New York City Voters May Expand Power of Civilian Review Board, Allowing It to Investigate Police Who Lie

“No, I did not.” That’s what former New York City police officer Daniel Pantaleo told the department’s internal affairs bureau when investigators asked if he put Eric Garner, a Black man he and other officers were attempting to arrest in 2014, in a chokehold. “I can’t breathe,” Garner’s last words as officers pinned him to the ground, became a Black Lives Matter rallying cry. But Pantaleo told investigators he placed “no pressure” on Garner’s neck and only tried to prevent him from resisting arrest.

Five years later, Rosemarie Maldonado, the NYPD judge who oversaw Pantaleo’s departmental trial in May, found otherwise, noting in her 46-page opinion that the officer had been “untruthful.” Pantaleo’s denial of using a chokehold—he said that Garner’s “throat area was in the crook of [his] elbow” and not pressed against his forearm—came off as “implausible and self-serving,” Maldonado wrote in the opinion, which recommended Pantaleo’s termination. He was fired soon after.

The departmental trial started with an investigation by the Civilian Complaint Review Board, an independent agency that accepts and investigates complaints against members of the NYPD, ranging from verbal harassment to uses of lethal force. The CCRB, whose 13 members are appointed by the mayor, NYPD, and the City Council, can present these kinds of cases to the NYPD tribunal that handles officer misconduct. But it cannot independently investigate officers found to have lied about their conduct.

A ballot proposal, listed as Question 2 on today’s general election ballot, would change that. If approved, it would grant the board the power to investigate the “truthfulness” of officers’ statements during CCRB investigations and recommend punishment for officers who lie. 

It’s not uncommon for officers to be accused of being inaccurate or misleading. Since 2016, the CCRB has sent at least 61 citations to the NYPD claiming officers gave false official statements, according to a recent Gothamist report, but just five were substantiated by police.

The measure would make other changes as well: It would require the police commissioner to give an explanation if the CCRB or departmental trial judge’s suggested punishment isn’t followed. It would also add two members to the board, sets a minimum budget for agency staff, and allow the board to delegate its subpoena power to its executive director to expedite evidence gathering.  

The measure is drawing flak from two New York City police unions, who have launched public campaigns against Question 2, alleging without evidence that defense attorneys encourage their clients to “file false [and] frivolous CCRB complaints” that stymie criminal cases and keep violent suspects out of jail. 

“Political extremists and cop-haters have been attacking NYC police officers in the streets for years. Now, they’re doing it at the ballot box,” the Police Benevolent Association of the City of New York, the officers’ union, tweeted recently.

Neither the PBA nor the NYPD Lieutenants Benevolent Association responded to The Appeal’s requests for an interview. Police Commissioner James O’Neill, who announced his resignation Monday, declined to comment when publicly asked about the measure last spring.

The CCRB has launched its own campaign to combat misleading claims about the proposal. Rev. Fred Davie, chairperson of the CCRB, told The Appeal in a phone interview that he “cannot encourage people one way or the other on the proposal.” Still, he said, “I think the more steps we can take to increase trust, accountability and transparency in the work that we do as an agency, as a way of enhancing good relations between police and community that leads to better policing, the better.”

The review board ultimately played a key role in Pantaleo’s case. In 2014, a grand jury decided not to criminally indict Pantaleo after Garner’s death. He was placed on modified duty, while the U.S. Department of Justice mulled bringing civil rights charges that never came.

The CCRB was “one of the only reasons the Garner family has been able to find some semblance of justice” five years after Eric Garner’s death, Rev. Al Sharpton, a well-known civil rights leader and adviser to the Garner family, told The Appeal. He supports giving the board more power.

“This ballot measure would help shine a light on the kinds of opaque and arbitrary disciplinary procedures favored by the NYPD that all too often protect bad officers at the expense of Black and Brown families,” Sharpton said. “To me, that’s a long overdue step in the right direction.”

The NYPD, with roughly 36,000 sworn police officers and thousands of civilian department employees, is the world’s largest police force—and it’s no stranger to controversy. In 2018, the review board received 4,745 complaints against the department, an increase from the 4,486 complaints it received the previous year.

The highest percentage of those complaints stemmed from civilians’ interactions with street officers who suspected them of a violation or crime. Victims of the NYPD’s infamous “stop and frisk” tactic won a class action lawsuit against the city and the department in 2013, alleging racially discriminatory enforcement that violated their constitutional rights, and officers were ordered to end the practice. But according to the CCRB’s latest annual report, versions of stop and frisk persist. More than 800 complaints including allegations about “a stop, question, frisk or search of a person” were filed last year.

Although it has existed for more than six decades, the CCRB in New York City didn’t gain its independence from the NYPD and become civilian-led until 1993. In addition to fielding and investigating complaints, a memorandum of understanding with the NYPD allows the CCRB’s administrative prosecution unit to function like a district attorney’s office would in prosecuting substantiated allegations of misconduct against officers, in front of an administrative law judge at police headquarters. The trials are open to the public, as are the judge’s verdicts.

But advocates say the CCRB has been hampered by its inability to require punishment. Though it can recommend sanctions, a police commissioner can opt to depart from them.

For example, an officer was found guilty by a departmental judge of shoving the witness of an arrest three times in his chest and once in his back while the witness was walking away, according to a CCRB report. The CCRB recommended that the officer be forced to give up 10 vacation days, while the trial judge recommended just two vacation days be taken away. The commissioner ultimately reversed the guilty finding. 

Sgt. Jessica McRorie, a spokesperson for the NYPD, said the commissioner provides written explanations to the CCRB when it departs from a suggested penalty. She said the department was working with the “CCRB to increase transparency and accountability” but “has concerns with aspects of this package of amendments.” She did not outline those concerns by publication time.

Oversight boards date back to at least the 1920s, when a nongovernmental committee was established by the Los Angeles Bar Association to record complaints against officers, explained Brian Corr, immediate past president of the National Association for Civilian Oversight of Law Enforcement. There are now roughly 200 police oversight bodies nationwide, he said, including one in nearly every major U.S. city.

But these boards vary in their scope, independence, and efficacy, largely because of significant resistance from police unions and local politicians, he said in an interview.

Civilian oversight boards don’t have to pit law enforcement professionals against members of the community, Corr added. Healthy collaborations between all parties can help identify the sources of trauma and distrust in the community as well as the needs of police officers, whose misconduct can be a result of inadequate resources and training, he said.

Criminal oversight boards are “figuring out if there are systemic issues that lead to police conduct that is lawful, but awful,” Corr said. “They are identifying policies that ought to be changed.”

Today’s ballot proposal came out of a more than yearlong charter revision process, during which several local policing reform advocacy groups proposed a more significant reform: replacing the CCRB with an entirely elected body that has the power to dictate officer discipline and pursue criminal-level misconduct charges through an independent special prosecutor. That proposal, championed by the NYC Campaign for an Elected Civilian Review Board, was not recommended by this year’s Charter Revision Commission.

Regardless of whether voters approve Question 2, some advocates are pushing the City Council to pass legislation establishing an elected civilian review board. A previous version of the legislation would have created a 21-member board elected from corresponding council districts. The campaign hopes to have an updated City Council measure introduced “very soon,” Elias Holtz, a steering committee member of the campaign, told The Appeal.

“The CCRB is discredited in the community because it doesn’t have any power to make binding decisions,” Holtz said. “These proposed changes don’t change the fact that police still police themselves.”