Sawhorse Toy by Imp Kerr

I will always remember the first time a cop lied to me. Or rather, the first time that I knew beyond a doubt that a cop was lying to me, sitting right there in the interview room with a tape recorder in front of him.

It was early in my tenure as an investigator at the New York City Civilian Complaint Review Board, the city agency established in 1993 to investigate allegations of misconduct against NYPD officers. The case was a fairly straightforward stop-and-frisk incident near the massive New York City Housing Authority complexes along Avenue D in Manhattan. The complainant, a man in his early 20s, alleged that a plainclothes cop had stopped, frisked, and searched him after he stepped out of a bodega. He’d given a guy a cigarette, and before he knew it, the cop came up from behind him, grabbed him by the coat, and after a quick scuffle, pushed him against a wall.

I’d already interviewed the cop’s unusually forthcoming partner, whose testimony matched the complainant’s. That’s how I knew the cop was making stuff up. Lots of stuff.

The experience was exhilarating: Not every 22-year-old has a chance to interrogate an armed member of the country’s largest police force. But there I was. And this cop had not only illegally stopped, frisked, and searched a citizen but had also lied about it, and I suddenly found myself in a position to hold him accountable.

I closed the case as “substantiated,” meaning the complaint was legitimate. The Board handed the case over to the police department with a recommendation of disciplinary measures. But within a few months, the police department had dismissed the case. As usual, they did not explain why. From then on, being lied to by police officers became so common that the excitement—of not only catching them in the act but making an official record of it—gave way to anesthetized indifference. I would see many legitimate complaints fall by the wayside, ignored by the police department or lost in the CCRB’s bureaucratic labyrinth.

Historically, the CCRB has acted as a fact-finding organization. It has no direct authority over police officers. It consists of 13 city appointees who sit atop a large investigative apparatus of roughly 100 civilian investigators and their supervisors who do the actual work of looking into allegations of police misconduct. I was one such investigator for over three years, right out of college, starting in March 2009. Like many CCRB investigators, I hadn’t intended to spend my postcollege years investigating cops. But the job seemed novel and noble, and more important, in post–Lehman Brothers New York, it seemed available.

In New York City, the job of CCRB investigator is an entry-level position. In other cities it’s done by accredited lawyers, but in New York it’s done by kids like me. The stated requirements for the job—a bachelor’s degree and critical thinking skills, ­basically—do not quite prepare people to canvass housing projects in dangerous neighborhoods, obtain information from recalcitrant and ­hostile ­civilians and police officers, or perform nuanced analyses of fact patterns in light of complex case law. Most investigators learn these things by doing them, but much time and money is lost in the process.

In researching whether to take the job, I’d learned that the CCRB had long been dogged by criticism. Two years before I started there, the NYCLU had published a report comprehensively detailing the agency’s failures, called, bluntly enough, “Mission Failure.” In summary: The agency is underfunded, which severely hampers the effectiveness of its investigations; its leadership is ineffectual; on the occasions when it finds and communicates acts or patterns of misconduct, its findings are systematically ignored by the police department; and the CCRB does nothing to assert itself in the face of such dismissals.

In spite of this dismal outlook, I took the job and found great satisfaction and pride in my first two years there. I uncovered and documented legitimate abuses and learned how municipal governance affects the daily lives of people in marginalized communities. Eventually I was promoted to supervisor. But during my last year at the job, a number of controversies and debates concerning the NYPD came to a head—stop and frisk, invasive surveillance of Muslim communities, and deliberate heavy-handedness in the policing of public demonstrations, to name a few. The CCRB’s near total absence from these discussions seemed to broadcast its irrelevance. I realized I was working for an institution that, at best, may as well have not existed. At worst, it indirectly reinforced the misconduct and impunity it was meant to combat. By the end of my time there, this combination of meaningless torpor and painful complicity had become overwhelming.

The job of any investigator is to figure out who’s lying. NYPD officers lied constantly, but complainants lied all the time too. They denied behavior that justified police action, claimed beatings so severe that the mere fact of their living to tell the tale was evidence against them. But there is a fundamental difference between a lying civilian and a lying police officer. When cops lie, they are part of a system of language that is integral to the state’s monopoly on violence. I quickly came to realize that many officer interviews followed one of a handful of scripts, with troves of phrases to express and explain suspicion (“high-crime area,” “furtive movements,” “erratic behavior”), to justify an escalation of force (the “demeanor” of a “defendant” was “agitated,” “belligerent,” or “highly uncooperative;” people “resisted” by “flailing” their arms), and to establish probable cause for an arrest (“small objects” were “exchanged for U.S. currency” in a “hand-to-hand transaction”).

In cases without objective evidence like medical records or video, it was easier for investigators to accept an officer’s account of an incident because the cop’s language was far more likely to be consistent. Civilians were asked to provide multiple statements throughout an investigation (on the phone and in person), and inconsistencies between those statements were often used to discredit their claims. Meanwhile, cops were prepared immediately before their interviews by union attorneys, who remained present during the statement lest officers stray too far from the official line. If language is a weapon, cops were equipped with firepower and the training to use it, just as they were with actual guns. Meanwhile ­complainants—civilians whose circumstances put them in frequent contact with police—have been denied mastery of the official language.

***

Within a few months of my hiring, the city put all municipal employees through “Customer Service Training.” Overdesigned posters went up around the office: Great City: Great Service. The training consisted of a few indifferent lectures and PowerPoint presentations. The general idea was that we were supposed to be polite. The fact that the city referred to people as “customers” rather than citizens said a lot about governance in the Bloomberg era—as if the CCRB’s complainants were not exercising legal rights but merely enjoying an optional service in a competitive market—­patrons to be pandered to and pacified.

The irony behind the imperative to treat our complainants as customers became apparent to me as the months and cases wore on. I realized the many ways in which the CCRB was stacked against our ­“customers”—against the citizens who came to us feeling they had been victims of police abuse.

When a person files a complaint, they deliver a sworn statement detailing the incident at the CCRB’s offices in lower Manhattan. An investigator is assigned to the case and goes about obtaining evidence, including witness testimony, police documentation, medical records, and testimony from the officers involved. After compiling the evidence, the investigator assigns the case one of four dispositions: substantiated (the alleged action happened and was misconduct), exonerated (the action happened but was acceptable), unfounded (the action did not happen), or unsubstantiated(insufficient evidence to make a determination). If the Board agrees that a case is substantiated, it forwards it to the Department Advocate’s Office, the NYPD branch that internally prosecutes cops accused of wrongdoing, with a recommendation of discipline.

In March of this year, the CCRB was given the power to prosecute its own cases. When I left, the agency was in the process of staffing and organizing the unit responsible for these prosecutions. This was a welcome relief, and it will almost inevitably have a positive effect on the quality of the litigation. But this doesn’t change the fact that the cases will still be tried by judges who are employed by the NYPD and who are thus likely to keep applying inconsistent or capricious standards to their rulings. Granting the CCRB prosecutorial power struck me as a political maneuver of little substance, intended by Commissioner Kelly to quiet the outrage that increasingly enveloped the NYPD during the first months of the year without actually needing to make any meaningful concessions.

But there was a double standard at work. Officially, the standard of proof by which the CCRB reaches a finding is a “preponderance of the evidence,” often explained as a standard of 51 percent: If something was more likely than not to have happened, we concluded that it happened. But in my experience, this standard applied only to cases that cleared officers of wrongdoing. Cases closed as substantiated were held to a higher standard, something much more like the “beyond a reasonable doubt” standard used by criminal courts.

I once closed two cases in quick succession that drove this discrepancy home clearly. The first was a force complaint involving a teenager watching soccer in a Queens park who was roughed up by a cop who had stopped him for suspicion of drinking. The force was relatively minor, and medical records were inconclusive. However, I’d gathered enough witness testimony supporting the complainant’s account to outweigh the cop’s denial. By the 51 percent standard, I could conclude that unnecessary force had been used. My supervisors, however, refused to let it fly, because without conclusive medical records, the evidence was less than unassailable. After multiple arguments I capitulated, and the allegation was unsubstantiated.

Shortly after that, I closed a case involving a group of officers who entered an apartment in the Bronx with their guns drawn, responding to a call alleging that someone inside was armed. Although no gun was found, it wasn’t apparent to me that the officers had done anything wrong by the 51 percent standard, the complaint could have been rightfully exonerated. However, the report of the gun inside the apartment was unreliable, and there were inconsistencies in the officers’ accounts, so I wanted to close it as unsubstantiated, for consistency. But, again, after multiple arguments with my supervisors, the case was exonerated.

This discrepancy arose because the NYPD applied the more stringent standard to cases it received from the CCRB. The CCRB, rather than asserting its standard of proof and, by extension, the validity of its findings, simply adopted the police department’s. This meant proving misconduct required overwhelming evidence, while exonerating cops only needed a far more cursory investigation. In other words, the CCRB, an oversight agency, tailored its activities to the predilections of the institution it was meant to be overseeing. This is the definition of regulatory capture.

To make matters worse, there was a strong, explicitly articulated institutional pressure to keep the amount of unsubstantiated cases at a minimum. The reasoning was statistical: a high percentage of unsubstantiated cases would have suggested—accurately—that the agency had trouble reaching conclusive findings. The demand for fewer unsubstantiated cases was never articulated as a demand for more thorough investigations. It was simply a demand for better statistics.

This statistical obsession, like the treatment of citizens as “customers,” is another hallmark of the Bloomberg technocracy, and is not unlike the pressure felt by precinct commanders in the NYPD to keep crime statistics low, or the pressure felt by school principals to keep their students’ test scores high.

Since substantiating allegations took more time and effort than writing them off as exonerated or unfounded, the most “productive” investigators — the ones who closed the most cases in the shortest amount of time—were often the ones who rarely substantiated allegations. The result was a statistic of great convenience to the police department. If we listen to the numbers, we can’t help but conclude that real misconduct is a very rare beast, and that civilians are constantly either making false allegations or complaining about cops who are “just doing their jobs.” In 2010, there were just 550 substantiated cases, compared with 2,849 exonerated and 1,243 unfounded.

Because the agency has historically been understaffed, I often saw a deliberate short-­circuiting of investigations, “fast-tracking” cases, or exonerating them without statements from all or even any of the officers involved. Often the rationale was that officers would likely repeat information conveyed by other officers in testimony or reports—­essentially granting the police a presumption of consistency that fundamentally undercuts the CCRB’s ostensible neutrality, given that inconsistent witness testimony undermines the case of complainants. After I became a supervisor, the agency’s fundamental problem came into clearer view for me: The large majority of decisions made within the CCRB, by investigators and supervisors alike, were driven not by the goal of conducting full and fair investigations but by the desire to avoid more work.

Even when cases were substantiated, the police department’s prosecutors who tried the cases could be a liability. Soon after I was hired, in the spring of 2009, I attended a trial conducted by the Department Advocate’s Office with a group of other recently hired investigators. The complainant was a Hispanic man in his early 20s who was arrested for weed outside his building, part of a public-housing project in the Bronx. His arresting officer, also Hispanic, was accused of ­beating him up and strip-searching him in public. The CCRB had found that at least some of this had, in fact, happened. Hence the trial.

Inside the courtroom, I was treated to a display of professional incompetence unlike any I’d seen before. The attorney for the DAO—an employee of the Police Department, not the CCRB, I reassured myself again and again—was so inarticulate that the judge repeatedly interrupted her to point out, irrefutably, that her sentences were going nowhere. The accused officer’s union attorney was middling at best, but he came off like Perry Mason.

***

Like the large majority of investigators, I didn’t intend to stay at the CCRB forever. A deep bureaucratic lethargy suffuses the agency at every level. “The days here are spent in a sort of codeine haze,” I wrote in a journal in the midst of my time there, “resenting the boredom and mild discomfort but resenting even more any intrusion that might jolt us into action and alertness.” In my three years at the agency, I received about two dozen emails from the executive director, all of which were addressed to the entire staff and contained grammatical, spelling, and punctuation errors. On more than one occasion I found out about significant budgetary or structural changes to the CCRB from the New York Times or the Post before I heard about them at work.

But even as I applied to graduate school and my escape from the CCRB became gradually assured, my desire to leave gained an increasing urgency with the Occupy Wall Street protests, which put the NYPD in a jarring new light, as an enormous armed force strategically mobilized to intimidate and discourage collective acts of political expression. In the first few months of 2012, the police department continued to stubbornly defend its stop-and-frisk practices despite the intensifying media and public criticism. Meanwhile the CCRB, which is uniquely positioned to contribute to this debate, remained outside the conversation. I saw that the CCRB’s imbalances reinforced the countless imbalances endemic to the criminal justice system. The resources available to civilians are paltry in comparison to the power of the machine that surveils, controls, arrests, prosecutes and imprisons them.

I was a cog in that machine. During my time at the CCRB I was complicit in the questionable practices I’ve described. I wasn’t promoted by accident. And of course, there are many intelligent people at the CCRB who care about the work and its larger purpose. Most of them roll in and out before they develop an attachment to the institution, but a few wind up very near—though never at—the top. The agency’s current deputy executive director, for instance, was instrumental in obtaining prosecutorial power for the CCRB, and has done much to bridge the communication gap between executives and investigators. These people are the engine behind whatever good work the CCRB has done.

But people are adaptable, and resisting the agency’s systemic imbalances becomes exhausting. The dysfunction is beyond any single person’s responsibility or even any particular group of managers: They are as systemic as can be. It’s easier to be swallowed by the process.