an investigator. This allowsinvestigations to proceed more quickly, before trails get cold or complainantsbecome more difficult to track down. More importantly, the CCRB expanded itsinvestigative staff. During the second half of 1996, the CCRB added 13 newinvestigators to its staff, resulting in a 50 percent reduction of the averageinvestigator�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 than18 months, while 23.2 percent of substantiated referrals were between 15 and 18months old.[122] That trend continued in1998,[123]as only five referrals, or 2.5 percent of the pool, were past the limitationsperiod, while six referrals, comprising 3 percent of the pool, were between 15and 18 months old. By 1997, the CCRB reduced its backlog to 1,045 cases, whichconstituted 41.9 percent of its then-current docket.[124]Significantly more cases received a full investigation, as the number oftruncated cases fell to 2,127 from 3,075 in 1996.[125]The CCRB reduced its backlog even more in 1998, lowering the number of backlogcases 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 thecivilian complaint process.[128]As a result of the task force�s guidance, the mayor provided a $1.5 millionbudget increase in the CCRB�s budget, and a 20 percent increase of itsinvestigation staff.[129]Similarly, during the U.S. Commission on Civil Rights New York hearing, thechairperson of the CCRB also commented on the improved quality of the CCRB�sinvestigations:

The qualityof the CCRB�s investigations . . . has improved dramatically, particularlysince the increased funding of 1997 and �98, which . . . decreases the numberof cases per investigator very significantly. . . . [A]s a consequence . . . the number of casesin which the police commissioner has accepted the . . . recommendation of theCCRB has increased dramatically, going from 32 percent of those cases referredby the CCRB in . . . 1995 or �96 to 58 percent in the second half of 1998, and52 percent thus far this year [1999].[130]

Theadditional 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, itslast full year of existence.[131] That budget increase,however, fails to match the 27 percent increase in the size of the police forcebetween 1992 and 1998. Assuming that the 1992 CCIB budget of $6 million wasadequate, 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 appearsthat 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 investigativestaff to 115, including 8 team managers with at least 15 years of lawenforcement experience.[133] The new budget alsoallows the CCRB to retain highly trained personnel; the CCRB has promoted otherinvestigators to assistant supervisor and to salary levels above the entry-levelposition.[134]

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

In itsalmost 6-year existence, [the CCRB] has largely failed in its mission. From July1993 when it opened its doors to December 1998 . . . there were 28,104complaints filed at the CCRB. Only 10,177, which is 36 percent of thecomplaints, were fully reviewed. Only 1,438, which is 5 percent, weresubstantiated and only 504, 2 percent of the cases, led to a police officerbeing disciplined. . . . [C]ases are filed and they sit for months and monthsand sometimes years before the PC [police commissioner] acts on them. And thenwhen the PC acts on them, more often than not, he dismisses the case. That is anextremely important problem.[137]

Inaddition, the number of closed cases in which the CCRB did not conduct a fullinvestigation rose in 1998, reaching 2,405 cases.[138]At the same time, the number of fully investigated cases decreased from 3,141 in1997 to 2,584 in 1998.[139]As a result, the percentage of cases that the CCRB investigated fully fell from56.3 percent of all cases closed in 1997 to 48.6 percent of all cases closed in1998.[140] The percentage of casesthat the board substantiated also fell in 1998. While 14.3 percent (448) of allfully investigated cases were substantiated in 1997, only 11.6 percent (300) offully investigated cases were substantiated in 1998.[141]As a result, the board substantiated almost 150 fewer cases in 1998 than in1997.[142]

**Improvementsin Police Responses to Substantiated Referrals since 1997**

During theCommission�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 examinethe number of cases that received discipline as a disposition.[143] He indicated that lessthan half of the civilian complaints that are substantiated by the CivilianComplaint Review Board resulted in discipline from the NYPD.[144]In his interim report, Mr. Green noted the decline in the number of disciplinaryactions imposed by the CCRB:

During thefirst two years of the Giuliani Administration�which coincided with the firsttwo full years of an independent CCRB�46% of police officers withsubstantiated complaints were disciplined. During the next two and a halfyears�which largely coincided with the first two and a half years underCommissioner Howard Safir�just 27% of all officers with substantiated CCRBcomplaints were disciplined, with a low of just 21% in 1996. *Consequently,in this two and a half year period, civilian complaints against police abuse ledto disciplinary action in under 2% of all cases*.[145]

Secondly,Mr. Green observed that often there is a lack of communication between the CCRBand the police commissioner regarding the particular reasons for the dispositionof substantiated cases. He noted that often when the police commissionerdisposes 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 thepast few years, the department has made some strides to improve its response tosubstantiated referrals from the CCRB.[147]The increased rate at which the department is taking disciplinary action onsubstantiated referrals suggests not only that the NYPD has taken a more seriousview of substantiated complaints, but also that the quality of CCRBinvestigations has improved as well. Last year, the DAO dismissed far fewersubstantiated referrals on the grounds that the evidence failed to present aprima 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 thesubstantiated cases, were dismissed for that reason.[148]In 1998, the department administered some type of discipline in 176 out of 374substantiated cases disposed of during the year.[149]Internal NYPD documents also suggest that civilian confidence in the ability ofthe NYPD to resolve (or at least process) incidents of police misconduct is onthe rise.[150]

Concomitantly,the NYPD has taken steps to more expeditiously and efficiently deal with CCRBcomplaints referred to the department for discipline. In December 1995, theDepartment Advocate�s Office created a separate CCRB team with responsibilityfor dealing with complaints substantiated by the CCRB.[151] That team is assignedits own investigators.[152]During the same year, the police commissioner created a Disciplinary AssessmentUnit 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 theDAO to help curb nonmerits dismissals as well as to deal with a large number ofreferrals that have come as the CCRB has dealt with a backlog of previouslyuninvestigated complaints.[154]Since its creation in December 1995, the CCRB team within the DAO team has grownfrom 7 members to 24 members. As of February 1999, the team included 1attorney/team leader, 14 assistants, 1 supervisor investigator, 7 investigators,and 1 clerical worker.[155]In December 1996, Police Commissioner Safir also instituted a zero tolerancepolicy for officers lying in judicial or administrative actions.

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

Thesereforms, however, are far from complete. Even in cases where the limitationsperiod has not yet expired, the DAO often fails to take action against theofficers involved. During the latter half of 1998, for example, the departmentclosed 78 cases that did not result in disciplinary action.[157]

The NYPDcontinues to decline to provide the CCRB and the public with detailedinformation on its disposition of referred cases. In cases where disciplinarymeasures are imposed, the department often does not indicate the penaltyimposed. For example, in the second half of 1998, the department imposedpenalties in 128 cases. In 82 of these cases, the officers pled guilty andaccepted command discipline. However, in none of these cases did the departmentreveal the specific penalty that was imposed.[158]The NYPD has provided less information in cases where it declined to take anydisciplinary action. In 44 of the 78 substantiated cases that the departmentclosed without imposing any discipline, the department did not identify anyreason for that disposition.[159]As the CCRB notes, when a panel of the CCRB substantiates a complaint, it doesso almost always with the consent of one of the police commissioner�sdesignees to the board.[160] The prevalence of theseunexplained dismissals is disturbing because it undermines public confidencethat officers who have committed misconduct are receiving appropriatediscipline.

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. Forexample, during the first half of 1997, only 2 of the 281 substantiatedcomplaints referred to the DAO were resolved.[161]The NYPD closed only 19, or 6.3 percent, of the 300 cases referred to the NYPDin 1998 during that same year.[162]Although the department has indicated that it requires 3 months to investigate areferral and additional time to close it,[163]in practice, the department takes much longer to dispose of cases. In 1996, theCCRB 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 acase that the CCRB has already investigated fully. In addition to ensuring thatofficers who commit misconduct are disciplined, and explaining the reasons whydiscipline is not imposed when appropriate, the department should also makeevery attempt to resolve substantiated referrals as expeditiously as possible.

**The PublicConcern about Misconduct Investigations**

**CCRBComplaint Procedures**

The ultimateindicator of effectiveness may lie in the local communities� opinion of theCCRB�s ability to address their concerns of alleged police misconduct.According to Chairman Frank Wohl, most of the public�s current dissatisfactionwith the agency stems from its initial impressions of the CCRB as a fledglingand underfunded organization. These views of the CCRB as an ineffective agencyare no longer accurate, due to the presence of additional funding and moreinvestigators.[165]However, Chairman Wohl noted that several barriers exist which affect theorganization�s image and effectiveness. These include conflicting accounts ofmisconduct allegations, the public�s failure to report incidents to the CCRB,and the intense disappointment of complainants when the CCRB does notsubstantiate their complaints.[166]Moreover, he maintained that the CCRB should improve upon responding tocomplainants in those situations where complaints are made in good faith, yetthey 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. LorraineCortes-Vazquez, president of the Hispanic Federation, reviewed survey findingsin the organization�s report, *Police and Quality of Life Issues,*and provided the followingtestimony to the Commission:[168]

The thingthat was the most alarming . . . for us was the number of Latinos who did noteven know where to take their complaints about the police department. When . . .asked, �Do you know that there is a Civilian Complaint Review Board?� 73percent said no. That is of serious concern because people do not even know whatthe options are available to them. That is not to say that the police or theCivilian Complaint Review Board may be the most effective, but not even knowingthat that option is available to you is of real concern to us.[169]

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

[PoliceCommissioner] Safir did nothing until the community came out and startedprotesting, then he read the papers . . . after 15 complaints, and we provedthat [then-officer Livoti] had done this before, he had choked other people, hehad a history of choking people, he liked totake them by the neck. . . . Why do the victims have to prove anythingwhen it is documented. . . . ? [T]he CCRB is a rubber stamp; that is number one.So nobody goes to the CCRB, because I didn�t even go to the CCRB to reportthis [incident relating to the death of her son]. . . . It got to the CCRB, butI didn�t even go to report it. So it is that the people don�t have trust,anymore, in the community, in the precinct. . . . And the other officers thatlied to protect Livoti are not doing one minute of their time in jail, and theyare still working in the city.[171] 

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

I don�tsee how we could have an impartial Civilian Complaint Review Board when theforms are available at the local police precincts; when people are attacked, orthey have experienced some brutality, and they go into the precincts to even askfor the form they are intimidated. In one case an evangelist went to a precinctto ask for such a form [and] she was shoved down a flight of stairs by acaptain.[172]

Ms. Paynealso stressed that the lack of communication between the CCRB and communitymembers is a lingering issue that should be addressed. Specifically, sheasserted that when many serious cases of police misconduct are presented to theCCRB, they are often found to be unsubstantiated:

There was anegregious case where two pre-teenage youth were strip searched by policeofficers in a narcotics operation. Their parents were never notified that theywere, first, taken into custody and, secondly, that they were strip searched.When the children complained to their parents, it was attempted to be coveredup. And when they reported this to the Civilian Complaint Review Board, ofcourse it was unsubstantiated. When we inquired to them as to what constitutes asubstantiated versus an unsubstantiated complaint, we received no response. Weare still awaiting that response, and this is more than a year now.[173]

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

I alsoembarrassed the police because of their inaction and ineffectiveness. I put upmy own reward poster that if anyone was witness to the persons who werecommitting these misdemeanors, that there would be a reward. Only a few daysafter I met with the captain of the 61st Precinct, and I explained about mypending CCRB complaint. The captain said he would look into it. A few days latera detective came to my door and said, �You are making a lot of trouble for uswith your complaint, and if you don�t withdraw it, you and your wife are bothgoing to be arrested.� I refused to withdraw it, and he did, in fact, arrestboth me and my wife.[176]

In contrast,one witness maintained that in the past, the CCRB has done an admirable job inaddressing 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 hisson and nephew by NYPD officers.[177]Mr. Rosario stated that the CCRB substantiated his family�s complaint anddetermined that the police officers exhibited unnecessary force.[178]However, he maintained that former police commissioner William Brattondisregarded the CCRB�s findings relating to this incident, and a significantnumber of the agency�s staff and administrators were eventually forced toresign. As a result, the CCRB became more deferential to the NYPD�s politicalphilosophy.[179]

**Response ofLocal Authorities to Civilian Complaints**

Localcommunity residents were often disenchanted with the responses of prosecutingauthorities to their complaints of police misconduct.[180]According to Hyun Lee, program director of the Committee Against Anti-AsianViolence,

[m]ore than90 percent of cases brought before grand juries result in indictments, but ofthe more than 60 cases of police killings in New York City since Giuliani tookoffice in 1994, only 2 cases have resulted in indictments against the officerson murder charges. That�s Baez and Diallo. Both indictments came only aftermass protest and sustained public attention on the allegation of policemisconduct. We have not yet seen any convictions. The huge discrepancy betweenthe rate of indictments of civilian defendants and police officers raises doubtsin New York City about equal protection under the law.[181]

In referenceto the Rosario and Vega incident, Antonio Rosario noted that the local Bronxprosecutor failed to indict the police officers who were responsible for theshooting:

They [theprosecution] presented a different picture to the grand jury. They withheldevidence from the grand jury, they did not let thekey witness, Eddy Bonilla, the only survivor, testify in the grand jury. . . .And because my wife was fighting out in the street, giving out leaflets,she met the grand jurors, and they told her their agenda was not to indict theofficers. And still the vote was 12 to 8�12 not to indict, and 8 to indict,because with the ballistic reports, alone, they said there is something wronghere. And they withheld the evidence from the grand jury.[182]

Furthermore,in 1995, the U.S. Department of Justice began an investigation to determinewhether the NYPD violated Anthony Rosario�s and Hilton Vega�s civil rights.In January 2000, Manhattan U.S. Attorney Mary Jo White informed the Rosariofamily 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 thedetectives acted �with the specific intent to use unreasonable force.� �[184]Hence, it is reported that the Rosario family will pursue a civil case that hasbeen filed in the Bronx Supreme Court.[185] 

**Determiningthe Need to Reform the CCRB**

**IndependentStructure**

One of themost contentious issues in discussions designed to assist the CCRB in achievingits mission is determining whether the agency is actually an independent entitythat is not affected by the influences of New York City politics. According toCCRB Chairman Frank Wohl,

I think it[the CCRB] absolutely is independent. There is no question about the fact thatthe members of the CCRB are not appointed by the police commissioner. They areappointed by the mayor. . . . The mayor is obviously directly elected by theCity of New York. . . . [T]he closest to any impact on the CCRB that the policecommissioner has is that three of the members are appointed by the policecommissioner, but they are not current members of the police department. So oncethey are appointed, they are free to use their expertise and knowledge about thepolice department to assist in the mission of the CCRB. And the policecommissioner has no control over them of any kind at all. . . . And the questionI suppose of whether the entire and total disciplinary process is independent ofthe police department is a completely different question in my view from whetherthe CCRB is. If you wanted to entertain the idea of moving the entiredisciplinary process out of the police department, that is an extremelydifferent process from what we have and obviously one that would be somethingthat people would have to think about and decide about.[186]

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

I believethat in trying to obtain the political independence for the Civilian ComplaintReview Board, you rob it of one of the things that it needs to effectivelyinvestigate something as complex as the police department, which is policeofficers. I at one time investigated and prosecuted over 70 police officers andconvicted many of them and sent them to prison for selling drugs and for beinginvolved in corruption. I would not have been able to make any of those caseswithout having police officers in the police department, not independent andoutside, working with me to investigate the cases.[187]

The mayoremphasized that although the public has more confidence in a truly independentcivilian complaint process, it is difficult to effectively corroborate the largevolume of misconduct allegations if preliminary investigations are impeded bythe inability to penetrate the police department�s domain.[188]

In contrastto the mayor�s views, Margaret Fung, executive director of the Asian AmericanLegal Defense and Education Fund, maintained that restoring the public�sconfidence in the civilian complaint process is essential to the investigationof police brutality incidents. In order to accomplish this, Ms. Fung supportedthe establishment of an oversight procedure that is independent from the policedepartment.[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 conceptof an independent CCRB that has the authority to conduct investigations ofpolice officers and to prosecute.[190]Further, NYPD Lieutenant Eric Adams, cofounder of 100 Blacks in Law EnforcementWho Care, testified that the presence of an investigation mechanism that isindependent from the police department would minimize the likelihood of the NYPDmishandling or destroying evidence of police misconduct.[191]

**CCRBStatistical Tracking**

The secondmajor function of the CCRB is tracking civilian complaints to determineparticular areas of concern and to monitor the agency�s progress. Semiannualreports are the primary method of monitoring complaint and disposition activity.[192]In addition to tracking the total number of complaints filed, these reports alsomonitor complaints according to the race and gender of the complainant and thesubject officer(s), the type of misconduct that the complainant alleged, thelocation where the incident was alleged to have taken place (usually byprecinct), and by the number of officers who have had more than one complaintfiled against them.

Civiliancomplaints 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 and4,768 in 1997. The CCRB report for the last half of 1998, however, indicates anincreasing rate of civilian complaints against NYPD officers. For the calendaryear 1998, complaint activity rose 4.1 percent, to 4,877, when compared withcomplaints filed in 1997.[194]Furthermore, it is possible that many incidents go unreported, so that thenumber of complaints may be substantially lower than the number of persons whofeel they have been aggrieved.[195]

Statisticscan also suggest that incidents of police misconduct are decreasing, instead ofbecoming more frequent. Both the mayor of New York City and the policecommissioner noted that any recent rise in the number of civilian complaintsdoes 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 perofficer may be taking place.[198]

**Allegationsby Category**

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

Over thepast 5 years, the most common type of �abuse of authority� allegation hasbeen an unnecessary search of the person. In 1998, for example, civiliansasserted 565 such allegations, constituting 21.4 percent of all abuseallegations.[202]Threat of arrest was the second most frequent allegation, comprising 18.9percent 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 percentof the abuse allegations received in 1998.[205]

Analysis ofthe �force� category complaints suggests that, in the majority of cases, theforce about which the civilian complained was blunt force applied without aweapon. Within the force category of allegation, the most common allegation hasbeen that the subject officer engaged in unnecessary pushing and/or shoving,which accounts for almost 30 percent of force allegations.[206] The next most commonsubcategories 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 for185 allegations and �pepper spray,� which accounted for 75 allegations. Thefinal 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 forcecomplaints.[208]

Despitebeing distinct from the �offensive language� category of allegations, mostallegations classified as �discourtesy� seem to involve offensive languageof some sort. Complaints of discourtesy, in the vast majority of cases, allegeeither cursing or using other �nasty words.� Cursing has been the mostfrequent complaint since 1994, representing more than two-thirds of alldiscourtesy 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 percentand 4.5 percent of 1998 discourtesy complaints, respectively.[211]Within the offensive language category, allegations of slurs against AfricanAmericans were the most common, both in 1998 and over the last 5 years (althoughthe number of complaints in this subcategory has declined each year since 1995).[212] The only othercategories of offensive language allegations were for Latino and �other,�[213]which comprised 10.2 percent and 29.4 percent of 1998 complaints, respectively.

**Analysisof Complaints by Race and Gender**

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

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

On the otherhand, CCRB complaint tracking statistics suggest that an officer�s race is notrelevant to the likelihood that civilians filed complaints against him or her.[222]While white officers constituted approximately 67 percent of the uniformedpolice force in 1997�1998, the percentage of civilian complaints that werefiled against them ranged from 65 to 68 percent.[223]Complaints against African American and Latino members of the departmentlikewise approximated their representation on the force. Approximately 14 to 15percent of complaints in 1997�1998 for which the racial identity of theofficer was available were filed against African American members of the force.This percentage was almost equivalent to the 13 to 14 percent African Americanrepresentation in the NYPD over that same time period.[224]Similarly, Latino officers constituted 17 to 19 percent of the police forceduring 1997�1998 and accumulated 18 to 19 percent of the civilian complaintsfiled during those 2 years.[225]

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

**MonitoringComplaints: By an Officer�s Residency and Education**

Nosignificant correlation appears to exist between the probability that an officerwill have complaints filed against him and whether that officer lives within NewYork City. The incidence of complaints against resident and nonresident officershas virtually matched the actual composition of the NYPD.[228] In 1998, 54 percent ofuniformed officers were New York City residents; 56 percent of all civiliancomplaints were filed against officers who were New York City residents.[229]

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

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

**Analysisof Officers with Repeated Complaints**

CCRBstatistical tracking has also identified some trends with respect to how manycomplaints are filed against officers with a history of previous complaintactivity. Overall, the CCRB data suggest that there are fewer officers withmultiple complaints: in 1994, 566 officers had more than one complaint filedagainst them. That figure rose to 599 in 1995, but has fallen each year sincethen.[233]The number of officers accumulating multiple complaints in a single year fell to541 in 1996, to 392 in 1997, and to 322 in 1998.[234]Manhattan was the borough that had the most officers with more than onecomplaint in 1998 (102); along with Staten Island, Manhattan seems to have anincreasing number of officers with multiple complaints.[235]In July 1997, the CCRB passed a resolution which provided that investigativepriority would be given to any claims made against officers who had accumulatedsix or more complaints within the past 5 years.[236]The CCRB appears to be committed to continued monitoring of officers who arerepeatedly the subject of civilian complaints.[237]

**Weaknessesin Complaint Statistics**

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

Similarly,the CCRB�s complaint data do not indicate the command assignment in a largenumber of cases�41 percent in 1995.[242]The CCRB ceased reporting this information at the end of 1995, and thepercentage of cases in which an officer�s command was unidentified droppedconsiderably in 1996 and 1997.[243]However, in 1998 the number of complaints in which the officer�s command wasunidentified rose 40.2 percent.[244]Continuing to reduce the number of cases in which an officer�s command isunidentified is essential to monitoring potential problemareas within the city.

**Analysisof Particular Complaint Issues**

Afterreceiving a sharp increase in complaints alleging improper use of pepper spray,[245]the CCRB analyzed its current use within the NYPD and issued a reportrecommending that the NYPD continue to use pepper spray as a form of nonlethalforce.[246] In formulating itsrecommendations, the CCRB pepper spray committee reviewed training andguidelines on its use, civilian complaints relating to use of pepper spray, andextensive medical literature. The CCRB determined that the risk of severe harmfrom pepper spray is minimal, if it is used correctly.[247]In order to ensure that pepper spray would cause minimal harm to the personssprayed, the report recommended that the NYPD prohibit employing the substanceas a crowd control device; that the NYPD maintain and tabulate accuratestatistics on its use; and that officers using pepper spray request medicalattention for anyone sprayed, regardless of whether the individual suffered anadverse reaction to it.[248] The NYPD responded tothis report by implementing several of the CCRB�s recommendations. Variousorganizations approved of this report, stating that it made a positivecontribution to an area that otherwise might cause more complaints of policemisconduct.

The CCRBalso 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 forinjury, were also less likely to injure bystanders by ricocheting or passingthrough the target.[250]In addition, the CCRB report noted that these factors influenced a number ofjurisdictions to switch to hollow-point bullets.[251]As a result, the board�s report concluded that the switch to hollow-pointbullets was prudent.

Moreover,the CCRB also conducted a detailed review of precincts that generate asignificant number of civilian complaints.[252]Reacting to the high number of complaints filed against officers in the 75th and81st Precincts, the CCRB examined some of those precincts� civilian complaintsand operations. In particular, the CCRB noted that the officers against whomcomplaints were filed matched the composition of the force at those precincts.[253]Other factors, such as a strict antidrug initiative, however, may have producedmore forceful police tactics.[254]The CCRB did not formulate any definitive conclusions or recommendations, butforwarded this information to the NYPD so that it could address civiliancomplaints in those precincts in the future.[255]

**TheCCRB and Community Outreach**

Finally, theCCRB has taken positive steps to reach out to the community, in order toinvestigate and resolve specific complaints of police misconduct. For example,in response to a May 19, 1996, altercation between police and residents withinthe 120th Precinct, the CCRB�s executive director and several representativesattended a meeting at a local community center the next evening to encouragethose with complaints to file them with the CCRB.[256]During 1998, the CCRB made extensive attempts to disseminate information to thepublic. To make the public aware of the board�s existence and mission, CCRBstaff provided more than 100 public information sessions at community boardmeetings, high schools, and church organizations.[257]At these meetings, community residents were informed of the function of theCCRB, as well as how civilians could file complaints. Finally, during the secondhalf 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 CCRBbrochure in several languages.

**Findingsand Recommendations: Chapter 4**

**TheCCRB�s Challenges: PotentialImprovements**

Theincreased number of substantiated civilian complaints and the implementation ofdisciplinary measures for recalcitrant police officers over the past few yearssuggest that some of the CCRB�s initial inefficiencies may have been due toits status as a newly independent agency. In important respects, the CCRB hasimproved the efficiency and quality of its investigations, while the DAO hastaken stronger measures to hold officers accountable when the CCRB substantiatescivilian complaints against them. Nonetheless, there remain several improvementsthat the CCRB, the NYPD, and other city officials could implement to furtherimprove oversight of policemisconduct against civilians.

ThisCommission believes while it appears that the CCRB has taken some major stepsforward in the past couple of years, it can better accomplish its mission byconsidering and implementing the following recommendations:

**CCRB�sCivilian Complaint Monitoring System**

**Finding 4.1:**As the above analysis of the Civilian Complaint Review Board semiannual reportssuggests, the board relies on data derived from the number of complaints itreceives, rather than information from cases it actually investigates, wheremuch 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 fromfully investigated claims in addition to the analyses that it currentlyconducts.

The NYPD,for example, has asked the CCRB to document the circumstances in whichcomplaints 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 situationin which an officer is executing a search.[260]Finally, CCRB data do not appear to track the numbers of cases that haveresulted in observable, actual physical injuries requiring medical attention.

**Recommendation4.1:** The CCRB should report data and perform analyses based on fullyinvestigated complaints as well as based on all complaints. In addition, theCCRB complaint form should track other types of information that might beuseful.

**Improvingthe Initial Stages of the CCRB�s Investigation**

**Finding4.2:** Less serious allegations could be referred to mediation or conciliation,allowing CCRB investigators to concentrate on the most serious civiliancomplaints.[261]

**Recommendation4.2:** The CCRB should continue to use its resources more efficiently by screeningout less serious allegations at an early point in the investigative process.

**Need for anIncreased Awareness of the Community�s Concerns**

**Finding4.3:** Although CCRB board meetings are currently open to the public, localperception 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 theconcerns of community residents.[262] Continued outreach efforts are critical to ensuring that New York City residentsare aware of the CCRB�s existence. Ultimately, this will increase thepublic�s trust in the agency�s ability to effectively investigate complaintsof police misconduct and to recommend the appropriate discipline.

**Recommendation4.3:** The CCRB and the NYPD should establish town hall meetings in each boroughat least once a year, which should be attended by upper management officials ofboth agencies.

**PotentialNYPD Improvements**

**Finding4.4:** The rising percentage of substantiated cases in which discipline is imposeddoes suggest that the NYPD is responding to substantiated complaints moreseriously than it has in the past. However, the department�s failure to act ona considerable percentage of substantiated referrals, combined with itsreluctance to inform the public of the reasons that it declined to act in manycases, suggests that additional measures are necessary.

**Recommendation4.4:** Oversight might be improved if the NYPD better specified the types ofconduct (with regard to civilian complaints) that are subject to disciplinaryaction. The NYPD Patrol Guide Manual indicates that actions such as�unnecessary conversations� and �a failure to maintain a neat and cleanappearance� are susceptible to command discipline, but does not state thetypes of abusive language, discourteous conduct, or abuse of force or authoritythat are subject to discipline.[263]This additional specificity would provide both uniformed officers and the CCRBwith more detailed information as to the kinds of misconduct (particularly withregard to allegations of discourtesy and offensive language) that can lead todisciplinary action. Not only would officers have additional guidance, but fewersubstantiated cases would later be dismissed because the DAO concluded thatdiscipline was not warranted.

**Informingthe 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 commissionerhas acted contributes to the pervasive public perception that the CCRB is anineffective mechanism to control police abuse of authority.[264] Informing the public asto why no discipline was imposed in a particular case would improve not onlypublic confidence in the NYPD, but also future CCRB investigations. For example,when the department declines to impose disciplinary measures or resorts tocommand discipline because a critical witness has become unavailable, thisknowledge would justify the action taken and indicate that the CCRBinvestigation was probably adequate.[265]On the other hand, if the department dismisses a substantiated complaint becauseof an inadequate investigation, explaining to the CCRB the manner in which theinvestigation was deficient would improve future investigations.

**Recommendation4.5:** The NYPD would improve both future CCRB investigations and publicconfidence in NYPD handling of civilian complaints by providing explanations asto why the department imposed no disciplinary measures in a particular case.

**LimitTime to Resolve Substantiated Complaints**

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

**Recommendation4.6:** In the absence of delineated exceptional circumstances, the NYPD shouldattempt to resolve all substantiated complaints within 6 months of referral fromthe CCRB.

**ContinuedUse of the COMPSTAT System**

**Finding 4.7:**The COMPSTAT system is a computerized system that monitors crime rates in eachprecinct area. Precinct commanders are evaluated monthly based on statisticsgenerated by the COMPSTAT system to determine whether their precinct haseffectively addressed issues of crime. Frank Fenucio, legislative advisor toBronx borough president Fernando Ferrer indicated that the CCRB should use theCOMPSTAT system to monitor civilian complaints on a police precinct level, whichwould ultimately hold precinct commanders accountable for the number of CCRBcomplaints issued against their respective precincts each month.[267] However, PoliceCommissioner Safir testified before the Commission that this is already beingdone.[268]

**Recommendation4.7:** Continue to use the COMPSTAT system to monitor and reduce civilianallegations of police misconduct.

**DecreasingResponse Time to Substantiated Complaints**

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

**Recommendation4.8:** Increase the size of the CCRB team within the DAO to allow the NYPD torespond more quickly to substantiated referrals.

**Incentivesfor Police Officers**

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

**Recommendation4.9:** Create promotional and other incentives for officers who do not havecivilian complaints filed or substantiated against them.

***OtherSuggested Improvements***

As criticshave noted, one potential structural weakness of the CCRB, as referenced in theCity Charter, is that its success is heavily dependent on mayoral support forits 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, thecity government can improve the CCRB and the disciplinary process in severalways.

**The CCRB�sFunding and Other Resources**

**Finding4.10:** As noted above, the CCRB budget for 1999 appeared to reflect the board�sneeds for the first time, especially given the expansion of the police force inrecent years. As the police force expands and the need for more investigationsincreases, the city government must continue to appropriate sufficient funds forthe CCRB to carry out its mission.

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

**Recommendation4.10:** The CCRB�s funding should be commensurate to the NYPD�s police officercomplement. Similarly, the city must remain committed to providing the CCRB withan adequately sized and skilled staff to perform its oversight function.

**The 48-HourRule**

**Finding4.11:** The 48-hour rule is another factor that often impedes the progress of theCCRB�s investigations. Under police department regulations and the collectivebargaining agreement between the city and rank-and-file policeofficers, police officers suspected of wrongdoing are not required to speak toranking officers until 48 hours after they are identified as suspects.[274]

The48-hour rule impedes CCRB investigations in several ways. This 48-hourdelay permits occasions for details to be forgotten and the loss of otherevidence. Secondly, 2 days creates opportunities for subject officers tocorroborate their versions of the alleged misconduct incident. Finally, thisdelay undermines public confidence in the CCRB�s ability to conduct a thoroughand efficient investigation. As a result, some police misconduct may never bereported because civilians feel the CCRB will be unable to conduct an efficientinvestigation.

The48-hour rule seems to have few defenders. The current mayor, policecommissioner, City Council speaker, and community leaders have all advocated itselimination.[275]The Police Benevolent Association president described it as little more than abargaining 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 FifthAmendment protections afforded to any other suspect.[277]When the city next has the opportunity to modify its collective bargainingagreement with the PBA, therefore, elimination of the 48-hour rule should be apriority.

**Recommendation4.11:** Enhance CCRB investigations by eliminating the 48-hour rule.

**Monitoringthe NYPD�sDisposition of Complaints**

**Finding4.12:** During recent years, NYPD officials have imposed disciplinary measures ina higher percentage of substantiated CCRB referrals, but a large number ofsubstantiated cases remain in which the NYPD takes no action against theofficers involved. In particular, the NYPD has taken no steps to explain why itdismisses a significant number of cases that the CCRB has deemed to besubstantiated.[278]Furthermore, Norman Siegel, executive director of the New York Civil LibertiesUnion, voiced his support of the need for continued monitoring of policemisconduct incidents, as well as requesting President William Clinton�sintervention in solving this problem.[279]

**Recommendation4.12:**
-  New YorkCity should establish an independent board with the specific responsibility forreporting to the public on the department�s disposition of substantiatedreferrals, in order to ensure that the NYPD takes appropriate disciplinarysteps.[280]This board would examine the need for the DAO to reinvestigate complaints thatthe CCRB has already deemed substantiated, the refusal of many officers toparticipate in CCRB-sponsored meditation, and any other issues that affect thedepartment�s disposition of substantiated complaints. The board would thenmake recommendations for improving the system.[281]           There mustbe public disclosure of disciplinary actions taken against officers engaged inacts of misconduct and/or use of excessive force. While members of everyprofession should be afforded certain protections against the disclosure ofinformation pertaining to one�s work record, police officers are given specialpowers�such as the power to �stop and frisk��which, when abused, can dotremendous damage to individuals and to society. Therefore, the NYPD should workwith local citizens groups, faith-based groups, and community organizations todraw up a list of certain violations which, after a thorough investigation inaccordance with all standards of due process, will be disclosed to the generalpublic. There must also be greateraccountability of station commanders for appropriate discipline ofofficers who have been found guilty of police misconduct.
**Appointmentof an Independent Prosecutor for Selected Misconduct Cases**

**Finding4.13:** Some have suggested that the independence of a special prosecutor isnecessary to ensure that where credible evidence exists to support a chargeagainst 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 supportedthis idea. Specifically, Hyun Lee, program director of the Committee AgainstAnti-Asian Violence, emphasized that a special prosecutor should be appointedfor police brutality cases in New York City. She believes that past cases thatinvolved police officers killing civilians should be reopened andreinvestigated.[283]Rev. Al Sharpton, president and chief executive officer of the National ActionNetwork, maintained that there was a need for federal intervention to prosecutepolice brutality cases, as well as the establishment of a federal monitor tooversee the NYPD�s operations.[284]At this point, it appears that the department is taking constructive steps toimprove the disposition of misconduct complaints. Then, the NYPD must continueto improve the rate at which it addresses substantiated complaints.[285]

**Recommendation4.13:** A public perception that police misconduct cases place a tremendous strainon local government prosecutors, who rely routinely on the police to provide theevidence to prosecute criminal violations, often exists. Therefore, the CityCouncil should appoint an independent prosecutor in cases alleging seriouspolice misconduct.[286]If finances are a barrier to such an appointment, law firms could be asked, on apro bono basis, to oversee an investigation of allegations that the killing ofan 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