Chief-Leader

Updated Apr 18, 2016


Razzle Dazzle

Emery Had to Go, But City Can’t Neglect CCRB

By RICHARD STEIER

EMERY, I’VE GOT TROUBLES OF MY OWN: The lawsuit brought by a subordinate claiming he derided her and a colleague as ‘pussies,’ coming on top of the furor he created by accusing police unions of ‘squealing like a stuck pig,’ made Civilian Complaint Review Board Chair Richard Emery (left) a liability Mayor de Blasio couldn’t afford at a time when his administration has been rocked by a scandal involving top NYPD brass and a couple of his fund-raisers. While Patrolmen’s Benevolent Association President Pat Lynch (right) labeled Mr. Emery ‘anti-cop,’ a study he oversaw showing ex-Police Commissioner Ray Kelly rarely disciplined cops whom the CCRB found guilty of using department-banned chokeholds could lead current Commissioner Bill Bratton to take such findings more seriously.

To understand why Richard Emery resigned as Chair of the Civilian Complaint Review Board, it may be best to consider the old maxim about trying not to fall in love with someone who’s got bigger problems than you do.

This may not perfectly fit Mayor de Blasio’s situation, given that the probes of his administration are still unfolding, but he clearly came to the conclusion prior to his April 13 meeting with Mr. Emery that he was already dealing with enough agita of his own without having to chew over someone else’s on a recurring basis.

And the filing a day earlier of a lawsuit by two senior CCRB staffers alleging the veteran First Amendment lawyer had retaliated against them for exercising their own free-speech rights to complain that he referred to them as “pussies” appears to have been the breaking point for Mr. de Blasio, who summoned him to the meeting at City Hall that concluded with Mr. Emery submitting his resignation.

“I’m sure the meeting with the Mayor was definitive,” said political consultant George Arzt, a former New York Post City Hall bureau chief whose transition to government came in an even-more-trying mayoral moment, with Ed Koch tapping him to be his Press Secretary in 1986 in the midst of a corruption scandal that infested several city agencies.

NYPD Woes More Attention-Getting

It may turn out that Mr. de Blasio’s problems become even worse, even though to this point only the NYPD is ensnared in the ongoing probe by U.S. Attorney Preet Bharara. But to use the word “only” is to understate the seriousness of a scandal in which disciplinary action has already been taken against five ranking police commanders and a giant cloud is hovering over Philip Banks III, the former Chief of Department whom the Mayor shortly after his election seriously considered as Police Commissioner before taking the safe, smart route and choosing Bill Bratton. The rampant thievery and patronage that contaminated the Department of Transportation and its Parking Violations Bureau, the Taxi and Limousine Commission and the city Personnel Department 30 years ago didn’t resonate with the public the same way that top cops suspected of abusing their authority in return for free stuff always has.

And, for the moment at least, Mr. de Blasio’s place in this mess, given that the two men suspected of having used their largesse to receive special treatment from those cops were fundraisers and/or contributors to his 2013 mayoral run and key initiatives of his administration, is further complicated by the fact that his Investigation Commissioner, Mark Peters, was his campaign treasurer three years ago and yet spent last week explaining why it wasn’t necessary to recuse himself from the probe being spearheaded by Mr. Bharara’s office.

It was only a matter of time before enough outside pressure was applied, most notably by a New York Times editorial, that this changed late last Friday. There was something of a parallel between the insistence by Mr. Peters that he didn’t have to step away from the probe because the improper activities under scru­tiny occurred after his role as campaign treasurer ceased and Mr. Emery’s initial response when Sergeants Benevolent Association President Ed Mullins accused him of a conflict of interest because his law firm was representing in a civil suit a man whose complaint of police mistreatment had been upheld by the CCRB.

Appearance Matters

In either case, however good the person’s intentions may be about not letting self-interest affect his sense of fairness, the mere appearance of a conflict of interest can erode public confidence in them and their institutions. (Anyone think Mr. Bha­rara would have shared much information with Mr. Peters midway through a probe that could wander into areas affecting either the DOI Commissioner or the man who because of their friendship and his help in Mr. de Blasio’s campaign was willing to appoint him to that job?)

Yet Mr. Emery fiercely resisted pressure from the SBA and the Patrolmen’s Benevolent Association to either step down or be removed by Mr. de Blasio based on what they called a clear conflict of interest under which he stood to benefit from cases that could be picked up by his firm after the CCRB upheld a complaint. Sergeant Mullins in February said he was instructing his members not to submit to interviews with CCRB officials because of that issue, notwithstanding a ruling by the city Conflicts of Interest Board that there was nothing inappropriate about Mr. Emery’s role and his law firm taking on such cases.

Ironically, the CCRB official who defended Mr. Emery based on that opinion, Executive Director Mina Malik—she said in a statement that “any concerns related to alleged conflicts of interest with respect to Mr. Emery and the law firm of Emery, Celli, Brinckerhoff and Abady are addressed in the written advisory from the NYC Conflicts of Interest Board”—is one of the two officials who last week filed the retaliation suit against Mr. Emery.

But the unions’ drive to oust him as the board chair clearly grated on him, and on Feb. 24 he told a Daily News reporter, “I’m not going to deprive the public and people who are abused by police officers of having access to excellent lawyers because some union is squealing like a stuck pig.”

Paving Own Exit Ramp?

The PBA’s Pat Lynch and the SBA immediately accused Mr. Emery of having called their members “pigs.” He heatedly denied it, saying he was using an old idiom that was frequently used in situations that had nothing to do with police officers. This was true, but given that “pig” is one of the more-derisive ways of referring to cops, it was hard to believe that Mr. Emery would not have been aware of the pejorative light in which this phrase would be viewed. It was as if subconsciously a part of him had grown tired of being constrained by his official position and he was setting himself up for an exit from the CCRB.

He apologized for the inartful choice of words, and that was enough to satisfy the Mayor, though the two union leaders were not persuaded. He also agreed to not have his firm take on future cases that had gone through the CCRB—a step that should have been taken as soon as the issue came to light.

The “stuck pig” comment was particularly problematic because of an incident last September that pitted him against Ms. Malik and a female CCRB attorney regarding disciplinary action against two cops who had been accused of punching a man in the face while he was lying on a gurney. A disagreement between Mr. Emery and the unidentified attorney led Ms. Malik to side with her colleague. She claimed in her court papers that this prompted Mr. Emery to exclaim, “I don’t know why everyone is acting like a bunch of pussies.”

Mr. Emery last week told the Post that his statement was being mischaracterized: that he was actually referring to officials from the NYPD Advocate’s Office who were recommending a lesser punishment for the two officers, rather than the female CCRB officials.

2 Strikes to Credibility

There’s no way to know who will be deemed more credible once Ms. Malik’s suit is adjudicated. She has claimed that he subsequently criticized her stewardship of the CCRB’s administrative prosecution unit as a pretext for retaliating against her for backing the female attorney; he in turn has accused her of having a dictatorial style in dealing with subordinates.

But the normal presumption that this should be sorted out in the courtroom was swept aside by it being the second time within five months that Mr. Emery had made a highly charged statement that stirred controversy—and it would have even if you took him at his word that he was referring to NYPD lawyers rather than members of his CCRB staff.

Mr. Arzt the day after his resignation called Mr. Emery “a solid pillar of the progressive community. Richard has a great reputation as a defense lawyer and an employment lawyer and he’s very outspoken.”

But, he added, “Sometimes being outspoken and being in government doesn’t quite jibe.”

That was clearly the conclusion the Mayor made in forcing his resignation, even as he praised his work in ensuring that “the CCRB has resolved cases much more quickly and efficiently.” Mr. Emery is being replaced on an acting basis by CCRB board member Deborah Archer.

‘Daily Distractions’

In his own parting statement, Mr. Emery said, “The issue of inhibitions on my law practice, several of my recent public statements and recent litigation have created daily distractions from the success of the CCRB.”

He spoke with pride of having reduced from more than a year to an average of four months the time in which complaints brought to the board were resolved, and the fact that the NYPD was following the board’s disciplinary recommendations in 90 percent of the cases it adjudicated, compared to 60 percent prior to his appointment in July 2014.

“My hope had been to consolidate these changes and create an institutional imperative for the future of the CCRB and the NYPD,” he stated. “Regrettably, that has become far more difficult than the CCRB’s initial success because of current strife within the agency. As a result, quite simply, too much of my time and energy is being misdirected on matters tangential to the long-term best interests of the agency and too much time has been taken from my law firm, its staff and my private life.”

Mr. Lynch, not surprisingly, didn’t offer any sympathy, saying that a cop making the statements Mr. Emery had regarding both the unions and his subordinates “would have been harshly disciplined. The next CCRB chairperson should be held to the same high standards that police officers are. Our hope is that whoever replaces him will be a fair-minded and reasonable person who has a basic respect for police officers and the difficult job that they do.”

A Board Union Created

There is obviously no love lost between the CCRB and the police officers and their unions, who come before it in an adversarial mode. Any resentments they feel should be at least partly aimed at fellow cops, most of whom are retired by now, who turned what was intended to be a mass PBA rally against a bill to create an all-civilian CCRB that was being taken up at a City Council hearing in September 1992 into a mini-riot. Hundreds of officers, who were openly drinking from beer cans in City Hall Park when it began, tried to force their way into City Hall and, when blocked by fellow officers who got the doors locked just in time, took their frustrations out on motorists coming over the Brooklyn Bridge who dared question why they were blocking traffic.

Although the bill was proposed by then-Mayor David Dinkins, it had been considered dead on arrival even before the hearing began based on the opposition of City Council Speaker Peter Vallone Sr., a reliable ally of the cops and their unions. But the drunken revelry and destruction—which took a particularly unfortunate turn for the PBA and its out-of-control troops when one of them had the bright idea of jumping on the hood of Mr. Vallone’s car in the City Hall lot and giving it a good stomping—put the measure on a fast track to passage.

Their behavior prompted then-Acting Police Commissioner Ray Kelly to demand an apology from the PBA president at the time, Phil Caruso for publicly embarrassing the department and the city. But Mr. Kelly was hardly a fan of the bill, either, and he made that particularly clear during his second go-round as Commissioner during the 12 years of Michael Bloomberg’s tenure as Mayor.

Blaming a ‘Victim’

Mr. Kelly resented any incursion on his disciplinary powers, and his complaints about the CCRB coincided with those of the unions: its investigations were shoddy and it took too long to complete cases. But given his role in assuring that Mr. Bloom­berg didn’t fund the CCRB well enough to hire sufficient legal staff and investigators and pay them decently enough to retain the good ones, his posture brought to mind Raymond Chandler’s line in “The Big Sleep” about an adversary of Philip Marlowe’s who was inclined to “beat my teeth out and then kick me in the stomach for mumbling.”

Mr. de Blasio offered hope for the agency because he had campaigned in large part on a pledge to end police abuses that had been a sore spot to his supporters in the minority community. Mr. Emery was seen as having a good chance to bring greater competency to the CCRB process and the final disciplinary decisions by the NYPD due to both his reputation as a civil-liberties lawyer and his good relationships not only with the Mayor but with Commissioner Bratton.

As much as he may have accomplished in speeding the trial process, he made an equally important contribution with a study completed within five months of his appointment. He had started on the same day that Eric Garner died in a confrontation with a Staten Island police officer who deployed what appeared to be a department-banned chokehold to bring him to the ground while making an arrest for allegedly selling loose cigarettes. That study found that during Mr. Kelly’s last five years as Commissioner, of the 13 cases in which the CCRB had substantiated complaints of officers using choke­holds, Mr. Kelly disciplined only one cop—and limited the penalty to the loss of a few vacation days.

Sent Wrong Signal

The cop who used the chokehold on Mr. Garner, Daniel Pantaleo, was not in a life-or-death struggle—the target of his arrest was a man who was helpless to offer any resistance after he wrapped his arm around his neck because Mr. Garner’s girth thwarted his initial attempt to immobilize him by wrapping his arms around his chest. But given the lack of seriousness with which Mr. Kelly had treated past chokeholds—despite a ban that was imposed in 1993, the last year he served under Mr. Dinkins—it was not hard to understand that an officer would resort to that tactic without being overly concerned about disciplinary consequences.

The attention that study brought to the issue seemed to guarantee that cops would feel compelled to look for alternative maneuvers or risk their careers unless there was clear evidence that their lives might have been in jeopardy if they hadn’t resorted to chokeholds. The challenge Mr. de Blasio faces, as does Mr. Bratton, is that with Mr. Emery justifiably gone they not lose sight of the role an adequately-funded, more-efficient CCRB can play. Ideally, it will offer a quicker process in which cops don’t have their careers placed on hold to an excessive degree while charges against them are sorted out, while also giving citizens making legitimate complaints the confidence that they will be fairly addressed and acted upon when it is determined that officers used excessive force.