The Report of the Independent Panel on the Disciplinary System of the New York City Police Department

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BACKGROUND 1
1. INTRODUCTION 1
  1. Overview 1
  2. Scope of the Panel’s Review and Work 2
2. THE NEW YORK CITY POLICE DEPARTMENT: ITS MEMBERS, LEADERS, AND REPRESENTATIVES 3
3. EXECUTIVE SUMMARY 4
  1. Lack of Transparency into the Disciplinary Process 5
  2. The Police Commissioner’s Plenary Authority Over Individual Cases 5
  3. Allegations of Favoritism, Bias, and Inconsistent Penalties 6
  4. Unnecessary and Excessive Delay in the Disciplinary Process 6
  5. Other Observations 7
4. OVERVIEW OF THE NYPD’S DISCIPLINARY PROCESS 7
  1. Overview 7
  2. Complaint Intake 8
  3. Investigation 9
  4. Prosecution and Disciplinary Recommendation 10
  5. Adjudication 13
  6. First Deputy Commissioner and Police Commissioner Review 13
  7. Internal and External Oversight and Monitoring Bodies 14
KEY FINDINGS 17
1. THERE IS A FUNDAMENTAL AND PERVASIVE LACK OF TRANSPARENCY INTO THE DISCIPLINARY PROCESS AND ABOUT DISCIPLINARY OUTCOMES 17
  1. Civil Rights Law § 50–a Establishes a Legislative Exception to Public Access Under the New York State Freedom of Information Law 17
  2. Many States Provide Greater Access to Police Disciplinary Files Than Does New York 18
  3. The NYPD Interprets § 50–a Aggressively and the Courts Have Upheld This Approach 19
  4. Lack of Disclosure and Limited Visibility Into the Disciplinary Process are Detrimental to Public Confidence and Oversight 20
2. THE POLICE COMMISSIONER HAS AND EXERCISES COMPLETE DISCRETION OVER DISCIPLINARY OUTCOMES 21
  1. The Commissioner’s Review and Evaluation of Disciplinary Decisions 21
  2. The Police Commissioner’s Case Review Procedures 21
  3. In Certain Cases, the Police Commissioner Must Detail the Reasons for Imposing Penalties Inconsistent with the Recommendations He Receives 23
  4. The Police Commissioner Frequently Departs from the Disposition and Penalty Recommendations He Receives 24
  5. The Police Commissioner’s Change of Penalty Letters Do Not Provide Meaningful Explanations for Departing from the Recommended Outcome 27
  6. The Absence of Information in Change of Penalty Letters Has the Potential to Adversely Impact the Disciplinary Process 27
3. ALTHOUGH THE PANEL DID NOT IDENTIFY PERVASIVE FAVORITISM, THE PANEL IDENTIFIED A FEW CASES WHERE FAVORITISM MAY HAVE INFLUENCED THE DISCIPLINARY PROCESS OR OUTCOME 29
  1. Preliminary Analysis of Disciplinary Case Data Involving Higher-Ranking NYPD Personnel Did Not Show Pervasive Favoritism 29
  2. Disciplinary Decision Makers are Potentially Susceptible to Inappropriate Influences 31
  3. Operations Within the Department Advocate’s Office Raise Particular Concerns About Outside Influences on the Disciplinary Process 31
4. CERTAIN PHASES OF THE DISCIPLINARY PROCESS INVOLVE UNNECESSARY AND EXCESSIVE DELAY 32
  1. The NYPD Disciplinary Process is Lengthy 32
  2. Certain Factors and Phases in the Disciplinary Process Cause Unnecessary Delay in Disciplinary Case Adjudication 36
5. OTHER OBSERVATIONS 38
  1. The Department’s Handling of False Statement Cases 38
  2. The Department’s Handling of Domestic Violence Cases 41
  3. The Department Lacks an Integrated Case Management System 43
RECOMMENDATIONS 44
1. THE DEPARTMENT SHOULD SUPPORT AMENDMENTS TO § 50–a TO INCREASE TRANSPARENCY AND ENHANCE ACCOUNTABILITY 44
  1. Section 50–a is an Unnecessary Barrier to Transparency and Accountability and Should be Amended to Allow Public Access to Information on Final, Substantiated Disciplinary Matters 44
2. THE NYPD MUST GUARD AGAINST UNWARRANTED EXPANSION OF THE SCOPE OF § 50–a 46
3. THE NYPD SHOULD ALSO ENHANCE ITS PUBLIC REPORTING IN LINE WITH THAT OF OTHER AGENCIES 46
4. THE NYPD SHOULD PUBLISH TRIAL ROOM CALENDARS 47
5. THE DEPARTMENT SHOULD APPOINT A CITIZENS’ LIAISON 48
6. THE POLICE COMMISSIONER SHOULD ENHANCE THE DOCUMENTATION OF VARIANCES FROM DISCIPLINARY RECOMMENDATIONS 48
7. THE NYPD SHOULD ADOPT PROTOCOLS TO INSULATE DECISION MAKERS FROM EXTERNAL PRESSURES AND MINIMIZE THE APPEARANCE OF INAPPROPRIATE INFLUENCE OVER THE DISCIPLINARY PROCESS 50
  1. The Department Should Design and Implement Training and Policies Addressing and Memorializing Informal Communications Concerning Disciplinary Cases 50
  2. The Department Should Consider Adopting a Recusal Policy in Certain Disciplinary Cases 50
8. THE DEPARTMENT SHOULD STUDY AND CONSIDER ADOPTING A DISCIPLINARY MATRIX 51
9. THE DEPARTMENT SHOULD TAKE MEASURES TO EXPEDITE DISCIPLINARY ADJUDICATIONS 52
  1. DAO Should Hire Additional Attorneys and Fill Vacancies on the Executive Staff 52
  2. The Department Should Implement a “Fast Track” Review for Certain Disciplinary Cases 52
  3. DAO Should Limit Reconsideration Requests 53
10. THE DEPARTMENT SHOULD STRENGTHEN ENFORCEMENT OF FALSE STATEMENT DISCIPLINARY POLICIES 53
11. THE DEPARTMENT SHOULD ADOPT PRESUMPTIVE PENALTIES IN DOMESTIC VIOLENCE CASES AS RECOMMENDED BY CCPC 55
12. THE DEPARTMENT SHOULD UPGRADE AND INTEGRATE ITS CASE MANAGEMENT SYSTEM 55
13. THE DEPARTMENT SHOULD RETAIN EXTERNAL EXPERTS TO CONDUCT PERIODIC AUDITS OF THE DISCIPLINARY SYSTEM 56
CONCLUSION 56

The Report of the Independent Panel on the Disciplinary System of the New York City Police Department

The Honorable Mary Jo White, Panel Chair, Debevoise & Plimpton LLP

The Honorable Robert L. Capers, Arent Fox LLP

The Honorable Barbara S. Jones, Bracewell LLP

January 25, 2019