TESTIMONY OF:

Maryanne Kaishian Senior Policy Counsel

BROOKLYN DEFENDER SERVICES

Presented before the New York City Council Committee Civil and Human Rights

Oversight Hearing on the preconsidered introduction (T2021-7099):

A proposed local law requiring the New York City Commission on Human Rights to investigate past professional conduct by employees of the police dept found to have engaged in biased acts.

February 8, 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 biased behavior on the part of the New York City Police Department (NYPD). I want to thank the Committee on Civil and Human Rights for holding this important discussion on pervasive racism, bias, and hate speech by the Department and the need for meaningful accountability.

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 being about the “perception” of bias within the NYPD, or to suggest that disciplinary action taken in isolated instances of abuse amounts to meaningful, institutional accountability. Nor is this an issue of insufficient “anti-bias training.” 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.

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. Opening investigations into past harms is both a necessarily retroactive and forward-thinking first step towards accountability. It serves to validate the lived experiences of people harmed by the police, while acknowledging that officers who have caused lasting trauma remain on the force, continuing to amass victims and perpetrate harm.

Among other necessary changes, the preconsidered introduction (T2021-7099) would require an investigation by the New York City Commission on Human Rights (CHR) into past conduct of officers who have engaged in biased policing, implement reporting requirements, require City Council and the Speaker to be appraised of investigations, and mandate a response from the Commissioner regarding Department employees who are under investigation. The proposal would also repeal Administrative Code § 8-131 and give the CHR full investigative authority over the NYPD. It is essential that this exercise of authority is no longer within the discretion of the Department itself, which has repeatedly demonstrated a disinterest in meaningful accountability measures. Brooklyn Defender Services strongly supports the preconsidered legislation (of T2021-7099), and urges additional action to strip the NYPD of its disciplinary authority over its own members.

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 forstops 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. While it is critical to identify individuals who cause harm, the CHR’s investigations should also include departmental directives with racist implications, not merely isolated biased incidents by individual officers.

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.¹ 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.²

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.³ A Department of Health report found that the NYPD, consistent with departments throughout the country, significantly underreports the number of civilians killed by police.⁴

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.⁵ 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.⁶ The NYPD has repeatedly failed to curb racism, bias, and white supremacy within its ranks, and has instead fostered a culture of impunity and even promotions for this behavior.

There are currently 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.⁷ Steps to remove this authority from the NYPD are essential in conjunction with the removal of investigatory power.

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 corrupt officer with many similar accounts of bias to his name. Defenders such as myself have a seemingly endless number of stories like 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 in December 2020 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.⁸ 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.

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 last month, 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.

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, are rarely disciplined meaningfully. Kobel was only terminated after months of intense scrutiny, and will keep the pension he earned while engaging in despicable behavior. At a remarkable City Council hearing in December 2020, the Department defended its erstwhile 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. BDS supports the proposal under this bill to investigate all cases under the purview of the EEOD during Kobel’s tenure.

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.⁹ 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.

The NYPD has no interest in purging this behavior from its ranks; white supremacy, bigotry, and bias are deeply entrenched cultural norms. The Department makes a mockery of accountability, and it should no longer have the authority to police itself.

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.

The Center for Court Innovation recently 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.¹⁰ 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.¹¹

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. The CHR’s involvement through passage of this proposal would indicate the City Council’s willingness to take the experiences of people harmed by the NYPD seriously, and is a needed change to the status quo.

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. BDS supports the passage of preconsidered introduction (T2021-7099), and urges additional action to remove disciplinary authority from the hands of the NYPD.

***

¹ United States Census Bureau, New York City Census Data https://www.census.gov/quickfacts/fact/table/newyorkcountymanhattanboroughnewyork/EDU635218 ² Noah Goldberg, “86% of Brooklynites in court are people of color: report,” The Brooklyn Eagle (September 17, 2019) https://brooklyneagle.com/arti... rt/

³ Mara Gay, “Why Was a Grim Report on Police Deaths Never Released?” The New York Times (June 19, 2020) https://www.nytimes.com/2020/06/19/opinion/police-involved-deaths-new-york-city.html

⁴ Id.

⁵ The Department of Investigations, “Examination by DOI’s Office of the Inspector General for the NYPD Identifies Deficiencies and Recommends Improvements in How NYPD Handles Complaints of Biased Policing.” (June 26, 2019) https://www1.nyc.gov/assets/do...

⁶ Yasmeen Khan, “The NYPD Substantiated its First Case of Biased Policing -- But Not Against an Actual Officer,” WNYC (December 14, 2020)

https://gothamist.com/news/the...

-actual-officer

⁷ Mollie Simon, Lena V. Groeger, Eric Umansky and Adriana Gallardo, “What it Looks Like When the Police Commissioner has Unchecked Power,” ProPublica (December 11, 2020) https://projects.propublica.or...

⁸ Joshuan Kaplan and Joaquin Sapien, “NYPD Cops Cash In on Sex Trade Arrests, Black and Brown New Yorkers Pay the Price,” ProPublica (December 7, 2020)

https://www.propublica.org/article/nypd-cops-cash-in-on-sex-trade-arrests-with-little-evidence-while-black- and-brown-new-yorkers-pay-the-price

⁹ Jake Offenhartz, “Proud Boys Leader: ‘I have a lot of support in the NYPD,’” Gothamist (October 15, 2018) https://gothamist.com/news/pro...

¹⁰ The Center for Court Innovation, “Gotta Make Your Own Heaven: Guns, Safety, and the Edge of Adulthood in New York City,” available at: https://www.courtinnovation.org/sites/default/files/media/document/2020/Report_GunControlStudy_08052020.pdf

¹¹ The CCI’s report made six recommendations for addressing violence within communities, and BDS echoes their calls. 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.