New York’s Finest?

As 2020’s chaotic presidential election was called last weekend, New York City erupted in a cacophony of joy at Donald Trump’s defeat. America’s largest city endured a grim nadir earlier in the year, with the Covid-19 pandemic killing tens of thousands of New Yorkers and crippling its tourism- and service industry–dependent economy. That damage came on top of stark inequality: already, at the start of 2020, one in five New Yorkers lived at or below the poverty line, and the income gap between richest and poorest is the widest of any city in the nation.

The year’s second major upheaval, the nationwide protests against police violence triggered by George Floyd’s murder by a Minneapolis police officer, laid bare another fault line of the metropolis: the rift between city residents and the 34,000-strong New York City Police Department. Opinion polling indicates that policing played a big part in 90 percent of voters’ decisions this November, and with more than 76 percent of New Yorkers casting their ballots for Joe Biden, it was clear where the vast majority’s sympathies on issues of policing and racial justice lay.

What was, for many residents, already a fraught, distrustful relationship with America’s largest police department was only exacerbated by the NYPD’s eye-popping brutality in response to the protests sparked by Floyd’s death, from May 28 onward. After Mayor Bill de Blasio imposed a citywide 8 PM curfew in New York City on June 1, after a brief period of four (May 29–June 1) nights of lawlessness and looting, that deadline itself became a flashpoint with otherwise peaceful protesters: when police moved to disperse a crowd of demonstrators in the Bronx’s Mott Haven neighborhood on June 4, more than 250 people—including medical workers and legal observers—were trapped in a maneuver known as “kettling” and arrested for violating the curfew. Human Rights Watch published an exhaustive report documenting brutal and unlawful tactics used by police in that incident.

Occasionally, demonstrations have involved damage to property: during one nighttime march through the Upper West Side on July 29, a police car was torched near Police Commissioner Dermot Shea’s residence (a Queens man was later arrested and charged with federal offenses for the act). Less frequent—though highly visible in media coverage—have been attacks on police officers, particularly the lieutenant who had a brick thrown at him in the Village in late May. Overwhelmingly, though, the protests throughout the summer were peaceful and orderly. Yet, on many occasions, people’s social media feeds have been filled with video clips and images of SUV patrol cars driving into crowds, unwarranted mass arrests, aggressive baton charges, and the use of police bicycles as battering rams. The press are not exempt from this violence either—a number of reporters have been arrested and detained while covering street demonstrations, regardless of whether they carry identification.

On October 26, the New York Civil Liberties Union together with the Legal Aid Society filed a class action lawsuit against the department over its conduct this summer, citing violations of citizens’ First and Fourth Amendment rights and the NYPD’s “indiscriminate violence”—which NYCLU legal director Christopher Dunn described as the worst police conduct the city has seen since the so-called Tompkins Square Park Riot, which followed a demonstration against neighborhood gentrification in 1988. This is hardly the first time that police brutality has been a major political issue in the city’s recent history: a long succession of police-involved deaths of Black men—from Eric Garner and Akai Gurley in 2014, Ramarley Graham in 2012, Sean Bell in 2006, back to Amadou Diallo in 1999—has met with widespread protests, half-hearted prosecutions, and unfulfilled promises of reform from within the NYPD. But the scale of this year’s repudiation of the NYPD’s conduct, by city residents of all races and creeds, seems unparalleled.

In response, the NYPD has dug in, effectively aligning itself with the law-and-order messaging of President Donald Trump’s reelection campaign that has attempted to demonize the Black Lives Matters movement and antifascists. The NYPD’s largest union, the Police Benevolent Association (PBA), gave a full-throated endorsement to Trump in August. They were followed by the Detectives’ Endowment Association, which paid for “vote for law and order” TV advertising spots on local news stations in the run-up to the November 3 ballot.

Ed Mullins, the Sergeants Benevolent Association (SBA) president, who keeps a coffee mug with the symbol of the far-right QAnon conspiracy theory that the FBI views a domestic terrorism threat in his office, told Fox News in November that his union chose to support the president because “The Trump administration has an undisputed record of supporting police officers at a time when many other segments of society are abandoning or openly attacking us.” Trump certainly has a record of courting law enforcement support, drawing laughter from a packed crowd of uniformed police on Long Island in 2017 when he urged them not to be “too nice” to suspects.

While the PBA and SBA, which routinely defend New York City cops accused of egregious conduct and campaign against criminal justice measures such as New York State’s bail reform and the rollback of confidentiality for police misconduct records, may not enjoy universal support within the department, they clearly represent the rank-and-file mainstream. On Election Day, a police officer ejected a man from a Bushwick polling site and threatened to arrest him for electioneering. His offense? Wearing a shirt emblazoned with “Black Lives Matter,” which the cop claimed was a “political statement.” In October, a patrol officer in Brooklyn’s heavily Caribbean neighborhood of Flatbush was recorded on video repeatedly calling out “Trump 2020” over his patrol car’s loudspeakers. That cop was subsequently suspended, but that has not stopped others placing pro-Trump decals on their official vehicles. On their personal vehicles—often parked illegally on city sidewalks, a scofflaw practice documented exhaustively on Twitter by @PlacardAbuse—bulletproof vests, and face masks, city cops sport emblems like the Thin Blue Line flag or Punisher skulls, and even slogans like DILLIGAF, which stands for “Do I look like I give a fuck?”

In September, NYPD tactics appeared to harden once more, when the specialized Strategic Response Group (SRG)—created back in 2015 by then commissioner Bill Bratton in response to the first cycle of Black Lives Matter protests—moved in to arrest hundreds of demonstrators protesting reports of the forced sterilization of women held in immigrant detention. The SRG, which numbers among its ranks dozens of cops with lengthy misconduct histories, has been involved in almost every violent clash with protesters from May 28 to date.

During the most recent incident, this month, SRG bicycle cops repeatedly boxed in protesters in Lower Manhattan with the same kettling technique deployed in Mott Haven in June. Chief of Patrol Juanita Holmes and Mayor Bill de Blasio have repeatedly denied that the NYPD uses the tactic, despite dozens of videos, photographs, and firsthand accounts from citizens, reporters, and even de Blasio’s own press secretary of precisely such conduct.

While each incident of mass arrests—which bear a striking resemblance to the notorious mass detention tactics deployed by Chief of Department Terry Monahan during the Republican National Convention sixteen years ago that cost taxpayers $36 million in legal settlements—draws condemnation from legal observers and hand-wringing from elected officials, there have been no official moves to hold NYPD accountable. For its part, the department cycles from denials and defiance to an occasional publicity blitz paying lip service to First Amendment rights while hyping up the threat of “outside agitators” who “hijack” peaceful protests. At a November 5 news conference, the NYPD’s deputy commissioner of intelligence and counterterrorism, John Miller, defended the department’s heavy-handed response with the claim that there has been “an evolution of protester tactics…from Hong Kong.”

There have been incidents of violence against police officers during demonstrations, but they are heavily outnumbered by the documented instances of NYPD officers’ laying into marchers with batons, pepper spray, mountain bikes, and even vehicles. And if the NYPD was looking for support for its arrest policy from the rest of the law enforcement system, it has not found it. Other than a few dozen cases against demonstrators that are pending in the Bronx, the city boroughs’ district attorneys have consistently declined to prosecute cases against hundreds of demonstrators arrested over the course of the year.

Still, the quest for greater accountability faces huge obstacles. In the past, the Department of Justice has been called in to monitor the broad consent decrees that have been imposed on failing and abusive police departments in cities such as Los Angeles, Seattle, Washington, D.C., and Pittsburgh. But the Trump Justice Department has gutted the relevant Civil Rights Division. The NYPD has, to date, avoided a federal pattern-and-practice investigation and concurrent federal oversight, despite a string of state commissions over the decades that examined systemic bribery (the Knapp Commission in the 1970s) and narcotics-related crimes (the Mollen Commission in the 1990s) within the department, revelations about the blanket surveillance of New York’s Muslim communities in the post-9/11 era, as well as a civil rights lawsuit that led to compulsory oversight of the racialized stop-and-frisk practices of Michael Bloomberg’s three-term mayorship that violated the rights of hundreds of thousands city residents, overwhelmingly Black and Latino men.

Even the piecemeal court oversight of the NYPD is not sufficient. There has been no report from the monitor overseeing the NYPD’s consent decree on surveillance since July 2019. In the stop-and-frisk case, an October report by independent monitor Peter Zimroth found that 40 percent of the department’s encounters with civilians were not being recorded. But the federal judge overseeing the matter, Analisa Torres, refused a request from the plaintiffs’ attorneys to review the NYPD’s enforcement of social distancing regulations imposed by Governor Andrew Cuomo and punishable by a summons during the spring, which several civil rights organizations say fell disproportionately on Black and Latino New Yorkers. The judge also refused to examine the NYPD’s conduct during the week of curfews at the beginning of June that led to hundreds of arrests by the department and the Mott Haven kettling incident.

The New York attorney general has not stepped in to take up the slack left by local prosecutors. Despite all the eyewitness accounts of incidents of excessive force, there has been just one indictment of a police officer, who faces misdemeanor charges in Brooklyn for throwing a young woman to the ground on May 29.

The city council’s police accountability committee has produced a report about racism among senior commanders, but nothing on the systemic brutality or First Amendment violations apparent in the department’s policing of protests this year.

The Civilian Complaint Review Board, the independent agency charged with investigating allegations of excessive force, verbal abuse, discourtesy, and abuse of authority, is hampered by the limited scope of its investigative authority. The board is also handicapped by being dominated by political appointees from the de Blasio administration who are fearful of incurring the displeasure either of city hall or of One Police Plaza, and it is obliged to defer to the police commissioner on any final disciplinary measures taken against an officer. Finally, discipline proceedings stemming from Internal Affairs Bureau investigations are heard in an NYPD courtroom, in front of an NYPD judge, and both the verdict and penalty (including termination) can be overturned by the police commissioner without further explanation.

The particulars of New York State law and the NYPD’s hermetic disciplinary system also mean that cops accused of egregious misconduct—like Francisco Garcia, a plainclothes cop who allegedly beat, tased, and knelt on the neck of a Black Lower East Side resident for a social-distancing violation in May, or Michael Valva, an officer who is accused of killing his autistic son in January—can resign before being officially fired and thereby keep the salary share they contributed to their pensions, or their entire pension if the commissioner permits them to retire, as in the case of Garcia.

This widening fissure between New Yorkers and the NYPD comes at a time when public safety is of genuine concern to residents in some of the city’s most vulnerable neighborhoods. Violent crime—in particular, homicide and gun violence—has increased since the pandemic began. Just a few years ago, violent crime was at low levels not seen since the 1950s. But there were cracks appearing in this picture of ever-increasing safety: drug overdose deaths, driven mostly by the synthetic opioid fentanyl, topped 1,400 a year from 2016 through 2018, almost three times the number of murders for each calendar year.

It is becoming clear that the NYPD either cannot or, possibly, will not control New York City’s rising crime rate this year. Six years ago, in response to protests over the strangulation of Eric Garner by Officer Daniel Pantaleo on Staten Island, NYPD officers turned their back on Mayor de Blasio en masse and refused to police, many calling in sick in a tactic known as the “Blue Flu.” Crime, notably, did not increase. While the NYPD are now making more gun arrests than in 2019, after an eye-catching decrease in police activity during the summer protest peak, and narcotics cops continue to record huge seizures of fentanyl, the city’s punishing economic climate and a concurrent cessation of youth outreach programs have created law enforcement challenges the NYPD seems ill-adapted or unwilling to meet.

At the same time, the NYPD’s vast $10.5 billion annual budget—larger by almost a third than it was a decade ago—is facing new, critical scrutiny from city council members, particularly in light of One Police Plaza’s apparent fixation on suppressing legitimate First Amendment activity. The SRG, together with another paramilitary unit, the Critical Response Command, which focuses on counterterrorism, cost close to a billion dollars when the city council overwhelmingly approved Commissioner Bratton’s 2015 budgetary request.

While the additional officers hired in 2015 were supposed to decrease police overtime by tens of millions of dollars, the opposite has occurred. The NYPD’s protest response, which involves flooding neighborhoods with hundreds of officers when the department gets wind of a demonstration, has the agency on track to exceed its approved overtime budget by a staggering $400 million. From 2014 through 2020, the department averaged $711 million in annual overtime payments, a sum that, by comparison, is over $200 million more than the entire annual Parks Department budget of 2019. The overtime surge also boosted the pensions of the more than 2,400 NYPD officers who have filed retirement paperwork as of early October—annual pension payouts are calculated according to each officer’s final salary (though officers hired under Tier 3, after 2009-2010, have a different structure to their pensions).

Despite a summer of passionate argument and advocacy, “defund the police” has not yet got far with city officials in New York. The city council’s purported move to decrease NYPD’s budget by $1 billion was, in truth, a shell game: it shifted funding for school policing to the Department of Education while actually reducing the NYPD’s budget by a mere $420 million—a savings that, according to the nonpartisan Independent Budget Office, will be wiped out by the overtime binge. In June, Mayor de Blasio committed $10 million to fund community-based “violence interrupter” organizations that seek to intervene in neighborhoods to prevent gun violence before it happens, without involving police. Such initiatives have a proven record of effectiveness in cities from Richmond, California, to Boston, Massachusetts, but this level of funding is a drop in the bucket and the programs will service only a few of New York City’s at-risk areas.

Arguably more consequential was de Blasio’s decision to eliminate 40,000 youth jobs for a budget savings of $124 million. The absence of school and youth sports this winter, plus a dire economic outlook, the impending onset of a second wave of coronavirus, and the abject rate of attendance for remote learning among low-income students in the city bode ill for the future. New York City needs an unprecedented surge in education and social spending, but so far, there is only shrinkage—and it’s the Parks and Youth and Community Development departments that are taking big cuts. These programs are just as, if not more, important for ensuring public safety than policing. New York City’s policing budget still reflects past crises—the violent crime wave of the 1980s and early 1990s, and the post-September 11 securitization frenzy—that indelibly shaped the five boroughs. Covid-19 is another one of those inflection points, and New York City’s approach to public safety must change accordingly. You can’t arrest your way out of a pandemic.