Approximately a year ago, in my capacity as head of its Investigations Division, I witnessed the defiling of a thoroughly and objectively investigated civilian oversight complaint at the New York City Civilian Complaint Review Board (CCRB). In this case, a Black male civilian claimed that a police officer addressed him with a racial epithet — “pussy ass n—er.” The investigation was completed and reviewed by a manager with approximately a decade of experience as an investigator, and everyone witnessed the officer on a body-worn camera confirming the allegation made by the civilian, which was substantiated.
What happened next is emblematic of a larger issue that contributes to the failure of our broken system of civilian oversight of police. A police-commissioner-appointed board member (white male, former police officer) voted to overturn the findings of the seasoned investigator and manager, claiming that the officer’s use of the slur was not racially motivated.
Events like this are among the reasons civilian oversight of the police has been widely criticized across the country for its apparent ineffectiveness. Florence Finkle, former executive director of the CCRB and currently a board member of the National Association for Civilian Oversight of Law Enforcement (NACOLE), told The News Station,
“Boards are often hijacked by advocates and/or amateurs. Structures are largely flawed and plagued with such things as failure of support by political actors and bias of board and/or commission members.”Florence Finkle
Finkle is one of the nation’s most prominent experts in law enforcement and oversight.
While the New York City Civilian Complaint Review Board has been around since the 1950s, it was initially staffed completely by police officers and remained that way for years. There have been a few iterations of the structure of the agency, but even though there were civilian employees through the 1980s, they were supervised by police officers. It was only after the singularly impactful Tompkins Square incident in 1988, in which several police officers were caught on camera using excessive force, that public opinion swayed significantly and resulted in a move towards all-civilian oversight.
It probably does not come as a surprise that having civilian oversight of the NYPD is an intractable issue. It was not until the mayoralty of David Dinkins, who had been very outspoken about police oversight, that things finally changed in 1993. However, that only came after an extended period of tumult and what was yet another memorable incident of police exhibiting bad behavior in 1992. This was widely described as a riot executed by police officers, led by police unions and endorsed by Rudolph Giuliani. Police officers vandalized and destroyed property, stormed and occupied City Hall, and used racial slurs to describe Mayor Dinkins, among other poor behaviors. This backfired, the public image of the police suffered, and the all-civilian agency was created the following year, in 1993.
The agency was given jurisdiction to investigate allegations of force, abuse of authority, offensive language and discourtesies. However, there was a lot of compromise in the new structure, which ultimately proved to favor police over civilians. While the agency is fully staffed by civilians, the police department retained a lot of control that limited genuine oversight.
Line investigators are usually idealistic, come from all backgrounds, and are of the highest integrity, highly educated and professional and ready to contribute to the greater good. However, though the Investigations Division makes up approximately 50% of the entire staffing of the agency and consists of choice employees, that does not go far enough to alleviate many of the issues. Boards need to be given real independence to do their jobs now more than ever in these major areas in particular.
The CCRB is not an independent oversight agency. Daniel Bodah, a former CCRB investigator, currently a doctoral student at John Jay College of Criminal Justice and a member of the NACOLE training committee, told The News Station,
“An oversight agency isn’t truly independent unless it is free to make the right call in a controversial case and has the institutional support to weather the response.”Daniel Bodah
A common problem experienced by civilian oversight agencies is that they share the same boss as the police department. In New York City, the CCRB, the NYPD and the Office of Management and Budget (OMB), which controls the budgets of CCRB and the NYPD, all report to the mayor.
The mayor also controls the Law Department, the legal entity that represents both the NYPD and the CCRB. What is good for the CCRB is often, if not always, sacrificed to the goals of the mayor, which are often more aligned with NYPD’s goals. The CCRB chair is appointed by the mayor, who along with City Hall has input in the hiring of the executive director, thereby creating a decision-making process marked with fear of losing jobs and good relationships. Agreements between the CCRB and the NYPD are generally skewed in favor of the NYPD. “Independence also means cultural independence, which is why it is important in the first place to have a well-trained non-police organization to review civilian oversight documents regarding police misconduct,” Bodah noted. A few years ago, the NYPD began more aggressively editing and refusing civilian oversight documents the CCRB had routinely received. Negotiations between the NYPD and CCRB were moderated by the Law Department, and even the court-appointed monitor, Peter Zimroth, who has been working to improve the NYPD since 2014, was ineffective, and the effort resulted in no changes. In fact, the issue seemed to escalate when the discussions ended. Additionally, reports generated by CCRB for public information and awareness about findings and performances of the agency are shared with and edited by the police department before being published.
Access to Evidence
The agency remains at the mercy of the police department for a vast majority of the critical evidence needed for investigations, and it has no recourse if the police department simply chooses not to provide this evidence or to egregiously delay providing it. Finkle characterized the agency’s ability to collect evidence generated and controlled by the NYPD as “insufficient authority and insufficient access to law enforcement records.”
There are dozens of categories of essential documents the NYPD has in its possession, too many of which are redacted or outright refused with absolute impunity. In fact, many CCRB investigations into shootings and in-custody death cases are ended prematurely by the NYPD.
The NYPD often claims a need for confidentiality; however, handing over these documents is not the same as releasing them to the public. The agency is bound by the same confidentiality laws required from any other law enforcement agency. “Police departments can be quite creative in finding unrealistic interpretations of the law and using them as excuses to withhold important information,” Bodah observed.
Authority to Compel Officer Interviews
Police officers are government employees, and as such they are accountable to the public. However, the CCRB has no power to compel officers to appear for interviews. The agency must negotiate with police unions to have officers appear and has no recourse if they choose not to. And they sometimes choose not to.
For example, during the height of the social-justice protests demanding police accountability in the summer of 2020, when I led the Investigations Division, the police unions advised officers that they should not cooperate with the CCRB for interviews.
When we appealed to the police department asking to compel the officers to appear, it refused, stating that it did not wish to intervene in negotiations between the officers and their unions.the author writes
The police department, as any employer does, had the power to make demands and requirements from its employees.
Additionally, the NYPD cancels officers at its whim, and regularly does so for officer-involved shooting cases. When an officer refuses to answer a question, the CCRB must seek an NYPD officer to compel a response, and this is not guaranteed to occur.
Make Boards Professional
The CCRB board members are politically appointed, part-time employees, some of whom are former police officers. A majority of CCRB board members are selected by the mayor and the police commissioner. There is no requirement that board members have any related previous experience or that they submit to proper training once selected to the board. By the time some gain enough experience to accurately assess the merits of cases, they are burned out, lose interest and/or replaced. There is little transparency about how specific members of the board make decisions. Cases are investigated by investigators, reviewed and approved by supervisors and/or managers and sometimes Investigations Division executives. Still, a finding of misconduct by all these Investigations Division personnel can be overturned by a former police officer on the board.
This recalls an intimidating incident when an investigator and the manager substantiated allegation(s), and a former police officer board member demanded to see the line investigator’s personnel file, due to being angry that the investigator found misconduct during the investigation of the complaint. Also, a change in membership on the board routinely results in inconsistent decisions and policies and a lack of institutional knowledge, which is solely retained within the Investigations Division.
The law allows 18 months to investigate cases – from complaint to charging the officer – otherwise, even if there is a finding of misconduct, the officer cannot be charged. However, too often completed investigations, sometimes with findings of misconduct, wait for board review, the next stage, for up to 400 additional days. This instability at the highest level of the CCRB’s leadership affects its ability to act with a single purpose and long-term goals in mind.
As if by design, the agency was underfunded at its inception. In recent years, the CCRB’s budget has been approximately the same as the NYPD’s budget for business cards. There was a recent vote by the public to expand CCRB resources, but there were several obstacles placed in the way of implementation, including by OMB. The NYC Police Benevolent Association (PBA) filed a lawsuit asking the court to prevent the implementation. Though it was ultimately dismissed, just the filing of such a lawsuit by this entity is telling.
Public discussions on the agency’s budgets are a carefully choreographed dance to advance the public-relations goals of others despite the CCRB’s obvious under-resourcing.
For instance, for months a large portion of the CCRB’s investigative staff went without contractually obligated pay increases even though the agency struggles with the intractable issue of a high attrition rate of experienced investigators.
Police misconduct trials are conducted in front of NYPD personnel, and the police commissioner has absolute final authority over all disciplinary matters. While many laws restrict what officers are permitted to do, too often the real-life analysis of whether misconduct occurred relies on NYPD-created guidelines. The CCRB must follow both these NYPD guidelines in making its own determinations, as well as the NYPD’s interpretation of these guidelines and the laws themselves.
Additionally, the CCRB does not even have access to the full scope of the NYPD regulations and training materials, including the Patrol Guide (the public online version has several sections omitted, and this version is the CCRB’s only source). Furthermore, the CCRB has no ability to influence those guidelines or their interpretation aside from public comments, which do not carry any impact.
Recently a new law was passed which required officers to provide business cards to civilians during certain encounters. The CCRB discovered that the NYPD had improperly trained its officers, and in effect trained the officers to violate the law. Though several allegations in this category were substantiated during this time, there was no discipline imposed, no announcements made to the public, and it took approximately one year to update the training material. None of the civilians whose rights were violated by this mistaken interpretation and training in the law were informed.
It is not difficult to conclude that, if the interest and will are there, real mechanisms for accountability can be created and could lead to substantive change. With the caveats that “civilian oversight is not a panacea” and expectations should be managed, Finkle favors the auditor, inspector general or independent monitor models for civilian oversight. Differing from the CCRB model that exists under the mayor and investigates individual cases of police misconduct committed by individual officers, the other structures largely examine police policies and practices across many cases and make recommendations about broad changes.
Auditors, for example, are better positioned to delve into the more systemic issues of a police department. “They audit complaint processes and police operations and make recommendations for changing training, policies, or procedures,” Finkle said, and can also “retrospectively examine individual incidents, administrative investigations and the disciplinary process to determine what went wrong or right.” The auditor can perform “continuous review of policies,” informing the agency of a larger band of cases in which police misconduct exists.
This is a conclusion drawn by other experts in the field of civilian oversight. Nicholas Mitchell, a former CCRB investigator who spent almost a decade as Denver Independent Monitor and who was recently appointed by the Department of Justice to oversee reform in Los Angeles County’s jails, the country’s biggest jail system, tends to agree with this conclusion.
“The broader mandate to investigate or evaluate policy and practice – rather than just individual incidents – makes the monitor model potentially more impactful” so long as it is purposefully implemented, Mitchell told The News Station.
Finally, transparency is also a critical contributor to success.
“Secret investigations and disciplinary processes leave the public in the dark – skeptical, doubting and unable to hold the department or individual officers accountable,”Florence Finkle
Confidence in the system will go a long way to strengthening it.
Civilian oversight alone will not remedy the over-policing of certain communities and the death and destruction that sometimes result. However, it should be an important part of any civilized society, especially one like ours with so many multiplicities.
The people who bear the burden of the most aggressive forms of policing deserve to know the truth about limitations and undue pressures or influences that attempt to undermine the process. They also deserve full participation.
For oversight agencies to truly hold police accountable, they need to have full transparency, genuine independence and actual power. Failing this, oversight agencies risk participating in the abuse of already vulnerable communities, as well as legitimizing and condoning abusive policing.