Reforming The NYPD and Its Enablers Who Thwart Reform

Reforming the NYPD And Its Enablers
Who Thwart Reform
JOEL BERGER*
T
he New York City Police Department (NYPD), like many other
police departments throughout the United States, is a highly
insular organization that historically has done its very best to
operate in secrecy—and, like many other police departments throughout the
United States, it has been enabled to do so by other agencies of the
government of which it is a part. In New York City government there are
many enablers, most notably the City’s Law Department (the Corporation
Counsel).
Now that there have been protests throughout the nation following
the death of George Floyd at the hand of a police officer, whose numerous
previous misdeeds had been repeatedly covered up by his police
department, it is vital that close attention be paid to systematic government
suppression of police misbehavior. In New York City, so many agencies
have closed ranks to protect miscreant officers that under other
circumstances, a RICO conspiracy prosecution would be appropriate. There
are several officers in the NYPD with records as bad or worse than the record
of the officer who killed George Floyd. Their misdeeds are rarely punished,
and they are promoted from officer to sergeant, lieutenant, or detective with
dazzling regularity.
After spending twenty years in the public sector suing corrections
departments and litigating against prosecutors who were seeking the death
penalty—both in New York and across the nation—I imagined that a private
* Joel Berger, Of Counsel to the Manhattan firm of Sonnenfeld & Richman, is a veteran civil
rights attorney. He was the first director of the New York City Legal Aid Society Prisoners’
Rights Project, and later represented death row inmates before the Supreme Court of the United
States and the United States Courts of Appeals as an attorney with the NAACP Legal Defense
and Educational Fund, Inc. Prior to entering private practice, he served on the Executive Staff
of the New York City Law Department (the Office of the Corporation Counsel). He is a graduate
of Columbia College and the University of Chicago Law School and was for many years an
Adjunct Clinical Professor at the New York University School of Law.
1
2 New England Law Review [Vol. 55 | Summer
practice concentrating on suing NYPD officers over brutality, false arrests,

and other forms of misconduct would not be all that different. Additionally,
before entering private practice, I had been an executive in the NYC
Corporation Counsel’s office whose responsibilities included monitoring the
NYPD, and in that capacity I had absorbed a great deal about the NYPD and
its vulnerabilities.
I was wrong. Never have I encountered a government agency more
resistant to reform, more determined to hide its infirmities from the public,
more prone to sweeping under the rug even the most hideous misconduct
of its employees, and more successful in enlisting other agencies of city
government to enable its penchant for secrecy. I do not contend that New
York City is by any means unique in this regard, or that the methods for
challenging such behavior are unique to New York City. Many local police
forces and local governments employ the same strategies for erecting an
institutional Blue Wall of Silence. But hopefully one can learn from an
analysis of the New York City quagmire and what can be done to eradicate
it.
This article will explore, based upon my experiences inside the
government monitoring the NYPD and outside the government suing it,
ways in which the NYPD can and should be reformed. It is by no means an
impossible task, but it will require a concerted effort of persuasion directed
at the governmental entities that to date have enabled the NYPD to maintain
the status quo. That effort should serve as a blueprint for attorneys and other
concerned citizens throughout the United States who are determined to
combat the institutional Blue Wall of Silence that is so pervasive in American
society.
ABOLISH THE NYPD “TRIAL ROOM”
A good start would be to abolish the NYPD’s “trial room”—the

forum in which the NYPD gets to adjudicate all disciplinary charges against
its own officers—and transfer the cases to the Mayor’s independent Office
of Administrative Trials and Hearings (OATH).
The trial room is the administrative court in which disciplinary
charges against NYPD officers are tried. The officials who preside over these
trials, and make recommendations of guilt or innocence and punishment,
are appointed by the Police Commissioner and serve at the Commissioner’s
pleasure. This presents a significant problem: unlike most judicial or quasi-
judicial officials, they are not independent and have no job security. They
2020] Reforming the NYPD 3
are therefore highly susceptible to the internal politics of the NYPD and can
be pressured into making inappropriate decisions.
The NYPD is the only New York City agency that has its own trial
room. Disciplinary cases against employees of every other city agency—
including the other uniformed forces—are heard before independent OATH
judges who serve for fixed terms and cannot be fired or demoted for running
afoul of inter-agency political machinations.
The only reason why the NYPD gets its own trial room is an obscure
state statute dating back to 1940, NYS Unconsolidated Laws § 891. The
statute provides that no police officer with civil service protection in New
York State can be fired without a hearing held by the officer having the
power to fire or by “a deputy or other employee of such officer,” i.e., in New
York City, a deputy of the Police Commissioner.
There is a long and ugly history to the misuse of § 891 to perpetuate
the NYPD trial room. The chief culprit is former police commissioner
Raymond Kelly, who chose to disregard a reform agreed to in 2001 by former
Mayor Rudy Giuliani—an individual hardly known for passionately
favoring NYPD reforms.
In 2001, the last year of the Giuliani Administration, Mayor Giuliani
agreed to a comprehensive Memorandum of Understanding (MOU),
according the Civilian Complaint Review Board (CCRB) exclusive
prosecutorial power over all cases in which the CCRB substantiated and
recommended charges and specifications. The 2001 MOU also provided that
all CCRB-substantiated matters would come before OATH rather than the
NYPD trial room.
The MOU unfortunately was stayed during litigation by the Police
Benevolent Association (PBA) challenging its validity. The principal issue in
the litigation was whether the Police Commissioner could lawfully delegate
the prosecutorial function to the CCRB, although the PBA did also challenge
the provision concerning OATH. Manhattan Supreme Court Justice Leland
DeGrasse upheld the transfer of the prosecutorial function to the CCRB. He
also upheld the OATH provision with one minor modification, ruling in
conformity with § 891 that the rare cases in which termination is a possibility
must still be heard in the trial room.
In Lynch v. Giuliani,1 the Appellate Division affirmed that the
transfer of the prosecutorial function to the CCRB was lawful, but it
modified Justice DeGrasse’s ruling with regard to OATH. The
Court misinterpreted § 891 as applying to all NYPD disciplinary
1 Lynch v. Giuliani, 301 A.D.2d 351, 356–57 (N.Y. App. Div., 1st Dept., 2003).
proceedings, requiring that all such proceedings be adjudicated by a deputy

or other employee of the Commissioner—whether or not termination was a
possible outcome of the disciplinary process. As any observer of the NYPD
disciplinary process knows only too well, most cases result in the mere loss
of a few vacation days and terminations are exceedingly rare.
The City never appealed. Neither did the PBA. The reason?
Commissioner Kelly simply reneged on the 2001 Giuliani MOU in its
entirety. He never had any intention of implementing even the part of it that
had been upheld by the Appellate Division, and insisted on having the
Department Advocate retain prosecution of all CCRB cases.
Not until April 2012 did Kelly finally relent, albeit slightly, agreeing
to a very limited MOU under which the NYPD still exercises far more control
over the process than it would have retained under the 2001 Giuliani
MOU. And in light of Lynch v. Giuliani, CCRB-substantiated cases remain in
the trial room and OATH may not hear any NYPD cases. In 2009, Council
Members Bill de Blasio (now Mayor), Letitia James (now NYS Attorney
General), and eight others introduced a bill implementing the Giuliani
MOU, Int. No 1048-2009, but Council Speaker Christine Quinn kept it bottled
up.
As the 2001 Giuliani MOU envisioned, it would obviously enhance
public confidence in the NYPD disciplinary process if hearings were
conducted by OATH rather than by officials who serve at the pleasure of the
Police Commissioner. In a 2008 report I co-authored for Citizens Union
(CU), CU advocated legislation "that would allow CCRB complaint hearings
to go through OATH, or an alternative independent body, to create a needed
level of independence and perception of impartiality,” and further citizen
confidence in the process. 2
The OATH Administrative Law Judges (ALJs) are independent and
highly respected. The Mayor appoints the OATH Commissioner (who is also
the City’s Chief Administrative Law Judge), who in turn appoints the other
ALJs. They serve for five-year terms, a term-length explicitly designed to be
longer than that of the Mayor, and are removable only for cause. 3
From my years as an executive at the NYC Law Department, with
access to information and documents that are not made public, I know for a
fact that the NYPD trial room judges (i.e., the deputy commissioner for trials
and the assistant commissioners for trials) have off-the-record
2Public Oversight of Police Misconduct, CITIZENS UNION OF THE CITY OF NEW YORK 4 (May
2008), https://perma.cc/KQL4-QY3E [hereinafter CITIZENS UNION].
3 N.Y.C., N.Y., CHARTER § 1049(a) (2020).
communications with the First Deputy Commissioner’s office and the

Commissioner’s office in advance of final decisions. That is one of the many
corrupt features of the NYPD disciplinary system. Since NYPD
administrative hearing officers serve at the pleasure of the police
commissioner, they must worry if they run afoul of powerful confidants of
the commissioner. When I was in the Law Department, I reviewed many
trial room opinions that simply didn’t make sense. The only explanation for
them was that pressure had been exerted on the hearing officers.
Ironically, only a few years before the 2001 MOU, the PBA
negotiated a provision in the collective bargaining agreement enabling the
commissioner to send disciplinary cases to OATH rather than the trial room,
arguing that the OATH judges were more impartial than the trial room
judges who serve at the pleasure of the commissioner. For a brief period
until the Appellate Division’s 2003 Lynch v. Giuliani decision, approximately
twenty-five percent of all NYPD disciplinary cases were processed by
OATH, and OATH’s final decisions in those cases were made public without
objection from the PBA and the other police unions. Apparently, the unions
later reversed course and decided that their disdain for the CCRB and its
determinations outweighed their preference for OATH over the NYPD trial
room.4
The State Legislature should simply repeal § 891. The Appellate
Division’s Lynch determination that § 891 applies to all NYPD disciplinary
matters, whether or not termination is a possibility, was erroneous;
but Lynch is the law unless overruled by the Court of Appeals, and even if
that were to occur it would take years of litigation. The simplest, fastest, and
most effective route to having all NYPD disciplinary cases (or at least all
CCRB cases) come before OATH is to repeal Unconsolidated Laws § 891.
The 1940 statute is a relic of another time and is not appropriate in this day
and age.
ABOLISH THE NYC LAW DEPARTMENT’S “SPECIAL FEDERAL

LITIGATION DIVISION”
Since the NYPD is notoriously unwilling to punish police

misconduct administratively in the trial room—even when the CCRB has
4 See Christian Covington, Who’s Afraid of Police Transparency? History Says There’s Little to
Fear, CITY LIMITS (Nov. 21, 2019), https://perma.cc/Y25P-W4P9.

substantiated civilian complaints and recommended punishment—it should

come as no surprise that victims of police misconduct turn to the courts.5
Many of my clients in federal civil rights lawsuits alleging police
misconduct state that they are more interested in seeing the officers
genuinely punished than in obtaining large sums of money from the city.
They turn to lawsuits because they feel they have no other effective option.
The CCRB rarely substantiates complaints, marking most cases
“unsubstantiated” unless it believes the evidence of wrongdoing is
overwhelming. And even when the CCRB does substantiate, it is well
documented that in most cases the NYPD either ignores the CCRB’s findings
or metes out only the weakest penalties. 6
The plaintiff in one of my false arrest cases, when asked at a
deposition what he hoped to gain from the lawsuit, simply stated “I want
Justice.” He was an African American educator with no prior criminal record
who had been arrested on especially attenuated charges that were dismissed
at the first court appearance after arraignment. His response at the
deposition encapsulated a refrain I have heard frequently. Some clients have
even broken down crying upon receiving their settlement checks, sobbing
that money alone will never adequately address their trauma and that they
would much prefer a result that prevents the guilty officer from inflicting
trauma on others.
But when victims of misconduct file civil rights lawsuits, they
unfortunately encounter another city agency that is every bit as determined
as the NYPD to sweep police misconduct under the rug.
The NYC Law Department has been the NYPD’s most important
enabler. In 1999, it established a special unit devoted solely to defending
police officers in federal civil rights cases. The stated reason was supposedly
to improve the City’s production of discovery material—a response by then
Corporation Counsel Michael Hess to a federal civil rights lawsuit in which
5 Claims Report: Fiscal Year 2017, OFF. OF THE N.Y.C. COMPTROLLER (Feb. 2018),
https://perma.cc/R55V-B5CU. According to one of the NYC Comptroller’s most recent Claims
Reports, police action claims (false arrest, excessive force) nearly doubled between 2008–2014,
from just under 3,000 to nearly 6,000. There has been a modest decrease in recent years due to
the decline in stop-and-frisks, but police action claims still account for the highest payout—
nearly 25% of all payouts in Fiscal Year 2017 and a 59% increase over Fiscal Year 2016. The
Police Department remains by far the City agency sued the most—more often than any other
City agency. It is sued far more often than the Department of Transportation ("slip and fall" tort
actions) or the Department of Correction (beatings and slashings in the City’s jails) or the Health
and Hospitals Corporation (medical malpractice).
6 See Benjamin Mueller, Low Ebb for Relations Between Police and Civilian Oversight Board, N.Y.
TIMES, Apr. 13, 2018, at A23.

the City had been assessed sanctions and attorney’s fees by Judge Martin for
lackadaisical behavior in discovery of NYPD materials. 7 But today that
alleged purpose is long forgotten and the unit has been repeatedly criticized
and sanctioned for misbehavior in discovery and other unethical conduct.
Instead the unit boasts of its ardent defense of police officers, falsely
attributing the huge increase in lawsuits to unscrupulous lawyers who bring
“frivolous” actions.
Former Corporation Counsel Cardozo was even quoted in the New
York Times as declaring war on police misconduct plaintiffs, stating that he
was determined to stop “feeding the monster.” 8 Former Corporation
Counsel Carter and his staff at the Law Department unfortunately displayed
a similar attitude. One can only hope that his successor, James Johnson, who
has been associated with the progressive N.Y.U. Law School’s Brennan
Center for many years, will reverse that attitude. Johnson took office in
November 2019. In February 2020, he appointed Asim Rehman as his Chief
of Staff, who had been First Deputy in the office of the NYPD Inspector
General, an independent office within the City’s Department of
Investigation (DOI). Both Johnson and Rehman have deep experience with
police misconduct and, more importantly, with the ways in which police
misconduct is covered up by the police and their enablers. But they are
dealing with a problem that has been festering for decades and are up
against entrenched bureaucracies that are extremely resistant to change.
Most Law Department supervisors who fought tenaciously against
the Stop-and-Frisk and Central Park 5 settlements have not been
replaced. Carter even appointed one to head the special division that
defends all federal police misconduct lawsuits—even though she is so
pugnacious that she was once rebuked by a Brooklyn federal judge for being
unethical, dishonest, and disrespectful in her trial behavior. 9
7 See James v. City of New York, 1998 WL 677583 (S.D.N.Y. 1998) (the undersigned
represented the plaintiff in the James case).

8 Benjamin Weiser, To Curb Suits, City Now Opts to Fight Them, N.Y. TIMES (Feb. 25, 2013),
https://perma.cc/Y5WL-UXVK.
9 Jocks v. Tavernier, 97 F. Supp. 2d 303, 310–11 (E.D.N.Y. 2000). The attorney in question was
rebuked by Judge Platt in the U.S. District Court for the Eastern District of New York in this
case. The Judge stated that during the Jocks trial, his rebukes of Attorney Miller “were necessary
to maintain order and control over the proceedings. A few of Miller’s habits included repeatedly
arguing matters which were previously ruled upon, refusing to allow other attorneys to speak,
although they patiently waited for her to finish, and once other attorneys managed to gain the
floor, Miller would continually interject and speak over the other attorneys.” Judge Platt also
accused Miller of being “disingenuous at best” for lying to the Court, “claiming ignorance” of
the need to produce a NYPD witness whose production the plaintiff had repeatedly requested,
It was astonishing that Carter would entrust such a sensitive

position to a hard-liner who sets the tone for the City in police misconduct
cases. He fought hard as U.S. Attorney for the EDNY, together with the Civil
Rights Division of the Justice Department, for a pattern-and-practice lawsuit
against the Giuliani NYPD in the waning years of the Clinton
Administration. Attorney General Janet Reno vetoed the effort at the last
minute. The history of police community-relations in the Bloomberg-Kelly-
Cardozo years would have been very different had Carter and the Civil
Rights Division prevailed.10 But after several years in private practice Carter
apparently came to believe that his first and foremost duty was to defend
the “client” regardless of the public policy consequences, and he narrowly
defined his principal clients as the NYPD and miscreant police officers, who
were to be defended at all costs to preserve their reputations and save the
City money.
Because of that tone, the City has recently been sanctioned—twice—
by federal judges for deliberately withholding vital evidence in discovery.
For example, in Martinez v. The City of New York, Magistrate Judge Pollak
observed that:
[T]his case has been marked by an unprecedented and disturbing
pattern of delay and failure to comply with the Orders of this
Court. This Court has had to hold 13conferences to resolve various
discovery disputes, including two hearings to address plaintiff’s
motions for contempt and sanctions, and has issued 14 Orders to
defendants to produce discovery that is clearly mandated by the
Federal Rules of Civil Procedure even in the absence of a request
or order.
******************
including in writing. Judge Platt further stated that “Ms. Miller should be grateful that the
parties did not seek personal sanctions against her and that the Court only imposes mild
sanctions against the City.” Judge Platt also cited as further support for his statements an
affirmation of the plaintiff’s attorney, stating, “This attorney, Patricia Miller, was without a
doubt one of the most discourteous and obnoxious attorneys I have ever had the misfortune of
trying a case against. The lack of respect for the Court that she demonstrated time and time
again was tantamount to disdain.” He further stated that Miller “attempted to provoke the
Court by trying to speak over the Court,” and by “repeatedly arguing with the Court regarding
matters which were previously ruled upon.” He added that her “trial strategy was to provoke
the Court in such a manner that the Court was forced to bluntly order counsel to cease and
desist, so that Corporation Counsel could later claim that the Court should recuse
itself.” (Jocks was reversed on appeal on grounds totally unrelated to the Judge’s comments
about Miller’s misconduct in his courtroom. See Jocks v. Tavernier, 316 F.3d 128 (2d Cir. 2003)).
10 See Joel Berger, The Feds Should’ve Started Monitoring the NYPD Long Ago, N.Y. DAILY NEWS,
(June 24, 2020), https://perma.cc/V424-PEGC.

[T]he Court finds that defendants and their counsel have

demonstrated a pattern of willful noncompliance with the Court’s
Orders and basic discovery obligations over almost two years
despite 14 Court Orders.
Ultimately, the City paid approximately $142,000 in attorneys’ fees and costs
as discovery sanctions for its misconduct.11
Similarly, in Allen Brown v. The City of New York, the Court stated:
As clearly and correctly explained by Judge Reyes in great detail,
defendants' remarkable negligence in meeting their discovery
obligations led to unjustified delay, prejudice and additional costs
to Plaintiff. Defendants unpersuasively argue that precluding
defendants from using plaintiff’s original deposition at trial, on
motion, or at a new deposition of plaintiff, prejudices defendants.
However, given the unjustified delay and prejudice to plaintiff due
to defendants' negligence, it is clear that the sanctions ordered by
Judge Reyes are appropriate and well within his authority.
Magistrate Judge Reyes had been even more blunt in his description
of the behavior of the City’s Special Federal Litigation lawyers. Responding
to their excuse that they had merely made an “innocent mistake,” he stated:
Upon review of the facts this Court rejects the Defendants’ claim
of innocence and finds that their failure to disclose the IAB
[Internal Affairs Bureau] Audio was at the very least the product
of negligence, if not negligence so gross as to be willful.12
The City avoided sanctions by settling the case in May 2019 for $325,000,
inclusive of attorney’s fees and costs.
A New York Times article in September 2018 described four other
cases in which sanctions have been imposed or threatened. The article
included a statement by prominent civil rights attorney Joel Rudin, co-
counsel for the plaintiff in the Allen Brown case, that summarized the views
of many of my colleagues: “They will use every trick in the book to prolong
a case and wear down the plaintiff and the plaintiff’s lawyers, delaying
11 See Martinez v. City of New York, 2018 WL 604019 (E.D.N.Y. 2018) (affirming monetary
sanctions); Martinez v. City of New York, 2018 WL 1835935 (E.D.N.Y 2018) (Judge Donnelly
imposing sanctions and fees); Martinez v. City of New York, 330 F.R.D. 60, 89 (E.D.N.Y. 2019).
Judge Donnelly asked the parties to resolve the amount of sanctions and fees among
themselves, but the City balked at paying for anything remotely close to the hours that had to
be expended by plaintiff’s counsel to combat the City’s misbehavior. Magistrate Judge Pollak
had to step in and decide the issue, ordering payment of approximately 80% of the sums sought
by plaintiff’s attorneys, and the parties eventually settled the issue. (16 CV 79, Dkt. Doc. 176).
The case on the merits is still pending.
12 Brown v. City of New York, 2018 WL 3193208 (E.D.N.Y. 2018) (Judge Matsumoto,
affirming Magistrate Judge Reyes’ order in 15 CV 4488 (Dkt. Doc. 58, E.D.N.Y.)).
discovery and basically making fights over nothing.” 13 In one case described
in the article, an Eastern District federal judge "sanctioned the city after one
of the unit's lawyers 'acted improperly' at an officer's deposition, objecting
nearly 600 times to questions, even though many were deemed to be
'relevant to the case.'"
In another particularly egregious case described in the article, a city
lawyer refused to let the plaintiff’s lawyer use any Law Department
telephone to call a Magistrate Judge to seek a ruling against the city lawyer’s
misbehavior at a deposition—a procedure mandated by the Court’s rules. 14
The Magistrate Judge handling the case, James Orenstein, stated that he was
considering referring the matter to the Court's grievance committee for a
“very troubling” apparent violation of professional rules. Judge Orenstein
had previously criticized the City for advancing “truly absurd” arguments
in resisting his discovery orders and had threatened defendants with
contempt citations for outright refusal to comply with his discovery orders.
The City escaped the consequences of its misbehavior by writing abject
letters of apology to the Court (one from the lawyer at the deposition
admitting wrongdoing, and the one from her supervisors who denied
responsibility for what happened at the deposition but who had overseen
that lawyer’s other misbehavior in discovery) and then settling the case for
$280,000—$150,000 to the plaintiff and $130,000 in attorneys’ fees, for the
time spent combating the City’s misbehavior in discovery.15
In another case described in the Times, SDNY Magistrate Judge
Gorenstein was so aggravated by the City’s lawyer repeatedly missing
discovery deadlines that he ordered the city to explain the delays in a formal
memorandum and ordered that it be personally signed by the Special
Federal Litigation Division’s chief. More recently, in the same case, the
District Judge Castel excoriated the City for initially claiming that a crucial
record of police radio calls had been destroyed, and then miraculously
finding it when required to submit a sworn declaration attesting to its
supposed destruction. Plaintiff’s motion for sanctions and attorney’s fees is
pending.16
13 Alan Feuer, The Lawyers Protecting the N.Y.P.D. Play Hardball. Judges Are Calling Them out.,
N.Y. TIMES (Sept. 12, 2018), https://perma.cc/UX6Z-M7GX.
14 S. AND E. DIST. OF N.Y. LOCAL CT. R. 37.3(b); see also Pettiford v. City of New York, No. 17
CV 5273, 2018 U.S. Dist. LEXIS 82612 (E.D.N.Y. May 15, 2018).
15 See Pettiford, 2018 U.S. Dist. LEXIS (Dkt. No. 48, 52, 67, 95, 112 and Order Re. 112, 114, 116,
117, 118, and 122).

16 See Pl.’s Mot. for Sanctions 1–30, Jun. 13, 2019, No. 1:15-cv-04091-PKC-GWG, Doc. 235,
https://perma.cc/2848-3EMH; see also Stephen Rex Brown, NYC Settles Suit over Asthmatic Bronx
Perhaps the worst example of dishonest behavior described in the

article is DaCosta v. The City of New York, in which United States District
Judge Jack Weinstein excoriated the City’s lawyers for ignoring their ethical
obligations after it emerged that they knew a plaintiff had accidentally sued
the wrong detective for malicious prosecution. But instead of promptly
notifying the plaintiff of his mistake, the City’s lawyers had the audacity to
oppose his motion to amend the complaint to add the correct detective as a
defendant, arguing that the statute of limitations had expired and could not
relate back to the date of the original filing.17
The Special Federal Litigation Division attorneys defending the case
had sought several extensions of time to answer or move to dismiss the
original complaint, on the ground that they needed the extensions in order
to “acquire as much information as possible concerning this matter to
properly assess the case and respond to the Complaint.” They obtained
plaintiff’s consent to these extensions by assuring him that the delay would
“not affect any other deadline in this case.”18 After nine months of
extensions, the City’s lawyers, “armed with the knowledge that Plaintiff
sued the wrong individual,” moved to dismiss the complaint. 19 When
plaintiff sought to depose the other detective whom the City had named in
its motion as being involved, in order to clarify whether that detective was
in fact the arresting officer whom plaintiff should have named as a
defendant, the City’s lawyers delayed matters further by moving
(unsuccessfully) to quash the subpoena for his deposition. Plaintiff then
promptly deposed that detective, and upon completing the deposition,
promptly sought leave to amend the complaint to add the detective as a
defendant. The City’s lawyers, who by now had known for months that the
plaintiff had named the wrong detective, obstinately fought that motion.
Judge Weinstein rejected their opposition.
Judge Weinstein wrote an exhaustive analysis of the heightened
ethical obligations of city attorneys in civil cases, noting that they represent
the people of their jurisdictions as well as government employees and the
Man Who Died in NYPD Custody for $2.6M, N.Y. DAILY NEWS (Feb. 3, 2020, 12:01 AM),
https://perma.cc/SYV5-WZLN (settling the case for $2.55 million, the N.Y.C. Law Department
thereby short-circuited “an ongoing fight about whether the city misled the court about
evidence in the case”); Stephen Rex Brown, Judge Slams City Lawyers, NYPD for Misleading Info
on Bronx Man Who Died of Asthma Attack While in Police Custody, N.Y. DAILY NEWS (Feb. 26, 2019,
6:00 AM), https://perma.cc/5G37-ZT3U.
17 DaCosta v. City of New York, 296 F. Supp.3d 569 (E.D.N.Y. 2017).
18 Id. at 604-05.
19 Id. at 605.
city itself.20 He explicitly criticized former Corporation Counsel Cardozo for

taking the position that “government attorneys owe an obligation to only
governmental institutional interests,”21 and he concluded as follows, directly
condemning Corporation Counsel Zachary Carter, on whose watch the
misconduct in DaCosta had occurred:
For months the City sat in silence while a resident it serves had a
readily curable defect in his complaint that the Corporation
Counsel now claims deprives him of his right to have his claim
adjudicated on the merits.
The Corporation Counsel did not adhere to its ethical and
discovery obligations in this case. The Corporation Counsel has
shown indifference to fairness of outcome and process. Because
the Corporation Counsel has not complied with these obligations,
it cannot assert the statute of limitations as a defense. Its conduct
substantially contributed to plaintiff’s failure to name the proper
defendant prior to expiration of the statute of limitations.22
Yet in response to Judge Weinstein’s criticism, the City shamelessly

stuck to its guns, moving for reconsideration and absurdly claiming that the
plaintiff’s only recourse was to sue his lawyer for malpractice. Judge
Weinstein emphatically disagreed, stating that it would be a “miscarriage of
justice” to allow the City to profit off the misbehavior of its lawyers. 23
Adding together the City’s payments in Pettiford, Allen Brown, and
Martinez (to date—Martinez is still pending), a unit that claims to be saving
the City money by its arduous defense of police misconduct cases has had
to pay approximately $750,000 of the taxpayers’ money, in large measure to
avoid the consequences of its own misconduct. Kevin Brown and Martinez
(on the merits) are still pending, and will undoubtedly add to a total that is
likely to exceed One Million before they come to an end. As Judge Weinstein
observed in his opinion denying rehearing in DaCosta:
What would have been the legal harm in consenting to the
addition of Detective Tranchina instead of filing a motion to
dismiss? Why would Corporation Counsel seek to quash a
subpoena issued for the deposition of Detective Tranchina when it
knew he was the proper defendant? . . . Had civility ruled the
litigation, this litigation would likely have ended some time ago.
The Corporation Counsel’s hardball tactics may end up costing the
residents of New York more money because plaintiff’s counsel has
20 Id. at 599-603.
21 Id. at 603.
22 Id. at 605.
23 DaCosta v. Tranchina, 285 F. Supp. 3d 566, 579 (E.D.N.Y. 2018).
been forced to litigate what would be otherwise unnecessary

motions in a case with potential for fee shifting.24
More recently, the Corporation Counsel’s office was castigated by a

United States Magistrate Judge for ordering confiscation of an officer’s
memo book that later mysteriously disappeared, resulting in a spoliation
ruling according the plaintiff an adverse inference at trial. 25 The officer in
question had turned against the City and was keeping a record of illegal
stops and frisks, arrest quotas, and other misconduct. When one of the lead
Special Federal Litigation Division attorneys defending the stop-and-frisk
cases learned of the officer’s EEOC complaint, she ordered the NYPD to
confiscate the memo pad and an NYPD Integrity Control Officer did so. The
officer’s attorneys in his subsequent employment discrimination action
repeatedly served notice that the memo pad must be preserved. Yet when
they requested it in discovery, the City initially objected, then agreed to
produce it, but then—astonishingly—admitted that it had disappeared. The
Court (Magistrate Judge Cave) found the City guilty of “grossly negligent
spoliation.”26
Victims of NYPD misconduct are mistreated twice these days, first
by the misconduct itself and then by City attorneys who withhold or
acquiesce in the destruction of vital discovery and abuse legitimate plaintiffs
with unethical tactics.
In the 1980s, there was an ethos within the Law Department that the
Corporation Counsel is not merely a political defense lawyer for the City and
its employees. He is an Attorney General for the people of the City. As
former Corporation Counsels Frederick A.O. Schwartz Jr. and Peter
Zimroth—Mayor Koch’s appointees—frequently noted, the Charter itself
specifies that the Corporation Counsel represents not only the City but also
“the people thereof.” 27 Judge Weinstein, who served as County Attorney for
Nassau County before being appointed to the federal judiciary and has
extensive experience with the requirement that government attorneys must
24 Id. at 575; see also supra text accompanying note 9. DaCosta was subsequently dismissed in
an unpublished summary order on grounds totally unrelated to Judge Weinstein’s comments
about the Law Department’s unethical behavior, the Second Circuit holding that there was
arguable probable cause for Detective Tranchina to have arrested the plaintiff. DaCosta v.
Tranchina, 783 F. App’x. 54, 55 (2d Cir. 2019) (citing Martinez v. City of New York, in which the
City’s lawyers similarly failed to identify a key witness).
25 See Raymond v. City of New York, No. 15 CV 6885, slip op. at 27–33 (S.D.N.Y. Mar. 5,
2020).
26 Id. at 43.
27 N.Y.C., N.Y., CHARTER § 394(c) (2020).
represent the people of a jurisdiction as well as its agencies and employees,

explicitly alluded to this obligation in DaCosta.28 But in New York City that
ethos of independence is long gone, having disappeared decades ago. 29
The current administration remains fixated on squelching most
police misconduct lawsuits as “frivolous” and has entrusted highly biased
zealots with the sensitive task of administering a special unit that defends
such lawsuits. Litigation “victories” for the Special Federal Litigation
Division in such cases, if they result from more clever lawyering or
fortuitous juries, are hardly victories for our City if misconduct in fact
occurred, decent law-abiding people were harmed, and rogue officers
escaped unscathed. Victims of police misconduct become embittered by the
virulent, pugnacious tactics of city lawyers focused more on winning cases
than doing justice.
Of course some lawsuits brought by unscrupulous lawyers are
frivolous, and some plaintiffs insist on filing cases that are lacking in merit.
That is true of all litigation. I receive meritless complaints on a weekly basis
and decline them. Nonetheless, there are thousands of cases that do have
merit, and so long as the NYPD’s disciplinary system remains impervious to
28 See generally DaCosta v. City of New York, 296 F. Supp. 3d 569, 600–03 (E.D.N.Y. 2017).
29 The Department’s ethos of independence actually began crumbling under Mayor Dinkins,
whose first Corporation Counsel, Victor Kovner, was a close political associate. During his
administration the Law Department defended (unsuccessfully) the City’s refusal to enforce a
court order requiring African American protesters to remain fifty feet from the entrance of a
Korean grocery they were boycotting, on the absurd argument that the NYPD was not a party
to the litigation. See Boung Jae Jang v. Brown, 161 A.D.2d 49, 53 (N.Y. App. Div. 1990). The
politicization of the Law Department continued to escalate under Mayor Giuliani, in cases such
as the effort to de-fund the Brooklyn Museum over a work of art Giuliani found offensive. See
generally Brooklyn Inst. of Arts & Scis. v. Rudolph W. Giuliani, 64 F. Supp. 2d 184, 189 (E.D.N.Y.
1999). Mayor Bloomberg’s Corporate Counsel Cardozo heartlessly tried to straight-arm victims
of a disastrous Staten Island ferry crash that killed eleven people and injured seventy others,
some very seriously, by using an antiquated nineteenth century admiralty statute that limited
damages to the worth of the vessel; the tactic was rejected by the federal judiciary. See In re City
of New York, 475 F. Supp. 2d 235 (E.D.N.Y. 2007), aff’d, 522 F.3d 279 (2d Cir. 2008). Cardozo also
defended the stop-and-frisk campaign of former Mayor Bloomberg and former Police
Commissioner Kelley to the hilt, even though it was obviously illegal under Terry v. Ohio, 392
U.S. 1 (1968). See Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013). Bloomberg has
since admitted that the policy was wrong and has apologized. Kelly, the architect and chief
enforcer of stop-and-frisk, has said no such thing. Cardozo, a former President of the
Association of the Bar who should have known better, has remained silent to date. As noted
previously, Cardozo was criticized by Judge Weinstein in De Costa for taking the position that
his only obligation is to government interests (i.e., in Floyd), and for simply doing the Mayor’s
bidding instead of advising him of the obvious illegality of the reign of terror being inflicted
upon young African American and Latino men by Kelly.
even the most extreme misbehavior of officers, there will continue to be

thousands of such cases.
Until the late 1990s police misconduct cases were handled by City
attorneys who defended a variety of cases and who therefore had a better
perspective than attorneys who are solely defenders of the police. When I
served on the Law Department Executive Staff in the Koch and Dinkins
Administrations there was occasionally talk of establishing a special unit to
defend the police. However, the idea was consistently rejected because it
would inevitably produce a cadre of lawyers who would become far too
close to the NYPD and develop into a unit with the philosophy that (i) every
officer must be defended to the fullest no matter how strong the evidence
against the officer, and (ii) wrongdoing by an officer that becomes known to
a City lawyer in the course of defending a case must never be reported to the
NYPD. That is exactly what has happened. 30
If the Mayor and his newly-appointed Corporation Counsel are
truly committed to improving police-community relations, they should
require the Law Department to disband the Special Federal Litigation
Division and return to the system of having more objective lawyers assigned
to represent the City in police misconduct cases. If that does not happen, the
next Mayor should require his or her Corporation Counsel to institute this
important reform.
On November 5, 2019, the voters approved a Charter Amendment
requiring City Council approval of a Mayor’s Corporation Counsel
appointment.31 It is hard to imagine a scenario under which the Council
would block the proposed appointment of a Corporation Counsel over the
30 The Special Federal Litigation Division’s blind defense of all wrongdoing also extends to
cases concerning the misconduct of correction officers in the City’s jails. For example, where a
detainee was horribly disfigured in a slashing by other inmates after the only officer on duty
allegedly abandoned his post and left the maximum security cell block unguarded, the Division
argued that the officer’s misconduct was “mere negligence” rather than deliberate indifference
(the standard for federal jurisdiction), sought dismissal of the case from federal court, and
refused to offer more than $15,000 in settlement. The Division even appealed a District Court
ruling denying dismissal, and succeeded in winning reversal in a poorly-reasoned Second
Circuit opinion that was unpublished and therefore has no precedential value. See generally Ross
v. City of New York, 2014 U.S. Dist. LEXIS 107553 (S.D.N.Y. Aug. 4, 2014). The case wound up
in Bronx Supreme Court, where after long delays a different Law Department office had to settle
for $200,000 on the negligence issue. Index No. 304080 (Sup. Ct. Bronx Cty. Jan. 22, 2018). The
Division’s stubborn approach actually cost the City thousands of dollars, as the plaintiff would
have settled for far less to obtain a speedier result in federal court.
31 See N.Y.C. Charter Revision Commission, Final Report of the 2019 New York City Charter
Revision Commission 65, NYC.GOV (Aug. 2, 2019), https://perma.cc/8UUH-8AG6 [hereinafter
Charter Revision Comm’n].
nominee’s refusal to commit to any particular set of reforms, but one can
always hope. The Mayor retains the power to remove the Corporation
Counsel at will,32 so the danger remains that the Corporation Counsel will
be influenced to “prioritize the interests of the Mayor, which may not be in
the City’s overall interests,”33—i.e., to place the Mayor’s political fear of
criticism from the police unions above the public good. The Council should
vigorously use its new advise-and-consent power to require adherence by
Corporation Counsels to Charter Ch. 17, § 394(c), the provision specifying
that the Corporation Counsel represents not only the City, its elected
officials, agencies, and employees, but also “the people thereof.”34
In addition, the Council should enact legislation expanding the
reporting requirements of NYC Administrative Code § 7-114 (enacted in
2017), a measure first introduced by Councilmember, now Public Advocate,
Jumaane Williams, in 2014. In addition to the Law Department data the
Council now requires concerning settlements and judgments against NYPD
officers, the NYPD should be required to issue a report to the Council in
every case in which the Law Department has settled allegations of police
wrongdoing or in which there has been a verdict of police wrongdoing after
trial. The report should advise the Council as to what specific disciplinary
actions—if any—have been taken against the defendant officers. And the
Law Department should be required to report what specific steps—if any—
it has recommended to the NYPD to safeguard against a repetition of
misconduct by the officers involved.35
32 Id. at 63.
33 Id. at 65.
34 The advise-and-consent Charter amendment took effect immediately, but in anticipation
of its approval by the voters on November 5, 2019, the Mayor appointed Carter’s successor on
October 31, 2019, thereby depriving the Council of the opportunity to question the new
Corporation Counsel at a confirmation hearing.
35 Law Department policy, dating back to at least 1985, requires that in a police misconduct
case the Law Department’s principal obligation is to the City rather than the individual officers.
That year, Corporation Counsel Frederick A.O. Schwartz, Jr. commissioned a study of the
subject by former NYS Chief Judge Charles Breitel. Judge Breitel found no ethical problem in
taking sides against a rogue officer—e.g., reporting the officer’s misconduct and any
incriminating statements of the officer that had come to light during the Law Department’s
representation of the officer—because all officers represented by the Law Department waive
confidentiality in return for free representation and indemnification of any settlement or
compensatory damages judgment against them.
INCREASE PENALTIES FOR NYPD DEPARTMENTAL DISCIPLINE
At present, if a police officer is not terminated in an NYPD

disciplinary proceeding, a New York City local law dictates that the most
severe penalty is suspension without pay for thirty days and one year of
dismissal probation.36 The police unions are happy to keep it that way. So is
the City Council, which has for decades given in to the unions and resisted
numerous calls for more meaningful penalties.
The strengthening of penalties was advocated by the Knapp
Commission nearly fifty years ago in response to the Serpico-era scandals,
yet has never been enacted. The Knapp Commission Report even stated that
the absence of sufficiently strong disciplinary penalties was “the most
troublesome issue in the disciplining of policemen[].”37 The Commission
recommended increasing NYPD disciplinary penalties to include
suspension without pay for a year, monetary fines of up to $25,000, and
demotion in grade or title with a commensurate reduction in salary.
In 1994, the Mollen Commission Report38 advocated the same
reform. More than a decade later, Mayor Giuliani’s Commission to Combat
Police Corruption again recommended it. So did Citizens Union in its 2008
report39 and follow-up position papers in 2012 and 2016.
Early in William Bratton’s first term as commissioner, the Giuliani
Administration actually had a bill introduced in the Council to implement
the stronger NYPD disciplinary penalties advocated by the Knapp
Commission and later by the Mollen Commission. The bill, sponsored by
Queens Councilmember Leffler, stated that it was being introduced “by the
request of the Mayor.” 40
This measure is a no-brainer, and the failure to enact it during the
past fifty years is scandalous. Police commissioners have occasionally forced
officers to accept slightly stronger penalties than allowed under current law
under threat that they will be terminated if they do not agree, but that
happens very rarely. If the Council were to enact the amendment to
Administrative Code § 14-115 and the police commissioner were to utilize
36 N.Y.C., N.Y., ADMIN. CODE §14-115 (2020).

37 Whitman Knapp et al., The Knapp Commission Report on Police Corruption 229 (1972).
38 Mollen Commission Report, Commission to Investigate Allegations of Police Corruption
and the Anti-Corruption Procedures of the Police Department, N.Y.C. 143–44 (July 7, 1994)
[hereinafter Mollen Commission Report].
39 CITIZENS UNION, supra note 2, at 7.
40 N.Y.C. Int. 250-1994.
the powers accorded by the amendment—and there would surely be public

pressure on the commissioner to do so—it would go a long way toward
putting teeth into the NYPD disciplinary system.
A 2018 article in the New York Times reported that former
Commissioner O’Neill reduced penalties recommended by the Civilian
Complaint Review Board (CCRB) in “a substantial majority of cases,” even
where the CCRB had itself recommended relatively low penalties in an effort
to find common ground with the NYPD.41 That watering down of CCRB
recommended penalties, which placed the CCRB itself on the list of City
agencies that enable the NYPD to sweep serious misconduct under the rug,
was nonetheless deemed inadequate by the NYPD. And almost half of the
most serious CCRB-substantiated cases closed in 2017 “ended with no
discipline” at all. As one recent former CCRB Chair told the Times, the CCRB
is “no longer a meaningful part of the disciplinary process, and is just a
palliative to people who complain with no real consequence.”42
A Charter revision approved by the voters on November 5, 2019,
requires the Commissioner to notify the CCRB of written reasons for every
downward deviation from the CCRB’s recommendations, and with the
repeal of NYS Civil Rights Law § 50-a, those reasons should not be kept
secret. But in all likelihood the Commissioner will continue to water down
CCRB recommendations, even in the face of public scrutiny.
This has to change, and action by the Council increasing the
penalties for police misconduct would send an important message that it
must change. The reform proposed by the Knapp and Mollen Commissions
and other respected bodies could, if utilized effectively as a result of pressure
on the NYPD, actually have an impact on reducing the huge increase in
police misconduct lawsuits.
Administrative Code §14-115 is a local law that can be amended by
the Council alone. State legislation is not required. Yet for nearly fifty years,
Council leaders have been afraid to stand up to the police union opposition,
thwarting any amendment to the local law. The Council, as well as the Law
Department, has been an enabler to the NYPD and to the police unions that
steadfastly resist reform.
41 Benjamin Mueller, Police, at Odds with Oversight Board, Reject More of Its Penalties, N.Y.
TIMES (Apr. 12, 2018), https://perma.cc/LK25-UQAJ.
42 Id.
VIGOROUSLY ENFORCE PENALTIES FOR MAKING FALSE OFFICIAL

STATEMENTS
NYPD Patrol Guide (PG) 203-08 states that the penalty for
intentionally making a material false official statement must be dismissal,
absent exceptional circumstances as determined by the police commissioner
on a case-by-case basis. However, as a recent report of an independent panel
appointed by the police commissioner determined, this provision is
routinely ignored.
The independent panel, headed by former U.S. Attorney for the
Southern District of New York Mary Jo White, called upon the NYPD to
enforce strictly Patrol Guide 203-08. The panel’s recommendations included
requiring the NYPD to “investigate potential false statement cases
aggressively,” bring more such cases under PG 203-08, and not reduce those
charges to lesser offenses to circumvent the presumptive penalty of
termination. The panel also recommended that any time the commissioner
elects not to terminate under PG 203-08, the commissioner should be
required to “meaningfully explain in writing the exceptional circumstances
justifying a lesser punishment.” 43
The panel noted44 that these recommendations were based largely
upon identical recommendations issued nearly eighteen months earlier, in
August 2017, in a report by the Mayor’s Commission to Combat Police
Corruption (CCPC). 45 But the panel did not address the question of why that
Commission’s report had been ignored for nearly a year and a half.
More importantly, the panel neglected to mention that the very
same CCPC had urged virtually identical recommendations twenty-two years
ago in a report issued on December 12, 1996, to coincide with the
promulgation of PG 203-08 by then-Commissioner Safir. At that time the
CCPC urged “that a strong message of intolerance towards lying be
communicated throughout the Department.” 46 The report continued:
Strengthening the disciplinary system to actively prosecute and
43 Mary Jo White, Robert L. Capers & Barbara S. Jones, The Report of the Independent Panel on
the Disciplinary System of the New York City Police Department, INDEP. PANEL REP. 54 (Jan. 25,
2019), https://perma.cc/RP7E-UGWV.
44 Id. at 40, 54.
45 Comm’n to Combat Police Corruption, Eighteenth Annual Report of the Commission, CCPC
171-72 (Aug. 2017).
46 Comm’n to Combat Police Corruption, The New York City Police Department’s Disciplinary
System: How the Department Disciplines Its Members Who Make False Official Statements, CCPC 10
(Dec. 12, 1996), https://perma.cc/QB3F-EVTJ.
seriously penalize officers who make false official statements is

critical . . . [O]fficers must be aware that absent exceptional
circumstances, false statements, including false statements made
to cover the misconduct of other officers, will result in termination
from the force, not a forfeiture of vacation days47. . . By punishing
those who make false statements in a clear, unambiguous manner,
the Department sends a message which enhances the credibility of
the overwhelming percentage of officers who perform their
responsibilities with courage and integrity . . . This policy of
termination absent exceptional circumstances can serve a critical
role in the Department’s efforts to achieve the highest levels of
integrity.”48
Only two years earlier, the Mollen Commission had severely

criticized the NYPD for condoning a culture of falsifications of arrest records
and outright perjury, finding that the practice was routinely deemed
acceptable by the Department’s top commanders and further describing the
practice as “so common in certain precincts that it has spawned its own
word: ‘testilying.’” 49
Given the NYPD’s failure to follow through on recommendations
going back more than two decades, it should come as no surprise that
solemn promises to comply with the latest panel recommendation are to be
taken with a grain of salt.
The NYPD historically was so resistant to taking action against
officers who lied that it even did its best to prevent the CCRB from doing
anything about officers who lied to the CCRB in the course of its
investigations. For many years the NYPD insisted that the CCRB had no
jurisdiction in such cases, and must refer questions of whether to file charges
and whether to prosecute them departmentally to the NYPD. Whenever the
CCRB recommended charges and specifications for false official
statements pursuant to PG § 203-08, the NYPD insisted that any such
infraction was outside the jurisdiction of the CCRB—even though the
alleged false official statements were made to the CCRB during its
investigation of the underlying incident. The NYPD demanded that it alone
had the power under the Charter to discipline officers for making false
official statements to the CCRB. And even if the NYPD filed charges and
specifications for false official statements, the NYPD insisted on controlling
prosecution of that infraction even while the CCRB prosecuted the
underlying charge. That was really silly. It should come as no surprise that
47 Id. at 34.
48 Id. at 39–40.
49 Mollen Commission Report, supra note 38, at 36–43.
departmental prosecutions for making false official statements to the CCRB

were extremely rare.
A Charter revision approved by the voters on November 5, 2019
amended the Charter slightly to codify that the CCRB may investigate and
recommend false official statement charges—which it already does anyhow
under the heading “other misconduct”—but the measure does not require
the NYPD allow the CCRB to prosecute the charge, and the CCRB would be
limited to recommending false statement charges only against the officer
who is the subject of the complaint, as opposed to other officers who may
have lied in support of that officer. The Commission’s Final Report admits
that of the eighty-one false statement cases referred by the CCRB between
2010-2018, the NYPD “imposed discipline on only two such cases,” and in
the other seventy-nine found no wrongdoing or minor misconduct such as
failing to fill out a memo pad properly. 50 The 2019 Charter revision
unfortunately will do nothing to force the NYPD to strictly enforce PG § 203-
08.
In the absence of any serious effort by the NYPD to punish officers
for lying, one would hope that the City’s district attorneys would vigorously
prosecute officers who commit the Class E felony of Offering a False
Instrument for Filing in the First Degree. 51 The overwhelming majority of
false official statements by police officers are made in Criminal Court
complaints in which police officers falsely accuse an individual of criminal
conduct. The prosecutors routinely dismiss cases in which they doubt the
officers’ credibility, but rarely do they follow through with criminal
prosecutions.
Penal Law § 175.35 is applicable to the intentional filing of any false
statement in a court “for the purpose of frustrating the State’s power” to
fulfill its responsibility to carry out the law.52 Yet the city’s prosecutors, eager
to maintain a good working relationship with the NYPD, nearly always look
the other way. A March 2018 series of articles in the New York Times by
investigative reporter Joseph Goldstein demonstrated that even in the most
obvious and severe cases of police mendacity, including blatant lying on the
50 Charter Revision Comm’n, supra note 31 at 54–55.

51 See generally N.Y. Penal Law § 175.35 (McKinney 2014).
52 People v. Kase, 76 A.D.2d 532, 538 (N.Y. App. Div. 1980), aff’d “for the reasons stated in
the Per Curiam Opinion at the Appellate Division,” 53 N.Y.2d 989 (1981).
witness stand, the DAs do not prosecute. 53 They simply ignore obvious
criminal misconduct when that misconduct is committed by a police officer.
Convictions for violation of Penal Law § 175.35 would result in what
the NYPD has consistently failed to do—terminate police officers from
public employment for lying—because violation of the statute is a Class E
felony and any officer convicted of a felony must be automatically fired by
rule of law.54
A 2018 BuzzFeed News investigation revealed dozens of cases in
which police officers had been kept on the force despite proof that they lied
to assistant district attorneys and had even lied before grand juries. There
was even one case in which an officer was found to have lied about using
force when arresting a man who later died in police custody, yet the officer
faced no disciplinary action at all. BuzzFeed further reported that a draft
report on police lying prepared by the NYPD Inspector General, an
independent official in the city’s Department of Investigation (DOI), was
squelched by the DOI Commissioner. 55
The Mollen Commission explicitly chastised the City’s district
attorneys for turning a blind eye to police falsifications of arrest records and
perjurious testimony: “several former and current prosecutors
acknowledged—‘off the record’—that perjury and falsifications are serious
problems in law enforcement that, though not condoned, are ignored.”56
Recently three of the City’s district attorneys addressed the problem,
but they did so in the most limited, feeble and ineffective manner
imaginable—and only in response to Freedom of Information Law (FOIL)
demands. The Brooklyn District Attorney responded to an online news
service’s FOIL demand by releasing a list of seven police officers blacklisted
by its prosecutors as untrustworthy and forty-seven more who gave
testimony that state and federal judges determined lacked credibility. One
of the worst of the seven had been promoted from sergeant to lieutenant
despite his reputation for mendacity, and altogether the officers listed had
53 See Joseph Goldstein, 'Testilying' by Police: A Stubborn Problem, N.Y. TIMES (Mar. 18,
2018), https://perma.cc/T8SL-3J5R; Joseph Goldstein, Promotions, Not Punishments, for Officers
Accused of Lying, N.Y. TIMES (Mar. 19, 2018), https://perma.cc/GK8F-Q33U; Joseph Goldstein,
Police Officer Is Charged with Lying About Finding a Gun, N.Y. TIMES (Mar. 27,
2018), https://perma.cc/MT6D-7AKC.
54 See N.Y. Pub. Off. Law § 30(1)(e) (McKinney 2018).
55 Kendall Taggart, The Former Top Official Overseeing the NYPD Inspector General Shelved a
Report About Officers Who Lied, BUZZFEED NEWS (Nov. 26, 2018, 11:28 AM ET),
https://perma.cc/WET9-AXSB.
56 Mollen Commission Report, supra note 38, at 42.
cost the City more than $5 million in lawsuits. But not a single one of the
fifty-four officers listed was prosecuted by the Brooklyn DA’s office or
disciplined by the NYPD. 57 The Manhattan DA’s office followed up in
December 2019 with a list of sixty-one officers whom judges had deemed to
have “adverse credibility issues.” The list was made public in response to a
FOIL demand by the Daily News, which reported that the Queens DA had a
similar list of sixty-five officers. The Manhattan DA claimed that it did “not
necessarily” concur with each judge’s finding. 58
Do the prosecutors seriously expect the public to believe that of the
180 officers on the three lists combined, not a single one can be prosecuted?
Does the NYPD seriously expect the public to believe that not a single one
of the 180 can be proved by a preponderance of the evidence in a disciplinary
proceeding to have committed the offense of making a false official
statement, the punishment for which is presumptively dismissal from the
Department under PG § 208-08?
In this instance the NYPD’s principal enablers are clearly the City’s
five district attorneys, who are reluctant to prosecute police officers for lying
even in cases where the evidence of mendacity is overwhelming. Other
enablers are the City Council, which could force the NYPD to take more
aggressive action against officers who lie, and the DOI, for withholding the
2018 Inspector General’s Report.
However, the Law Department is also an enabler. In many cases
Assistant Corporation Counsels recommend settlements because they know
that the defendant officers are lying, but they never report that conclusion
and the reasons therefor to the NYPD or the prosecutors. As noted earlier,
the Law Department’s principal obligation is not to the individual defendant
officers, and Assistant Corporation Counsels are free to report officers’
wrongdoing and admissions of wrongdoing to the NYPD. But that ethos has
long since faded into oblivion, certainly since the establishment of the
Special Federal Litigation Division in 1999, if not before.
57 See George Joseph, Exclusive: Brooklyn DA Releases Secret List of Cops They Don’t Trust, THE
GOTHAMIST (Nov. 6, 2019, 6:00 PM), https://perma.cc/4QSB-FNT4; John Annese, Brooklyn Bad-
Cop List: DA Names Officers with Credibility Woes, 7 Barred as Sole Witnesses, N.Y. DAILY NEWS
(Nov. 7, 2019), https://perma.cc/4QHL-MK66.
58 See generally John Annese & Graham Ryan, Manhattan Prosecutors Release List of Cops with
“Adverse Credibility” Issues in Court Testimony, N.Y. DAILY NEWS (Dec. 13, 2019, 7:06 PM),
https://perma.cc/T8VW-TCP2.
REQUIRE CLOSE REVIEW BEFORE OBTAINING AND EXECUTING

ALL NO-KNOCK SEARCH WARRANTS
In the early years of Raymond Kelly’s tenure as Mayor Bloomberg’s

police commissioner, a totally innocent woman, Alberta Spruill, died of a
heart attack when the police stormed her Harlem apartment armed with a
“no-knock” warrant. The police had obtained and executed the search
warrant based solely on incorrect and unverified information from a
confidential informant (CI). In the wake of this tragedy, Kelly promised a
series of reforms designed to prevent a recurrence. Yet within a few years
the reforms were being totally ignored by the NYPD, and the NYC Law
Department was vehemently defending every civil rights action brought by
innocent victims of “no-knock” raids.
In light of the death of Breonna Taylor in Louisville, Kentucky last
March 13, it is instructive to review the reforms promised by Kelly and their
abandonment by the NYPD.
Kelly’s Report of May 30, 2003, to the Mayor on the Spruill death
case explicitly required NYPD officers to continue checking on both the
informant and the informant’s information even after a “no-knock” warrant
was issued.59 A police supervisor “must carefully review all steps and
procedures that have taken place before the execution of the search
warrant,” must “ascertain that all necessary computer checks have been
performed and documented for review in the future,” and “ensure that all
necessary checks . . . have been performed prior to the execution of the search
warrant.”60 The supervisor must determine “whether the execution [of the
warrant] may be delayed until further investigation is performed to ensure
the certainty of the location and to validate the information from the CI
[Confidential Informant].”61 The police were required “to verify information
contained in warrants” before the warrants are executed, by having a
supervisor (Captain or above) “review all procedures taken to validate
information received from a confidential informant” and “ascertain the
urgency of [executing] the warrant.” 62 The Report also required ten different
computer checks to determine who actually lives in the targeted premises
59 Raymond W. Kelly, The Police Department’s Examination of the Circumstances Surrounding

the Death of Ms. Alberta Spruill, Following Enforcement of a Search Warrant on May 16, 2003 at 310
W 143rd Street, Apartment 6F, in Manhattan, New York City Police Department: A Report to
Michael R. Bloomberg (May 30, 2003).
60 Id. at 12.
61 Id. at 9.
62 Id. at 8.
and whether the apartment or its occupants have any history of involvement
with drugs. 63
In testimony before the City Council, Kelly also emphasized that CIs
must be scrutinized carefully regardless of what they say or claim to know.
“[G]ood, law abiding people like Ms. Spruill live in precincts that have more
shootings and drug activity than others, which is why the Police Department
must be careful.” Kelly added, “Most confidential informants are
criminals.”64 “You look at the credibility, the veracity of the informant, [and]
you look at the credibility of the information that he or she provides.”65
Accordingly, in addition to requiring an extensive paper trail of computer
checks, the Report established a central CI database to evaluate the reliability
and accuracy of every CI.66 It also required a Formal Critique of every
warrant execution to assess current practices and take corrective measures
to address any shortcomings. 67
Virtually none of these measures are followed today by the NYPD’s
Narcotics Enforcement squads. I have represented several victims of raids
that were based on faulty information and turned up none of the contraband
sought. In some cases the police didn’t even know who lived in the targeted
premises. In cases where raids merely led to discovery of a single marijuana
cigarette, rather than the major drug-selling operation claimed by the CI, the
police marked the results as “positive” and did not even bother with the
requisite post-execution Formal Critique.68
In the absence of anything remotely resembling compliance with the
Kelly-pledged reforms, the federal courts have begun cracking down. In
63 Id. at 12, 20. Although Kelly’s Report represented a fervent mea culpa in the wake of a death
that outraged the city, many observers were skeptical that the promised reforms would take
hold and last—mostly because it appeared that Kelly would say almost anything to placate the
criticism the NYPD was encountering. For example, the Report recommended that to verify an
informant’s claims, the police could visit an apartment “on a fictitious radio run to determine if
the apartment interior matched the description given by the confidential informant.” That
statement was sheer nonsense, since if the apartment was really a drug-dealing location such a
visit would tip off the drug dealers and they would move their operation elsewhere. Kelly did
not repeat this recommendation in his City Council testimony five days later.
64 N.Y.C. COUNCIL COMM. ON PUB. SAFETY, OVERSIGHT: HOW DOES THE NYPD OBTAIN AND
EXECUTE SEARCH WARRANTS? TR. NO. T2003-1020, at 14, 105 (N.Y.C. 2003).
65 Id. at 49.
66 Id. at 11, 33-34.
67 Id. at 10-11, 16-17.
68 See, e.g., Robinson v. City of New York, 2018 WL 4344949 (E.D.N.Y. Sept. 11, 2018); Carlos
v. City of New York, 04 CV 8826 (S.D.N.Y.); Gonzalez & Stroman v. City of New York, NYC
Comptroller Claims 2018PI020328 & 329, CCRB Complaint 201901422 (Nov. 18, 2019).
McColley v. County of Rensselaer,69 (a non-NYC case), the Second Circuit

denied qualified immunity where the police had acted on information that
they knew was suspect yet had failed to inform the warrant-issuing
magistrate of the infirmities of the CI’s claims. The police in McColley didn’t
even know who lived at the targeted address, and had no information that
the woman who lived there had ever been involved in any drug-dealing.
McColley held that liability applies if the police affidavit in support of the
warrant “‘knowingly and intentionally, or with reckless disregard for the
truth, made a false statement’ . . . or omitted material information, and that
such false or omitted information was ‘necessary to the finding of probable
cause.’”70 The Circuit held in McColley that “recklessness is inferred when
the omitted information was ‘clearly relevant to the determination of
probable cause.’”71 It further held that “any omissions” in the presentation
to the warrant-issuing magistrate “become all the more glaring because any
material omission necessarily alters the ‘totality of circumstances’ upon
which confidential information is to be assessed. Each omitted fact
necessarily alters this totality.”72 McColley concluded that:
The information omitted from the warrant application was indeed
“necessary to the finding of probable cause” because both
McColley’s identity and the lack of criminal activity observed at
her home go directly to the “totality of circumstances” review that
underlies the assessment of probable cause based upon
information provided by confidential informants. The Appellants
would have this Court conclude that once information has been
provided by a confidential informant who has proven reliable in
the past, a warrant is necessarily supported by probable cause
when based upon information from that confidential informant.
This view misapprehends the “totality of circumstances” test—in
assessing whether there is probable cause based upon a
confidential informant’s reports, courts must look to all of the
circumstances bearing upon the information’s reliability.73
Judge Calabresi’s concurring opinion in McColley described the horrors of

military-style execution of “no-knock” warrants:
Here, the method of entry was more akin to a military invasion
than the knocking and entering envisioned . . . . [M]embers of
69 See McColley v. County of Rensselaer, 740 F.3d 817 (2d Cir. 2014).
70 Id. at 823 (quoting Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993), which in turn
quoted Golino v. City of New Haven, 950 F.2d 592, 604 (2d Cir. 1991)).
71 McColley, 740 F.3d at 823.
72 Id. at 824.
73 Id. at 826 (emphasis in original).
Troy's Emergency Response Team, at six o'clock one morning,

shattered the window of McColley's living room and threw a flash-
bang grenade inside before breaking down the door and storming
in, brandishing automatic [weapons. McColley was] wearing only
a t-shirt and underwear when the officers burst in. Thus attired,
she was handcuffed and forced to lie face-down on her bed while
an officer guarded her, weapon drawn, and a dog searched her
room. By the time the police had left—having discovered only an
electric bill and McColley's college course schedule—McColley's
furniture had been overturned, her rug and wall bore burn marks,
her bookshelf, window, and doors had been broken, and her
toiletries and clothes, along with her daughter's, had been strewn
across the floor.74
The NYC Law Department vigorously responded to McColley by arguing in

cases such as Alston v. The City of New York that in every raid based upon a
“no-knock” warrant, the police are automatically entitled to “qualified
immunity” and the lawsuit must be dismissed—period. It has even claimed
that the plaintiff is not entitled to obtain in discovery the police affidavit filed
in support of the warrant—the single most important item of discovery
under the Second Circuit’s test for liability. It further claims in support of
dismissal of the complaint that whoever lives in the apartment isn’t even
relevant—the exact opposite of the McColley holding. In short, the City will
say anything, no matter how ridiculous, to defend officers who obtain and
execute “no-knock” warrants. 75
A raid in Alston v. The City of New York resulted in no arrests and no
discovery of anything sought by the warrant; one of the occupants was
accused of possessing a tobacco “crusher” allegedly containing a “residue”
of marijuana, but it was never even tested and the charge was dismissed.
That did not prevent the architect of the raid from advising his supervisors
that the result of the raid was “positive.”76
74 Id. at 832 (Calabresi, J., concurring).

75 See Alston v. City of New York, Order Granting Pls.’ Mot. Compel, Dec. 3, 2019, No. 1:19-
CV-03978 (ordering, over the City’s objection, production of the affidavit submitted by the
police to the warrant-issuing magistrate); Order Granting Pls.’ First Mot.
Amend/Correct/Supp., Feb. 6, 2020, No. 1:19-CV-03978 (rejecting the City’s claim that amending
the complaint to incorporate the affidavit’s reckless omissions would be “futile” because the
issuance of the warrant was per se grounds for dismissal); Order Pre-Mot. Conf., Mar. 6, 2020,
No. 1:19-CV-03978 (advising the City at a pre-motion conference that its proposed motion to
dismiss was itself futile and would be rejected under McColley, whereupon the City withdrew
the proposed motion).
76 The unit at issue in Alston, Brooklyn Narcotics South, has a long history of misconduct
including stealing drugs during raids and trading drugs for sexual favors and information from
drug addicts and prostitutes, and even planting drugs and pressuring arrestees to perform sex
Sooner or later New York City is likely to experience another Alberta

Spruill incident or, worse yet, a Breonna Taylor incident. Instead of
pretending that McColley doesn’t exist, the NYPD must begin actually
enforcing the reforms promised by Kelly nearly two decades ago. 77
LIMIT THE EXTENT TO WHICH TAXPAYER DOLLARS SUBSIDIZE

POLICE MISCONDUCT
As noted previously in this article and in numerous annual reports

of the NYC Comptroller, millions of dollars of taxpayer money are
squandered every year to compensate victims of police misconduct. One
could argue that this money should come from the NYPD budget rather than
from the Adjudications and Claims budget of the Comptroller’s office, and
that the NYPD should also be required to pay the Law Department for the
hours spent defending miscreant officers. But even if such radical solutions
are beyond the realm of possibility, there are lesser measures that can and
should be adopted.
For example, the Law Department should stop authorizing
indemnification of punitive damages awards against police officers. Even
though General Municipal Law §50-k (3) grants the Law Department
discretion to deny indemnification of punitive damage awards against
police officers, stating that the duty to indemnify “shall not arise” where
acts in order to win release from custody. See Larry McShane, Ex-NYPD Cops Dodge Jail Time for
Sex with Suspect Inside Police Van in Plea Deal Despite Brooklyn DA’s Opposition, N.Y. DAILY NEWS
(Aug. 29, 2019, 3:37 PM), https://perma.cc/26H5-VKSD; John Annese, Narcotics Unit Where
Former Detectives Accused of Rape Worked is ‘out of Control’: Lawyer, N.Y. DAILY NEWS (June 4,
2018, 8:00 PM), https://perma.cc/KJ4P-BC7F; John Marzulli, Rocco Parascandola & Larry
McShane, Cops Made Money by Fabricating Drug Charges Against Innocent People, Stephen Anderson
Testifies, N.Y. DAILY NEWS (Oct. 14, 2011, 4:00 AM), https://perma.cc/QX73-SNEN; Trymaine
Lee, Stephen Anderson, Ex NYPD Cop: We Planted Evidence, Framed Innocent People to Reach
Quotas, HUFFINGTON POST (Oct. 13, 2011, 5:55 PM ET), https://perma.cc/Z57M-F6BT; Alison
Gendar & William Sherman, Brooklyn Narcotics Cops Benched over Drug and Sex for Information
Charges, N.Y. DAILY NEWS (Jan. 22, 2008, 2:17 AM), https://perma.cc/MXC5-Y778; Al Baker,
Drugs-for-Information Scandal Shakes up New York Police Narcotics Force, N.Y. TIMES (Jan. 23, 2008),
https://perma.cc/6MNF-BVF9 (describing four officers arrested, fifteen suspended or placed on
desk duty, and several high-ranking supervisors transferred). It should come as no surprise that
such a unit would cut corners in order to obtain a search warrant.
77 Although the principal victims of military-style no-knock SWAT raids are African
American and Latino, the raids have also become the subject of considerable concern for
libertarian groups. See, e.g., Radley Balko & Joel Berger, Wrong Door: SWAT Raids Are out of
Control, WALL ST. J. (Sept. 2, 2006, 12:01 AM ET), https://perma.cc/LR3G-4RCA; see also RADLEY
BALKO, RISE OF THE WARRIOR COP: THE MILITARIZATION OF AMERICA’S POLICE FORCES (2013).
there was “intentional wrongdoing or recklessness,” the Law Department

uniformly agrees to indemnify in every case.
Punitive damages are supposed to punish and deter, but they do not
do so in cases against NYPD officers because the City pays rather than the
officers. The City’s uniform policy of indemnifying punitive damages in all
cases in which it represents the police officer was sanctioned by Corporation
Counsel Paul Crotty in Papa v. City of New York, indemnifying $1 million in
punitive damages against five officers who committed vicious acts of
excessive force causing horrible injuries.78 The Law Department sought for
many years to hide its policy of indemnifying for punitive damages,
requesting jury instructions requiring consideration of the officers’ ability to
pay if such damages were awarded. 79 But the policy of uniform
indemnification was eventually conceded in the City’s responses to
discovery in Gyasi v. The City of New York80 —discovery ordered by Judge
Scheindlin over the Law Department’s vigorous opposition. It remains the
City’s policy today.
The relevant data, including evidence of recent indemnifications by
the City for punitive damages, is set forth in painstaking detail by UCLA
Law Professor Johanna Schwartz in Police Indemnification.81 In recent years
punitive damages awards as high as $2.7 million have been indemnified. The
City has never failed to indemnify for punitive damages any officer it has
represented and sometimes even indemnifies punitive damages awarded
against officers represented by their unions.82
78 Papa v. City of New York, 194 A.D.2d 527, 532–33 (N.Y. App. Div. 1993).
79 See generally, e.g., Gonzalez v. Bratton, 147 F. Supp. 2d 180 (S.D.N.Y. 2001) (In one case
revealed by the Gyasi interrogatory responses, the Court required affidavits detailing the
defendants’ “individual incomes, assets and liabilities. It did so because the City’s lawyers had
expressly “represented to the Court [that] the City of New York does not authorize
indemnification” for punitive damages. Yet the Gyasi interrogatory responses confessed that,
even there—in direct contradiction of the representation of the City’s lawyers to Judge
Marrero—the City had in fact indemnified the punitive damages awarded against three
different officers, for a total of $110,000. In short, the City’s lawyers told Judge Marrero one
thing and then did precisely the opposite. The intentional misleading of Judge Marrero was
particularly reprehensible because the parties had agreed that if the jury found punitive
damages to be appropriate the Court, rather than the jury, would determine the amount of the
punitive damages awards against the miscreant officers).
80 Gyasi v. City of New York, 05 CV 9453 (S.D.N.Y. 2006).
81 Johanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 983 (2014).
82 See Joel Berger, Punitive Damages Against Police Officers Do Not Punish Anyone – Except the
Taxpayers, N.Y. L.J. (Mar. 11, 2019), https://perma.cc/W23K-MLJH (providing a more detailed
treatment of the Law Department’s policy of indemnifying officers who have committed acts of
Recently the NYS Court of Appeals upheld a decision by Nassau

County denying indemnification in a particularly pernicious incident of
police misconduct.83 It would be refreshing if New York City were to follow
Nassau County’s lead.
How can the NYPD turn its back on incidents so horrible that a jury
awards punitive damages, and take no action whatsoever against the
miscreant officers? These officers suffer no consequences and are free to
repeat their misconduct against others in the future.
Many of my colleagues in civil rights litigation generally like the
City’s policy of indemnifying punitive damages, because the City’s potential
punitive damages exposure promotes larger settlements and hence larger
fees. But I for one would gladly forego such riches in return for a system in
which bad officers are severely punished monetarily by non-indemnification
of punitive damages. At the very least the officers should be forced to pay
the maximum that can be extracted from them, with the City paying the
remainder so that the plaintiffs receive appropriate compensation.
The punishment of punitive damages should fall squarely upon the
individuals who are supposed to be punished. Yet in New York City it
doesn’t. The rogue officer is left unscathed. Only the taxpayers are punished.
One would think that at least when police officers commit off-duty
misconduct totally unrelated to their duties as officers, the city would in that
extreme case require the officers or their unions to undertake representation.
Unfortunately, even in that instance the taxpayers are not let off the hook.
NYS General Municipal Law § 50-k (2) provides that the City must
defend municipal employees in lawsuits against them when the employees
so request—with an important exception. The Corporation Counsel can
deny representation if the employee was not “acting within the scope of his
public employment and in the discharge of his duties . . .” 84 When civilians
who are arrested or injured during personal altercations with a police officer
sue the officer, the City is under no obligation to utilize its resources to
defend. The issue arises most frequently where officers misuse their status
to arrest or assault civilians with whom they are having off-duty personal
altercations. Such lawsuits typically arise as a result of barroom brawls,
vehicular “fender-bender” accidents, and disputes with neighbors or other
acquaintances, where officers illegally “pull rank” by arresting the civilians
misconduct so aggravated that the jury awards punitive damages, and its Herculean efforts to
hide that policy from judges and juries alike).
83 Lemma v. Nassau County Police Officer Indem. Bd., 31 N.Y.3d 523 (2018).
84 N.Y. GEN. MUN. LAW § 50-k (2) (Consol. 2020).
and charging them with offenses such as assault, harassment, or disorderly

conduct.
Under §50-k (2), the Corporation Counsel can also deny
indemnification to officers facing NYPD departmental discipline over a civil
lawsuit. For example, an officer departmentally charged with brutality can
be denied representation when the officer’s victim files a civil lawsuit. That’s
the law. But what the taxpayers don’t know is that they are in fact paying
for the defense of police officers even when the Law Department refuses to
represent them.
After enactment of § 50-k the police unions demanded in collective
bargaining that the City pay for the civil defense of officers who are denied
representation by the Law Department. The City first gave in to this demand
in the 1984-87 contracts. In subsequent contracts the City was required to
pay $75 per officer per year into “Civil Legal Defense Funds” for each police
union, which amounts to more than $2.5 million annually. The Funds
continue to exist to this day.
Use of such Funds is supposed to be limited solely to defense of civil
lawsuits. However, since the unions’ finances are not subject to audit by the
City, there is no way of knowing whether the unions adhere to this
requirement. The Funds might be diverted to other uses such as the unions’
civil lawsuits against the City over disputed policies, or even the defense of
officers charged with crimes. In past years some New York City union
leaders and some union lawyers have been criminally convicted for various
misuses of union funds.
But even if the monies are used solely for the defense of officers in
civil lawsuits where the Law Department has declined representation, that
use is unwarranted. Millions of taxpayer dollars are spent defending police
officers who are being sued over off-duty misbehavior in personal
altercations having nothing whatsoever to do with their work as officers, or
over on-duty misbehavior so aggravated that the NYPD itself has brought
charges against them. Such Civil Legal Defense Funds are a gross misuse of
public monies and should be eliminated.
THE CITY COMPTROLLER MUST BE PROACTIVE
Although the Law Department, the District Attorneys, the City

Council, the Department of Investigation, and the CCRB are all enablers of
the NYPD, the City Comptroller’s office also has for many years abdicated
its responsibility to rein in police misconduct.
The Comptroller is in a unique position to force change. City Charter

§ 394 (c) provides that the Law Department cannot settle any case, including
police misconduct cases in both the state and federal courts, “without the
previous approval of the comptroller.”85 And nothing in the Charter
precludes the Comptroller from attaching conditions—such as requiring the
NYPD to take disciplinary action against the defendant officers—before
such approval is granted.
Additionally, City Charter § 93(i) accords the Comptroller broad
power to settle claims against the City unilaterally without Law Department
approval—both before claims ripen into lawsuits and even after lawsuits are
filed.86 If the Comptroller believes that the Law Department is being too
litigious in cases that have merit, the Comptroller has the power to intervene
and settle those cases. Again, nothing in the Charter prevents the
Comptroller from attaching preconditions to such action.
Accordingly, the Comptroller has significant leverage to force the
NYPD to take meaningful action against police officers who abuse their
powers.
When Elizabeth Holtzman was Comptroller in the early 1990s, she
attempted to couple Comptroller approval of settlements with commitments
from the NYPD to punish such officers who had cost the City substantial
sums because of their misbehavior. The Law Department and the NYPD in
the Dinkins Administration fiercely resisted her efforts, and subsequent
Comptrollers have not dared to pursue such measures. Comptrollers
Hevesi, Liu, and now Stringer all grumble from time to time about the huge
cost to the taxpayers of police misconduct, but they have consistently failed
to do anything about it even though they have the power to do so.
In 2019 two victims of gross misconduct by a notoriously violent
“Anti-Crime Unit” sergeant-detective decided to settle with
the Comptroller’s office rather than spend years fighting a lawsuit. But they
asked the Comptroller’s office to accompany the settlement with a public
request by Comptroller Stringer that the NYPD take action against the
detective. Their request was flatly denied; Stringer’s second-highest
settlement official stated that, “We don’t do that.” 87 The detective in
question, Sgt. David Grieco, also known as “Bullethead,” had amassed
seventeen lawsuits costing the City more than $500,000 with more than a
85 N.Y.C., N.Y., CHARTER § 394(c) (2004).

86 Id. § 93(i).
87 Gonzalez & Stroman v. City of New York, NYC Comptroller Claims 2018PI020328 & 329,
CCRB Complaint 201901422 (Nov. 18, 2019).

dozen other lawsuits against him pending—a record far worse than that of
the officer who killed George Floyd in Minneapolis. (The CCRB later
substantiated the claimants’ allegations in part but merely recommended
“instructions”—the lowest level of punishment, and did not even address
the detective’s misconduct in detaining the claimants for 18 hours over
possession of four marijuana cigarettes in violation of a state statute
(Criminal Procedure Law Sec. 150.75) requiring that they be “promptly”
released on a desk appearance ticket. The NYPD recently disbanded Grieco’s
Anti-Crime Unit due to a “disproportionate percentage of complaints and
shootings,” but the unit’s officers will merely be re-assigned rather than
disciplined.88
Sometimes the Comptroller’s staff has actually acted in a counter-
productive manner that adds to the frustration of victims of police
misconduct. Occasionally a Law Department lawyer will recognize that a
particular officer has behaved very badly and will propose a reasonable
settlement, only to find that a bureaucrat in the Comptroller’s office
determined to lower costs has refused to approve the settlement. This
happens less frequently these days since the Law Department has declared
war on police misconduct plaintiffs for bringing “frivolous” lawsuits, but it
does happen. Forcing legitimate victims of false arrests or brutality either to
accept tiny settlements that would barely cover a month’s living expenses,
or else endure many years of litigation in which the City aggressively
defends bad officers, is extremely harmful to police-community relations.
MAKE PUBLIC THE RECORD OF ALL NYPD DISCIPLINARY

INVESTIGATIONS AND PROCEEDINGS
Recently, the NYS Legislature finally repealed Civil Rights Law §50-
a, after years of inaction—even in the otherwise productive 2019 session
when the Democrats finally took control of the State Senate. It is instructive
to review just why it took so long to get the statute repealed, because the
reasons are indicative of the historic failure of city and state officials to do
anything meaningful about police misconduct. As one State Senator
observed during the repeal debate, “This is no time for rejoicing. This bill
88 Brittany Kreigstein, Graham Rayman & John Annese, NYPD to Disband Plainclothes Anti-
Crime Units After ‘Disproportionate Percentage of Complaints and Shootings’, N.Y. DAILY NEWS (June
15, 2020), https://perma.cc/F5QT-VSYJ (noting that Grieco was one of the worst Anti-Crime Unit
detectives); see also Rocco Parascandola, Much-Sued NYPD Sergeant Gets Slap on the Wrist After
Abuse of Authority Claim Substantiated: Sources, N.Y. DAILY NEWS (Dec. 2, 2019),
https://perma.cc/JB6P-DENU.
has been around for over a decade . . . And the only reason why we’re
bringing it to the floor now because the nation is burning."89
The independent panel appointed by the police commissioner to
review NYPD discipline, headed by former S.D.N.Y. U.S. Attorney Mary Jo
White, did not go nearly far enough in its recommendations regarding the
transparency of NYPD disciplinary proceedings. It recommended that the
State Legislature amend Civil Rights Law § 50-a to permit disclosure of
substantiated final determinations, but failed to recommend disclosure of
cases in which the NYPD has marked disciplinary charges
“unsubstantiated.” 90 Yet even that limited proposal was killed in the 2019
session.
Given the numerous other infirmities in the NYPD’s disciplinary
system recognized elsewhere in the panel’s report, this conclusion made no
sense. It is hard enough to get the NYPD to bring charges and specifications
against an officer in the first place. If the case is strong enough to merit the
filing of charges and specifications, the public has a right to know about it.
In my career I have had access to numerous confidential NYPD
documents. The grounds on which some meritorious complaints have been
swept aside are downright ludicrous and would never survive scrutiny in
the court of public opinion. That’s precisely why the PBA and the NYPD
would like to keep such documents secret.
§ 50-a was never intended to be the monster it became. As the panel
recognized, “[t]he historical impetus for § 50-a was narrow: it was designed
to prevent defense attorneys in criminal cases from impeaching the
testimony of officers . . .”91 The measure’s main sponsor when it was enacted
in 1976, the late State Senator Frank Padavan, even admitted that “it was
never meant to prevent the disclosure of police misconduct.” 92 The statute
wasn’t even necessary, because state criminal trial judges have broad
discretion to preclude the use of officers’ disciplinary records and other
controversial evidence where the probative value of the material is
outweighed by the potential for undue prejudice, delay, and confusion. 93
89 Marina Villeneuve, Michael R. Sisak & Jim Mustain, New York Passes Bill to Unveil Police
Discipline Records, BOSTON HERALD (June 9, 2020), https://perma.cc/2FHE-7BP4 (explaining a
statement from Brooklyn State Senator Kevin Parker on the Senate floor).
90 See White, supra note 43, at 45.
91 White, supra note 43, at 17.
92 Chokeholds and Police Abuse, Kept From the Public, N.Y. TIMES (June 12, 2019),
https://perma.cc/G2T3-3DKG
93 E.g., People v. Powell, 27 N.Y. 3d 523, 526 (N.Y. 2016); People v. Cass, 18 N.Y.3d 553, 555–
56 (2012); People v. Primo, 96 N.Y.2d 351, 355 (2001). The rule has been used by both sides in
Nonetheless, at the urging of local governments and police unions,

the state courts expanded § 50-a well beyond its original purpose.94 Worse
yet, the De Blasio administration allowed the NYPD and the Law
Department to take an even more expansive view of § 50-a, imposing even
more secrecy than the Giuliani and Bloomberg Administrations had allowed
and encouraging the courts to do likewise.
The turning point arose in the notorious case of the 2014 death of
Eric Garner on Staten Island. The identity of the officer at issue, PO Pantaleo,
was already widely known and release of his highly flawed disciplinary
record would hardly have led to any greater notoriety than he already had.
A Manhattan State Supreme Court Justice exercised her discretion under §
50-a, in a well-reasoned opinion, to release the officer’s disciplinary record
to the Legal Aid Society. De Blasio could have ordered the Law Department
not to appeal, just as he ordered it to withdraw its appeal of the federal
district court decision invalidating the Bloomberg Administration’s stop-
and-frisk policies. Instead, the Law Department’s hard-liners were allowed
to appeal, and they persuaded the Appellate Division to reverse.95
Meanwhile, the NYPD chose to end its decades-old policy of posting
Personal Orders reflecting the results of disciplinary proceedings.
The Mary Jo White panel recognized that “there is a legitimate
public interest in knowing that an allegation could not be substantiated.” It
also pointed out that, in the forty years that the NYPD regularly posted
Personnel Orders for inspection before the relatively recent determination of
the De Blasio Administration to reverse that policy, “there was no evidence
that any officer was harassed as a result of a posting.” It also noted that in
Chicago, despite the posting of approximately 240,000 police records online
in a publicly searchable database, “no increase in threats against officers or
their families has been reported.” 96 Yet it endorsed the NYPD’s
determination to keep secret even the results, let alone the records, of all
pending and “unsubstantiated” disciplinary cases.
criminal cases, on issues such as defense requests for admission of evidence of third-party
culpability or prosecution requests for admission of defendants’ prior criminal convictions or
prior bad acts. Prior bad acts by officers alleged in civil lawsuits can be used on cross-
examination to challenge credibility (People v. Smith, 27 N.Y. 3d 652, 661–62, (2016)). But thanks
to § 50-a, defense counsel was barred from ever knowing about an officer’s disciplinary record
and had no opportunity to ask the court to exercise its discretion in favor of admissibility.
94 See Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145, 153–54 (1999).
95 Luongo v. Records Access Appeals Officer, 49 Misc. 3d 708 (N.Y. Sup. Ct., 2015), rev’d, 150
A.D.3d 13 (N.Y. App. Div., 1st Dept., 2017), appeal denied, 30 N.Y.3d 908 (2017).
96 White, supra note 43, at 46.
When police officers investigate past wrongdoing by a civilian

suspected of a new offense, they hardly limit their inquiry to charges for
which the suspect was convicted. They look to arrests and the charges filed
in those arrests. This is perfectly understandable. The investigators
recognize that, given the infirmities of the justice system, past arrests and
charges may well be indicative of misconduct and should factor into the
investigators’ assessment. In short, as the saying goes, “where there’s smoke,
there’s fire.”
Yet that same understandable precept of investigative
thoroughness was hypocritically swept aside whenever the shoe was on the
other foot and an officer was suspected of misconduct. In that instance, (i) as
yet unresolved civilian complaints, (ii) disciplinary charges, (iii) internal
determinations by the CCRB, the Internal Affairs Bureau, or the NYPD’s
prosecutors (the Office of the Department Advocate), or (iv) trial room
commissioner’s reports declaring charges “unsubstantiated,” were
considered so sacred that the public must never even get to know about
them.
Many allegations of police officer misconduct result in civil lawsuits,
and the records of those lawsuits generally are not sealed even if the plaintiff
fails to meet the burden of proving wrongdoing by a preponderance of the
evidence. The charges, i.e., the allegations of the complaint that initiate the
lawsuits, are in the public record. The transcripts of officers’ depositions are
rarely sealed, and, if there is a trial, the transcript of that proceeding is
publicly available. So are judicial opinions in which the charges and the
evidence against the officer, including their disciplinary records, are
frequently discussed in detail—despite ardent efforts by the Law
Department to have all court filings about such records kept under seal. 97 So
97 See J. David Goodman, De Blasio Faces Mounting Pressure on Matters of Transparency, N.Y.
Tɪᴍᴇs (Sept. 9, 2016), https://perma.cc/T597-Z4A4 (“In federal court, city lawyers have gone so
far as to request that an attorney’s letters [to the Court] be sealed or redacted, even after settling
of a case, if there was even the briefest mention of an officer’s disciplinary history.”). These
efforts are frequently unsuccessful, with cases holding that materials submitted to a court are
judicial documents presumed to be available to the public under both common law and the
First Amendment. See, e.g., Raffaele v. City of New York, No. 13-CV-4607, 2014 WL 2573464,
at*1 (E.D.N.Y. 2014); Richt v. City of New York, 1:14-CV-1977-PKC-VMS (E.D.N.Y. Dec. 9, 2014).
The Law Department nonetheless fights vigorously against discovery requests for defendant
officers’ disciplinary records, and even if motions to compel discovery of those records are
granted the records thus far have rarely been made public. In the past, plaintiffs’ lawyers have
been required to agree to a Protective Order rendering all disciplinary records obtained in
discovery confidential and, despite cases such as Raffaele and Richt denying motions for filing
under seal, the Law Department has threatened plaintiffs’ lawyers with contempt or sanctions
if they publicly file anything referencing an officer’s disciplinary record in violation of the
are the results—whether or not the defendant officers are found to be liable.
No one has seriously suggested that this openness of our civil justice system
has placed officers in danger. Why should the NYPD disciplinary system
have been any different?
At the very moment that the Legislature was hurtling towards
adjournment in 2019 without repealing 50-a and without even giving the
repeal bill a hearing, a Brooklyn United States District Judge excoriated the
NYPD for covering up numerous allegations of misconduct by an officer. In
Jenkins v. City of New York, Senior District Judge Raymond J. Dearie reviewed
the career of NYPD Detective Orlen Zambrano, who had accumulated thirty
“unsubstantiated” complaints (and eight settled lawsuits). Judge Dearie, a
33-year veteran of the federal bench appointed by President Reagan,
concluded as follows:
The investigations in these cases, fairly characterized, were at best
modest and no genuine fact-finding occurred. Of the 30 complaints
filed against Zambrano, many alleging conduct strikingly similar
to the claims alleged yet again in this litigation [excessive force], it
appears that not a single complaint was ever credited. The record
further reveals that investigators routinely forgo any classic fact
finding, even where there is clear corroborating evidence,
preferring instead to affix the unsubstantiated label once the
accused officer denies the conduct in question. The clear,
unmistakable impression is that if there is no irrefutable
corroborating evidence, the matter is conveniently labeled
“unsubstantiated,” which, as a practical matter, the City equates
with exonerated. Apparently, unless an officer is caught red-
handed or his conduct is undeniable for whatever reason, the
NYPD and the City simply chose to regard the allegation as a non-
event having no factual or legal evidentiary significance in terms
of supervisory responsibility or legal analysis, no matter the
frequency or similarity in the complaints.98
In Jenkins, the NYPD’s most egregious enabler, the Law

Department’s Special Federal Litigation Division, seriously argued that
Judge Dearie should simply ignore the defendant’s officer’s abominable
record. The Court vigorously disagreed:
The City takes great comfort from the fact that the overwhelming
percentage of complaints against Zambrano were found to be
unsubstantiated. It suggests that unsubstantiated means
exonerated and that the number of complaints, no matter how
Protective Order. That may change in light of the repeal of 50-a—but it may not change, given
the Law Department’s history of protecting even the worst police officers with its strenuous
defense of every civil rights action.
98 Jenkins v. City of New York, 388 F. Supp. 3d 179, 188 (E.D.N.Y. 2019).
many, has no probative force and is of no concern. The City

maintains this position despite evidence of a demonstrably flawed
system that is supported by plainly inadequate investigations that
are in most instances effectively stymied by an officer’s simple
denials. The NYPD knows how to investigate when they choose to
do so. Given the evidence before the Court, a reasonable fact-
finder could conclude that in Zambrano’s case, the City chose not
to conduct an investigation or meaningfully monitor his
performance but instead chose to disregard a problem officer and
invite his continued abuse.99
One would think that, in a 2019 NYS legislative session marked by

numerous reform measures in areas as diverse as rent control, bail reform,
and discovery by the defense in criminal cases, the repeal of § 50-a to shed
sunlight on as yet unresolved or “unsubstantiated” complaints would have
been a foregone conclusion. Yet the measure never made it out of committee
and was never even the subject of a committee hearing. An editorial by the
New York Daily News (June 4, 2019) and a lengthy, compelling editorial in the
New York Times the following week (June 13, 2019) fell on deaf ears.
According to an article in The Chief Leader, the principal reason for
the New York State Legislature’s inaction in 2019 on such a simple measure
with overwhelming support was fierce lobbying by the Police Benevolent
Association (PBA).100 But the article also reflected complaints from
legislative sponsors that former Police Commissioner O’Neill, who endorsed
at least the panel’s limited reform proposal as soon as it was issued,101 did
not approach any of them and offered no support whatsoever. O’Neill’s
successor, former Chief of Detectives Dermot Shea, has been no better, and
a Daily News editorial similarly complained that Mayor de Blasio—the
politician who was elected in 2013 on the promise of police transparency and
reform—had given only lip service in support.102
99 Id. at 193.
100 See Richard Khavkine, Expect No Changes to New York State Law Shielding Cops’ Disciplinary
Records: PBA Opposition Likely to Keep Bill Bottled up as Legislative Session Ends, THE CHIEF LEADER
(June 14, 2019), https://perma.cc/S3F5-BJ5V.
101 James O’Neill, Let NYC See Police Records, Now: We Must Reform State Law Keeping
Disciplinary Actions Secret, N.Y. TIMES (Feb. 7, 2019, 7:10 PM), https://perma.cc/UR4A-29E4.
102 See also J. David Goodman & Ashley Southall, For Third Time, Mayor Passes over a Black
Chief to Run the N.Y.P.D., N.Y. TIMES (Nov. 5, 2019), https://perma.cc/U8AH-9G47 (explaining
that De Blasio “has repeatedly opted for old-guard leaders for the police department,” and that
approximately 80% of the NYPD’s most powerful leadership, those above the rank of captain,
are Caucasian. As one critic of the Shea appointment bluntly stated in the article, “they have
not experienced stop-and-frisk. Their children have not experienced stop-and-frisk.”); Jonathan
Dienst, Gunman Who Allegedly Ambushed Cops Arraigned as Tension Between NYPD, Elected
Officials Escalates, NBC N.Y. (Feb. 10, 2020, 10:53 PM), https://perma.cc/NYC5-BC53 (explaining
The PBA can be excused for standing up for its members like any
labor union. But the willingness of public officials who know better to cave
in to the PBA’s lobbying was simply outrageous. The PBA is a relatively
small union that no longer has any significant electoral power in New York
City (except perhaps in the middle and south shore of Staten Island) and its
clout in the nearby suburban counties such as Westchester and Nassau has
dwindled due to changing demographics. Its only power is the power to
make noise—turning backs on the Mayor at a funeral and yelling that he had
“blood on his hands” or picketing an arbitrator who had ruled against a pay
increase or demanding that the Governor remove the Mayor and Police
Commissioner after the officer who choked Garner to death was finally
fired103—and these shenanigans are typically staged with the sort of street-
swagger that many officers think is needed to assert their authority and
domination on patrol. But that showmanship does not translate into votes.
For example, the PBA vigorously opposed the November 2019 Charter
revisions concerning the CCRB, arguing that giving the CCRB even limited
additional power “will leave the city even less safe.” 104 Yet the revisions
passed overwhelmingly with nearly 75% of the vote.
that when a deranged individual attempted to kill police officers in February 2020 Shea
promptly blamed the entire “Black Lives Matters” movement for inspiring such behavior,
thereby echoing the raucous conduct of the police unions instead of recognizing that a police
commissioner must be sensitive to protests from the African American and Latino
communities). Just recently Shea was caught on video at a meeting of NYPD officials calling
City Hall leaders "cowards" who "won't stand up for what's right" and "don't have a goddamn
clue what they're talking about." He was particularly incensed at a measure passed by the City
Council—and signed by the Mayor who appointed him—that prohibits police from sitting,
kneeling or standing on someone’s chest or back in a way that could obstruct their breathing.
He even called demonstrators pressing for police reform "the 1% fringe lunatics," echoing the
absurd claim of the Sergeants Benevolent Association that the thousands of protestors in the
streets of New York City are a “vile . . . one percent” minority. See infra note 105 (Rubinstein &
Mays). Shea continues to mouth the inflammatory and intemperate language of the police union
leaders rather than the more measured tone expected of a police commissioner during these
troubled times. See (Rocco Parascandola & Thomas Tracy, NYPD Commissioner Bashes City
Leaders as ‘Cowards’ in Police Brass Meeting: ‘They Are Failing At Every Possible Measure to be
Leaders’, N.Y. DAILY NEWS (July 18, 2020), https://perma.cc/C5BK-NKMY.
103 Michael M. Grynbaum et al., In Police Rift, Mayor de Blasio’s Missteps Included Thinking It
Would Pass, N.Y. TIMES (Jan. 11, 2015), https://perma.cc/56ZK-FBH2; Thomas Tracy, 1% Raise Is
Official for Cops in Patrolmen’s Benevolent Association, N.Y. DAILY NEWS (Nov. 13, 2015),
https://perma.cc/2FH6-3C9V; Ashley Southall, Daniel Pantaleo, Officer Who Held Eric Garner in
Chokehold, Is Fired, N.Y. TIMES (Aug. 19, 2019), https://perma.cc/P234-PVFG.
104 Thomas Tracy, Police Union Balks at Charter Commission Proposal to Expand CCRB’s Powers,
N.Y. DAILY NEWS (Oct. 27, 2019), https://perma.cc/NE53-ZZ4B.

The Sergeants Benevolent Association (SBA) is even worse, spouting

vitriolic attacks on Mayor de Blasio and even illegally posting his daughter’s
personal information online when she was arrested recently for allegedly
participating in an unlawful demonstration, claiming that she had been
throwing objects when the actual charge made no such accusation. The head
of the SBA had previously stated that “the members of the N.Y.P.D. are
declaring war” on the mayor, proclaiming that “you sold the N.Y.P.D. to the
vile creatures, the 1 percent who hate cops but vote for you.”105
The cowardice of politicians who let themselves be intimidated by
virulent PBA and SBA tactics is unforgivable.106
Secrecy in the police disciplinary process has only enhanced the
poisonous suspicion of the police that is pervasive in the City’s African
American and Latino communities. The Assembly Speaker (Carl Heastie of
the Bronx) and Senate Majority Leader (Andrea Stewart-Cousins of Yonkers-
New Rochelle in lower Westchester) are both African Americans who must
answer to those communities. They should have known better than to cave
in to the bullying behavior of the PBA. The Times 2019 editorial noted that,
of the fifty states, only New York and Delaware had such restrictive laws
imposing blanket secrecy on police disciplinary records. Yet the bill never
saw the light of day. It took the murder of George Floyd and massive
demonstrations to finally scare the legislators into doing what they should
have done long ago and especially in 2019, when they had finally achieved
majorities in both houses of the legislature for the first time since the 1960s.
The PBA opposed the very creation of the current Civilian
Complaint Review Board at a raucous City Hall rally in 1992, blocking the
Brooklyn Bridge amidst racist slogans and placards depicting Mayor
Dinkins as a drug dealer and a washroom attendant. There were very few
arrests (as opposed to the police response to protests during the 2004
105 Dana Rubinstein & Jeffery C. Mays, Police Union Discloses Arrest of de Blasio’s Daughter in
Privacy Breach, N.Y. TIMES (June 1, 2020), https://perma.cc/Z47K-RZZF; see also The N.Y.P.D. Has
Rejected Reform for Decades. It Can’t Anymore., N.Y. TIMES (July 13, 2020), https://perma.cc/DFW7-
P6EV (noting that the episode illustrates the degree to which the city’s police unions and their
members feel “insulated . . . from oversight”).
106 The “in-your-face” behavior of police union leaders often is mirrored even by high-level
NYPD administrators who have worked their way up from patrol. During the Dinkins years, I
and other Law Department executives were once berated at a meeting by the NYPD’s First
Deputy Commissioner who bellowed that the Law Department “doesn’t stand up for the
cops”—as if that were our only civic obligation. Other large City agencies such as the Board of
Education or the Human Resources Administration were more likely to respond to criticism
with passive resistance, promising to look into matters and then never following through. But
rarely was there anything passive about the response of NYPD officials to criticism.
Republican convention in New York City—many of which involved no such

civil disobedience—resulting in numerous false arrest lawsuits eventually
costing the City $18 million in settlements) and minimal disciplinary
response by the NYPD leadership.107 But Mayor Dinkins stood up to the PBA
and persuaded the City Council to pass the measure. There was similar
opposition to the creation of an Inspector General for the NYPD in 2013, with
Mayor Bloomberg, Commissioner Kelly, and the PBA all loudly proclaiming
that the measure was a threat to public safety and would guarantee an
increase in crime. But the Council stood its ground.108
Unfortunately, such political courage is not a frequent occurrence
among New York politicians. One would hope that the current political
climate may bring about meaningful change, but there is always the risk that
as demonstrations die down and memories fade the politicians will once
again give in to the NYPD, its numerous enablers within city government,
and the police unions.
Ironically, the NYPD ignored § 50-a whenever it served its purposes
to do so. For example, the 2019 recommendation of the hearing officer in the
Garner case that Pantaleo be fired was provided to the media, and
subsequently the details of that report, including a finding that Pantaleo had
lied to investigators (itself a basis for dismissal under PG 203-08), were also
publicized. By contrast, three years earlier the Law Department had tried to
limit public outcry over the Garner death by litigating to keep Pantaleo’s
unsavory CCRB record secret on the basis of § 50-a, and when a CCRB
employee leaked that record he was immediately fired. The Law
Department also prohibited the CCRB from appealing a lower court ruling
wrongfully denying the CCRB’s request to review the minutes of Pantaleo’s
testimony before a Staten Island Grand Jury. (Law enforcement agencies
such as the CCRB are entitled to review grand jury minutes to aid in their
investigations.) The decision later took on added importance because the
NYPD trial commissioner subsequently branded Pantaleo a liar and if he
107 See James C. McKinley Jr., Officers Rally and Dinkins Is Their Target, N.Y. TIMES (Sept. 17,
1992), https://perma.cc/969J-YUMD; Catherine S. Manegold, Rally Puts Police Under New
Scrutiny, N.Y. TIMES (Sept. 27, 1992), https://perma.cc/2YRW-YMPS; Erin Durkin & Daniel
Beekman, City Pays $18 Million to Settle Lawsuits Stemming from 2004 Republican National
Convention at Madison Square Garden, N.Y. DAILY NEWS (Jan. 15, 2014), https://perma.cc/S6B6-
NQMS.
108 Rocco Parascandola, Ray Kelly to Mayoral Candidates (and Especially Christine Quinn): Don’t
Create an NYPD Inspector General, N.Y. DAILY NEWS (Mar. 26, 2013), https://perma.cc/Z6WD-
YPKT.
also lied to the Grand Jury a perjury indictment was a distinct possibility.109
And such mendacity might have tipped the scales in favor of a civil rights
prosecution by the Brooklyn federal prosecutors. Yet by 2019 the NYPD was
feeling such political heat that it disclosed the hearing officer’s
recommendation and then the text of her report finding that Pantaleo had
lied—and no one said a word about § 50-a.
The fact that both the CCRB and the Inspector General’s Office have
woefully under-performed, as demonstrated above, illustrates that even
reforms implemented despite vehement opposition can still be marginalized
in practice. More than 25 years after its creation, the CCRB is still a weak
agency whose recommendations are largely ignored by the NYPD’s
disciplinary apparatus. The Inspector General’s reports have either been
squelched or ignored by the NYPD.
Accordingly, the repeal of § 50-a is not a panacea by any means. But
anything that sheds additional sunlight on the NYPD’s corrupt disciplinary
mechanisms will be helpful. Court decisions such as Judge Dearie’s Jenkins
opinion are infrequent, and they only come about when plaintiffs’ lawyers
obtain disciplinary records in discovery in lawsuits. But investigative
journalists are plentiful in New York City and the repeal of § 50-a opens the
door to greater public awareness. And such openness might even force the
NYPD occasionally to fire a miscreant officer who repeatedly abuses the
public—not necessarily because the NYPD truly believes that termination is
deserved, which is rare, but simply to quell the public outcry that would not
have occurred were § 50-a still in effect.
On the other hand, the police unions can be expected to fight
vigorously against every effort by journalists to obtain police disciplinary
records, citing privacy exceptions to the state’s Freedom of Information Law
(FOIL), Public Officers Law Secs. 87 (2) (b), 89 (2) (b), and 96 (1) (c). Former
Commissioner O’Neill once advocated amending the Public Officers Law to
require all police, corrections, and firefighter/paramedic administrative
agencies to place the results of all substantiated disciplinary cases online
without the necessity of a FOIL request, and declare that such records are
not exempt from FOIL. 110 Such an amendment, expanded to include all
pending and “unsubstantiated” disciplinary charges, may well be necessary
to prevent the unions from mounting a rear-guard effort to circumvent the
§ 50-a repeal. The unions will undoubtedly demand that (i) the NYPD and
109 See Richard Emery, A Chokehold, Lies and Videotape: How Daniel Pantaleo Lost His Job, but
Still Beat the System, N.Y. DAILY NEWS (Aug. 19, 2019), https://perma.cc/U9PN-8XV6.
110 See O’Neill, supra note 101.
CCRB not disclose any officer’s disciplinary records absent a formal FOIL
request and (ii) the NYPD and the CCRB reject every FOIL request for an
officer’s disciplinary records under the privacy exceptions to the FOIL
statutory scheme. Although the legislative intent in repealing § 50-a was
crystal clear—to have such records made public—the unions will agitate and
litigate to the bitter end to delay and derail disclosure. And the Law
Department may well continue its long-standing practice of demanding
protective orders precluding public disclosure of disciplinary records
produced in discovery in civil rights cases.111
It should not have taken so long for the State Legislature to repeal
Civil Rights Law § 50-a in its entirety. Police officers have more power over
the citizenry than any other City employees: they carry firearms, batons,
pepper spray, and handcuffs, and on their say alone an individual can lose
his or her physical liberty for at least twenty-four to forty-eight hours and be
dragged through the horrific squalid conditions of Central Booking—and if
they lie convincingly to the prosecutors they can subject the arrested
individual to a nightmare of repeated Criminal Court appearances until the
case is finally dismissed. That enormous power must be counterbalanced by
a truly objective and transparent disciplinary system. Despite their awesome
powers, police officers historically have been accorded far more stringent
protections against public knowledge of their misdeeds than virtually all
other government employees. That is totally irrational. Secrecy in the NYPD
disciplinary process necessarily arouses suspicions and distrust of the police
and harms police-community relations. Such widespread secrecy must end.
CONCLUSION
The fabled Blue Wall of Silence is much more than a national code
of honor amongst police officers and their unions. It has been
institutionalized by police departments throughout the United States. In
New York City, this has been accomplished not only by the NYPD itself, but
also by the complicit behavior of numerous governmental enablers: the NYC
Law Department, the CCRB, the District Attorneys, the NYC Comptroller’s
Office, and the NYC Department of Investigation—and with inaction or
ineffective cosmetic action by the City Council, the State Legislature, and a
long succession of Mayors and Governors. Unless these enablers change
their policies and engage in a concerted effort to force meaningful and long-
111 See Goodman, supra note 97.

overdue reform, the institutional Blue Wall of Silence will live on for many
years to come.

Reforming The NYPD and Its Enablers Who Thwart Reform

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Reforming The NYPD and Its Enablers Who Thwart Reform

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Reforming the NYPD And Its Enablers

Who Thwart Reform

practice concentrating on suing NYPD officers over brutality, false arrests,

ABOLISH THE NYPD “TRIAL ROOM”

A good start would be to abolish the NYPD’s “trial room”—the

proceedings, requiring that all such proceedings be adjudicated by a deputy

communications with the First Deputy Commissioner’s office and the

ABOLISH THE NYC LAW DEPARTMENT’S “SPECIAL FEDERAL

Since the NYPD is notoriously unwilling to punish police

Fear, CITY LIMITS (Nov. 21, 2019), https://perma.cc/Y25P-W4P9.

substantiated civilian complaints and recommended punishment—it should

TIMES, Apr. 13, 2018, at A23.

represented the plaintiff in the James case).

It was astonishing that Carter would entrust such a sensitive

(June 24, 2020), https://perma.cc/V424-PEGC.

[T]he Court finds that defendants and their counsel have

117, 118, and 122).

Perhaps the worst example of dishonest behavior described in the

city itself.20 He explicitly criticized former Corporation Counsel Cardozo for

Yet in response to Judge Weinstein’s criticism, the City shamelessly

been forced to litigate what would be otherwise unnecessary

More recently, the Corporation Counsel’s office was castigated by a

represent the people of a jurisdiction as well as its agencies and employees,

even the most extreme misbehavior of officers, there will continue to be

INCREASE PENALTIES FOR NYPD DEPARTMENTAL DISCIPLINE

At present, if a police officer is not terminated in an NYPD

36 N.Y.C., N.Y., ADMIN. CODE §14-115 (2020).

the powers accorded by the amendment—and there would surely be public

VIGOROUSLY ENFORCE PENALTIES FOR MAKING FALSE OFFICIAL

seriously penalize officers who make false official statements is

Only two years earlier, the Mollen Commission had severely

departmental prosecutions for making false official statements to the CCRB

50 Charter Revision Comm’n, supra note 31 at 54–55.

REQUIRE CLOSE REVIEW BEFORE OBTAINING AND EXECUTING

In the early years of Raymond Kelly’s tenure as Mayor Bloomberg’s

59 Raymond W. Kelly, The Police Department’s Examination of the Circumstances Surrounding

McColley v. County of Rensselaer,69 (a non-NYC case), the Second Circuit

Judge Calabresi’s concurring opinion in McColley described the horrors of

Troy's Emergency Response Team, at six o'clock one morning,

The NYC Law Department vigorously responded to McColley by arguing in

74 Id. at 832 (Calabresi, J., concurring).

Sooner or later New York City is likely to experience another Alberta

LIMIT THE EXTENT TO WHICH TAXPAYER DOLLARS SUBSIDIZE

As noted previously in this article and in numerous annual reports

there was “intentional wrongdoing or recklessness,” the Law Department

Recently the NYS Court of Appeals upheld a decision by Nassau

and charging them with offenses such as assault, harassment, or disorderly

THE CITY COMPTROLLER MUST BE PROACTIVE

Although the Law Department, the District Attorneys, the City

The Comptroller is in a unique position to force change. City Charter

85 N.Y.C., N.Y., CHARTER § 394(c) (2004).

CCRB Complaint 201901422 (Nov. 18, 2019).

MAKE PUBLIC THE RECORD OF ALL NYPD DISCIPLINARY

Nonetheless, at the urging of local governments and police unions,

When police officers investigate past wrongdoing by a civilian

In Jenkins, the NYPD’s most egregious enabler, the Law

many, has no probative force and is of no concern. The City

One would think that, in a 2019 NYS legislative session marked by

N.Y. DAILY NEWS (Oct. 27, 2019), https://perma.cc/NE53-ZZ4B.

The Sergeants Benevolent Association (SBA) is even worse, spouting

Republican convention in New York City—many of which involved no such

111 See Goodman, supra note 97.