The first disciplinary hearing on racial profiling since a Civilian Complaint Review Board (CCRB) dedicated unit took over such investigations from NYPD Internal Affairs started Wednesday, Dec. 18, at One Police Plaza.
Three officers from the Queens 113th Precinct are accused of bias-based policing (race), which falls under the CCRB’s jurisdiction of “abuse of power.” They face termination as outlined by NYPD standards.
Between 2014 and 2021, the NYPD received more than 3,400 racial bias and profiling allegations, but only substantiated four. Yet, racial profiling by the NYPD was clearly a problem: in 2013, a judge found the city violated the Fourth and 14th amendments over racially biased stop-and-frisks in Floyd v. City of New York. In fact, Mayor Eric Adams, then a state senator, testified during the trial about how the police department’s upper brass encouraged targeting young Black and Brown men “to instill fear in them.”
The judgment mandated reforms by the NYPD, but the court-assigned monitor reported instances of noncompliance as recently as this year.
The City Council passed Local Law 47 of 2021, which shifted jurisdiction to the independent CCRB and formed the Racial Profiling/Biased Policing Investigations (RPBP) unit to execute such authority. Civil rights attorney Darius Charney, a leading co-counsel in the Floyd litigation, was tapped as director.
The two-day disciplinary trial provided the first look at how the RPBP unit investigates and substantiates racial profiling complaints. The allegation stems from two stop-and-frisk encounters starting from Dec. 20, 2022, over a hanging air freshener “obstructing” the rearview mirror, which is technically illegal while driving but is hardly an enforcement priority. The complainant is a Black man.
CCRB prosecutors Ken Crouch and Casey Graetz leaned heavily on the RPBP unit’s Chief Data Scientist Dr. Alix Winter, who crunched numbers about how frequently the respondent officers stopped Black drivers compared to the rest of their command at the 113th Precinct and the percentage of Black residents in the area based on U.S. census data.
Winter, who testified as an expert witness, found the three officers — Anthony Lombardi, Ryan Mccrain, and Thomas Sinclair — stopped Black drivers more frequently than their colleagues. The 113th is mainly in Jamaica, with 77% of residents identifying as Black to the census. Just 68% of drivers stopped by the rest of the precinct command were Black.
According to Winter, 96% of drivers stopped by Mccrain were Black; 88% of drivers stopped by Sinclair and 87% by Lombardi were Black. The NYPD provided the statistics through a data-sharing agreement between the department and the CCRB.
The officers’ police union-provided lawyer John Tynan questioned the methodology during cross-examination. His concerns ranged from the potential of input errors in the NYPD data to residents lying about race to census collectors to the unique factors of each stop. Winter acknowledged such concerns, but mentioned steps to mitigate the margin of error, from running the numbers without tinted window stops (when officers may not be able to see the driver’s race) and focusing on local roads to reduce the possibility of counting stops of nonresidents due to the nearby John F. Kennedy International Airport.
“The problem has always been a case involving an allegation of racial profiling: How do you interpret what an officer has done?” said CUNY Professor Jonathan Moore, who represented plaintiffs as co-counsel alongside Charney in Floyd. “Oftentimes, that’s been complicated by what the city had done in these cases, which is to always believe the officer when it’s just the officer’s word against the individual (who was stopped).”
Data evidence played a significant role during the Floyd litigation, particularly through the testimony of Columbia law professor Jeffrey Fagan, which Winter mentioned while qualifying her expertise during the trial. Fagan said statistics cannot specifically prove racial bias, which stems from personal beliefs, but can establish the officer’s preference for stopping individuals, which in turn can prove racial profiling practices.
“The way to do it is essentially how Alix [Winter] did,” said Fagan. “You have to look at similarly situated officers, meaning comparable backgrounds and experience, and their work details; in other words, the commands that they’re assigned to and the patrol areas, the meets and sectors that they patrol, and the shifts that they run and so on — everything possible you can control to compare the officers in question.
“Essentially, it’s the standard in law about somebody being similarly situated. And if you can show that there’s a statistically significant difference in the pattern and practice of an officer compared to similarly situated officers, then you can make an assumption that that officer has a taste and preference for stopping Black people.”
Fagan also vouched for Winter, who he said is “extremely skilled in doing empirical analysis and empirical analysis on questions of race specifically.”
To be clear, stop data is only one form of circumstantial evidence used by the CCRB to prove race as a factor. For example, the agency also looks at the sequence of events that led up to the stop-and-frisk.
Police Benevolent Association president Patrick Hendry, who leads the union providing the officers with their lawyer, disapproved of the RPBP’s methods for proving racial profiling.
“CCRB’s approach to these cases is patently unfair to police officers,” said Hendry by email. “By targeting police officers based on the statistics of their past stops, CCRB is ignoring the facts and legal justification that led the officers to make those stops. They’re ignoring the fact that, in many cases, police officers have no idea who is inside a car when they pull it over. CCRB is using statistics to create a presumption of bias and forcing police officers to disprove it. This guilty-until-proven-innocent approach is the exact opposite of fairness and due process.”
The inaugural RPHP unit investigation trial coincides with the recent appointment of new interim CCRB Chair Dr. Mohammad Khalid. He replaces his predecessor, New York Urban League president and CEO Arva Rice, who fought for more agency funding during her interim tenure.
“Dr. Mohammad Khalid is a long-time community leader with a dedication to public safety,” said Mayor Adams in a statement. “Through his decades of local civic engagement, including his leadership roles in organizations such as the Iron Hills Civic Association and the Pakistani Civic Association of Staten Island, and prior experience serving on the CCRB, Dr. Khalid is uniquely qualified to serve as interim chair and will bring a commitment to fairness and transparency to the board during this critical time.”
The racial profiling case will also provide a better idea of how new NYPD commissioner Jessica Tisch approaches discipline because she makes the final decision on all CCRB-substantiated allegations. Her predecessor, Edward Caban, reportedly “buried” hundreds of misconduct cases, including allegations of unlawful stop-and-frisks.
“You can get all the findings and the conclusions that you want from the CCRB. Ultimately it lands on the commissioner’s desk … this will be a good test of how NYPD is going to go forward with these kinds of cases,” said Moore.
Tandy Lau is a Report for America corps member who writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.
The NYC elected officials and the NYPD generally ignore the CCRB. The CCRB looks like they generally ignore their own laws and the victims of NYPD abuses.
There is no effective reform of the police until the CCRB works properly. The only way to get that is to start is to have the CCRB become an agency where the ledership of the CCRB is elected by the citizens of the 5 boroughs.