Mimesis Law
24 April 2019

Bratton Says No To Minimal, Ineffective Oversight

July 2, 2015 (Mimesis Law) — The irony of the police accountability movement is staggering.  People are simply asking that cops who murder or send people to jail on falsified charges be held accountable.  It is a rather simple concept, and should be easy to understand for our boys and girls in blue.

Accountability is, quite literally, their entire business.  If someone commits a crime, cops are there to make sure that person is held accountable.  But when the accountability tables are turned on the cops, it becomes an invasion by outsiders into their impossible-to-understand world.

This week, the New York City Council held hearings on the proposed Right to Know Act and other measures aimed at repairing the rift between the citizens of New York City and the NYPD.  Impassioned speeches were given by police reform groups and affected citizens, including a stirring and emotional speech from Gwen Carr, Eric Garner’s mother, specifically on the issue of chokeholds, the method by which reasonable people agree Garner lost his life.

The only speaker that actually mattered during the hearing, though, was NYPD Commissioner Bill Bratton.  He listened to all the concerned voices of the community and, upon as much reflection as he could muster, told the City Council where they could stick their proposals.  Bratton’s obstinacy is representative of the untouchable nature of America’s police forces.  They don’t oppose burdensome accountability.  They oppose all accountability.

First, it is worth noting that I have previously called Bill Bratton an “idiot” for his statements equating protesters with terrorists.  Proving my point, he went before the New York City Council and excoriated the rather minor proposals as an “unprecedented intrusion” into the functions of the NYPD that would handcuff the police, rendering them powerless to stop the criminal hordes.

However, once the Council tried to cut through the scare tactics, Bratton pivoted to a totally inconsistent position.  He called most of the measures unnecessary, simply redundant of existing laws.  So, these fairly minor proposals that would turn New York into an apocalyptic hellscape are completely unnecessary because they already exist.  Makes perfect sense.

So, what of the redundant legislation that would have us all huddled around trashcan fires?  The centerpiece is the Right To Know Act, which requires officers to explain the basis for a stop/search/arrest.  And if there is no arrest, the officer must provide a card with his name, badge number and the phone number for the Civilian Complaint Review Board (CCRB).

This proposal has theoretical merit.  Just not actual merit.  Telling people why they are being cuffed assumes that if a cop is making an arrest based upon an incorrect perception of facts, then letting the person know why they are being stopped provides the chance to clear things up.  I nice friendly chat and everyone shakes hands and goes about their merry way.

This proposal totally exposes the City Council’s naïve and misguided understanding of the true nature and depth of the problem,  the us-versus-them mentality of cops.  If a cop is arresting you, no amount of explanation is going to change his mind, no matter how valid.

But what about forcing officers to give their name, badge number and the phone number of the CCRB to members of the public who are lucky enough to interact with the police without getting arrested?  Basically, this would require New York City cops to follow service protocols on par with Verizon customer support representatives.  Again, despite good intentions, this proposal is deeply flawed in that it attempts to put a band-aid on a broken leg (and arm and back).

The main flaw with this proposal is that the CCRB is a complete and utter joke.  Defense attorneys, including the newly appointed head of the CCRB when he had his own practice, advise clients not to pursue a CCRB investigation because it never leads to appropriate discipline.

A glimpse into some CCRB and NYPD statistics shows a very clear picture why Bratton also opposes a measure that would require the NYPD to provide statistics for the city to review.  In 2012, 5,741 complaints were made to the CCRB.  Of those, a mere 258 were substantiated and moved on to the disciplinary recommendation round.  The CCRB can recommend instruction (a talking to), discipline (a talking to or docked vacation days), or charges (docked vacation days, suspension or termination).  Here is how the CCRB and NYPD opinions on discipline differed in a 2012 report:

                                             Charges      Discipline         Instruction

CCRB recommended:       175               70                       12

NYPD Discipline:                  8               35                        111

If you are paying attention, you noticed that over 100 cases are missing from the NYPD tally.  That is because the NYPD decided to take no action at all on those cases.

With statistics like those, showing that in 2012, only 1 out of every 718 CCRB complaints led to any actual discipline, Bratton probably does not want the City Council to have a closer look into his department’s dark underbelly.  His opposition to releasing NYPD disciplinary statistics, though, is his most bold-faced attempt to stall meaningful information to the city he is policing.  His thin response:  “Trust us, we are the police.”

The idea that generic oversight like this will ever be effective must be retired, permanently.  The world watched a cop literally choke a man to death over cigarettes and he hasn’t been given so much as a strongly worded letter for his personnel file.

And this brings us to another proposal, criminalizing chokeholds.  We recall in the aftermath of Eric Garner’s death, that NYPD rules prohibited the use of the very chokehold that killed him.  So this proposal will keep that from ever happening again, right?  Wrong.  Choking someone is already completely a crime under New York Penal Law § 120.11, Criminal Obstruction of Breathing or Blood Circulation, which states that:

A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she: a) applies pressure on the throat or neck of such person.

The problem is not that the law isn’t there or the law isn’t clear (as a backpedaling Bratton tried to argue).  The elephant sitting in the corner of the room is that laws that apply to the rest of us simply do not apply to those who enforce them.

This above-the-law mentality is the fatal flaw to the proposals concerning consent to search and use of force.  The City Council wants to require objective evidence of consent (signed consent form or recorded statement of consent) by police who conduct a search without a warrant or probable cause.  Even were this proposed law more appropriately tailored to cases where the cops claim to have had consent, a judge is only concerned with the voluntariness of the consent, not whether the cop followed a city code.

As for any attempts to restrict police use of force, in the scary us-versus-them world, every movement, tick or glance could be the precursor to an attempt on the officer’s life.  These proposals do nothing to change the fact that when the story is told, the criminal is always the criminal and the cop is just trying to make it home.

The City Council’s attempt to bring some measure of accountability to the NYPD is a noble goal, but window dressing measures like the ones proposed do absolutely nothing.  They have as much power to change the culture of dishonesty within the NYPD as Donald Trump’s advisors have in trying to get him to stop telling everyone how rich and awesome he is.

Does this mean that the government should throw up their hands and just continue to allow police to fight against the community instead of work with them?  Of course not, but if any measures are going to be effective, they must be much more bold than simply putting a new suit on currently existing laws and telling police to hand out a complaint hotline phone number.

Cops commit crimes in this city (and elsewhere) day in and day out.  They assault, they steal, and they commit a lot more perjury than your run of the mill citizen.  In a fair society, those who commit crimes should be arrested (followed by the full panoply of due process allowed to all criminal defendants).  Although the police enjoy no blanket legal immunity from arrest and prosecution, they do have the immunity of a monopoly.  Who will police the police?

If the City Councils of New York, or Houston, or Tallahassee are serious about police accountability, they must recognize that no matter what they propose, the police will not like it.  In their us-versus-them world, they are the ‘us’ and the rest of us are very much the ‘them.’  If any real change is going to come about, we are going to have to stop believing cops when they say they can police themselves.  Buying into that makes us the idiots.

Main image via Flickr/Policy Exchange

3 Comments on this post.

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  • Scott Jacobs
    2 July 2015 at 9:18 am - Reply

    Oh thank god. For a second I was worried there would be some sort of token effort to provide oversight for the police.

  • Bail Reform Meets Battered Mayor Syndrome
    28 October 2015 at 6:46 am - Reply

    […] Some feel good laws and rules were proposed to respond to the unending violence by the police upon the city’s communities of color. None of them matter because even the few proposals that are not mere flaccid claptrap will never be adhered to by the law enforcers out there.  NYPD Commissioner Bill Bratton has said as much. […]

  • Bail Reform Meets Battered Mayor Syndrome
    28 October 2015 at 6:46 am - Reply

    […] Some feel good laws and rules were proposed to respond to the unending violence by the police upon the city’s communities of color. None of them matter because even the few proposals that are not mere flaccid claptrap will never be adhered to by the law enforcers out there.  NYPD Commissioner Bill Bratton has said as much. […]