Considering the fact that NYPD officers had approximately 23 million contacts with the public in 2007, the number of complaints registered with the CCRB last year, 7,559, was tiny. It also came at a time when the CCRB has done an excellent job of making it easy to file complaints against officers, through 311, the Internet and through CCRB's own outreach.

CCRB's report for 2007 released today, July 5, 2008, is misleading in a number of respects. The following NYPD comment highlights the salient points:

Complaint Activity

 The CCRB received 103 or 1.3% fewer complaints in 2007 as compared to 2006 (7,559 vs. 7,662).

•  The CCRB asserts that the overall decrease in substantiated allegations in 2007 “speaks to the care with which the agency and the board take before finding that an officer engaged in misconduct”. This self-serving statement ignores the more obvious fact that uniformed members of the Department are committing fewer acts of misconduct.

•  In 2007, the Board substantiated the lowest percentage of all closed cases (2.7%) and the lowest percentage of all closed allegations (2.0%) than it has in the past ten (10) years.

•  Over the past five (5) years, complaints were nearly seven times more likely (10,297 vs. 1,434) to be closed as exonerated, unfounded or unsubstantiated, than substantiated.

•  Of the 7,924 closed cases in 2007, just 2.7% (217) had one or more allegations that were substantiated, while 30.3% (2,403) had allegations classified as employee exonerated, unfounded or unsubstantiated. 

•  In 2007, 62.1% (4,920 out of 7,924) of all cases closed by the Board were truncated, the highest percentage over the previous ten (10) years. Furthermore, the Board’s truncation rate for 2007 increased 3.2% (62.1% vs. 60.2%) as compared to 2006 and increased 24.4% as compared to 2000.

•  The Board truncated over double the number of cases in 2007 than it did in 2002 (4,920 vs. 2,446).

•  Although the Civilian Complaint Review Board claims that Findings on the Merits were made for 62.4% of all allegations that received a full investigation in 2007, only 2.0% (505 out of 24,811) of the total allegations closed by the Board during the period were actually substantiated.

•  In comparison to 2006, the rate at which the Board has substantiated allegations has declined 25.9% (2.0% vs. 2.7%).

•  Of the 2,796 cases closed where the Board conducted a full investigation between January and December 2007, 85.9% (2,403) were classified as employee exonerated, unfounded or unsubstantiated. 

•  Of the 7,179 allegations closed with Findings on the Merits by the CCRB during the January through December 2007 time period, 93% (6,674) of the allegations were either unfounded or employee exonerated.

•  The proportion of substantiated Stop, Question and Frisk-related allegations as compared to the overall number of SQF reports prepared by the Department in 2007 is an infinitesimal .0004% (186 out of 468,932). 

•  The CCRB substantiated only 63 allegations, or 1.7%, of the 3,770 Force allegations closed after a full investigation in 2007.

•  The CCRB substantiated only 44 allegations, or 1.7%, of the 2,585 allegations of unnecessary use of physical force closed after a full investigation during 2007.

•  The Board was 43 times more likely to dispose of these allegations as either exonerated (1,548) or unfounded (365).

•  During the five-year period of 2003 through 2007, the Board substantiated a total of 447 Force allegations. During this same time period, a total of 10,608 allegations of this type were classified as unfounded or employee exonerated, nearly twenty-four (24) times more frequent than the number of substantiated allegations.

•  The Department’s use of Instructions as a disciplinary penalty has increased as the types of allegations substantiated by the Board has changed.  In 2007, just 12.5% of substantiated allegations involved Force, a 26.5% decrease from 2003 when 17% of allegations substantiated by the Board were Force-related.

Police Department Dispositions

•  The CCRB asserts that 90 out of the 645 officers who received instructions as a disciplinary penalty received another complaint with the same allegation.

•  Intentionally omitted from this assertion is the fact that these “repeat” allegations were not substantiated by the Board for 83 of the 90 officers.

•  Of the seven officers who did receive instructions on a second occasion, four officers had received their first set of instructions prior to the establishment of the Department’s practice to only issue instructions on one occasion for the same act of misconduct, one officer had two substantiated allegations for incidents that had occurred within a two-day time period that was treated as a single disciplinary case and one officer was counted twice.

 

•  In referencing the quality of cases sent to the Department by the CCRB, the report mentions the fact that four (4) attorneys were hired to review each disciplinary case. The report clearly omits the fact that these new attorneys were not hired until the last few months of 2007 and most likely did not review any of the 2007 cases closed by the Department.

•  The NYPD does not tolerate provable misconduct by police officers, even in situations where they have a good faith belief that their actions were proper. The Department Advocate’s Office analyzes cases that it receives with one issue in mind - did the police officer commit provable misconduct?  If so, the officer will be the subject of some form of disciplinary action.

•  The Department Advocate’s Office agrees with CCRB that the “good faith” defense does not preclude disciplinary action against a police officer.  However, when it is clear that the officer acted in good faith, fairness dictates that it be considered as mitigation by the CCRB investigator and the panel, and should favorably impact evaluation of the officer’s credibility.

•  The Department Advocate’s Office disagrees with the CCRB conclusion that the law of search and seizure is clearly established, well-articulated, and understandable under the DeBour decision. The fact that there is a plethora of Appellate Division cases that modify and/or further explain the case supports this belief. 

•  The Department Advocate’s Office believes it is most appropriate to evaluate the totality of the circumstances for each individual case when considering whether a police officer violated the DeBour standards, which clearly allows police officers to use their judgment and experience in determining whether there is criminality.

•  The report presents profiles of three (3) cases in which the Department declined to institute disciplinary action against the subject officers. The Department stands by its decision to not prosecute the officers in these cases, each of which is based upon the Board’s faulty legal analysis and clear anti-police bias.

Profile #1 - Whitestone Stop and Frisk

•  In the first case, titled “Whitestone Stop and Frisk”, the profile conveniently omits several significant facts:

•  The officers did not conduct a forcible stop. Rather, in an action that was completely justified, the officers conducted a stop under the common law right of inquiry.

•  While the CCRB intimates otherwise, race was never indicated by the CCRB investigator as a basis for determining that the stop was unlawful.

•  The initial interaction occurred due to the fact that the civilian subjects were walking down the middle of a street, late at night, in a desolate area that had been experiencing a high rate of burglaries.

•  The frisk of the individuals was conducted on the basis of their consent, which is fully permissible under New York State law. The Board failed to take this into account in their analysis and conclusion that the officers committed misconduct.

Profile #2 - Car Stop

•  In the second case, titled “Car Stop”, the Board criticized the actions of three (3) anti-crime officers who performed a car stop where the occupants had reportedly displayed a firearm.

•  In this case, the officers received a radio transmission indicating that 2-3 male blacks in a silver Infiniti had displayed a firearm and driven away. The transmission further stated that the vehicle was heading in the direction of the officers and that the vehicle had Massachusetts license plates. The location of the incident was in the same precinct in which the officers were located and was in relatively close proximity to the officers’ location.

•  When the officers initiated the car stop (of a gray Infiniti with Florida plates), they observed the male sitting in the front passenger seat turn around, look at the officers and then reach under the front seat as if trying to conceal something.

•  The CCRB determined that the car stop itself was legally justified but that the subsequent frisk and vehicle search were not. The CCRB chose to ignore the fact that the officers, who had reasonable suspicion that the individuals were armed, were well within their rights to frisk them for their own safety. (See, Barry Kamins, New York Search and Seizure for Law Enforcement Officers, Fourth Edition, p.97).

•  The vehicle search was also justified, given the totality of circumstances in this case. Although probable cause is required to conduct an automobile search, New York courts have created an exception where the facts present an “actual and specific danger” to the officer’s safety, which clearly existed in this case.

Profile #3 - Bronx Stop and Frisk

•  In the third case, titled “Bronx Stop and Frisk”, involved police officers responding to radio transmission of a suspicious male. The CCRB found that the stop of this individual was justified but that the subsequent frisk was not justified.

•  The position of the CCRB in this case does not make sense. According to their theory, the officers had sufficient reasonable suspicion to conduct a forcible stop of the complainant, but had insufficient reasonable suspicion that the complainant was armed.

•  This viewpoint ignores the fact that the individual stopped was reportedly seen in front of a Laundromat, late at night, acting as if he was casing the location for a burglary or robbery, was wearing a bulky winter coat with his hands in the pockets, gesturing as if he had something secreted therein, was identified by two separate witnesses and was combative and uncooperative with the officers once stopped.

•  The reference to the officers’ actions being conducted within a two-minute time frame, which in and of itself is not proof of misconduct, does not specify how the CCRB was able to conclusively make this determination.

•  The CCRB particularly questioned the credibility of the sergeant in this case, citing a previously substantiated force complaint. Aside from being completely unrelated to this incident, the report omits the fact that the complaint being referred to occurred ten years ago and that the sergeant had no other substantiated allegations.

•  By contrast the complainant’s credibility is highly questionable. In CCRB case #200510488, this same complainant was found to have engaged in criminality (loitering and trespassing), a determination with which the CCRB investigator of that case agreed.

•  It is readily apparent, as shown in this case and others, that the CCRB has a double standard when it comes to analyzing credibility, repeatedly showing a clear bias against uniformed members of the Department.