Amid a summer of protest sparked by the police killings of George Floyd, Breonna Taylor and others, much has been said about the importance of “reforming” police departments. But what if those departments cannot be reformed?
This week, a video went viral showing the arrest of a young trans woman during a protest. The 18-year-old woman was tackled in broad daylight and then rushed into an unmarked van by plainclothes officers, echoing the terrifying events we’ve watched play out this month in Portland, Oregon, and paralleling the forms of police brutality we, as public defenders and civil rights attorneys, know happen every day in the communities of those we represent.
This is only the latest in a string of videos that have clearly documented the tragic shortcomings of police reforms previously adopted by the NYPD.
But this is only the latest in a string of videos that have clearly documented the tragic shortcomings of police reforms that had supposedly been previously adopted by the NYPD. Earlier in July, The New York Timesreleased its analysis of dozens of brutal videos depicting NYPD’s policing in the first 10 days of recent protests. As public defenders and attorneys specializing in criminal and civil law, The Times asked us and others, like the NYPD, which declined, to review this video and assess the NYPD’s behavior against department guidelines, civil rights protections of the U.S. Constitution and criminal legal statutes.
What we found was highly disturbing, but likely obvious to even the casual observer. Officers used banned chokeholds, violence and abuse that the NYPD has explicitly prohibited. Officers used cars, chemicals, bicycles and batons as weapons, all against protocol. They engaged in widespread excessive force and civil rights violations. They repeatedly committed conduct that, if perpetrated by anyone but police, would lead to prosecutions for violent felonies that carry serious prison time.
And as the nation has witnessed this week, the brazen violence against protestors during those first 10 days was not an aberration.
This corrosive and deeply disproportionate application of “justice” is exactly why protesters are demanding major cuts to the NYPD’s budget and personnel, with funds diverted to community initiatives. And indeed, our analysis brought us to an unavoidable conclusion: Despite decades of reforms intended to stem police violence and improve transparency, the NYPD, like other police departments around the country, is a force that is beyond reform. In fact, it is a force seemingly dedicated to proving this point at every opportunity.
This is a key point because of the NYPD’s size and prominence in the policing conversation. With over 36,000 officers and yearly costs exceeding $10 billion, the NYPD is the largest police force in the country. The NYPD and its unions have outsize influence and impact when it comes to trends in American policing.
The NYPD and its unions have outsize influence and impact when it comes to trends in American policing.
Let’s start with the department’s inability to follow its own rules, as laid out in the NYPD Patrol Guide, a voluminous document that reflects various progressive reforms implemented after previous public pressure campaigns. Following other brutal crackdowns on protests, including during the 2004 Republican National Convention in New York, the NYPD began advising officers at demonstrations not to “‘punish,’ rather, be ‘professional’ at all times,” to be “tolerant of verbal abuse uttered by civilians” and to “ensure that only minimum force is used to achieve objectives.” The guide also explicitly bans chokeholds — a change enacted in 1993 after police killed 21-year-old Federico Pereira — and requires officers to provide their names and badge numbers and to have both clearly visible while on duty — implemented as part of the 2018 Right to Know Act.
In every encounter we analyzed, officers violated at least two specific prohibitions laid out in the Patrol Guide. The most common violations we saw were refusals to provide names and badge numbers, excessive force, unlawful arrests, improper use of pepper spray, failure to provide medical care, accosting clearly identified legal observers, and punishing protestors for speech, including with chokeholds. Taken together, we can only conclude that officers feel free to violate the NYPD’s stated mission, vision and values.
Much of the NYPD’s conduct in these videos amounts to clear violations of protesters’ constitutional rights. People have the right to record police, exercise free speech and protest without facing violence from the police. In incident after incident, we saw officers using force without any provocation or justification and needlessly escalating encounters, predictably causingmore violence.
Legal recourse for these affronts would typically come in the form of a civil lawsuit. But this avenue often provides no long-term accountability. As in other cities, neither the individual officers sued nor the NYPD as a department are responsible for paying a dime of any settlement (settlement money comes from the city, with funds paid by taxpayers), repeat offenders are not disciplined, settlements exclude admissions of wrongdoing, and court-ordered changes continue to be disregarded without consequence.
Police are also governed, in theory, by criminal laws. In over half the videos we reviewed, we saw clear-cut evidence of conduct that would surely invite violent felony charges if the perpetrators hadn’t been wearing badges. This included numerous instances of assault in the second degree, a class D violent felony punishable by up to seven years in prison; of robbery or forcible theft of bicycles and backpacks, a class C violent felony punishable by up to 15 years in prison; of rioting in the first degree for repeatedly “engaging in tumultuous and violent conduct” that caused or created “a grave risk of causing public alarm,” criminal use of a chemical weapon, and even attempted murder — one count for each protester in the path of the officers who drove their cars into crowds. And many of these videos showed “white shirts,” the NYPD’s highest-ranking officers, committing, aiding and encouraging these crimes.
It’s hard to imagine a clearer reflection of the vast chasm between the criminal legal system’s treatment of police and the people they abuse. While thousands of protesters are facing charges from protest-related arrests, almost all of the hundreds of officers seen assaulting protesters remain on active duty with little publicly available information regarding individual investigations. Even though New York state just repealed the most extreme police secrecy law in the country, ironically named “Civil Rights Law 50-a,” the five major police unions immediately sued and are now in federal court fighting against it. Right now, they seem to be winning.
It seems unlikely that any officer will face consequences for criminal conduct. Prosecutors routinely decline to charge police when they commit crimes, even when caught on video, and continue to rely on these same officers to provide evidence and testimony, and to make arrests, ensuring further abuse of New Yorkers. Prosecutors are also complicit in police brutality through their prosecutions of the victims of police assault, often by pursuing charges such as resisting arrest. Furthermore, by leveraging trumped-up charges, they may force pleas that foreclose some causes of action in civil lawsuits.
These videos only strengthen our conviction that police violence will never be addressed through political reform efforts alone. The NYPD has routinely opposed even the most modest changes designed to curb police abuse — including the city’s chokehold ban and recent moves to unseal police disciplinary records. And when police fail in their efforts to kneecap reform, they can simply flout new regulations with impunity, in violation not only of the department’s own rules but of criminal statutes and the U.S. Constitution.
But perhaps most telling is the fact that all of this is playing out while the world is watching. If police are so emboldened to act this way in the face of intense public scrutiny, it is clear what they do when cameras aren’t recording. The people we represent are often subjected to brutal police violence. They are hauled into court with bloody noses, black eyes and broken bones, then subjected to a criminal legal system that prioritizes the testimony of those same officers. Police abuse is endemic, particularly in low-income Black and brown communities. These videos have simply provided further proof of the brutality and impunity with which police routinely operate.
All of this speaks to a deep structural rot in policing and the inefficacy of reform alone. The police have repeatedly demonstrated their unwillingness to change, often with deadly consequences. Any proposal that fails to defund the police and significantly reduce the size of the department, allowing for meaningful investment in communities, would serve as little more than a symbolic gesture intended to preserve the status quo. And more of the same is too dangerous to ignore.