The NYPD is withholding evidence from investigations into police abuse
(Raw Story) - Despite its legal obligations, the NYPD has been withholding significant evidence and undermining investigations of alleged abuse.
Last summer, New York City police officers drove by two friends sitting on a bench outside a Brooklyn school. The officers stopped, later telling investigators that they suspected the two — a 16-year-old and 21-year-old, both male and Black — of carrying marijuana. As the teenager ran, one of the officers grabbed the 21-year-old from behind, lifted him up and slammed him into the pavement.
The officer, who was 60 pounds heavier than the young man, broke three bones in the man’s left foot, and among other injuries caused a brain bleed, leaving him hospitalized for six days.
The bare details we know about the case come from the city agency charged with digging into civilians’ complaints of police misconduct, New York’s Civilian Complaint Review Board. But investigators faced a significant impediment: the NYPD itself.
Seven body cameras worn by officers captured at least some of the incident. CCRB investigators requested the videos. The law requires the NYPD to cooperate, but the department declined to share most of the footage. The NYPD told the CCRB it was protecting the privacy of the teenager, whose face was captured in the footage. Rather than blurring the teen’s face, the NYPD shared just one video. It began after the 21-year-old was already handcuffed.
“This just seems like contempt,” Shira Scheindlin told ProPublica. “I understand privacy concerns. But they’re refusing to meet their obligations.”
The NYPD declined to discuss the case with ProPublica. But the department’s refusal to share evidence of its own officers’ potential misconduct isn’t an aberration. It’s routine.
Despite its legal obligations, the NYPD has been withholding significant evidence and undermining investigations of alleged abuse. It has stopped sharing a wide variety of paper records and has been redacting the names of potential witnesses from others without explanation. For two months this year, it allowed officers to refuse to be interviewed by CCRB investigators. And, , it often doesn’t produce body-worn camera footage.
An internal CCRB memo obtained by ProPublica enumerates roughly a dozen kinds of records withheld or redacted across the board: warrants, arrests records, documents listing who was in station house cells — key for finding witnesses — even officer injury reports.
After seeing a list of records being withheld, Dan Bodah, a former senior CCRB investigator paused. “My God, that’s really bad,” he said. “Those are all the tools I would use routinely in investigations.”
An analysis this year by the CCRB underlines the particular power of the body cam footage that the NYPD is often withholding. The percentage of allegations substantiated against officers when investigators can see the body cam videos. Video also increases the percentage of allegations that are deemed unfounded. The outcome that’s less likely with video is the conclusion that’s long been the default: Investigators file away the case without any conclusion at all.
At least on paper, the NYPD has more oversight than perhaps any police department in the country. Few other cities have an inspector general devoted to the police. The court ruling that mandated body cameras also imposed . And the CCRB is the largest civilian oversight agency of the police in the country, with more than 200 staffers.
But the NYPD is the most powerful department in the country’s largest city. With a $6 billion budget, 36,000 officers and a direct line to the mayor, the NYPD has long wielded its clout to fend off scrutiny. And that has often left the CCRB and struggling to exercise meaningful oversight of the department.
In a response to a lengthy set of detailed questions for this story, the NYPD offered the following statement:
The NYPD makes every effort to provide both the IG and CCRB relevant information they need to perform their work. In certain instances, such as sealed records or information that may identify a sex crime victim, state law requires certain redactions are applied or records protected. The NYPD works with both agencies to exhaust available alternatives when such legal constraints are present.
The lack of cooperation led the CCRB to publicly raise the issue in early August. After the agency moved to do remote interviews during the coronavirus pandemic, the police unions officers to refuse to participate, citing privacy concerns about videoconferencing. Officers stopped cooperating with the agency, and their superiors at the NYPD .
Where the CCRB typically did around 200 officer interviews a month, the agency said it did six total in June and July. After the CCRB called an emergency meeting to take up the issue, the police commissioner, Dermot Shea, officers to appear. The unions while they don’t trust the CCRB to keep the interviews confidential, their members will comply.
About 500 investigations into alleged misconduct are now awaiting officer interviews, according to the CCRB. Generally, any disciplinary action would have to be imposed within 18 months of the incident, though the state has paused that clock because of the pandemic and in particularly serious cases, investigations can be extended.
Last month, ProPublica published thousands of arising from civilian complaints. ProPublica obtained the records after New York state repealed the law that for decades made personnel records for police officers, firefighters and correction officers confidential. Unions have to stop the release of most of the records, arguing that releasing unsubstantiated complaints, like those published by ProPublica, unfairly harms reputations because the investigations were inconclusive.
Yet, hindered by the NYPD’s recalcitrance, the CCRB is only able to substantiate a small fraction of the cases it receives. In 2018, it looked into about 3,000 allegations of misuse of force and was able to substantiate 73.
The CCRB does have subpoena power and could sue the NYPD. But current and former CCRB officials told ProPublica they couldn’t recall a time it’s done so. The agency is effectively under the control of the mayor, who historically has chosen the CCRB’s leaders.
“If the mayor isn’t going to back it, it’s a completely meaningless entity,” said Richard Emery, who was appointed by Mayor Bill de Blasio in 2014 to chair the agency and served in that role until 2016.
Emery said the CCRB needs to stop being “timid.” But “it’s really the mayor stifling the agency from doing their job.”
Another former top CCRB official had a similar take.
“I blame the mayor for all of it. This is his police department. They report to him,” said Florence Finkle, who most recently served on Seattle’s federally appointed police monitoring team. “The City Council should be outraged and people should be marching in the streets.”
The mayor’s office did not address ProPublica’s questions about the NYPD’s lack of cooperation with investigators and de Blasio’s responsibility.
“At his core, the Mayor believes in transparency and reform, as his record clearly shows,” Press Secretary Bill Neidhardt said in a statement. “The Mayor’s goal is to strengthen the bond between police and neighborhoods, and that starts with cooperation and a drive for reform.”
The CCRB itself declined requests for comment for this article. ProPublica’s account is based on interviews with more than a dozen current and former agency staffers, as well as public and internal records.
But the CCRB’s finding isn’t binding. Before any discipline can be imposed, an NYPD judge will hold an internal trial and then the police commissioner will make a final ruling. CCRB prosecutors will have a chance to make their case. But without the footage from the other body cameras, they won’t have what could be the most vital evidence in the case: video of the confrontation.
In response, the city created the Civilian Complaint Review Board. It was a committee of high-ranking police officials.
Police unions have fought ever since to limit the CCRB’s authority and independence. When Mayor John Lindsay moved to put a few civilians on the board in the mid-1960s, police unions organized a ballot measure that rolled back the change. “I’m sick and tired of giving in to minority groups with their whims and their gripes and shouting,” the head of one of the unions said.
Nearly 30 years later, David Dinkins, the city’s first Black mayor, sought to move the CCRB out from under the NYPD. The proposed change stirred union leaders to gather outside City Hall. Officers, mostly white, stormed through barricades and blocked traffic on the Brooklyn Bridge.
“They drained cans of beer and pushed and screamed and shook their fists in the air and shoved people and kicked them and threatened them,” wrote Newsday columnist Jimmy Breslin. “Some waved toilet plungers and others held up a sign saying, ‘Dump the Washroom Attendant.’ This meant the mayor.”
The lawless spectacle generated its own outrage and, in 1993, Dinkins’ changes were enacted, among them granting the CCRB subpoena power.
But the hurdles are clear too. Both agencies are represented by the same lawyers: the city’s Law Department. And it’s been the mayor who’s chosen many members of the CCRB’s board, including the chair. (After a city referendum last year changed the setup, the mayor and City Council jointly reappointed the current chair, the Rev. Fred Davie. Davie, who has at times the NYPD’s lack of cooperation, did not respond to requests for comment for this story.)
“The CCRB would need to get permission from the Law Department before they could even serve a subpoena on the police department,” said a current staffer. “It would be a huge deal.” (The staffer declined to be named since they did not have the CCRB’s permission to speak to a reporter.)
Even years ago, getting records from the NYPD “was a constant struggle,” said Finkle, who was the board’s executive director in the mid-2000s. Finkle contrasted the setup with her time later at the city’s Department of Correction, where she oversaw internal investigations. “We had instant access to video and records. You could access it all from your desk. Every investigator. It makes a huge difference.” (Finkle from the Department of Correction after a federal investigation found the oversight there also to be lacking.)
Police obstruction has long been an issue for civilian oversight boards across the country. San Francisco’s Department of Police Accountability recently accessing documents and requested direct access.
But in some cities, civilian oversight agencies face less resistance. In Atlanta, the Citizen Review Board does not have direct access, but it seems to have no problem getting what it requests. “We haven’t had any issues receiving information for our requests, so that’s been beautiful,” Executive Director Samuel Lee Reid II said.
The NYPD’s cooperation has ebbed and flowed over the years. By many accounts, the police’s cooperation with the agency reached a high point under Emery, the former CCRB chair, who was friendly with then-Commissioner William Bratton.
But Emery, who police unions during his tenure, resigned two years later after two staffers filed a lawsuit accusing him of sexist remarks. (They the suit, which Emery called frivolous, after he resigned.) De Blasio also faced from the unions early in his tenure, for what they asserted was a lack of support for the police.
The unions have long fought against what they say is the CCRB’s unfair treatment of officers. The Police Benevolent Association, for example, has that complainants should face potential perjury charges if they were found to be lying. The union has said that civilians’ testimony should be held to the same standard as officers. Civilians are required to swear to the accuracy of their testimony, just not explicitly under penalty of perjury.
Then about two years ago, CCRB investigators started to notice that documents they had been getting stopped being shared or were now being given with wide swaths blacked out.
In one case, a 15-year-old recounted walking home from a birthday party when plainclothes police responding to a fight started chasing him. An officer driving his car hit the boy, who is Black, and then officers tackled the teenager, punching and kicking him before handcuffing him and bringing him to the station.
As the CCRB was investigating, the NYPD gave the agency a record that would have listed other people also arrested that night and brought to the station house. Investigators have often used such lists to identify potential witnesses. But the police blacked out the civilians’ names and other details.
The NYPD later told the CCRB that an officer did document the stop of the 15-year-old. But the record, which would have included the officer’s name, was gone: The precinct had erased it.
The police told the CCRB the precinct had “voided” the report, an explanation that has left CCRB officials puzzled. “You can void an arrest,” said Andrew Case, another former agency investigator. “But I don’t understand how you can ‘void’ a stop report. The whole point is to record that the stop happened.”
An NYPD spokesperson did not address questions about the incident.
The investigation into the boy’s allegations ended inconclusively. The CCRB didn’t have the ability to find out a basic fact: which officers were involved. An agency report described the case as closed because “officer(s) unidentified.”
The NYPD hadn’t announced any change in policy. Investigators just started comparing notes and realized it wasn’t isolated cases. That’s when a CCRB staffer put together a memo listing the documents the department was blocking. “When the NYPD redacts or withholds the following documents,” the memo written in 2018 noted, “they do not provide a rationale.”
In another memo, written in July 2019 and to the CCRB’s website, the agency said the NYPD had started refusing to provide certain holding cell logs in 2018 that the oversight agency described as “invaluable” for identifying civilian and officer witnesses to misconduct.
The NYPD has made it particularly difficult for the CCRB to investigate the most serious cases, where a civilian has died or been seriously injured. The police do their own investigations on those cases, and while they do, the NYPD does not give the CCRB records or, usually, allow officers to be interviewed.
“We know people’s memory degrades over time,” another CCRB staffer said. “So the more the NYPD delays, the more compromised our investigations become.”
The NYPD also declined to answer questions about this aspect of police oversight.
Finkle, the former CCRB executive director, said the NYPD did the same thing when she ran the agency more than a decade ago. “It was problematic then too,” Finkle said. “It prevented the CCRB from being able to conduct effective investigations into the most serious, high-profile cases.”
Some of the NYPD’s internal investigations lead to criminal charges, usually in an indictment by a grand jury. But most don’t. “I understand deferring to prosecutors when they’re running a grand jury,” Scheindlin, the former judge, said. “It’s quite wrong to use it as an excuse not to have an independent civilian authority do its work.”
While the NYPD has declined to discuss the reason for its increasing lack of cooperation with the CCRB, it began around the time the NYPD’s legal department expanded and a new unit was created: the Risk Management Bureau.
Rather than publicly call attention to the NYPD blocking release, the current executive director of the CCRB, Jonathan Darche, convened meetings with the Police Department, including the Risk Management Bureau, and the city’s Law Department.
“The NYPD would say, ‘Oh, that’s what you want, we’ll work on that,’” said a person familiar with the discussions. “We kept going to meetings and nothing changed.” Darche declined to comment for this story.
The report notes “the NYPD’s failure to provide, or providing only in a redacted form, certain documents previously available to the CCRB.” The mention comes at the end of a long paragraph on Page 8.
As the NYPD increasingly withheld records starting around 2018, the department was equipping many officers with body-worn cameras, as Scheindlin had required five years earlier when she ruled that the NYPD’s stop-and-frisk policy was unconstitutional and racially biased.
The cameras have made a difference. When the agency investigates a use of force complaint and there’s no body-worn camera footage available, the CCRB , the agency substantiates just 14% of the allegations. When the CCRB does get footage from body-worn cameras, it substantiates 40% of allegations.
The percentage of use of force cases that the CCRB finds are unfounded also climbs, from 11% of allegations without body cam video to 14% of allegations with it.
But while Scheindlin mandated the use of the cameras, control of the footage was left in the hands of the city and the NYPD.
Statistics compiled by the CCRB through part of last year show the results: The NYPD has increasingly told the agency it’s found no relevant footage. This happens in about half of all cases. When the NYPD does share video, it takes longer to do so and, increasingly, redacts it. By the second quarter of last year — the latest period for which the agency has calculated figures — the NYPD was blacking out portions of footage from about two-thirds of the videos it shares.
The NYPD declined to answer questions about its cooperation with the CCRB on sharing body-worn camera footage.
The two agencies signed a deal last fall that would give civilian investigators improved access — but with a number of limitations. According to the , CCRB investigators would be able to go into a NYPD office and watch full videos. But they wouldn’t be allowed to copy any footage, nor could they use anything they see to start a new investigation. And they also agreed that during the most serious investigations, the NYPD could withhold footage from the CCRB. The arrangement has been indefinitely delayed because of the pandemic.
In New York, investigators have no way to know whether the police are sending them all the relevant footage. Indeed, the NYPD has frequently told the CCRB that footage doesn’t exist, only for the agency to when the video is cited in the news or elsewhere.
The July 2019 CCRB counted 18 instances where the CCRB learned of footage despite having been told none existed, but it noted it was “impossible to know” the real figure. The same memo concluded that the Police Department’s current practices were “inhibiting the CCRB’s ability to adequately provide civilian oversight.”
“We asked for video of the arrest of a person during the protests,” one of the CCRB staffers said. “They sent us back a video the arrest. We were like: ‘That’s awesome. Can you please send us the video of the arrest?’ And then they sent us video the arrest. And we were like, ‘We still want footage the arrest.’ And now we’re waiting for that.”
“It’s funny if it wasn’t tragic,” the staffer said. “The things that stop accountability are often tiny little things like that.”
Scheindlin is also frustrated about how her order for the NYPD to adopt body cams has played out. “I didn’t think progress was going to be this slow,” she said. “It was slower to get cameras. And now it’s slower to get CCRB access to the cameras.”
She pointed her finger at the mayor. “De Blasio was supposed to be a reformer. I think he’s totally caved to the unions.”
As huge crowds protested across New York City after George Floyd’s killing, the mayor and others moved to respond. De Blasio announced a series of reforms: The NYPD would quickly investigate — within two weeks — any police incident in which a civilian suffered “serious bodily harm.” He also said the NYPD would also publicly release “” from such incidents within a month.
“New Yorkers are speaking up, and their city is listening,” de Blasio said. These historic reforms will make the disciplinary process faster, fairer and more transparent.”
Days later, police arrived at the Queens apartment of a man named George Zapantis. The 29-year-old and a neighbor had been arguing about a bright floodlight in the backyard. Zapantis, according to family, had mental health issues and wanted the light on because he was afraid of another neighbor who had been harassing him.
Police showed up a few minutes later, responding to a call from a passerby who had heard the argument and thought someone mentioned a gun. Neighbors told police about Zapantis’ mental health issues and suggested that the officers wait to approach until his mother came home.
“They were very arrogant,” Shaniqua Noble told ProPublica. “They heard me say it. They didn’t act accordingly.”
The police approached Zapantis’ door, where he appeared agitated and told them he would call the police, despite officers telling him they were from the NYPD. “We’re not going to hurt you, man,” one officer said, according to body-worn camera of the incident that the NYPD released last week.
While the footage shows Zapantis initially had a sword on his waist, he later put the weapon down and spun around to show officers he was unarmed. But then he quickly grew upset and began punching through his door. That’s when officers first used a Taser on him.
As officers struggled to handcuff Zapantis, they used a Taser at least six times. Zapantis started screaming, “I can’t breath!” and “Help me!”
Then he became silent. By the time he was handcuffed, officers were checking his pulse and asking, “You OK?” Zapantis was pronounced dead about an hour later.
In a statement after the incident, an NYPD spokesperson said Zapantis was “holding a samurai sword and refusing to comply with the officers’ directives and orders.” (The NYPD did not address ProPublica’s questions about the case.)
On July 13, Zapantis’ family filed a complaint against the officers with the CCRB. But the agency has been largely blocked from looking into the case. The NYPD is doing its own investigation, along with the state attorney general, so the NYPD hasn’t shared key records nor has the CCRB been able to interview officers. It’s now been eight weeks since Zapantis died.
At the beginning of the presenting footage from the incident, a police spokesman gave a preamble. He warned not to expect the internal investigation to wrap up anytime soon: “Sometimes these investigations may require a year or longer to complete.”