Board Complains That Fewer Police Officers Are Being Charged With Misconduct

By MICHAEL WILSON

Published: July 8, 2008

In 2007, the Police Department increasingly failed to prosecute officers who were found by a civilian review board to have been the subject of legitimate complaints, the board said on Monday.

The findings were part of an annual report released by the Civilian Complaint Review Board, the agency responsible for monitoring police conduct.

According to the report, the Police Department declined to prosecute 102 cases out of 296 substantiated complaints in 2007. The department’s growing disinclination to prosecute such cases was first noted in an August 2007 report by the board.

That report found that the Police Department declined to seek internal departmental trials against 31 officers — most of whom were facing departmental charges of stopping people in the street without probable cause or reasonable suspicion — over a four-month period in 2007.

By contrast, the department declined to prosecute a total of only 49 officers from 2002 through 2006, the board said. In 2003, which had the lowest number of cases in which the department declined to prosecute over the four-year period, the department declined to prosecute only 3 of 357 substantiated complaints.

The Police Department responded to the findings released on Monday by saying it did not prosecute the cases in 2007 because they lacked legal merit. Julie L. Schwartz, the Police Department’s legal advocate, has said previously that the department has decided to prosecute fewer officers partly because the review board too often does not apply the appropriate legal standards for officers’ work.

Ms. Schwartz, who decides which cases to prosecute, said the complaints related to stop-and-frisk incidents are subjective and not as clear as, say, use-of-force complaints.

“We’re in this gray area of subjectivity,” she said on Monday. “They just don’t understand the realities of police work and being out in the street at 3 o’clock in the morning.”

Andrew Case, a review board spokesman, however, said he feared that the department’s failure to prosecute was becoming more a rule than an exception.

“The low discipline levels that we first identified last year have now apparently become policy,” Mr. Case said. “So far in 2008, an even lower percentage of officers were disciplined.” Mr. Case did not provide official numbers for 2008.

Over all, the report found a slight drop in complaints against police officers, down to 7,559 in 2007 from 7,662 in 2006. The board found police misconduct in 8 percent of the cases it investigated fully in 2007, below the average of 12 percent over the last five years. A majority of complaints, as in past years, involved abuse of authority, such as cases in which people say they were stopped and frisked without cause, followed by complaints of use of force, discourtesy and offensive language.

The report included examples of specific cases addressed in 2007. In one, on Nov. 2, 2005, a sergeant stopped two black men walking through a neighborhood in Whitestone, Queens, which is predominantly white. It was 10:45 p.m., and the men told the sergeant that they were looking at real estate.

The sergeant frisked them, finding nothing. When he was interviewed by the civilian board, the sergeant said there had been an increase in burglaries in the area.

The board substantiated the complaint, as per state law, which says that innocuous behavior does not justify frisking. The Police Department did not prosecute the case.

Ms. Schwartz said the men consented to the search. “If you consent to be searched, there’s no misconduct,” she said. “There wasn’t an allegation that they were bullied into it.”

She said she has used the very same case as an example of the gap in understanding between the police and the civilian board. She said the two men in Whitestone were as young as 19, walking down the middle of the street late at night, and that their real estate story was questionable at best.

“I don’t really know what I’m supposed to do in that case,” she said. “Isn’t that what we want cops to be doing?”

The civilian board has suggested that it be given the power to try the cases it substantiates, rather than leaving it up to the advocate’s office.

"It’s not like we’re out to get police officers,” Franklin H. Stone, the chairwoman, said in April. “It’s a really small percentage of the cases that we find the complainants are credible. What we’re saying is, try the cases or let us."