3.              Civilian Complaint Review Board

As noted above, CCRB investigates civilian complaints involving force, abuse of authority, discourtesy, or offensive language.[21] CCRB investigators review incoming complaints and make appropriate penalty recommendations if the allegations are substantiated. In the course of conducting its investigations, CCRB can request records and other materials from the Department; it may also subpoena records if the Department fails to comply with a request.[22]

CCRB, like IAB, uses a preponderance of the evidence standard to evaluate allegations.[23] CCRB may: (1) determine that an allegation is substantiated, unsubstantiated, or unfounded; (2) refer the complaint to another investigative agency if it determines that the allegation is not within its jurisdiction;[24] (3) find that a case cannot be pursued because a witness is unavailable, unidentifiable, or uncooperative; or (4) indicate that the complaint has been resolved through an alternative means, such as mediation.[25]

4.              Criminal Conduct

If a complaint alleges criminal conduct, it may be referred to the District Attorney’s Office or the United States Attorney’s Office for investigation. In most cases, the Department will await the conclusion of any such investigation before continuing its own disciplinary processes. Such a referral can therefore cause extended delay in resolving Departmental discipline.

D.            Prosecution and Disciplinary Recommendation

After the investigation is complete, the reviewing entity makes a recommendation for how to address any substantiated allegations of misconduct. In some cases, it is recommended that an officer be subject to Command Discipline, or that the officer receive additional training. For more serious cases, it is recommended that the officer be served with “Charges and Specifications” and proceed to trial. The two bodies primarily responsible for prosecuting Charges and Specifications are DAO, which has responsibility for cases investigated by IAB,

[21] Although CCRB’s FADO jurisdiction covers civilian complaints that involve the use of excessive force, all Level 3 force cases—cases that involve the use of physical force that is “readily capable of causing death or serious physical injury,” including firearm discharges—are investigated by either IAB or FID. Within that category, FID investigates all firearms discharges, fatalities related to police action, and cases when a subject of police action is seriously injured and death is likely; IAB investigates all other Level 3 incidents (e.g. where injuries are not life-threatening). NYPD, Use of Force Report 2 (2017), https://www1.nyc.gov/assets/nypd/downloads/pdf/use-of-force/use-of-force-2017.pdf.

[22] N.Y. C.P.L.R. 2301 et seq.; Rules of the City of New York Civilian Complaint Review Board (38-A RCNY) § 1-23 (2018).

[23] Rules of the City of New York Civilian Complaint Review Board (38-A RCNY) § 1-33 (2018).

[24] Id. at §§ 1-14, 1-33.

[25] Id. at § 1-33. As an alternative to a formal investigation, mediation allows a CCRB complainant to speak with a respondent officer in person. The process does not lead to discipline for the officer, but can resolve the complaint.