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**Police  Practices and Civil Rights in New York City**

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**Dissenting  Statement of Commissioners Carl A. Anderson and  Russell G. Redenbaugh **

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This report, *PolicePractices and Civil Rights in New York City*, falls far short of thestandards for thoroughness and balance which should guide the Commission. It�profiles� the police, politicizes the debate, manipulates the data providedto the Commission, and misses an important opportunity to make a valuablecontribution to the NYPD. As Alexis de Tocqueville once observed, a politicalinstitution is never more vulnerable to criticism than when it has recognizedthe need for reform and has set about to implement it. This report�s treatmentof the NYPD is ample proof of de Tocqueville�s insight.

When the Commission decided to hold its May 1999 hearing, it wasa crucial and highly volatile moment in time: Headlines reflected the publicoutcry over the tragic shooting of Amadou Diallo by four police officers in theBronx in February 1999. The verdicts were imminent in the trial of anotherhighly publicized case�the August 1997 assault on Abner Louima by policeofficers in Brooklyn. Several different inquiries, local, state and federal, hadbeen launched. And, to the extent that the successful strategies of New YorkCity�s mayor and police commissioner in both reducing crime and addressingpolice misconduct were now under attack, the public debate on those issuesquickly became caught up in the whirlpool of election-year politics.

At that time, we were concerned that holding a Commissionhearing on police practices in New York would open the Commission to charges ofpoliticization while seriously impairing progress on other projects alreadyunderway. Overriding those concerns, the Commission voted 3 to 2 to proceed withthis initiative. More than a year has passed since the hearing on May 26, 1999.After a year of work�work that has involved the expenditure of substantialsums for outside contractors to help examine hundreds of pages of documents andprepare this report�the Commission has issued a sweeping indictment of the NewYork Police Department.

But the indictment is flawed, in several respects. First, it isnot based on a comprehensive, sound methodology. The report reflects anover-reliance on anecdotal testimony, a lack of expert testimony on policing andhow police departments should be run, and inadequate follow-up and research(other than selected newspaper articles and the Internet) in the year since thehearing occurred. At the same time, the report dismisses much of the relevantdata that has been provided to the Commission on the substantial improvements bythe NYPD in recruitment and training, the dramatic reduction in the use of forceby NYPD officers, and the decline in the number of civilian complaints. Finally,the report neglects an important context of discussion for all of thesedevelopments�a decline in crime in New York City to levels not seen in 30years.

What the report does provide is a one-sided portrayal of theNYPD, which will perpetuate many negative stereotypes of the police. It paintsthe NYPD as rife with problems that the department is unwilling to address. Thereport�s final verdict, that the NYPD has engaged in an extensive practice ofracial profiling, is captured in this one sentence from the Executive Summary:�They simply stop who they think they should stop.� Instead of providing a�meaningful discourse� on police-community relations in New York (the statedintent of our hearing), the report is, itself, an exercise in profiling. Theattack it makes is based not on evidence, but on conjecture, opinion, and�perception as reality.�

The response that the Commission has received from the NYPD andthe City of New York provides extensive information and additional data. TheCommission has rightly decided to honor our commitment to append the NYPD�scomments to the final document. However, we are disappointed that the Commissionhas summarily dismissed so much of the new information from the NYPD, therebyforeclosing a full and objective discussion of the issues. To cite someexamples:

**On the number of fatal shootings by New York police officers:**

The report now states: �According to New York policeofficials, the use of deadly force by the city�s police officers occurs lessthan in other major cities, when measured in terms of fatal shootings per 1,000officers.� The report presents this as something that is �asserted� by theNYPD. What it leaves out is the data showing that, compared to other large urbanpolice departments, the NYPD had *thelowest rate* of fatal shootings per 1,000 officers. These numbers are eitheraccurate or they are not. And if our staff believes they are not accurate, thenthey ought to state that and conduct additional research and not justcharacterize this important data as an undocumented assertion by the NYPD.

The report also dismisses NYPD statistics showing the dramaticdecline in the numbers of fatal shootings by police officers over the past 25years. This decline in NYPD fatal shootings has been widely cited andcorroborated by experts like Dr. James Fyfe. (Attached to our dissent is a copyof the chart distributed by Dr. Fyfe during the Commission�s recent briefingon national police issues.) This significantly positive trend does not mean thatthere is no room for improvement within the NYPD, but it does provide thecontext in which these issues should be considered.

That context is one that has seen the incidence of fatal policeshootings decline from 93 in 1971 to 11 in 1999. Since the early 1990s, thecrime rate in New York City has fallen in an equally dramatic fashion. It isalso perhaps worth bearing in mind that in 1998 the probability of a 15-year-oldAfrican American male being murdered before reaching his 45th birthday was 8.47percent in Washington, D.C., compared to only 1.89 percent in Brooklyn, NewYork. Moreover, during the Vietnam War, 1.2 percent of those who served in theUnited States military were killed in action. Thus, it was safer for a youngAfrican American to serve in the U.S. armed military in Vietnam than it is forhim now to live in our nation�s capital or within sight of the Statue ofLiberty. This is also the environment in which daily decisions are made by the�cop on the beat� in New York City. The national death rate from homicideremains alarmingly high, but the evidence does suggest that sound lawenforcement policy changes�such as those implemented in New York�can beeffective in reducing violent crime.  

**On recruitment and training:**

The report frequently relies on outdated information. Forexample, it criticizes at length training materials which at the time of our May1999 hearing, the police commissioner himself testified were no longer in use.On the other hand, the report totally dismisses as �not necessarilyrelevant,� the information submitted by the NYPD regarding its more recent *Streetwise*cultural diversity curriculum. According to Dr. Robert Louden of John JayCollege, who also testified at our recent briefing, the *Streetwise*curriculum has been enormously successful and is now being marketedinternationally for police training inemerging democracies and elsewhere. By refusing to include even a briefdiscussion of this new curriculum, our report does a disservice. 

Other sections in the report reflect an excessive reliance oninflammatory, anecdotal assertions. For example, the report quotes a witness (apolice sergeant who is a frequent critic of the NYPD) who testified that therecruitment and hiring process �is already prostituted and it�s alreadycorrupted.� The report goes on to say that this same witness �opined� thatan increase in the number of applicants is unlikely to affect the number whoactually become officers �because of the biases built into the system.� Thereport then complains that because of a lack of information from the NYPD, theCommission �is unable to evaluate these assertions.� The discussionconcludes, however, with the following: �The information the NYPD did provideto the Commission . . . suggests that people of color were notdisproportionately disqualified for appointment to police officer on the basisof psychological and character screening in 1997.�

This discussion of charges about bias within the NYPDrecruitment and hiring process is important because it illustrates the extent towhich this report relies on opinion and on �perceptions� which are notsupported by the evidence at hand. From the thousands of pages of testimony, thereport tends to quote from the most inflammatory testimony, almost totallyignoring the NYPD�s response to these charges. In this case, theCommission�s response to the NYPD�s objections is to say that the testimonyof the police sergeant is included �not to prove the truth� of hisassertion, but rather �to reveal the perceptions of officers of color withinthe NYPD.�

But of the nearly 41,000 police officers in the NYPD, there aremore than 5,000 African American officers. There is no way of knowing whetherthe �perception� relayed here is representative of all people of color onthe force, or even a majority of them. Certainly, the perception or allegationthat candidates tend to be screened out on the basis of race is refuted by thedata showing that on the basis of psychological screening in 1997, 65 percent ofthose disqualified were white, compared to 14 percent who were African American.On the basis of the 1997 character review, 56.2 percent of disqualifiedcandidates were white and 18.7 percent were African American.

Allegations of discrimination within the NYPD are entitled tomore than mere repetition. More should be have been done on this question todetermine the degree to which discrimination may have been or continues to be aproblem. But to treat the issue in the cursory manner of this report does adisservice to both the NYPD and the Commission�s own mandate.

**On NYPD �stop and frisk� practices:**

The report�s discussion of the NYPD�s �stop and frisk�practices is the most serious example of slipshod analysis, because this is whatforms the basis for the allegations that the NYPD is guilty of racial profiling.The section on stop and frisk is conclusory, relies on faulty analysis, and doesnot give sufficient credit to possible alternative explanations for data on NYPDstop and frisk encounters. The report concludes that because the percentage ofpeople stopped and frisked who are people of color is higher than the percentageof people of color within the general population of New York City, the NYPDtherefore is engaging in racial profiling.

This logic is simply wrong. First, it is an improper comparison.The relevant comparison would be between the ethnicity of those stopped and theethnicity of those committing crimes in New York City as described by crimevictims. In fact, the City provided the Commission with data demonstrating thatthe ethnicity of those stopped closely matched the ethnicity of those committingviolent crimes. Second, the NYPD uses a highly sophisticated computer trackingsystem (COMPSTAT) to track reports of crime and complaints made by crimevictims. COMPSTAT helps ensure that officers are sent to areas where moreviolent crime occurs. Since, unfortunately, minority neighborhoods aredisproportionately plagued by violent crime, the NYPD sends more officers tothose neighborhoods. The report summarily dismisses this historic crime data,and it is impossible to draw any meaningful conclusions about racial profilingfrom the report�s analysis.

**On recommended reforms:**

The main problem with the report�s recommendations is thatthey appear to be based on an approach that was described during our recentbriefing as �policy change by crisis.� The Commission agreed beforeproceeding with its hearing that the Diallo case would not be a focus of itsinvestigation. Nonetheless, it pervades this report as a leitmotif. The reporttries to use Diallo, and the other recent high-profile cases, to build itscharge that the NYPD is biased against minorities, that it engages in racialprofiling, and that it tolerates police violence and misconduct. But the Dialloshooting was not the example of a trend that the report tries to make it out tobe, nor was it the result of some misguided NYPD policy involving racialprofiling, as the report alleges. As it stands, this report compounds thetragedy of the Diallo incident by undermining efforts both to rebuild publictrust in the police and to seek needed revision of police procedures.

For the most part, the Commission�s recommendations embody aheavy-handed approach of external controls that might only thwart the goals ofenhancing accountability, improving performance, and restoring public trust inthe New York Police Department. For example, the report calls for an independentcommission to review NYPD training; an independent board to oversee the NYPD�sdisposition of Civilian Complaint Review Board complaints; and an independentprosecutor to investigate serious misconduct cases.

Such additional bureaucratic controls and mechanisms appear tobe, at best, unnecessary and of questionable value. For example, the NYPDalready has a Board of Visitors to review police training. With respect toreview of the civilian complaint process, the Commission�s report acknowledgesnot only that the CCRB has significantly improved its operations over the lastseveral years, but that the NYPD has been taking disciplinary action based onCCRB complaints in a steadily rising percentage of cases. It is difficult,therefore, to understand why the Commission now recommends an independent boardto oversee this independent board.

Finally, in regard to the call for a special prosecutor, it mustbe noted that the NYPD is already the most scrutinized police department in thecountry. Besides the CCRB, there is also an independent Commission to CombatPolice Corruption that oversees the NYPD�s anti-corruption efforts. New YorkCity also has five elected district attorneys, one for each borough, and twofederal prosecutors, for New York�s eastern and southern districts. Withouteven the most cursory analysis of whether these prosecutors effectively handlecases of police misconduct, however, the Commission summarily concludes thatthey cannot do so and recommends an independent prosecutor. As New York CountyDistrict Attorney Robert M. Morgenthau wrote to the Commission on April 28,2000:

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[I]t is disheartening that no one from the Commission evenbothered to speak to representatives of this Office, or the other localprosecutors� offices, prior to the Commission reaching its conclusions. Nordid the Commission even ask to review any records of this, or any other, Officepertaining to such matters. If anyone from the Commission had taken the troubleto ask, it would have become readily apparent that this Office has a long anddistinguished record of prosecuting cases of police brutality and corruption.

The district attorney�s comments are instructive, because theypoint to the report�s fundamental weakness. The findings and recommendationsare not the product of careful consideration or rigorous analysis of how theNYPD can improve, which is what the people of New York City deserve. Rather,they appear to be the result of theCommission�s own biases and predispositions. As District Attorney Morgenthauremarked in his letter to the Commission, it is �hard to avoid the conclusionthat the Commission is more interested in publicizing and politicizingits views than it is in solving real problems.�

Instead of adding new layers of government review, we believethe Commission�s focus should be on greater internal accountability andenhancing reforms from within the NYPD. We should encourage the efforts alreadyunderway within the NYPD for a better educated and better trained force, onethat is responsive to community needs and concerns. As our recent panel alsoobserved, there must be a continued focus on attracting and retaining qualifiedpolice officers, which will entail a more concerted effort to promote a view oflaw enforcement as an essential, first-rate career.       

**Conclusion**

The New York City and NYPD officials who testified at ourhearing last year underscored their commitment to striking an essential balancebetween crime reduction and protection of basic civil rights. Certainly, this isan ongoing challenge. But the crucial question this report fails to address isthis: Are police shootings in New York an anomaly or the norm? The evidenceshows that, clearly, they are not the norm. Nor is there any evidence that theNYPD engages in racial profiling. As one New York journalist recently noted,what is needed is �some sort of perspective that clarifies how extraordinary ajob our cops have done and why they, like any minority, should not be judged asan entity by the worst among them . . .� 

Police practices are a legitimate and even an essential concernof this Commission. Unfortunately, by stigmatizing the police in one ofAmerica�s largest cities, the Commission has missed a unique opportunity. Ourreal mission should be to promote reform within the New York Police Departmentin a way that enhances public trust in the police. This report falls far shortof that objective; and for that reason we respectfully dissent.

June 30, 2000