TESTIMONY OF:

Alexandra Fisher, Senior Trial Attorney BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Public Safety Hearing on

Int Int 2209-2021 and Res 1538-2021

February 16, 2021

My name is Alexandra Fisher and I am a Senior Trial Attorney with the Criminal Defense Practice at Brooklyn Defender Services. 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 this hearing today on police reform and oversight.

I represent people who are charged with crimes, ranging from misdemeanors to serious felonies. The people I serve are mostly Black and brown New Yorkers who have had varying levels of contact with the NYPD. 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.

Int 2209-2021 (Adams) and Res 1538-2021 (Cumbo)

BDS supports Int 2209-2021 which would require the Police Commissioner to be confirmed by the New York City Council and Res 1538-2021 calling on the New York State legislature to pass a bill removing the Police Commissioner's exclusive authority over police discipline.

When police are not held accountable, victims of police misconduct—primarily Black and brown New Yorkers—suffer twice over. First from the police practices inflicted on them, and then again through the City’s failure to deliver any semblance of accountability to their abusers. As defenders, we see officers with long histories of civil rights abuses continue to police the same streets, harm community members, and bring new cases for prosecution. We also see these harms compounded by retaliatory actions taken by officers against people who lodge complaints against them or their colleagues, discouraging future victims from coming forward at all. This cycle of abuse has been repeated on the streets of New York for too long, the people we represent carry long-term psychological and emotional effects from being treated as subhuman by omnipresent police forces in their neighborhoods. 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

This behavior is enabled in part due to the complicity of the police commissioner, who can—and regularly does—reject and downgrade CCRB and internal recommendations for disciplining officers. 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.¹ In 2019, the rate of agreement between the CCRB and the NYPD commissioner was 51% for most cases. In more serious cases of alleged misconduct, it was less 32%. A New York Times investigation found that as of November 2020, Police Commissioner Shae had imposed the CCRB’s recommended penalty in 2 out of 28 cases in which charges were brought². There are currently no meaningful mechanisms for holding the NYPD accountable when the Police Commissioner retains veto power over any internal findings and recommendations for discipline.

Individual officers engage in and perpetuate racism, bias, physical abuse, and the use of hate speech with the knowledge that the Department will not hold them accountable and with confidence that the legal system is designed to prioritize them above their victims. Police misconduct persists on both an institutional and individual level from the very top of NYPD’s hierarchy to the bottom. The police will always refuse to police themselves, and there are currently few meaningful legal protections for victims of their abuse. It is also important to remember that the modern NYPD has been “reformed” many times—to negligible results.

Jurisdictions throughout New York State should look to New York City as a cautionary tale of the inefficacies and pitfalls of police reform. The New York City Police Department (NYPD) is one of the best trained, best funded, and most progressive departments in the country. It is the size of the seventh-largest standing army in the world with a total budget of around $11 billion.³ The NYPD headcount and funding will not have suffered for COVID-19--related budget cuts elsewhere,⁴ with 900 new officers added to the force in January. The costly implicit bias training received by NYPD officers is the most cutting-edge available, but it has failed to deliver any measurable results.⁵ The NYPD Patrol Guide is thousands of pages long and has been written, re-written, and amended to reflect every imaginable demand for police reform.⁶ The City’s Administrative Code and official NYPD guidelines prohibit biased policing,⁷ which persists at staggering levels.⁸ New York City sees the persistent, unabated abuse and even murder of New Yorkers and the ongoing protection of abusive police, including by those—such as the Mayor and the Commissioner—who have full authority to fire them⁹ without the constraints that exist elsewhere in the State.¹⁰

During last summer’s protests, 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.

Police reforms are being proposed across the country, including a set of 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, in times of mass protest and during ordinary times, or elsewhere when similar changes have been implemented. This violence occurs routinely when the news cameras are watching and when they are not. A series of investigations, task forces, and incremental reforms that have often followed protests against incidents of police violence left the oppressive systems of law enforcement intact¹¹, and the violence continues—and continues to be documented on camera.

Removing the Police Commissioner's final authority over NYPD discipline is one step toward accountability. However, CCRB complaints and Commissioner involvement is only a fraction of the big picture of NYPD abuse, misconduct, and impunity, and only one part of the NYPD’s disciplinary process—when there even is one. We must not allow this issue to be framed as one simply of the need to discipline a few NYPD members in isolated individual cases. The culture of abusive policing, antipathy towards policed communities, and unaccountability are pervasive within the NYPD.

We commend the City Council for taking important steps to remove disciplinary authority from the NYPD, which continues to make a mockery of the accountability process. These reforms, however, must not be seen as a substitute for working to shrink the scope of policing, reduce the NYPD budget, and invest in proven, community solutions.

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.

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 Maryanne Kaishian, Senior Policy Counsel at mkaishian@bds.org or (347) 525-4054.

¹ ProPublica, “What it Looks Like When the Police Commissioner has Unchecked Power” https://projects.propublica.or... (More)

² See, New York Times, “A Watchdog Accused Officers of Serious Misconduct. Few Were Punished” https://www.nytimes.com/2020/11/15/nyregion/ccrb-nyc-police-misconduct.html

³ The Vera Institute of Justice, Report: A look inside the New York City Police Department Budget, available at: https://www.vera.org/downloads/publications/a-look-inside-the-new-york-city-police-department-budget.pdf (last accessed February 1, 2021).

⁴ Communities United for Police Reform, NYC Budget Justice https://www.changethenypd.org/nycbudgetjustice (last accessed January 20, 2021).

⁵ A years-long study of the NYPD’s extensive training program showed no difference in enforcement behavior,

serving only to improve officers’ articulable understanding of bias. See Martin Kaste, “NYPD Study: Implicit Bias Training Changes Minds, Not Necessarily Behavior,” N.P.R. (September 10, 2020) https://www.npr.org/2020/09/10/909380525/nypd-study-implicit-bias-training-changes-minds-not-necessarily-behav ior

⁶ The NYPD Patrol Guide is a publicly-available document containing rules adopted by the Department and reflecting changes demanded and implemented after instances of violence and brutality. However, these rules are often flagrantly violated. For example, the Patrol Guide governs acceptable instances for use of force (Sections 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). 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 that NYPD personnel “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. 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. See NYPD Patrol Guide, available at https://www1.nyc.gov/site/nypd...

⁷ 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 January 2021 only one allegation of bias has been substantiated— against a school safety officer. See DOI Report on Deficiencies in NYPD’s Handling of Biased Policing Complaints https://www1.nyc.gov/assets/do...; see also Yasmeen Khan, “The NYPD Substantiated its First Case of Biased Policing -- But Not Against an Actual Officer,” WNYC (December 11, 2020) https://gothamist.com/news/the... fficer

⁸ 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. 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.See Noah Goldberg, “86% of Brooklynites in court are people of color: report,” The Brooklyn Eagle, (April 15, 2019)

https://brooklyneagle.com/arti...

⁹ See Mollie Simon, Lena V. Groeger, Eric Umansky and Adrianna Gallardo, “What it Looks Like When the Police Commissioner has Unchecked Power,” ProPublica (December 11, 2020)

https://projects.propublica.or...

¹⁰ See Brian Sharpe, “RPD reform proposal will seek to scrap union contract and start over, reduce size of force,” Rochester Democrat & Chronicle (February 4, 2021) https://www.democratandchronicle.com/story/news/2021/02/04/city-put-onus-state-draft-proposal-reforming-rpd/43 86604001/

¹¹ The NYPD has been here before. Following 2004 protests at the Republican National Convention, the Department 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 Mayor Bill de Blasio, suggested in a problematic report that this approach be taken again. This Task Force disagrees. The recommended approach 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.