TESTIMONY OF:

Maryanne Kaishian

Senior Policy Counsel

BROOKLYN DEFENDER SERVICES

Presented before the New York City Council

Committee on Public Safety

Oversight Hearing on The City’s Policing Reform Process

January 11, 2021

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 abusive behavior on the part of the New York Police Department (NYPD). I want to thank the Committee on Public Safety, particularly Chair Adrienne Adams, for holding an important discussion on the City’s Policing Reform Plan.

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. Many people are victimized by racist and classist police practices such as constant police presence in their neighborhoods, surveillance, pretextual car stops, and routine stop-and-frisks.

Reforming the NYPD has been attempted many times in the past, but the Department only makes a mockery of introspection and change. They amend their Patrol Guide to reflect the changes demanded by the public only to fail to discipline officers who break the rules. They performatively convene panels and hire outside experts to advise them on policy only to maintain the status quo. As is happening now, the NYPD cuts impacted people, defender organizations, and critical voices out of discussions about police practices while touting so-called efforts at reform. The time of real transformative change New Yorkers need requires taking power away from the NYPD and empowering the people of this City.

Background

The issues with the modern NYPD are rooted in the formative directives of the Department, with the earliest mandates precipitating its formal creation still present in today’s punishment paradigm. 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. These communities are also frequently left out of serious discussions regarding police policies and practices.

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 routine policing as incredibly problematic even absent overtly abusive conduct, and creates space for the recognition that any officer regardless of identity or residency can cause harm and may be directed to do so by Department superiors.

Both the conduct of individual officers and the NYPD’s function as an enforcer of racial and social hierarchies within the City must be addressed in order to achieve transformative change. Implementing NYPD-approved police reforms and expecting policing itself to fundamentally change is unrealistic.

The NYPD has a double standard that reform has failed to address.

This testimony comes at an extraordinary time in our nation’s history. Just days ago, the Capitol was seized by armed rightwing extremists in an attempted coup. While Capitol Police have been criticized for instances of lax enforcement and apparent camaraderie with the insurrectionists, there has been boastful talk about the preparedness of the NYPD for such an event. Such statements overlook the fact that the NYPD, like many police departments across this nation, has a white supremacist problem that has proven impervious to reform.

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 a striking 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 have been numerous instances of individual officers who engage in racist and far-right activities both on and off the job. Yet NYPD members such as Deputy Inspector James Kobel, who posted racist and bigoted content online under the pseudonym Closeau while employed as a commander with the Equal Employment Opportunity Division, remain employed. At a remarkable City Council hearing in December 2020, the Department defended its continued employment of Kobel—whose official duties included combating discrimination—and its ongoing failure to monitor public message boards, like the Rant, that are frequented by police officers for similar content. The Department quietly suspended Kobel this week for 30 days without pay.

It should come as no surprise given the context that some of the same groups at the center of the attack on Washington, D.C. and several state capitols last week have enjoyed preferential treatment and even tacit approval from the NYPD. Sergeants’ Benevolent Association President Ed Mullins has shown support for the far-right conspiracy group Q-Anon, which trafficks in bigoted tropes and whose members featured prominently in the insurrection.

In 2018, the NYPD’s notoriously violent Strategic Response Group (SRG) allowed members of the Proud Boys, another group involved in the planning and execution of the attack, to leave the scene of a violent beating they had committed while police watched—ignoring far more probable cause for arrest than has existed in countless cases I have defended. “I have a lot of support in the NYPD,” Proud Boys leader Gavin McInness bragged afterward. That these groups felt empowered to enter the heavily guarded United States Capitol—and did so largely unharmed—is the direct result of their perceived and actualized standing with police.

Summer 2020 was another lesson in the inefficacy of police reform.

The daily treatment of New Yorkers, as well as the NYPD’s response to a summer of demonstrations for Black lives, stands in stark contrast to the Department’s treatment of the Proud Boys who would later go on to attempt to overthrow the United States government. During demonstrations in response to George Floyd’s murder and widespread police abuse of Black people, the NYPD rammed cars into crowds of demonstrators. They used batons, teargas, and TASERs on unarmed and fleeing people. They knelt on people’s necks and backs while they were handcuffed on the ground, kettled large and small groups, targeted Black organizers for arrest, blocked escape routes before curfew in order to initiate brutal enforcement, and disappeared people for days at a time “for processing,” leaving both their loved ones and attorneys unable to locate them.

These abuses happen routinely when the news cameras are not watching and, flagrantly, when they are. They persist despite the existence of a comprehensive and relatively progressive NYPD Patrol Guide, a set of departmental regulations reflecting prior reform campaigns that are routinely violated. For example:

• The guide governs appropriate contact with the public outside of arrests (203-09 and 203-10) and requires officers to provide their names and badge numbers in accordance with the Right to Know Act (203-09).

• The guide governs police interactions with members of the press (212-49), and requires NYPD personnel to “cooperate with media representatives by not interfering or allowing others to interfere with media personnel acting in their news gathering capacity.”

• Patrol Guide Procedure No. 212-123 requires body-worn camera activation in almost every instance of a uniformed police officer’s interactions with the public. This regulation, created as a purported police reform during the 2014 Black Lives Matter Protests, specifically includes interactions during demonstrations and instances of civil disobedience. Body-worn cameras are often turned off, especially during potentially incriminating circumstances, including instances of violence or misconduct by the police.

• The Patrol Guide has included a chokehold ban since the NYPD killed 21-year-old Federico Pereira in Queens in 1991.

• During a protest (213-05), the guide instructs NYPD personnel not to “‘punish,’ rather, be ‘professional’ at all times,” to “[b]e tolerant of verbal abuse uttered by civilians in crowd” and to “ensure that only minimum force is used to achieve objectives.”

• There are special rules for interacting with legal observers (213-11). Legal observers who are clearly identified are to be given "free access through police lines at the scene of any demonstration" and "all members of the service shall extend every courtesy and cooperation to observers," and "observers shall be permitted to remain in any area or observe any police activity" unless their presence poses a safety threat.

• The Patrol Guide governs use of force (221-01 and 221-02), requires NYPD personnel to intervene during instances of excessive force by other officers (221-02), and has strict reporting requirements (221-03). It also articulates limited circumstances for the use of pepper spray (221-07) and CEMs (aka TASERs) (221-08).

All of these regulations are frequently violated, and the most recent protests for Black lives were no exception. Notably, and in direct contradiction to the First Amendment, the Handschu Consent Decree, and guidelines regarding the investigation of people engaged in political activity (212-72), police seemed to clearly target protestors for the content of their speech, namely protestors’ condemnation of police violence and their calls to defund the police.

Following 2004 protests at the Republican National Convention, the NYPD was sued on behalf of protestors who were kettled, assaulted, and abused by police. In a period of litigation-initiated “reflection,” the NYPD conducted “after-action assessments” of the Department’s protest response and claimed to implement court-mandated changes. The New York City Law Department, which usually defends police from misconduct claims but was tasked with investigating their protest response this past year by the Mayor, suggested in a problematic report that this approach be taken again. It seemed lost on the Law Department that their review was precipitated by the exact same police behavior—such as kettling—that was “reviewed” and “reformed” to widespread acclaim 16 years ago, with additional echoes in years and decades past.

As police reforms are proposed across the country, including a set of a federal standards sought by Governor Cuomo that would largely bring other departments into alignment with current NYPD guidelines (e.g., banning chokeholds and requiring body-worn cameras), it is important to note that these regulations have not solved the issue of violence perpetrated by officers in New York City, either in times of mass protest or during ordinary times. Ultimately, the NYPD is in charge of enforcement of Patrol Guide violations by its members and has almost never been inclined to take action.

In addition to calls for these types of reform, certain instances of widely-condemned police abuse are followed by calls for additional training, which not only costs money but has already failed to solve the issues within the NYPD. The NYPD does not lack the funding, training, or infrastructure to implement change. Officers are trained in de-escalation, implicit bias, and protest response. The issue is one of Department culture and willingness to concede power. Placing sole responsibility for change in the hands of the NYPD only ensures that change will never come.

Recommendations

This City Council must recognize the folly of trying, and paying for, that which has persistently failed. If the Department is once again tasked with policing itself we are destined to repeat history. With this in mind, we make the following recommendations:

1. Implement suggestions from community members, impacted people, critical voices, and defender organizations.

We thank the Committee for hosting this essential discussion. Unfortunately, as identified by our partners in defender organizations across the City, similar space has not been granted by the NYPD as part of its reform process. It is essential that the police themselves and pro-police voices are not left in charge of changing the Department. We echo the statements and testimony made by our colleagues at the New York City defender organizations.

The perspectives of people impacted by policing policy must be prioritized. In December 2020, the Center for Court Innovation released a groundbreaking report titled “Gotta Make Your Own Heaven.” The report details the experiences 330 young New Yorkers have had 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.

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.

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.

2. Divest from Policing 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.

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 City Council controls NYPD funding and must implement necessary changes through both legislation and the diversion of resources. There are many ways the NYPD budget could be significantly and quickly reduced without impacting safety, namely firing officers credibly accused of misconduct, eliminating the NYPD gang database, and disbanding specialized units—particularly the Vice Squad—with histories of abuse and rogue operation.

3. End the Gang Database and Mass Surveillance

The NYPD maintains a secretive, internal list called the Criminal Group Database—also known as the Gang Database—in which the Department labels almost exclusively young Black and Latinx New Yorkers as gang members. Over 99% of the people on the database are non-white. There is no independent oversight of who is placed in this database, individuals do not need to be convicted of any crime to be placed on it, and there is no way to challenge gang designations. Criteria for designation include “living in a known gang area” and “association with gang members.”

According to the Grassroots Advocates for Neighborhood Groups and Solutions (G.A.N.G.S.) Coalition, between 2003 and 2013 about 30% of people added to the database were children, some as young as 12. The NYPD continually expands the ways that someone can be added to their catalogue. The database is also riddled with errors. I have represented people who are incorrectly identified as gang members; others are misidentified as belonging to a certain group.

Even in instances where the database correctly identifies someone as a gang member, police cataloging of young people does not enhance community safety. The NYPD surveils children and young adults, sometimes for years, without alerting parents that their children are in trouble or providing meaningful interventions. Mass surveillance, such as through the Domain Awareness System and these types of covert gang operations, commands enormous budgetary expenses without measurable improvements in safety.

Identified gang members are targeted for harassment and abuse by police. They are charged with inchoate crimes and crime by association, rather than the commission of specific acts, and warehoused for complex prosecutions. Massive NYPD resources are spent building cases in back rooms instead of improving the lives of young people and their communities. Gang policing criminalizes affiliation with friends, relatives, and neighbors without achieving community safety. This practice is costly in both human and fiscal terms.

The City Council should move to eliminate the Gang Database and to rein in horrifically abusive and violative NYPD gang policing practices. While violence is a real problem that must be addressed, it is abundantly clear that police do not provide the solution. The Council may look to pilot programs such as “Five Days Without Cops” in the 73rd Precinct to see the efficacy of cure-violence programs and community collaboration on safety.

4. The Vice Squad and other specialized units must be abolished.

The Vice Squad and other similar, specialized units with vast histories of abuse and misconduct such as the Gang Squad must be abolished. The abuses committed by these units, which often operate without even the minimal oversight of local precincts, are not unique to specialized operations. However, these units exemplify the most destructive tendencies of policing.

It is not enough to merely reshuffle members of Vice or Gangs in a symbolic gesture, as has been the case with the notoriously violent Anti-Crime Unit. The units should be disbanded entirely, NYPD members determined to be culpable must be fired, and the methods of policing exemplified by these units must be extinguished.

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, and the Vice Squad was the subject of a disturbing ProPublica article released last month. This reporting 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 of people of color.

Despite a well-documented history of bias, racism, and hateful conduct, UC-157 and other offending officers continue Vice enforcement. The horrific abuses detailed in this article are consistent with the accounts shared with us as defenders by victims of the unit. In a December 2020 letter to the City Council Speaker and other elected officials, BDS Executive Director Lisa Schreibersdorf provided a history of our experience with the Vice Squad and unequivocally called for the abolition of the unit and the decriminalization of sex work.

The actions of Vice Squad 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 misconduct and abuse. The City Council should immediately investigate the Vice Squad and pursue its disbanding to protect the people of New York.

5. The Council should enhance NYPD accountability measures.

Individual officers engage in abuse and misconduct with the knowledge that the Department will not hold them accountable. There are no meaningful mechanisms for holding them responsible, 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. The City Council must move to address the ongoing employment of abusive officers, whether through funding or legislative action.

There are countless people 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 abusive 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.

In light of the demonstrated inefficacy of the current system at reining in police abuse and biased policing, the City Council should explore utilizing every option at its disposal to allow for a more active role for the City Council in the selection and approval of the NYPD Commissioner.

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

Reforms such as those implemented in the past will not meaningfully change the Department, and continuing to task the NYPD with its own reform and enforcement is destined to preserve the status quo. In order to meaningfully change the Department, the City Council must use its authority to prioritize the safety and needs of New Yorkers over the self-serving preferences of the NYPD by creating structural change and divesting from the police.

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I thank the Committee for this 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.