Why the mayor gives the NYPD a free ride

In December, many New Yorkers were shocked by a video of NYPD officers ripping Jazmine Headley’s baby from her arms. Her crime? Sitting on the floor of a Brooklyn food stamp office after waiting for hours and getting into a dispute with New York City Human Resources Administration “peace officers.” The video went viral, and was widely circulated by news outlets. Condemnation of the NYPD’s behavior was so ubiquitous, even the New York Post’s right-wing editorial board noted that “the de-escalation training the NYPD rolled out after the fatal 2014 takedown of Eric Garner … clearly didn’t help much here.”

While elected officials swiftly denounced the actions of everyone involved, one notable voice declined to criticize the NYPD: New York City Mayor Bill de Blasio. Several days after the news broke, de Blasio called the incident “disturbing” but blamed the agency security staffers. “By the time the NYPD arrived, this situation was already out of control,” he said. (Internal investigators at the NYPD found no wrongdoing by its officers.)

This was not the first time de Blasio was reluctant to denounce police officers for the use of force on people not even suspected of any serious crimes. In January 2018, in an incident captured on video outside a federal office building near City Hall, protesters gathered to prevent the deportation of immigrant rights activist Ravi Ragbir were manhandled – put in a headlock, shoved in the throat – and arrested by police, including members of the New York City Council. “Many of us suddenly and without warning or provocation (were) shoved and pushed,” Council Speaker Corey Johnson said afterward. “I was not blocking anyone. I was not resisting in any way.”

“He’s not willing to be bold, to stand up for police reform and criminal justice reform when he ran on that.” - Alyssa Aguilera, VOCAL-NY co-executive director 

The Daily News reported that de Blasio “called the protest a ‘very, very problematic incident’ but would not say whether the NYPD officers involved were in the wrong.” The NYPD defended the arrests on the grounds that the protesters were in the way of an ambulance. (One officer involved was disciplined and one was transferred to a different unit; nine other officers were cleared.)

To some of de Blasio’s supporters, incidents like this represent a betrayal of the credo of his first mayoral campaign and the coalition that elected him. Bill de Blasio is mayor today because he won the support of two key constituencies in 2013: African-Americans and liberals. He did so by campaigning against the racial and economic “tale of two cities” that existed under then-Mayor Michael Bloomberg. Reining in the NYPD’s perceived trampling of civil rights in marginalized communities was at the very top of that agenda. Now, many of the mayor’s usual allies ask why these incidents still happen, why few officers ever seem to pay a price for it and why the mayor’s penchant for starkly moralistic language suddenly evaporates when it’s most sorely needed. “Mayor de Blasio has had a lot of accomplishments in a lot of different areas – but in police reform, he’s fallen extremely short in my eye,” City Councilman Antonio Reynoso said.

By many measures, de Blasio’s tenure has coincided with impressive reductions in police brutality and other intrusive practices. According to City Hall, stop and frisk is down 94 percent since 2013, and complaints of excessive use of force by police officers declined 34 percent from 2014 to 2017. Instances of police discharging their firearms have continued a long-term decline, reaching record lows. By historical standards, and compared to other large American cities, today’s NYPD demonstrates impressive self-control.

"The mayor I endorsed in 2013 doesn’t seem to be the mayor I see now.” - New York City public advocate Jumaane Williams

And yet some liberal leaders have problems with the mayor’s record – including persistent racial disparities in policing, and rollbacks in transparency and accountability.

“He’s not willing to be bold, to stand up for police reform and criminal justice reform when he ran on that,” said Alyssa Aguilera, co-executive director of VOCAL-NY, a statewide grassroots low-income advocacy organization. “The police unions have outsized weight and nasty tactics. That’s why it’s important that you have someone who is very principled and not going to make all their decisions on politics. That’s what this mayor was lacking.”

Jumaane Williams told City & State during his successful campaign for New York City public advocate that the mayor’s record is a mixed bag. “There is a clear difference between this administration and the last (on policing),” he said. “There have been some very good things that have happened.” But he added, “There are two primary areas where that hasn’t happened: accountability and transparency.” On those issues, Williams said: “The mayor I endorsed in 2013 doesn’t seem to be the mayor I see now.”

Why do these critics think de Blasio has failed to reform the NYPD? The answer, which may disappoint progressives even more, is that the reasons depend less on who is mayor than on the structural constraints that any mayor faces.

The occasions in which police kill someone get most of the attention, even though New York City has a relatively low rate of such incidents. But there are lesser-known policy disputes that activists say have allowed the NYPD to continue some aggressive practices in low-income communities and communities of color, for whom de Blasio is supposed to be a champion.

The Right to Know Act

The most painful fight for activists and progressive legislators was the struggle to prevent cops from intimidating suspects into allowing unwarranted searches. In de Blasio’s first term, a bill to require officers to apprise civilians of their rights, specifically when searched or questioned, languished in the City Council despite having majority support because it was opposed by the mayor. The City Council passed a compromise version, which de Blasio backed, of the Right to Know Act in December 2017, which required police in many situations to explain why they are questioning someone and to let them know when they have the right to refuse to comply with a search.

But advocates say that the mayor worked behind the scenes to water down the legislation by creating broad or vague exceptions. “The gutting of the Right to Know Act was heartbreaking and not what we expected,” said Johanna Miller, advocacy director at the New York Civil Liberties Union. “He’s wiping out the bread and butter of most police interactions with the public.” De Blasio’s spokeswoman Olivia Lapeyrolerie replied that the law’s “carefully crafted balance has helped further bridge the police-community divide at the center of keeping neighborhoods safe.”

There are also accusations by activists that updates to the patrol guide do not follow the law. According to Joo-Hyun Kang, the director of Communities United for Police Reform, the patrol guide makes it sound as if any public gathering is an exception to the restrictions on bag searches. “In the law, that exception only applies to gatherings where you’re submitting to a search – for example, entering the barricaded section in Times Square on New Year’s Eve,” Kang said. Last year, she told the Daily News that the guide doesn’t make it clear that non-English speakers can’t consent to a search without translation.

NYPD spokesman Phil Walzak said at the time: “The NYPD will of course continue to talk to advocates to fine tune the policy as it is implemented and we can assess what’s working and what might be improved.” He later told City & State that the NYPD “fully complies with the Right to Know Act.” Lapeyrolerie said, “Officers are trained on how to work with non-English speaking New Yorkers in the academy.”

The law exposes a wide gulf between the views shared by progressive activists and council members and those of many police officers, who contend that the civil libertarians make unreasonable demands because they don’t understand policing. “Almost everything they’re calling for is absurd; the Right to Know Act is absurd,” said Eugene O’Donnell, a former NYPD officer and prosecutor who teaches at John Jay College of Criminal Justice. “Are you going to have a colloquy with people who are maybe armed and dangerous?”

50-a

Citing Section 50-a, a 1976 provision of the state civil rights law that prevents the release of officers’ personnel records, the NYPD abruptly stopped making police officer disciplinary actions public in 2016. “It used to be, after a disciplinary hearing, you could find out what happened at 1 Police Plaza,” Kang said. “It was no longer at the clipboard. First, the excuse was they were moving to an electronic system. Eventually, we realized that’s not happening and it became clear through court rulings they were taking a different position going forward.”

Despite complaints from advocates, state courts have sided with the administration’s new interpretation of the law, while de Blasio and NYPD Commissioner James O’Neill support the state Legislature revising it to allow more disclosure. “The mayor and police have been clear that this state law needs to be reformed,” Lapeyrolerie said. “But in the meantime, the NYPD has no choice but to comply with the Law Department’s ruling.”

Meanwhile, the police unions are offended by the mayor’s call to change the disclosure law. “Reckless efforts to repeal 50-a intentionally ignore the serious statewide impact on policing this would have, not just in New York City, but in Long Island, Westchester, Rockland, Orange, Dutchess and every other county, town and village in our state,” said Sergeants Benevolent Association President Ed Mullins in an emailed statement. “Interestingly, the NYPD supported keeping 50-a in recent litigation that went all the way to the Court of Appeals. The only things that have changed between then and now are leftward-leaning elections, and the mayor’s renewed flirtation with national politics.”

Strategic Response Group

Advocates say the mistreatment of the Ravi Ragbir protesters in January 2018 occurred in part because policing rallies is now handled by the Strategic Response Group, which was created in 2015. It was initially supposed to be a 350-person unit that de Blasio’s first police commissioner, Bill Bratton, said would handle counterterrorism and protests. Activists objected at the time to the conflation of peaceful demonstrations with terrorism, but O’Neill, then the NYPD’s chief of department, said, “They’ll have no role in protests. Their response is single-fold. They’ll be doing counterterror work.”

Within a year, the group expanded to 800 members and became involved in nonterrorism-related activities. Last year, the group’s officers responded to 911 calls regarding a mentally ill man in Crown Heights, Brooklyn, named Saheed Vassell who was brandishing what looked like a gun but turned out to be a metal pipe. Officers shot and killed him. Neighbors said that local precinct police would have recognized Vassell and known that he was harmless. Criminal justice news website The Appeal reported, “Days later, during a large march in Brooklyn demanding justice for Vassell, the SRG showed up to try to intimidate protesters.”

“What should happen is a re-examination of policies for protests and the Special Response Group,” Donna Lieberman, executive director of the New York Civil Liberties Union, told City & State.

The NYPD did not respond directly as to whether the unit’s mandate is too broad. “SRG is comprised of highly trained officers that specialize in a range of functions and duties,” Walzak said. Referring to the Ragbir protest from January 2018, Lapeyrolerie said, “This isolated event should not undermine the fact that the NYPD patrols thousands of protests each year without any issue.”

Lieberman agreed that there had been a shift from the Bloomberg era, when the city denied permits for rallies, police crammed protest crowds into pens and, during the 2004 Republican National Convention,1,800 people were arrested – many pre-emptively – leading to millions of dollars in wrongful arrest settlements. “The Bloomberg years began with people being arrested for attempting to attend a rally, with people being held in protest pens that were basically jail cells without a ceiling. I think it’s better now,” Lieberman said. But, she hastened to add: “I’m not saying it’s good.”

Arrests for quality-of-life crimes

Perhaps no issue better illustrates institutional resistance to policy change than de Blasio’s struggle to reduce arrests for minor infractions. Arrests are down 37.5 percent from 2013, which is partly because there is less crime but also due to shifts away from arresting every perpetrator of piddling offenses. During his first mayoral campaign, de Blasio said “low-level marijuana possession arrests have disastrous consequences,” explaining the racial bias in marijuana enforcement and calling the policy “unjust and wrong.”

In de Blasio’s first year in office, City Hall directed the NYPD to switch from arrests to tickets for most minor pot infractions. Arrests dropped substantially, then leveled off at around 17,000 per year between 2015 and 2017. In 2017, 86 percent of those arrested were black or Latino – roughly the same proportion as it was before de Blasio took office – even though studies show whites and nonwhites use marijuana at similar rates. Politico New York noted last year that de Blasio “has been reticent to criticize the police force” for failing to follow his policy direction. In 2018, the city announced a new policy that would eliminate arrests for smoking pot in public with exceptions, such as encounters with those who are on probation or parole. Williams warned these loopholes would perpetuate racial disparities, and he was right. Pot arrests have subsequently dropped dramatically, but the racial gap has widened.

“The culture of the NYPD is really intractable,” said Miller, the NYCLU’s advocacy director. “The Compstat era of the ’90s made cops show they were doing what they were supposed to do with numbers. Every few years, we hear about some precinct commander saying, ‘Go out and get five collars or six tickets with each shift.’ Frivolous arrests are still rampant. And the numbers show that these enforcement actions are falling very disproportionately on communities of color.”

The NYPD says it is trying to change that culture, to reward demonstrations of good judgment rather than merely making arrests for its own sake. “For the past four and a half years, Commissioners Bratton and O’Neill have made a forceful and department-wide commitment to redirect the NYPD from what they believed to be a too-narrow focus on enforcement numbers by past administrations to a targeted, specific focus on the sources of serious crime and disorder,” Walzak wrote in an email. “One example of this shift can be seen in Compstat meetings, where captains and inspectors are routinely challenged about arrests that do not contribute to public safety – i.e., arrests for smoking marijuana, when the defendant has no criminal record.”

“Broken windows”

De Blasio has defended his belief in “the underlying principle” of the Rudy Giuliani and Bloomberg era crackdown on quality-of-life crimes, such as open alcohol containers and loitering, even if the principle was overzealously or incorrectly executed. “There’s been a failure to make a full break with the discredited policies of the past, including ‘broken windows’ policing, which the mayor is a fan of and he should get over it,” Lieberman said. “He should use the bully pulpit of his mayoralty to match the rhetoric of his campaign and recognize broken windows as the ineffective and discredited and divisive theory it is.”

But some experts say enforcing quality-of-life laws through respectful community engagement is different from indiscriminately arresting every loiterer or litterer and that de Blasio has struck the right balance. “Broken windows is often confused with zero tolerance,” said Richard Aborn, president of the Citizens Crime Commission of New York City, a nonprofit research organization. “Broken windows policing is about maintaining orderly conditions. That shouldn’t be conflated with overpolicing.”

To some in communities of color, de Blasio’s promise to end the overuse of stop and frisk was part of a larger philosophical reorientation of policing that would include an end of broken windows policing. But while de Blasio has not lived up to all of those expectations, he has undertaken some efforts to make policing less antagonistic. In 2015, the NYPD launched a neighborhood policing initiative to repair relations with communities. It also professionalized its school safety agents and just began a pilot program to bring neighborhood policing into schools, which have experienced an almost 30 percent decrease in major crimes over the past five years.

Like the military, the police are a powerful constituency because of the esteem in which they are held by much of the public, and the fear of what harm would befall citizens without their protection. Just as former President Bill Clinton was brushed back by the armed services in his effort to allow gays to serve openly, police officers can fight back against unwelcome policy changes from Democratic mayors looking to institute liberal reforms. They could learn from President Barack Obama, who – having learned from Clinton’s experience – tried to get military buy-in for ending “don’t ask, don’t tell” by re-appointing President George W. Bush’s Defense Secretary Robert Gates and commissioning a report from top military brass on the best way to implement a repeal.

One can see this strategy in de Blasio’s decision to bring back Bill Bratton – a revered figure in law enforcement who pioneered proactive policing in his first term as police commissioner under Giuliani – and in the mayor increasing the NYPD’s budget and, at the request of then-City Council Speaker Melissa Mark-Viverito, hiring more officers.

But every new initiative to improve accountability has been met with backlash from the rank and file. Since the NYPD’s internal investigations of reports of sexual misconduct against officers are opaque and victims may fear reporting to the department itself, the Civilian Complaint Review Board, the independent oversight agency that examines allegations of police brutality – with support from City Hall and the NYPD – expanded its scope to include allegations of sexual harassment and assault by officers. The New York City Police Benevolent Association, the largest union representing officers, sued to block change. On Feb. 28, a judge in Manhattan upheld the CCRB’s new authority while striking down some of the accompanying rules. PBA President Patrick Lynch said the union may appeal or file a new suit on different grounds. The PBA has likewise sued to prevent the release of body camera footage. After losing a state court ruling on body cameras on Feb. 19, the PBA recently announced plans to appeal.

“Mayor de Blasio and the NYPD’s leadership have made a grave error in attempting to appease these forces, because they will never be satisfied. Their goal is the end of any law enforcement in New York City, period.” - Patrick Lynch, New York City Police Benevolent Association president

Last June – following BuzzFeed’s reporting that the NYPD’s discipline process is arbitrary and allegedly perpetrated retribution against a female officer who complained about sexual harassment – O’Neill appointed a blue-ribbon panel of leading law enforcement experts like Mary Jo White, a former U.S. attorney for the Southern District of New York, to analyze the NYPD’s disciplinary process and recommend improvements. Lynch responded with scorn when, a month ago, the NYPD adopted the panel’s recommendations to enhance transparency and to address findings such as the department having failed to consistently discipline officers when they had made false statements. “When we see a panel of distinguished law enforcement figures bowing to the demands of anti-police, pro-criminal advocates, it is clear that public safety in this city is headed down a very dark path,” Lynch said. Such warnings should be taken with a grain of salt, since conservatives and the PBA predicted a crime wave would ensue if stop and frisk was abandoned. In keeping with national trends, although murders ticked up in the first two months of this year, shootings and murders in New York City continued their long-term decline to impressive new lows in 2018. Although the PBA continues to predict a return to the crime and disorder of the 1970s with each additional reform, de Blasio’s success at keeping crime down reduces the salience of that argument. “The union was very invested in stop and frisk and their assumption was that crime would skyrocket without it,” Aborn said. “There was an assumption that crime would come back under de Blasio, and de Blasio has proven progressives can be very effective crime fighters.”

The de Blasio administration is caught between its base on the one hand, and the police on the other. Cops feel like they’re being forced to walk on eggshells and progressives think de Blasio hasn’t gone far enough. “We tune out the critics on both sides and focus on doing the work that keeps people safe,” said Lapeyrolerie, the de Blasio spokeswoman. That leaves some progressives wondering why de Blasio is tuning them out instead of taking their side.

Despite the data, the police officers union doesn’t see it that way. “The agenda these anti-police activists are pushing has nothing to do with public safety concerns we hear from regular New Yorkers every single day,” Lynch said in an emailed statement to City & State. “Mayor de Blasio and the NYPD’s leadership have made a grave error in attempting to appease these forces, because they will never be satisfied. Their goal is not ‘reform.’ Their goal is not ‘fairness.’ Their goal is the end of any law enforcement in New York City, period.”

One sobering lesson of de Blasio’s record on policing is that both sides, for understandable reasons, care deeply about the mayor’s tone because they are extremely invested in feeling like the mayor is on their side. Even if the mayor carefully crafts compromise policies, his inability to defend either cops or a victim of apparent brutality with unbridled indignation will leave at least one constituency unsatisfied.

Police allies and other conservatives have asserted that de Blasio engaged in “anti-police” rhetoric during his 2013 mayoral campaign. That perception laid the groundwork for an uproar from the police in December 2014 when de Blasio said Eric Garner, an unarmed black man from Staten Island, “should be with us.” Garner had been choked to death by police for half-heartedly protesting being arrested for selling loose cigarettes, which Garner denied doing. De Blasio also admitted that, as the father of black son, he has had to warn his son about the possible threat of belligerent cops.

“He’s a lot more concerned with the voices of the Patrick Lynches of the world than he is with the police reform movement, a group that helped get him elected.” - New York City Councilman Antonio Reynoso

The PBA responded to de Blasio’s remarks by circulating a form for officers to fill out that would ask de Blasio and Mark-Viverito to not attend their funeral, if they were killed in the line of duty. When later that month, Ismaaiyl Brinsley, a man with a long rap sheet in Ohio and Georgia, killed an ex-girlfriend in Baltimore and then drove to New York City and murdered Officers Wenjian Liu and Rafael Ramos in Brooklyn, the PBA was quick to blame the mayor. Lynch said the “blood on the hands starts at the steps of City Hall in the office of the mayor,” and cops turned their backs on de Blasio at the slain officers’ funerals, then booed him at the next Police Academy graduation ceremony.

It was the key turning point in the administration’s approach to policing. “He took on the NYPD and he paid a very heavy political price for that,” said a staffer to a citywide official who requested anonymity to speak openly. “It was a very difficult time for de Blasio’s tenure.” Just a month later, The New York Times reported, de Blasio “took pains last week to emphatically convey respect for the police, trumpeting current low crime rates while twice describing the force as ‘the world’s greatest.’” Ever since, de Blasio has been more cautious – critics say timid. “He’s a lot more concerned with the voices of the Patrick Lynches of the world than he is with the police reform movement, a group that helped get him elected,” Reynoso said.

The cops also have the power to undermine a mayor by refusing to do their job. After Liu and Ramos were murdered in 2014, NYPD officers dramatically scaled back their activity: the following week, they made two-thirds fewer arrests and wrote 94 percent fewer tickets than in the same period from the previous year.

At least they went back to working. In Baltimore, murders have gone up for the past three years, while the proportion of cases being solved has gone down. It’s an example of the “Ferguson effect,” named for the city in Missouri where protests against the police killing of Michael Brown gained national attention. In Baltimore, there has been what The Washington Post called “a documented officer slowdown” since protests over the April 2015 death of Freddie Gray at the hands of the Baltimore Police Department.

“Police officers have an incredible amount of discretion,” said the staffer for a citywide official. “If they (stop working) and the crime rate rises, it’s an absolute nightmare. Any elected executive comes into office with two or three things they’re willing to devote significant political capital to, because you make enemies along the way and you need support to get things done. De Blasio has universal pre-K. He has housing. He has inequality. He got stop and frisk done and felt he’d done enough. He didn’t want it to become him versus the NYPD for eight years.”

De Blasio clearly has larger political ambitions, and some observers speculate that his desire not to alienate the police and their supporters is motivated by hopes of appealing beyond his liberal urban base.“I believe he wants to portray himself as pragmatic, even-keeled, bipartisan, to show this level of leadership that isn’t solely beholden to the people who got him here,” Reynoso said. “He chose the NYPD to be the place where he does that. He chose it to be the agency that he’s not going to war with, that he’s going to embrace.”

The mayor contends that what some see as political expediency is just his responsibility to be circumspect when handling a 50,000-person department with a crucial function. “The difference between me and other elected officials,” de Blasio told WNYC’s Brian Lehrer, regarding the Headley imbroglio, “bluntly, is I’m in charge – it’s very easy to critique when you’re not in charge. When you’re in charge, you better get your facts straight. So that’s why I don’t jump in the first hour all the time to say what might be convenient or populist.”