The Chief

December 24, 1999

Knock NYPD Over Flimsy Abuse Cases

By William Van Auken

Faced with a Federal investigation into police misconduct and criticism over its dismissal of large numbers of civilian complaints of alleged abuse, the Police Department is increasing taking Police Officers to trial on unfounded charges, the Patrolmen's Benevolent Association has charged.

While the police union has long described the department's Trial Room as a "kangaroo court" and decried the treatment meted out to cops at the Office of Administrative Trials and Hearings as well, its complaints were seconded recently from an unusual source.

Judge: No Real Case

Granting a PBA attorney's motion to dismiss charges against a Brooklyn Police Officer accused of illegally searching and threatening to arrest a civilian in September 1996, Administrative Law Judge John B. Spooner agreed that the department had failed to make a prima facie case. That is, even if the charges against Officer Sean Murray, a Housing cop assigned to PSA 1, were taken as proven, there was no basis for finding him guilty of misconduct. The attorney from the NYPD Advocate's Office did not opposed the motion.

As part of his Dec. 13 decision, Mr. Spooner issued a sharply worded protest over "the department's scheduling of an unsupportable case such as this for trial before this tribunal." He pointed out that the Advocate's Office had done nothing to investigate the case after receiving the CCRB file in May 1997 until OATH heard it in late October.

"I am certain that the department has valid concerns in seeking an adjudication of even weak civilian complaints, since it possesses an interest in preserving the appearance of fairness in disciplining any officer who mistreats a private citizen," Mr. Spooner wrote.

"However," he continued, "where the civilian complaint, even if fully credited, does not establish misconduct, going forward with the adjudication does not necessarily foster an appearance of impartiality."

Rather, he said, the delays resulting from a refusal to close unfounded civilian complaints gave rise to serious inequities.

"It may be unfair to the officer, who must wait for years to have the pending charges removed from his personnel history," he wrote. "It may be unfair to the civilian complainant, who is asked to recall details from an incident which occurred nearly four years before. And it may be unfair to this tribunal, which is asked to set aside valuable trial time to adjudicate cases which the department concedes are meritless."

The Particulars

The case against Officer Murray stemmed from a September 1996 incident in which he and other cops questioned two men who were loading boxes at night into a car illegally parked on a sidewalk outside a house. When the civilian who later made the complaint was asked for identification, he said he had none, and he refused police requests to get out of the vehicle. At that point, an officer pulled him out of the car and searched him. Together with other officers, the cop opened the car door and looked inside with a flashlight. One of the other officers issued summonses for illegal parking, driving without a license and disorderly conduct.

At t6he hearing the civilian was unable to identify Officer Murray, and his description of the cop differed significantly from that of the department's other witness.

While acknowledging that the search of the man may not have passed Constitutional muster, it did not represent misconduct. There was no evidence that Officer Murray or any other officer targeted the civilian for any reason other than a justifiable inquiry into an illegally parked vehicle being loaded at night by a man without identification.

According to a source familiar with the proceeding, OATH's Chief Administrative Law Judge Rose Luttan Rubin recommended at a pre-trial hearing that the charges be dropped because the Police Department ahd no case. A representative of the NYPD Advocate's Office reportedly replied that he agreed with her, but that they had no choice but to go to trial because First Deputy Commissioner Patrick E. Kelleher had sent it back after rejecting a recommendation that i be dismissed.

Patrolmen's Benevolent Association president Patrick J. Lynch said that Mr. Spooner's remarks indicated the need for a change. "If there is nothing to a case, then they should throw it out," he said. "Instead they take the life or a New York City cop and put it on hold. It is wrong to put a cop's life in upheaval and make him defend his character just so they can play a numbers game."

Mr. Lynch said that the department is pushing through unfounded cases to five the appearance that it is toughening up the disciplinary process. "If the judge is saying this, the Advocate's Office is saying this and the PBA is saying this, it's about time the department took a look at it," he said.

'Quality Diluted'

"We've been screaming for the last six months that the quality of cases have been diluted because of the pressure on the Police Department over CCRB cases being dismissed," said PBA Attorney Stuart London.

Mr. London said that there had been a change in the department's policy in response to both the investigation being conducted by the U.S. Attorney's Office for the Eastern District into the department's disciplinary process and a report, issued by Public Advocate Mark Green in September changing that a large percentage of substantiated CCRB complaints had been dismissed with no reinvestigation by the department.

Among some or the recent cases resulting in acquittal have been that of a Bronx officer charged with excessive force against a youth who suffered a chip fracture to his finger during an arrest. The cop first had to snatch away a metal pipe that the boy had been swinging at another youth. The OATH decision noted that such a minor injury was "not inconsistent" with appropriate enforcement efforts.

In another proceeding, a Queens cop was charged with excessive force in connection with a woman who suffered a cut to her forehead at the hands of officers called to escort her out of a family homeless shelter. Described in the OATH decision as "a very angry, mentally unstable person," when asked to identify the cop the woman claimed had hit her, she pointed to an observer in the back of the hearing room. Again, the OATH decision found the injury not unusual for a person resisting arrest.

CCRB Does Better Job

Police Commissioner Howard Safir cited increased funding and improved CCRB investigations recently in explaining why the percentage of substantiated CCRB complaints resulting in disciplinary penalties had risen from 20.7 percent in 1996 to 55.6 percent in the first three quarters of this year.

It appears, however, that older cases, done before the beefing up of the CCRB's investigative staff, are not being routinely pushed through to trial, also with no reinvestigation.

"The guy getting hurt is the cop whose career is put on hold," said Mr. London. Many officers, he said, feel compelled to accept some form of plea agreement even when they are innocent, rather than get denied promotion and transfers while waiting years for a case to get adjudicated.

"In the past if a case boiled down to the word of a felon against that of a cop, they'd take the cop's word for it,: Mr. London said. Now it's the criminal who is getting the benefit of the doubt."

The PBA attorney said that the NYPD Advocate's Office continues to prepare "49s," departmental memos calling for cases to be dismissed. "Kelleher is saying no, let it go to trial; he's rejecting the recommendations from his own people."

The NYPD's Public Information Division did not respond to requests for a comment.