When the City Council picked the afternoon of Jan. 29 to unveil what its press release called "Legislative Plans to Redefine Public Safety and Strengthen Police Accountability," the suspicion was that it had chosen a Friday—the slowest news day of the week—in the hope that its proposed reforms would be little noted nor long remembered.
Seven months had passed since its last attempts to, depending on your point of view, either improve the NYPD or punish it. A purported $1-billion cut in the department's budget had been orchestrated in tandem with Mayor de Blasio, accompanied by an apology from Council Speaker Corey Johnson for not slicing more. His mea culpa seemed particularly odd because he had been the victim of harassment by the Defund the Police forces that included the vandalizing of the building in which his boyfriend lived, and Council Majority Leader Laurie Cumbo had also expressed anger at the intimidation tactics aimed at her and other colleagues.
It was enough to make you wonder whether the police unions misjudged the situation by merely issuing angry denunciations after the cuts were imposed rather than making their own late-night threatening phone calls to Council Members. Matters got worse a couple of weeks later with the July 15 signing by Mayor de Blasio of a Council bill allowing cops to be criminally charged if, in arresting someone who was resisting, they compressed that person's diaphragm to get them under control so handcuffs could be applied.
The release of the Council reform plan, more than a week before it would begin the first of several hearings this month on various components, included a shot at the Mayor, saying that while Governor Cuomo last June required the city to adopt a police-reform plan by this April 1, there had been "months of delays from the de Blasio administration" in putting something together.
Going Back to CCRB's Roots
The Mayor had in fact offered something of a plan the previous day, revealing his intention to have police precinct councils play a role in choosing precinct commanders and announcing during his State of the City address a plan to revamp the CCRB. That initiative, Mr. de Blasio said, would be named "The David Dinkins Plan," honoring the recently deceased Mayor because "he made the CCRB a reality."
While Mr. Dinkins was responsible for the 1992 bill creating an all-civilian police review board, Mr. de Blasio, who was an aide to Deputy Mayor Bill Lynch at the time, was giving him too much credit. That measure as written was not expected to pass the City Council until a rally against it by Police Officers turned into a beer-fueled mini-riot in which dozens of them tried to force their way into City Hall while others jumped on the roofs of cars in the City Hall parking lot, one of which belonged to Council Speaker Peter Vallone Sr.
The impact that police uprising had on sentiment within the Council being transformed over the course of the day "had something to do with" the bill's speedy approval, Mr. Vallone said in a Feb. 3 phone interview. But he contended that points made by the late Archie Spigner, who at the time was the Council's Deputy Majority Leader, influenced him more than the damage his car sustained at the feet of the overserved officers.
Asked about the current Council's proposed changes, particularly those that would give the CCRB more power, generally at the expense of the Police Commissioner, Mr. Vallone said, "I just hope and pray that they understand that the police are not bad guys. There are some that are bad guys, but the great majority are good people who are trying to do the right thing."
The legislation that is likely to draw the strongest objection from the NYPD would ask the state to approve a weakening of the Police Commissioner's role as the final authority on discipline by shifting that power to the CCRB in cases involving use of force, abuse of authority, discourtesy and offensive language.
Majority Leader Cumbo, who is co-sponsoring that bill with fellow Brooklyn Council Member Stephen Levin, in a statement called it one of several "aggressive steps to ensure that New Yorkers have confidence in our ability to provide real accountability within the Police Department."
Reducing the commissioner's disciplinary powers—and not incidentally, doing it in the cases that are most likely to be controversial—is a drastic solution that could prove counterproductive. In that respect, it bears a striking resemblance to the diaphragm-compression bill passed by the Council and foolishly signed into law by the Mayor last summer at a time when gun-violence was skyrocketing, with shootings increasing by 97 percent last year and homicides by more than 40 percent.
It is also consistent with other measures shifting responsibilities now handled by the NYPD to agencies including the Department of Education, the Department of Health and Mental Hygiene and the Department of Transportation.
Over the past four decades, the power flowed in the opposite direction, as the training and supervision of School Safety Agents and Parking and Traffic Enforcement Agents and responsibility for dealing with mentally ill individuals was absorbed by the NYPD.
There were reasons that these changes made sense at the time. The old Board of Education did a terrible job on school safety, and the program was marred by both patronage hirings and a shoddy personnel process that led to people with criminal records, including the occasional child molester, being hired. School Safety Agents, who are scheduled to come under DOE's control in September, would, if the legislation was enacted, no longer be authorized to make arrests, or carry weapons or mechanical restraints. They would also not wear law-enforcement uniforms, and would be retrained to focus on restorative justice, youth development and de-escalation.
Based on Need, Not Race
Those moves are predicated on the assumption that having the agents play a school-security role heightens tensions and makes students uncomfortable, particularly children of color. But the assignment of safety agents is based on the level of violence in schools, rather than race—and a large majority of the safety agents are women of color.
A separate bill would regulate the NYPD's response to children in emotional crisis within the school system. Unaccounted for in the two bills is that one reason students reach their breaking points is because they have been targeted for bullying by their peers.
Two of the more-horrifying incidents that span the Dinkins and de Blasio administrations were the murder of two students at Thomas Jefferson High School in 1992—about an hour before Mr. Dinkins was scheduled to visit to speak to students about bettering themselves—by a student who said they'd been bullying him for months, and the 2017 incident at Urban Assembly School for Wildlife Conservation in The Bronx in which a teenager stabbed to death a classmate and wounded another one, claiming they were just the latest students to bully him because he was gay. The school did not have metal detectors, even though a survey a few months earlier found that a majority of Teachers did not feel safe inside the building.
When the Department of Transportation oversaw those enforcing city parking and traffic regulations, employees were often assaulted by irate motorists. The Council's attempt last spring to remove those employees from NYPD jurisdiction drew such an outcry that it placed a former lawyer for the union that represents many of them, Arthur Schwartz, in the paradoxical position of arguing to keep them where they were at the same time that he was among the Defund the Police advocates.
Another bill—co-sponsored by eight Council Members including Mr. Johnson and Ms. Cumbo, would sharply reduce cops' role in dealing with mental-health emergencies by creating an Office of Community Mental Health within the Health Department. Council Member Diana Ayala said in a statement, "Mental-health advocates, providers, and New Yorkers that have been touched by mental illness have long called for shifting the responsibility for responding to mental-health crises from the police to mental-health professionals."
Not Many 24-7 Agencies
The obvious question is, given that clamor, why wasn't this responsibility shifted away from the NYPD a long time ago? Its Emergency Services Unit, which has officers with training in dealing with emotionally disturbed persons, gets stretched thin by having to handle other kinds of high-stress situations as well, and most patrol officers who don't have special training wouldn't mind giving up responsibility for handling EDP situations.
One answer may be similar to the explanation for a wrenching child-abuse death in Brooklyn a few years ago. Just a couple of months after another awful child-abuse death, when an abuse report came in, the Administration for Children's Services had a skeleton crew working that weekend, hindering its response. Agencies like ACS and the Health Department are largely Monday-through-Friday operations, which means employees working on weekends are often inexperienced staffers without the seniority to get more-desirable shifts.
The NYPD as a paramilitary organization can more readily deploy personnel when needed, and while cops find their authority being challenged more frequently these days in some parts of the city, they are more likely to have their orders heeded than civilian employees. In that sense, the explanation for why an early Clint Eastwood character was known as Dirty Harry still applies to them: they wind up handling the messy jobs no one else wants.
And complaints that abuses have gotten worse over the years are not borne out by the numbers. It's not clear how much a drop in complaints to the CCRB is attributable to the sharp decline in stop-and-frisks that began under a public outcry that began in 2012 and climaxed with U.S. District Judge Shira Scheindlin's ruling the following year that the NYPD's overuse of the tactic had violated the U.S. Constitution and was racially biased.
But from a peak of 7,663 civilian complaints in 2006, the numbers steadily declined over the next decade. Even after a brief spike between 2016 and 2019, the number last year—3,875—was just slightly more than half the total 15 years ago. And last year's number came at a time when it might have been expected that the complaints would soar, given the tensions between police and protesters at the numerous rallies that followed the killing of George Floyd by a Minneapolis cop last Memorial Day.
Another positive sign was reported by the special monitor, former City Corporation Counsel Peter Zimroth, who had been appointed to ensure that the NYPD complied with the remedies prescribed in the wake of the finding that the department had violated the Constitution with stop-and-frisk for most of Mayor Michael Bloomberg's 12 years in office.
Discussing the success of body-worn cameras under a contract agreement with the Police Benevolent Association that awarded extra compensation to officers for taking part in the program, Mr. Zimroth wrote, "The placement of BWCs on NYPD officers seemed to improve the civility of police-citizen encounters as evidenced by a 21% reduction in citizen complaints against BWC treatment officers relative to control officers."
And, he added, for officers in both groups, "citizen complaints of poor police behavior during encounters are fortunately rare events."
One Council bill that is sure to be fiercely contested by the police unions would end what is known as qualified immunity for police officers, a national standard that shields cops and other public officials from civil liability in instances where they violated someone's rights if it's determined that they had acted in good faith and believed that they had been following the law.
What started out as a measure meant to balance the scales has been stretched so far because of Supreme Court rulings since the early 1980s that even conservative Justices like the late Antonin Scalia have called for it to be reformed.
One of the more-egregious abuses was exposed last summer by a Federal Judge in Mississippi, Carlton Reeves, when he reluctantly had to dismiss most of a lawsuit brought by a man who had been improperly detained by a cop for nearly two hours.
The case involved a 2013 incident in which Clarence Jamison was pulled over on Interstate 20 by Police Officer Nick McClendon of the Richmond P.D. on suspicion of driving a late-model luxury car while black. Although Mr. Jamison quickly produced the bill of sale, Judge Reeves wrote in a 72-page decision, he was "subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs."
Once Officer McClendon was done, the U.S. District Judge wrote, he brought out his canine partner "to sniff the car. The dog found nothing."
When Mr. Jamison asked why the cop wanted to search the car, he was told that he had gotten a phone tip that there were 10 kilos of cocaine inside it. He wound up suing Officer McClendon and the city of Pelahatchie, Miss. claiming that his 4th Amendment protection against illegal searches and his 14th Amendment right not to be singled out based on race had been violated. In dismissing those portions of the suit based on qualified immunity, Judge Reeves wrote that over the previous 38 years, several Supreme Court rulings "dispensed with any pretense of balancing competing values."
He noted that the legal concept had been used to shield from civil liability a cop who shot a child while aiming at the family dog, correction officers who forced an inmate to sleep in feces-covered cells for several days, police officers who stole more than $225,000 in property, and a deputy who body-slammed a woman after she simply "ignored his command and walked away."
Originally enacted to protect officers who acted in good faith, Judge Reeves wrote, qualified immunity "now protects all officers no matter how egregious their conduct, if the law they broke was not 'clearly established.' That stipulation, he noted, was not contained in the Constitution; it popped up in a 1982 Supreme Court decision and had been used to defend the indefensible ever since.
Like 'Separate But Equal'
He concluded, "Just as the Supreme Court swept away the mistaken doctrine of 'separate but equal,' so too should it eliminate the doctrine of qualified immunity."
Norman Siegel, the former head of the New York Civil Liberties Union, said of the Council measure to abolish qualified immunity as a defense, which is also sponsored by Mr. Levin, "I'm pleased that they're proposing that legislation and that the Council is becoming more active in challenging" laws that give police too much power.
He said of the scheduled Feb. 16 hearing at which that bill and several other Council reform measures would be taken up, "If they're inviting me, I will try to speak; if they're not, I will try to find out a way to speak anyway."
If that bill became law, more than likely it would be challenged by the unions and could wind up in the Supreme Court for the kind of reconsideration Judge Reeves urged six months ago.
That's a fight worth waging for the Council. Too many of its other proposed changes that seem to have been devised more to take another bite out of the NYPD as Council Members including Mr. Johnson and Ms. Cumbo prepare to move on at the end of the year, though, are likely to do more harm than good.
Mr. Vallone expressed hope that on some of them, a middle ground could be reached that would address problems without weakening the Police Department.
"I always think," said the 86-year-old former Speaker, "there's room for sensible compromise as long as you don't let radicals take over."
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