It's been a tough few months for New York City's finest.

The NYPD has suffered a series of stunning blows to its reputation of late, from accusations of planted evidence in drug cases, heightened scrutiny of its stop-and-frisk policy to a whirlwind ticket-fixing scandal in the Bronx.

In September, the department got serious flack after a City Council member and an aide in the Public Advocate's Office were roughed up and arrested as they tried to pass through a parade checkpoint. Last month, a video that went viral caught a police officer pepper-spraying a group of seemingly docile Occupy Wall Street protesters.

In both episodes, the officers involved were reprimanded with either docked vacation time, marks on their permanent files, or the equivalent of a verbal scolding.

The rash of recent high-profile incidents has reignited debates over how the NYPD, the nation's largest police force, does—or does not—discipline its own. That process, advocates say, is a murky and inconsistent one, and rests almost entirely in the hands of one person: the police commissioner. Attempts over the years to increase the role of outside agencies in the disciplinary process have been largely superficial, and the voices now calling for greater, more independent oversight of the department have grown in number—and they've only gotten louder.

"The way the NYPD operates now, the department itself decides what penalties to apply, and what you're finding is that the punishments range from virtually nothing at all to a slap on the wrist," said Bob Gangi, director of the Police Reform Organizing Project at the Urban Justice Center. "It's kind of a ‘duh,' because by the very nature of the system they're operating, that kind of practice is inevitable."

A venue for complaints

Four years ago, Craig FitzGerald was walking down Seventh Avenue in Manhattan one afternoon—he was working as a foot messenger at the time—when he came across several men being searched by a group of police officers, in what he assumed was some kind of drug bust.

"They were being frisked up against a wall," he remembers. "The cops were throwing these guys against the wall, using what I thought was excessive force. One of the guys turned around a little, to look behind him, and the cop gave him a stiff hard elbow in the back of his head."

FitzGerald said he then took out his cell phone and started filming the scene.

"I said, ‘Whoa, that's police brutality,'" he recalls. "Then this plainclothes officer turned around and said, ‘You want some?' And I said, ‘No, no sir,' and I started backing up with my hands in the air, like in a surrendering."

According to FitzGerald, several of the officers then charged him—one of them kneeing him in the face—and he was arrested for disorderly conduct and resisting arrest.

He spent the next six months or so fighting the charges, which were ultimately thrown out, in court. He also filed a complaint with the Civilian Complaint Review Board (CCRB), the main avenue for the public to report police misconduct and one of the only city agencies, independent of the NYPD, that plays any role in its disciplinary process.

The CCRB investigates civilian misconduct complaints—everything from use of offensive language to excessive force—interviewing the complainant, any witnesses to the incident and the officers being accused. The board determines if the alleged action did, indeed, take place, and also if the action constitutes actual misconduct.
FitzGerald says months went by without a word, but he later found out that his complaint was deemed "unsubstantiated"—that the CCRB decided there was not enough evidence to make a determination either way—despite the fact, he says, that a witness came forward to back his version of events. It was his second police complaint to the CCRB that came back with that verdict. (He'd been arrested a few years before, in another altercation with cops after a protest at the United Nations; those charges were also later dropped.)

Although there was no real resolution in either case, FitzGerald calls his experiences with the CCRB "fairly positive."

"At least they're taking down what happened," he says. "At least there's a venue for people."

His wife, Jamie O'Hara, was less sanguine.

"It was this crazy bureaucratic process. You fill out all this paper work, and then they never got back to us," she says. "I really feel [your case] has to be so provable for them to admit the police did something wrong."

Discipline faces difficulties

Some say the real flaw lies not in the board itself but in its lack of resources and investigative power. Over the last three years, the CCRB has had its budget cut by over $2 million, according to board documents, and its staff reduced by 43 people. According to its latest report, there were 104 investigators employed by the CCRB this year, to cover the 3,107 complaint cases that were received between January and June.

"They're underfunded and they're not able to carry out any thorough investigations," said State Sen. Eric Adams, of Brooklyn, a former NYPD captain.

During the first half of 2011, the CCRB deemed 38 percent of its investigated cases unsubstantiated. In 33 percent of investigated cases, the officers were exonerated of the claims against them, while 13 percent of cases the allegations were considered unfounded and in 12 percent, the accused officer could not be accurately identified. From January to June of this year, the CCRB substantiated just 4 percent of investigated cases.

Even when a complaint is substantiated, the CCRB's powers are largely advisory. In the cases it substantiates, the board will offer a disciplinary recommendation to the NYPD—ranging from verbal warnings and loss of vacation days to suspension or termination, for more serious allegations—but its role generally ends there.

"They're at the mercy of the police department," Adams says. "You really can't be a true investigative agency when you're at the mercy of the agency that you're investigating."

Substantiated cases are referred to the Department Advocate's Office (DAO), the arm of the NYPD that prosecutes police cases. There, the cases that the DAO decides are heard in the police department's dreaded "trial room," on the fourth-floor of 1 Police Plaza. DAO staff historically consisted of police officers with law degrees, though over the last few years the office has sought to recruit lawyers from outside of the department—an attempt to boost the public's perception of the DAO as more independent.
Last year, the NYPD sought some form of disciplinary action in more civilian complaint cases than it had in nearly two decades, in 78 percent of the substantiated cases referred by the CCRB, up from 61 percent in 2009 and 56 percent in 2008.

Most of these disciplinary actions were decided in negotiations between the DAO and the accused officer, as opposed to an actual departmental disciplinary trial. In 2010, only 14, or 5 percent, of the cases referred to the DAO from the CCRB went to trial. Negotiated penalties tend to be more lenient than those determined through a trial, according to the New York Civil Liberties Union.

"If officers know that prosecutors simply will not take their cases to trial, officers are far more likely to be able to negotiate resolutions of their cases with far less discipline, further undermining the entire disciplinary process," a 2009 NYCLU report concluded.

So far this year, of the 171 officers who were disciplined in civilian complaint cases, 110 received instructions—the least punitive of the penalties and the equivalent of a verbal admonition.

By the end of this year, funding is set to run out for the CCRB's Administrative Prosecution Unit (APU)—a pilot program that allows CCRB lawyers to play an actual role in NYPD departmental trials.

"This program demonstrates the joint commitment on the part of both the CCRB and the NYPD in further enhancing civilian confidence in the NYPD's disciplinary process," CCRB Chair David Chu said of the pilot last spring. Now, except in the unlikely event that the budget is augmented, the program will run out of funding at the end of this year.

Even if the APU program continues, experts are skeptical about its effectiveness in making the CCRB a stronger force.
"I would be very cynical about steps like that making much of a difference," Gangi says.

Police commish calls the shots

All disciplinary decisions, regardless of what the CCRB or even a departmental trial judge might recommend, are at the discretion of the police commissioner—who decides not only the type of punishment, but whether there will be any punishment at all.

"They go through the semblance of a trial, but the final decision is made by the commissioner," says longtime police columnist Len Levitt, who runs the blog NYPD Confidential. "They do have a process, but it's so corrupt in the sense that there's no consistency and no transparency."

There is no requirement for department or the police commissioner to explain disciplinary decisions, according to Eli Silverman, an expert on police ethics and training on the faculty of John Jay College.

"It really comes down to how much transparency there is, and in my view there's very little," Silverman says. "The discipline process is simply one element of it, a byproduct that's illustrative of the whole issue."

That lack of transparency, Levitt says, creates a disciplinary atmosphere that favors the well-connected or produces decisions to enforce penalties that are often politically motivated.

Adams knows something, personally, of a case he says reflected political pressure: He was the subject of a highly publicized departmental disciplinary trial at the very end of his 22-year career with the department in 2005. He was docked 30 vacation days after he went on television, representing the advocacy group 100 Blacks in Law Enforcement Who Care, and criticized Kelly and Mayor Bloomberg's handling of a subway terror threat.

"When you look at the wide range of [disciplinary] inconsistencies, it depends on, one, if the case is a political case, an embarrassment to the department, or two, based on ethnicity, because black and Hispanic officers are disciplined at higher rates than their white counterparts," Adams says.

"As long as the discretion is with the police commissioner, you're going to have that wide range of penalties that are handed down."

The NYPD's public information office denied requests for comment on the department's disciplinary decisions.

Advocacy groups have long been calling for the establishment of an independent agency, one with stronger enforcement and investigative powers than those granted to the CCRB or the Commission to Combat Police Corruption, a mayoral agency charged with monitoring the department's many agencies and programs which has also been criticized as lacking teeth and any real investigative power.

Calls for the establishment of an outside agency are pitted against arguments that such a move would hinder the NYPD's effectiveness, and ultimately, the safety of the city.

Dr. Maria Haberfeld, who chairs CUNY John Jay's Department of Law and Police Science, says an agency completely independent of the NYPD—consisting of members who may have no background in policing—wouldn't work.

"Outsiders can have very valuable input and very valuable contributions," she says. "[But] there are things that truly cannot be effectively explained to someone outside the profession."

Her concerns echo the feelings that cops have towards the CCRB. Officers generally regard it as a group of outsiders with an anti-cop bias, and in spite of its weaknesses, as having the power to seriously damage careers.

"So now civilians with absolutely no knowledge of what it is like in a sector car or foot are going to have your fate in their hands," someone posted on Thee Rant Forum, an online message board for NYPD cops.

Resistance to the idea of outside oversight is longstanding, and inherent even in the CCRB's history. At its inception in 1955, the board was contained within the department and staffed entirely by other police officers. Attempts to bring civilians on staff under Mayor John Lindsay in the 1960s was squashed after much opposition; it wasn't until 1993 that the board was made entirely independent, and even then, the decision was met with an onslaught of hostility from within the police force.

Either way, Gangi says, it's unlikely any serious changes in how the department operates will take place under the current administration, where the NYPD has been given a fair amount of free reign and Commissioner Kelly, at its helm, has managed to emerge from a year of department scandals with still-high approval numbers.

"He's been mainly untouched," Gangi says. "Kelly is both enormously popular, and enormously powerful."