The New York Times by CHRISTINE HAUSER - October 4, 2009
Joseph A. Diaz’s problems with the police began in 2007. He was sitting on the stoop of his apartment building in the Bronx, smoking a cigarette, when a police officer approached him and, according to Mr. Diaz, asked him for identification. “Why are you asking me this?” Mr. Diaz, 58, said he told the officer. “For 40 years, I live in this building. Did you see me do something? Did you get a call on me? You can’t profile me,” he said in an interview. One week later, Mr. Diaz said, he was confronted by the same officer and a few others. Words were exchanged, and this time, Mr. Diaz said, he was handcuffed and frisked before being released without arrest. That encounter began an effort, now nearly two years running, by Mr. Diaz to seek an official explanation. Like thousands of other New Yorkers each year, he filed a complaint with the Civilian Complaint Review Board, which investigates allegations of police misconduct. But about a year after the review board substantiated part of Mr. Diaz’s case, the Police Department closed it without explanation. “His is the typical case that we are concerned about,” said Dick Dadey, the executive director of Citizens’ Union, which has pressed for reforms at the review board. “It has been dismissed without him or the public knowing why.” Civil rights advocates, elected officials and community leaders say cases like Mr. Diaz’s are reviving ideas for reforms of the review board, including recent legislative proposals by City Councilman Daniel R. Garodnick and Bill de Blasio, a candidate for public advocate. Most focus on the board’s relevance; many civilian complaints, even those that the board’s investigators substantiate, result in no disciplinary measures taken by the Police Department. And of the cases sent to the police, 40 percent are rejected. “If you think you are going to see the cop fired or something serious happen, then maybe C.C.R.B. is not the right way to go,” said Cory Walker, a former review board investigator, referring to the advice he gives his clients in his current job as a Legal Aid Society lawyer.
Police officials, in defending the way they handle discipline of officers, suggested that the department has improved its relationship with the review board. But they also insist that the department’s own lawyers are best qualified to decide whether to pursue a case against an officer. “The department advocate is best positioned to assess the relative strength of the case and the probability of a finding of guilt,” said the chief spokesman, Paul J. Browne. The review board was established in December 1992, with a City Council vote intended to create an independent civilian agency to investigate misconduct complaints against the police. The allegations can range from obscenity to excessive force. This year, the board is projecting that at least 8,200 citizens will file complaints, which would be the highest yearly total ever in the city. In 2008, more than half a million people — also a record number — were stopped and frisked, a practice that generates the most complaints to the board. Despite the increasing volume of complaints, the review board has seen the Police Department decline to act upon a growing percentage of its cases.
In 2005, the Police Department declined to prosecute 2 percent of the cases that the review board referred to it. By 2008, that figure had risen to 33 percent; so far this year, the department has declined to prosecute 40 percent of the cases, records show. “The only plausible explanation for the huge increase in dismissed cases is that the department has made a conscious decision not to pursue discipline against officers found by the C.C.R.B. to have engaged in misconduct,” said Christopher Dunn, associate legal director for the New York Civil Liberties Union. The board’s records also show a trend of fewer officers being disciplined: it was 58 percent last year, down from 74 percent in 2004. The Police Department has said that its standards of proof are different from those used by the review board’s lawyers, and that only department lawyers have the expertise to decide which cases to prosecute. Police Commissioner Raymond W. Kelly recently noted the department has made reforms to improve the way it works with the review board, like by replacing police personnel with civilian prosecutors in trials. “There were police officers who were prosecuting other police officers,” Mr. Kelly said in a recent news briefing. “Some were attorneys, some weren’t.” If a case is substantiated by the review board, it is passed on to the Police Department, which has the sole discretion and power to drop the case or pursue it. Commissioner Kelly has the final say in any decisions about discipline, which can result in dismissal. Mr. Browne, the police spokesman, said although they were prosecuting fewer cases referred by the review board, the conviction rate at departmental trials had risen to 60 percent from 30 percent in 2004. Mr. Browne credited an overhaul of the department’s advocate office, whose prosecutors have been more selective about which cases they take on. “It would be unfair and counterproductive, and a waste of scarce police resources, to move forward with a case which is incapable of being proven in the trial room,” Mr. Browne said.
Over the years, some of the current ideas for reforms had been suggested before, like in 2001, when former Mayor Rudolph W. Giuliani, acting on the recommendations of the Commission to Combat Police Corruption, backed the idea of giving prosecutorial authority to the review board. But now, at the start of the board’s 16th year in operation, many say at no other time has the need to expand the agency’s powers been more pressing. In addition to the rising number of complaints, the board is facing internal challenges. Like other city agencies, its staffing and budget are coming under pressure, with $10.2 million budgeted for the 2010 fiscal year, down from $11.4 million in 2009. The agency lost 10 investigators in the 2009 fiscal year and will shed another 16 in the following year, board officials said. Joan Thompson, the board’s executive director, testified at a City Council committee hearing in May that the agency was losing some staff, and she projected that slightly more than half of the cases would have to be dropped because investigators would not be able to meet the 18-month statute of limitations for each case.
One of them was the case Mr. Diaz initiated. On Feb. 8, 2007, a week after Mr. Diaz said he was initially approached by the officer on his stoop, that officer and three others passed him in front of his building. The officers spoke among themselves, and then one, identified in Mr. Diaz’s case records as Officer Luis Ortiz, backtracked and asked Mr. Diaz for identification. “You’re harassing me,” Mr. Diaz said he told Officer Ortiz. Mr. Diaz, in a telephone interview, said Officer Ortiz then used physical force, handcuffed him and frisked him before letting him go. Mr. Diaz immediately filed a complaint with the review board. Ten months later, the board sent him a letter that said their investigators substantiated that Officer Ortiz had abused his authority by stopping and detaining Mr. Diaz. It referred the case to the police for action. Mr. Browne, the department spokesman, said in an e-mail message that Mr. Diaz could not adequately identify the officers. Mr. Diaz denies this. Mr. Browne also said a command log shows that the accused officers were in a different location at the time Mr. Diaz said he was harassed by them. But Mr. Diaz did not hear anything about his case until September 2008, nearly a year later, when he got a letter from the Police Department saying it investigated and decided no disciplinary action would be taken, and considered the matter closed. It did not tell him why. “They waited like two years and nothing happened and it just disappeared,” Mr. Diaz said. “It just disappeared like smoke.”