TESTIMONY OF:

Maryanne Kaishian

Senior Policy Counsel

BROOKLYN DEFENDER SERVICES

Presented before the New York City Council

Committee on Oversight and Investigations and

Committee on Public Safety

Oversight Hearing on Racism, Bias and Hate Speech in the NYPD

December 16, 2020

My name is Maryanne Kaishian and I am Senior Policy Counsel with the Criminal Defense Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and people-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy to nearly 30,000 people and their families in Brooklyn every year. Many of the people that we serve live in policed and surveilled communities and are regularly subjected to biased behavior on the part of the NYPD. I want to thank the Committee on Oversight and Investigations as well as the Committee on Public Safety for holding this important discussion on pervasive racism, bias, and hate speech by the Department.

In my time at BDS, I have primarily represented young people who are charged with crimes, ranging from misdemeanors to serious felonies. The young people I serve are mostly Black and brown New Yorkers who have had varying levels of contact with the NYPD. I represent people who carry police-related trauma because of abuse that they and their loved ones have suffered. I represent people who have experienced overt bias by police, including the use of racist, homophobic, and gendered slurs. Many people are victimized by racist police practices such as constant police presence in their majority-Black neighborhoods, surveillance, pretextual car stops, and routine stop-and-frisks.

No one should allow the police to frame this discussion as about the “perception” of bias within the NYPD. These issues are the real lived experiences of people in this City, with concrete, measurable results including racially disparate involvement in the criminal legal system and worse sentencing outcomes for Black and brown New Yorkers. Beyond criminal ramifications such as arrests and incarceration, the people we represent carry long-term psychological and emotional effects from being treated as subhuman by omnipresent police forces in their neighborhoods. This is not a public relations or image issue. Racism, bias, and hate speech are issues present in the NYPD at both institutional and individual levels.

Background

It is impossible to divorce modern American policing from its roots in racist and classist enforcement. The New York City Police Department was formed in 1845 in direct response to workers’ rights demonstrations, an influx of immigrant populations, and demands by elites to crack down on so-called quality-of-life behaviors associated with these communities. These formative directives and punishment paradigms are still present today. Neighborhoods that demonstrate the intersectionality between race and socioeconomic status are subjected to constant police presence and surveillance and are home to community members who are most likely to be abused at the hands of the NYPD.

As defenders, we see the direct results of two salient data-backed trends that are consistent with this bias in enforcement: Black and brown New Yorkers are disproportionately targeted to stops and arrests, and individual officers who engage in racist, biased, or hateful behavior remain on the job.

Policing in New York City is racist in its application.

It is imperative that we recognize racist policing to include instances that do not involve direct statements of racist intent. Many standard functions of policing—such as decisions about where police should be most heavily concentrated—have thinly-veiled racist or otherwise biased explanations and clearly disparate ramifications. This critical understanding allows us to more accurately identify biased policing absent overtly racist or prejudiced speech or conduct, and creates space for the recognition that any officer, regardless of their own identity, can engage in racist or biased policing and may be directed to do so by Department superiors. This is an issue both of the conduct of individual officers and of the NYPD’s function as an enforcer of racial and social hierarchies within the City.

We know based on years of data that police enforcement, as well as stop-and-frisk encounters, disproportionately target Black and Latinx people. Data from the Legal Aid Society from 2019 showed that nearly all people who were stopped and frisked by the NYPD—a practice that persists despite extensive litigation—were people of color, accounting for 90%. While other states were legalizing cannabis, Black people in New York were 15 times more likely to be charged with marijuana-related offenses in Manhattan than whites, despite accounting for about 17% of residents. Where I practice in Brooklyn, a 2019 report showed that 86% of all people charged with crimes in the borough over a six month period were people of color.

Race is also a clear factor in who police decide to kill. Police took the lives of nearly two dozen people in Brooklyn alone in the five years after the NYPD killed Eric Garner on camera in 2014. Police in NYC kill Black people at five times the rate of white people, despite Black people accounting for roughly one in every four residents citywide. A Department of Health report found that the NYPD, consistent with departments throughout the country, significantly underreports the number of civilians killed by police.

Non-lethal but abusive and biased police encounters, which are far more frequent but less publicized, carry immediate and lasting impacts for the people who are targeted. Myriad indignities and humiliations, civil rights violations, and physical abuses are perpetrated daily, overwhelmingly against Black and brown residents of policed communities. In an absolute best-case scenario after a person is arrested and booked, by the time they see a judge they have just endured the trauma of spending 24 hours or more in the sole custody of a police force that has demonstrated animosity and/or deadly tendencies towards people who share one or more of their personal identities.

In these instances, fundamentally biased interactions are present throughout the criminal litigation process. The antagonistic dynamic between police and the people they target is replicated at every step of a person’s case by law enforcement officials, whether NYPD, court officers, or guards. Bias is present in overt aggression, targeting of certain people for courtroom “decorum” or other enforcement, general disrespect of people’s personhood, and hate speech—from arrest through sentencing. This conduct, which defenders witness firsthand, is objectively upsetting and can be specifically triggering for people who have significant trauma associated with policing. Whether people are in their own homes, out in public, or in jail, any attempt at self-advocacy is penalized while the offending officer experiences no professional backlash. These harms should be addressed at the source by reducing the number of people that are targeted for police enforcement in the first place.

Individual officers who receive complaints of bias, racism, and hate speech keep their jobs and are rewarded with promotions.

Individual officers engage in and perpetuate racism, bias, and the use of hate speech with the knowledge that the Department will not hold them accountable. The NYPD Patrol Guide and the Civilian Complaint Review Board (CCRB) guidelines prohibit the use of hate speech, disrespectful language, racist behavior, and other manifestations of bias by the police. New York City’s Administrative Code § 14-151 prohibits bias-based policing. However, these behaviors persist on both an institutional and individual level, and can be found from the top down. One need look no further than the Twitter accounts run by Sergeants Benevolent Association President Ed Mullins or Police Benevolent Association President Pat Lynch for examples of normalized hate speech by people in positions of institutional power.

In 2014, the NYPD amended its Patrol Guide to expressly prohibit speech or conduct targeting a person’s actual or perceived protected status and implemented a process for investigating complaints of biased behavior by members of the Department. The NYPD had not previously tracked these complaints or had a specific process for investigating them, and this move was widely considered as a necessary reform. Over the next five years, about 2,500 of these complaints had been made by the public. Then, in 2019, a watchdog report by the Department of Investigation called out the NYPD for failing to substantiate any of these claims and for deficiencies in the investigatory process. In an unbelievable demonstration of the inefficacy of such police “reforms,” as of December 2020 only one allegation of bias has been substantiated— against a school safety officer.

There are no meaningful mechanisms for holding the NYPD accountable, and the Police Commissioner retains veto power over any internal findings and recommendations for discipline. One analysis of released CCRB data found 260 instances, between 2014 and 2018 alone, where the Commissioner overruled, downgraded, or dismissed cases where serious misconduct by police was substantiated by the CCRB and charges were recommended.

There are countless victims of police bias and racism who have been violated by active members of the NYPD, many of whom are now in charge of training new hires and establishing Department culture. For example, in 2018, Lieutenant Henry Daverin was caught on video wearing a “don’t tread on me”-style shirt when he and the plainclothes unit he was leading assaulted and tased a Black teenager I represented without cause. That case was dismissed. Lt. Daverin has a history of complaints of excessive force and wrongful arrests, yet he has been promoted through the ranks. In another case, I represented a young Latinx person whose family member was threatened with deportation if she did not consent to a warrantless search of her home by a group of officers led by Sergeant David Grieco, a notoriously dirty officer with many similar accounts of bias to his name. Defenders such as myself have a seemingly endless number of stories such as these, many of which are confirmed by additional sources, surveillance, and sometimes the officers themselves. We recognize the names of officers who again and again subject people to abuse and bring them to court for prosecution, even after their misconduct becomes well-known.

Along with advocates and legal organizations, BDS has repeatedly sounded the alarm regarding the abusive and racist behavior of the NYPD Vice Squad, specifically an undercover known only as UC-157. A disturbing article from ProPublica released last week detailed the rape and harassment of multiple victims by UC-157 and others, and revealed that 93% of all arrests made by the Vice Squad for sex work related offenses were against people of color. Despite a well-documented history of bias, racism, and hateful conduct, UC-157 and other offending officers continue Vice enforcement.

In our experience, bias in these cases and others are also an issue of gender and LGBTQIA+ justice; sale-side arrests by Vice predominantly target transgender and cisgender women, while purchase-side arrests predominantly target Black cisgender men. As evidenced by ProPublica’s reporting, and at times during cross examination by defense counsel, certain biased police behaviors -- such as the reprehensible treatment of women and people of color -- have become normalized to the extent that officers are seemingly unaware of the disturbing and shocking nature of their admissions about routine police conduct.

The actions of these officers—and their condonation by the Department—do not occur in a vacuum. They are representative of a culture of impunity and institutional cover for biased policing.

Bias in policing creates lasting harm.

Many of the people I represent describe routine, disruptive, and targeted stops by police. The impact of these interactions cannot be overstated. One young man I represented said he had been stopped and frisked so many times he became demoralized and began to wonder if he would ever amount to more than the police saw in him. Another Black teenager who was violently arrested when he allegedly “matched the description” of an armed suspect became afraid to leave his home. He was exonerated by video surveillance.

This month the Center for Court Innovation released a groundbreaking report, titled “Gotta Make Your Own Heaven,” detailing the experiences of 330 young New Yorkers with guns, violence, safety and the police. This remarkable study provides a unique, firsthand perspective into the lives of young people and the challenges they face in NYC. Strikingly, the hundreds of young people interviewed consistently identified threats from police as a reason to carry a gun or seek protection within a gang. They identified “violent victimization by police,” “police harassment for small infractions but lack of responsiveness for serious crime,” and “fear of being shot by a police officer” as major contributors to lack of their neighborhood’s safety. Most of the young people interviewed described “an overall sense that the police were a negative force in their communities” and “sens[ed] a lack of care for people in the community.” They also drew a direct connection between the way they were treated as “less than human” and their race.

To state that the NYPD does not offer a solution to violence is not a reckless or naive denial of the existence of violence and its impact on communities. Rather, it is a call for real solutions that do not involve funding an oppressive police force that has repeatedly demonstrated disinterest and even aggressive antipathy towards the wellbeing of those same communities. To illustrate this point, I often think of the time a young person—who had described near-daily harassment by police in his housing development—showed me the artwork he made incorporating the names of over a dozen of his friends who had been killed. I asked him if any of their murders had been solved. He told me that only one had, because that person had been killed by the NYPD.

Many people have told me they dreaded going outside after instances where they were targeted, assaulted, or harassed by police. They have described generalized anxiety, acute panic attacks, and hypervigilance—constantly looking over their shoulders when performing daily tasks like walking to school or taking the train. To be clear, these young people and all people who have been harmed by biased policing do not ask to be pitied or infantilized. They are people with agency who are far more complex than their worst experiences. What they and their communities need is for this City to finally see them as such, rather than as a problem at which to throw more police.

More training will not solve this problem.

Certain proposals in response to pervasive bias and abuse by the NYPD call for additional training for members of the Department. The problem with these proposals, which include funding for programs such as implicit bias training, is twofold. First, they serve to increase the NYPD’s budget—and every additional dollar spent on policing is at the expense of community needs and initiatives. The City’s budget is finite, and the NYPD already devours an outsized share through its official budget, legal settlements for misconduct, and overtime practices that regularly exceed allocated funds. Second, these trainings suggest that the police bias is almost exclusively implicit and often unrecognizable, unintentional, and covert. This reflects a fundamental misunderstanding both of the role of police and the reality of the way that racism, bias, and hate speech are often fully present in police interactions with the public.

Furthermore, the NYPD already receives implicit bias training, yet the City Council has correctly deemed it necessary to hold this hearing on bias, racism and hate speech by police. While subtle biases certainly exist, the Department fails to grapple with—and even denies—the pervasiveness of outright racism and bias by NYPD members as well as structural, policy-driven racism at every level of policing. With this in mind, BDS respectfully offers the following recommendations:

Divest from the NYPD and invest in communities.

The City Council can and should exercise its authority to strip funding from the Department. The NYPD is an omnipresent force in certain NYC neighborhoods, yet it is abundantly clear that they do not offer a solution to violence. Rather, they are drivers of violence, sources of unrest and anxiety, and destructive and demoralizing forces straining the social fabric of neighborhoods.

As this Council is well aware, we spend roughly $11 billion on policing here in NYC, a budget which has largely survived the ravages of COVID-19 and an economic crisis that cut everything from school funding to subsidized transit programs. Just 13% of all NYPD arrests are for crimes classified as “violent felonies.” Of those, only half result in a conviction of any kind, and those convictions are likely to exacerbate racial inequities twice over—both through race-based policing and race-based sentencing. Studies show that increasing the size and budget of a police force does not directly correlate with safer streets. Even as spending on policing has increased, the majority of murders in low-income neighborhoods remain unsolved.

The CCI’s report made six recommendations for addressing violence within communities. They are 1) bringing services to spaces important to youth, 2) hiring more credible messengers, 3) investing in community safety strategies that do not involve police, 4) creating jobs programs specifically for youth, 5) engaging gang leadership, and 6) conducting more participatory research. These recommendations are well-sourced and already have demonstrated efficacy. They all require the investment of finances and resources.

Where a society allocates its budget is a statement of its values. It is time that this City valued the experiences and needs of its community members over a police force that neither protects nor serves them. While there has been considerable handwringing over the message that “defunding the police” sends, we must consider the message it sends our young people when we cut summer youth employment programs to afford to pay the officers who terrorize their communities, or when teachers are shortchanged while the NYPD blows past its annual overtime allotment by $100 million yet again. We must consider the message we send about the value of human life and dignity when we defund everything but the police.

The Council should enhance NYPD accountability measures.

The City Charter affords wide latitude to the NYPD Commissioner regarding discipline and vests the right to appoint and fire this position with the Mayor. In light of the demonstrated inefficacy of the current system at reining in police abuse and biased policing, the City Council should explore utilizing one of the several tools for amending the Charter at its disposal to expand the process to include a more active role for the City Council in the selection and approval of NYPD Commissioner.

The Charter has been amended before, including in 2008 to extend term limits for officials including Mayor Bloomberg, and there is public appetite for police accountability. Voters in 2019 chose to accept a proposal to expand the scope of the CCRB, and this year has seen widespread demands for meaningful change and the reallocation of municipal resources. Despite endless fearmongering about bail reform in New York State, a law which Commissioner Shea continues to smear without evidence, voters elected a progressive supermajority to state leadership.

The City Council should take this opportunity to make a bold move in defense of your constituents by exploring ways to empower the CCRB and implement meaningful police accountability measures.

Conclusion

Racism, bias, and hate speech are serious issues that persist within the NYPD because of institutional forces and a system of promotions and unaccountability for officers who repeatedly engage in harmful behavior. In order to meaningfully change the NYPD, the City Council must use its authority to prioritize the safety and needs of New Yorkers over the self-serving preferences of the NYPD.

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I thank the Committees for their time and for accepting my testimony on this critical issue. Should you have any additional questions, please feel free to contact me at mkaishian@bds.org or (347) 525-4054.