Lynch v. N.Y.C. Civilian Complaint Review Bd.

• Decision Date: 27 February 2019
• Docket Number: 152235/2018
• Parties: Patrick J. LYNCH, as President of the Patrolmen's Benevolent Association of the City of New York, Inc., on Behalf of Himself and All Police Officers Employed by the City of New York, and the Patrolmen's Benevolent Association of the City of New York, Inc., Plaintiffs-Petitioners, v. The NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD and Frederick Davie, in His Official Capacity as Acting Chair of the New York City Civilian Complaint Review Board, Defendants-Respondents, and James P. O'Neill, in His Official Capacity as Commissioner of the New York City Police Department, Nominal Defendant-Respondent.
• Court: New York Supreme Court

64 Misc.3d 315

98 N.Y.S.3d 695

Patrick J. LYNCH, as President of the Patrolmen's Benevolent Association of the City of New York, Inc., on Behalf of Himself and All Police Officers Employed by the City of New York, and the Patrolmen's Benevolent Association of the City of New York, Inc., Plaintiffs-Petitioners,

v.The NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD and Frederick Davie, in His Official Capacity as Acting Chair of the New York City Civilian Complaint Review Board, Defendants-Respondents,andJames P. O'Neill, in His Official Capacity as Commissioner of the New York City Police Department, Nominal Defendant-Respondent.

152235/2018

Supreme Court, New York County, New York.

Decided on February 27, 2019

For the Petitioners Patrick Lynch as President of the Patrolmen's Benevolent Association of the City of New York, Inc., on behalf of himself and all police officers employed by the City of New York; and, The Patrolmen's Benevolent Association of the City of New York: Golenbock Eiseman Assor Bell & Peskoe LLP, by Matthew Daly, Esq. and Jacqueline G. Velt, Esq.

For the Respondents The New York City Civilian Complaint Review Board; Fredrick Davie in his Official Capacity as Acting Chair of the New York City Civilian Complaint Review Board; and, James P. O'Neill in his Official Capacity as Commissioner of the New York City Police Department: The New York City Law Department, by Agnetha E. Jacob, Esq.

Non-Parties who submitted Amici Curiae: The New York Civil Liberties Union Foundation, by Scout Katovich, Esq. and Christopher Dunn, Esq.; and The Women's Rights Project, American Civil Liberties Union Foundation, by Sandra S. Park, Esq. and Lenora M. Lapidus, Esq.

Melissa A. Crane, J.Petitioner, Patrick J. Lynch, as President of the Patrolmen's Benevolent Association of the City of New York (the "PBA"), on behalf of himself and all NYPD employed officers, and the PBA (collectively, the "petitioners"), filed a Petition against the New York City Civilian Complaint Review Board (the "CCRB"), and its Acting Chair, Frederick Davie (collectively, the "respondents"), for an Order and Judgment to: (1) declare invalid the twelve Revised Rules, that the CCRB published on January 2, 2018 (the "Revised Rules"); (2) declare invalid the Resolution the CCRB adopted on February 14, 2018 (the "Resolution"), where the Board resolved to investigate sexual misconduct allegations that civilians make against NYPD officers, rather than referring those allegations to the Internal Affairs Bureau (the "IAB"); (3) restrain enforcement of the Revised Rules and Resolution; and (4) declare the Revised Rules and Resolution invalid because they exceed CCRB's jurisdiction and legislative authority under its Charter.

BACKGROUND

The PBA is the collective bargaining agency for the 23,000 police officers that the NYPD employs. The PBA advocates for NYPD officers to protect their rights and interests. Patrick Lynch is the President of the PBA (Petition ¶ 11-12).

The CCRB is an independent government agency that investigates allegations of police abuse in New York City. It is the largest civilian police oversight agency in the United States. The CCRB started as a unit within the NYPD in 1953. By 1993, the New York City Council amended Chapter 18-A of the New York City Charter to establish CCRB in its current form — as a civilian agency independent from the NYPD. The CCRB consists of a thirteen-member civilian board ("the Board"). Of the thirteen members, the City Council selects five members, the Mayor selects five members, and the NYPD Commissioner selects three members. Only members that the Police Commissioner designates can have a law enforcement background. The CCRB's Executive Director, that the Board appoints, manages the agency's daily operations and oversees its 180 employees. The agency holds monthly meetings and issues regular reports summarizing its actions.

The CCRB's purpose is to ensure that the investigation of complaints concerning NYPD officer misconduct "be complete, thorough, and impartial" and that "inquiries must be conducted fairly and independently, and in a manner in which the public and the police department have confidence" (see NYC Charter, Chapter 18-A, 440 [b][1] ). Thus, the City Charter authorizes the CCRB "to receive, investigate, hear, make findings and recommend action upon [civilian] complaints" against NYPD officers that allege misconduct involving: (i) excessive force; (ii) abuse of authority; (iii) discourtesy; and (iv) use of offensive language¹ (see NYC Charter, Chapter 18-A, 440 [c][1] ).

The Charter also permits the CCRB to adopt rules in accordance with the City Administrative Procedure Act (the "CAPA"). Agency rulemaking is necessary for the CCRB to carry out the powers and duties that the legislature has mandated to it. The CCRB may promulgate rules of procedure and establish panels to supervise investigations of complaints (see Charter 1043[a], 440[c][2] ).

In order to initiate an investigation, CCRB must first receive a complaint from a member of the public alleging a NYPD officer's misconduct. If the complaint alleges conduct that falls within the CCRB's jurisdiction (i.e., a "FADO" allegation), then the CCRB assigns an investigator to the complaint. The investigator may offer mediation. If a resolution is not reached, or mediation is not appropriate, the Board conducts an investigation. The investigator gathers documentary and video evidence and conducts interviews of relevant persons. At the conclusion of the investigation, the investigator prepares a closing report summarizing her findings. Then, a three-member panel of the CCRB meets to discuss the case. The panel consists of one City Council designee, one mayoral designee, and one Police Commissioner designee. The panel meets on an ongoing basis and rotates regularly. Ultimately, the Board decides whether a case is "substantiated," "exonerated," "unfounded," or "unsubstantiated." To find a case "substantiated," the Board must decide, by a preponderance of evidence, that the alleged conduct occurred.

For "substantiated" cases, the CCRB notifies the Police Commissioner of its findings and recommendations. Regardless of the CCRB's recommendation, the Police Commissioner makes the final determination as to what discipline the officer receives.

Pursuant to a 2012 Memorandum of Understanding (the "MOU") between the NYPD and the CCRB, if the Board recommends "Charges and Specifications" for a "substantiated allegation," an Administrative Prosecution Unit ("APU") attorney will prosecute the case. To commence an administrative prosecution, the NYPD's Department Advocate's Office ("DAO") serves the officer with the CCRB's Charges and Specifications, which is a written accusation of misconduct.

Instead of going to trial, an APU attorney may make a plea offer to the officer. The Police Commissioner must approve the plea bargain if accepted. If there is no plea offer, the APU attorney conducts a trial before the NYPD Deputy Commissioner of Trials. The Police Commissioner reviews the APU attorney's draft decision, and then the Commissioner makes a final disciplinary determination.

The CCRB's Revised Rules

In early 2015, the CCRB began a process to revise its Rules. On March 11, 2015, the CCRB distributed a draft of the proposed revisions to the rules to the public (see Tr. of March 2015 Meeting). Discussions regarding the proposed revisions continued at public CCRB meetings throughout the Spring of 2015.

On May 2, 2016, the CCRB published its "Notice of Public Hearing and Opportunity to Comment on Proposed Rules" (Kadushin Aff ¶ 49, Exh I, Notice of Public Hearing), pursuant to CAPA requirements. In its Notice, CCRB states the purpose of the revisions is "to accelerate investigations and make them more transparent to the public (id .)." Subsequently, the CCRB set the deadline for public comment for June 10, 2016. Petitioners then submitted written comments to the Proposed Rules. It objected on the grounds, inter alia , that the revisions would violate the City Charter, the Civil Service Law, the MOU, and public policy. The CCRB scheduled a public hearing for June 13, 2016.

After receiving public comments, the CCRB made minor revisions to the twelve Revised Rules and submitted them to the City of New York, Law Department, who then advised that the revisions were within the CCRB's authority (Kadushin Aff ¶ 52-53, Exh K, July 25, 2017 Letter). The CCRB voted to adopt the Revised Rules on October 11, 2017. Following that, the CCRB published a Notice of Adoption (Kadushin Aff ¶ 54-55, Exh L, Tr of October 2017 Meeting, Exh M, Notice of Adoption). On January 2, 2018, the CCRB published revisions to the Revised Rules in the City Record. The Revised Rules went into effect on February 1, 2018.

The CCRB's Resolution to Investigate Sexual Misconduct Complaints

On February 14, 2018, the CCRB resolved to begin investigating civilian allegations of sexual misconduct against police officers (the "Resolution"). Prior to the Resolution, the CCRB referred all sexual misconduct complaints to the NYPD's Internal Affairs Bureau ("IAB"). According to the CCRB, the decision to investigate sexual misconduct complaints stemmed from years of research (Kadushin Aff ¶ 103-104). This included the CCRB taking a closer look at the 117 sexual misconduct complaints that it received between January 1, 2016 and June 1, 2017, and then referred to the IAB (Kadushin Aff ¶ 107). The CCRB's research also included an interview of Andrea Ritchie — a civil rights attorney — who spoke at monthly CCRB meetings. According to Ms. Ritchie, victims reported feeling intimidated by the NYPD officers working under the IAB who investigated their allegations of sexual misconduct (Kadushin Aff ¶ 106).

Studies showed that sexual interactions between a civilian and police officer are intertwined with law enforcement's authoritative power (Kadushin Aff ¶ 109, Exh R, Resolution Memorandum). Specifically, the CCRB Memorandum...