park protest

SOMETHING IN THE AIR: The mood for police reforms has become so strong among young people, veteran civil-liberties attorney Norman Siegel said, that 'I've never seen the kind of peaceful protests—across racial and ethnic lines—of such duration.' He said even old-school Police Commissioners in the mold of Ray Kelly would have to go along 'or the change is going to happen without their input.' Above, protesters outside City Hall Park June 26.

Mayor de Blasio and the City Council figured out how to trim $1 billion from the Police Department's budget, and it wasn't enough to satisfy the 500 people who had claimed the mantle of Occupy City Hall. 
 
They apparently are sophisticated enough to discern that shifting responsibilities away from the Police Department to save money is not the same as actually reducing the size of the police and school-security forces, yet lack the common sense to realize that at a time when shootings citywide are up 50 percent and murders continue to rise, getting their wish when a large police class was canceled at the same time that officers are retiring at an unusually high rate may not be a good thing.
 
It is not just young people who can be driven by emotion that overwhelms practical obstacles and past history. Norman Siegel, the former executive director of the New York Civil Liberties Union, June 29 recalled suggesting to then-Police Commissioner Bill Bratton a few years ago that to keep police officers from becoming alienated from their jobs and the communities they served, they should be given sabbaticals—like Teachers—perhaps every seven years, and paid a good portion of their salaries if they agreed to spend the time doing community-service work. 
 
This would allow the cops to recharge their batteries while also giving them a different perspective on the type of people they encountered on patrol in more-adversarial contexts, he explained.
 
'Too Expensive' or Outside Comfort Zone? 
 
As he recalled it, "Bratton said, 'No, we can't do it, it's too expensive,'" referring to the cost of having to replace them during their year off with additional hirings or overtime.
 
"Instead," Mr. Siegel said, "we spend $230 million every year on lawsuits for false arrest and excessive force." 
 
Now a private attorney, he is unique in today's landscape in that he doesn't let his bedrock principles be subverted by ideological leanings. 
 
Long a critic of police brutality, he was quick to castigate Mayor de Blasio four years ago for quickly passing judgment on an NYPD Sergeant who shot to death a schizophrenic woman when she lunged at him with a baseball bat in her Bronx apartment. 
 
He recalled an encounter with Mr. de Blasio towards the end of the 2013 mayoral campaign, after a Federal Judge had ruled the NYPD's use of stop-and-frisk violated the Constitution. The then-Public Advocate's criticism of the program had catapulted him from the middle of the Democratic pack to the verge of being elected, but Mr. Siegel said he felt compelled to remind Mr. de Blasio that there was nothing inherently wrong with stop-and-frisk; where the NYPD had gone astray was in how it implemented it. He said the candidate nodded and told him they ought to talk more once the election was over. That phone call never came.
 
In the same vein, Mr. Siegel said, Police Commissioners "need to know what their role is in applying neutral principles" and not prejudging controversial incidents, particularly to the detriment of police officers who might face criminal or departmental charges once the facts were sorted out. He cited one recent case in Atlanta where the Mayor fired two officers involved in an incident in which two college students were tased and then forcibly pulled from their car after leaving a demonstration. A video of the incident went viral and looked ugly, but the officers have sued on the grounds that they were discharged without due process.
 
Rather than condemning an officer's action at the outset, Mr. Siegel said, it was more appropriate to say, "We've seen the video, we're very troubled by it, but we have to give the guy due process."
 
And, he said, while the unions sometimes come on too strong regarding changes that will affect their members, "I would say you would have to sit down with police-union leaders and talk to them in the hope that they would be less negative about the changes you're putting in."  
 
Shift in the Climate
 
The union protests about the department being singled out for sharp budget reductions probably were spurred mainly by their believing it fed the public sentiment that cops had become a problem, rather than remaining, warts and all, a bulwark against the lawlessness that has increased in part because bail reform is keeping people out of the jail system who belong there.  
 
One irony is that the budgetary provision to cut police overtime is likely to fall by the wayside—as similar moves have in the past, though for different reasons—because of the need to continue to extend cops' shifts, while paying time-and-a-half, to monitor protests that are aimed against them. 
 
It is also ironic, though, that the police-reform measures signed into law by Governor Cuomo June 12 were made necessary by past actions by Police Commissioners, political allies of the cops and their unions, and the cops themselves.  
 
In 1992, when a bill to create an all-civilian Civilian Complaint Review Board was introduced in the City Council, it wasn't expected to go anywhere.
 
"We had maybe 15 votes," Mr. Siegel said. Since the Council the previous fall had been expanded from 35 to 51 seats, this qualified as dead in the water.
 
Mini-Riot Turned Tide
 
Except that what was then the Patrolmen's Benevolent Association scheduled a protest against the bill at City Hall, and a couple of hundred members used it as an excuse to get drunk and disorderly and then try to storm the doors at City Hall to deliver an angry message to Mayor David Dinkins, who didn't happen to be in the building. Some of them decided to add to their miscalculations by jumping on cars parked in the City Hall lot, including one belonging to Council Speaker Peter Vallone, then giving the vehicles a good stomping.
 
By the time Mr. Siegel arrived at City Hall for the hearing early that afternoon, he recalled, a reporter informed him, "You've got a majority now."  Mr. Vallone, traditionally a strong supporter of the police, had his limits, and the rowdy boys exceeded them, putting the bill on a fast track to passage.
 
"Sometimes you win for the right reasons; sometimes you get lucky," Mr. Siegel mused.
 
The Police Commissioner, Ray Kelly, already embarrassed by the out-of-control behavior of too many of his troops, now had to live with a CCRB that threatened his full control over NYPD discipline. It hadn't really gotten much traction by the time he left the job at the end of 1993 after the new Mayor, Rudy Giuliani, opted to replace him with Mr. Bratton, who had been Chief of the Transit Police. But when Mr. Kelly returned to Police Plaza in 2002 as Mayor Michael Bloomberg's Commissioner, it soon became clear his disdain for the CCRB hadn't softened over time.
 
The NYPD's standard response to legislation that would upgrade the board's authority and staffing was that its investigations were inadequate and unreliable. The board would respond that it was understaffed and underfunded. There was also the suspicion that the underfunding was being influenced by Mr. Kelly's influence with Mr. Bloomberg. 
 
Got Right to Try Cases
 
For the first decade of the Commissioner's second tenure, the CCRB was forced to use NYPD lawyers in prosecuting disciplinary cases after substantiating a claim, which Mr. Siegel said was a built-in conflict of interest in the department's favor. It was not until April 2012 that a settlement was reached in a lawsuit brought by the board that allowed it to have its own lawyers try cases.
 
Perhaps coincidentally, that was shortly after Mr. Kelly issued his directive to cops advising them to focus on "quality" stop-and-frisks rather than quantity that triggered a steady decline in their use for a full 16 months before U.S. District Judge Shira Scheindlin ruled the NYPD had long been carrying them out in an illegal fashion.
 
A question loomed as to why the city hadn't altered its legal strategy as stops began to plummet and, rather than leading to the explosion of mayhem Mr. Bloomberg was warning against, that reduction was accompanied by a significant drop in crime. The logical move would have seemed to be to argue that city officials knew they had gone too far and had already taken corrective action, and so it was time to reach a settlement rather than suffer a stinging defeat in court. 
 
But by that point, Mr. Kelly had become an Imperial Police Commissioner, and his boss wasn't known for admitting error or defeat, either, so they stuck to their script. In the process, they contributed to the political climate that made Mr. de Blasio so attractive to Democratic voters as the candidate most vehemently opposed to stop-and-frisk.
 
The Police Commissioner had already displayed his willingness to act as a law unto himself a year earlier in doling out discipline to the two cops who were the central figures in the killing of Sean Bell outside a notorious Queens club in 2006. He allowed Michael Oliver, who shot 31 times into the car where Mr. Bell and his two equally unarmed friends sat, to retire, but both fired Gescard Isnora, who had fired the first shot, and stripped him of his pension.
 
Detective Isnora's claim that he had confronted the three men in what turned out to be a mistaken belief they were about to engage in a drive-by shooting had been supported by testimony from the man who was supposed to be their target about a verbal dispute that had led Mr. Bell and one of his companions to make a threat about going to get a gun. The Detective did not fire at the three men in the car until Mr. Bell drove it into him with enough force that an imprint of his jeans was found on the car's front bumper.
 
A Mystifying Move
 
And so it was mystifying that Commissioner Kelly had taken the added step of stripping him of his pension in a case in which he, Mr. Oliver and a third officer had been acquitted by a Queens Supreme Court Justice in 2008. There was speculation that it was because Detective Isnora, working undercover inside the club to probe reports of drug-dealing and prostitution, had gone over the two-drink limit for undercovers. But given that he was at the bar for seven hours, trying to get away with nursing just two drinks would have made other bar patrons suspicious of him and probably prompted harsh words from the bartender.
 
Mr. Kelly never explained why he landed so hard on Mr. Isnora;  one veteran police-union official attributed it to the Commissioner having stayed in the job long enough to believe he could do whatever he wanted.
 
That helps explain why Mr. Siegel has long pressed for Commissioners who overrule the CCRB to have to explain their decisions in writing. That step was not taken in a series of changes concerning the board that were approved by voters last November, or in the reforms passed by legislators a month ago and then signed into law by Governor Cuomo June 12.
 
But he did enact a bill that permits the CCRB to prosecute excessive-force cases against cops without a complaining witness, as long as there is a videotape of the incident that would support charges being brought. Signing it was an acknowledgement by the Governor that the public had grown intolerant of police brutality. Mr. Siegel said that there wasn't "any political leader today who I have utmost confidence in," but that "Cuomo gets it more than most."
 
The damage done by Mr. Kelly's resentment of the CCRB's incursion on his disciplinary prerogatives was most fully exposed after he'd left the job, with the chokehold applied by Police Officer Daniel Pantaleo on July 17, 2014 that was a contributing factor in Eric Garner's death after he resisted arrest for selling loose cigarettes on a Staten Island street.
 
Banned in Name Only
 
The NYPD banned chokeholds in 1993, Mr. Kelly's last year as Commissioner for the Dinkins administration. But a New York Times study of eight cases from 2009 through 2013—his final five years working for Mr. Bloomberg—in which the CCRB substantiated the finding that a cop used a chokehold showed only one in which the officer was penalized—and just with the loss of a few vacation days. 
 
If Mr. Kelly had treated the ban more seriously, would Officer Pantaleo have tried another maneuver after his initial attempt to use a seatbelt hold was thwarted by the sheer girth of Mr. Garner?
 
Mr. Bratton, who earlier that year had succeeded Mr. Kelly for the second time, had the dubious distinction of being Commissioner for two deaths of unarmed men in which a cop's chokehold was a key factor: the first victim, in December 1994, was Anthony Baez, whose football inadvertently striking a patrol car was responded to with deadly force by a cop with a violent history, Frank Livoti.
 
But Mr. Bratton, like Mr. Kelly, had become something of an icon for the way crime was reduced on his watch. And he, too, was a lawman who didn't like sharing disciplinary power with an outside body.
 
In May 2019, The Times reported that for the 40-month period that began in 2015—less than six months after Mr. Garner's death—the CCRB substantiated chokeholds in 40 cases, but only 10 of them led to discipline, with no firings. The action taken against the 10 officers was usually either remedial training or lost vacation days. The first 22 months of that period came with Mr. Bratton still in the job, with the rest during the tenure of his hand-picked successor, James O'Neill.
 
A Vote of No-Confidence
 
And so the Governor's decision to sign into law a bill making chokeholds used by cops a crime unless there were exigent circumstances that would have put the officers' lives in danger if they hadn't deployed them amounted to a simple deduction: the NYPD couldn't be relied upon to enforce its own ban with meaningful penalties.
 
Gene O'Donnell, an ex-cop and former prosecutor who's a Professor of Law and Police Studies at John Jay College, said in a June 30 phone interview, "There's plenty of self-inflicted wounds in the police world, and Kelly and Bratton inflicted some of them. Bloomberg allowed Kelly to do things in an imperial fashion—it was just bended-knee deferral to him."  
 
Another measure enacted by the Governor—requiring that the death of unarmed civilians at the hands of police be investigated by the State Attorney General—placed into law something he had established by executive order after a Staten Island grand jury in December 2014 opted not to indict Officer Pantaleo in connection with Mr. Garner's death.
 
Given that the video of the incident by itself offered probable cause that should have produced criminal charges, questions arose about how hard the Staten Island District Attorney, Dan Donovan, had pushed the case. At the time, it was expected that the local Congressman, Michael Grimm, would shortly resign his post after he was convicted of tax fraud and was awaiting a prison sentence. Once he did at the end of that year, Mr. Donovan ran for and won the vacated seat less than five months later, with strong support from the police unions.
 
Risked Political Backlash
 
Had he gotten an indictment of Mr. Pantaleo, at least some of those endorsements would not have been made. Nor would he have been assured of retaining all his support among voters in by far the most-conservative of the five boroughs.
 
While Attorney General Tish James is no stranger to political considerations, holding statewide office insulates her from the pressures that can be applied to local prosecutors.
 
Mr. Siegel said that even with the added discretion given to the CCRB, "The dream that we had of civilian independent review has been deferred." That will change, he added, only when Police Commissioners are required to state in writing why they didn't follow its disciplinary recommendations. "That should be a requirement to strengthen confidence in the civilian-review process," he said.
 
He acknowledged being concerned about the recent rise in violent crime, but compared the popular sentiment producing reforms in policing in other parts of the country as well as in New York to what he encountered in Alabama in 1969 as basic civil rights were finally being granted to blacks under court settlements in which he had a hand. When Mr. Siegel asked his clients why it was happening then rather than five years earlier, he said they replied that back then, "It wasn't in the air."
 
A New Imperative
 
He continued, "There comes a moment when certain factors come together and people cry for justice and fairness and it clicks. Once it's in the air, it's on its own."
 
Asked whether the era was over in which Police Commissioners like Mr. Kelly and Mr. Bratton could seem larger than life and elected officials—sometimes including their bosses—feared challenging them, he said, "Very often there is that kind of imperial, authoritarian attitude and they know it all."
 
Wouldn't that make it harder for that kind of commissioner to adjust to the changes in the climate around him? I asked.
 
"Now I don't think they have the option not to," Mr. Siegel said. "I think they're going to have to humble themselves and be part of the change, or the change is going to happen without their input."   

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