A panel of politically appointed Civilian Complaint Review Board members reversed nearly half of their own investigators' findings of police misconduct at a session in March, according to internal documents reviewed by Hell Gate, an enormous increase over the board's usual "flip rate," which has hovered around 10 percent for more than a decade.
The panel's votes were dominated by a majority made up of two people: an NYPD appointee and a former New York Post columnist who has been waging a months-long campaign to discourage civilian complaints against police, many of which, he claims, are "malicious lies."
The CCRB is tasked by the City Charter with investigating a wide variety of police misconduct. When a civilian files a complaint alleging wrongdoing against an officer, professional investigators who work for the board dig into the case, interviewing witnesses and police officers, reviewing body-worn camera footage and other evidence, and determining whether the allegation can be substantiated. The results of those investigations are then presented to a panel composed of members of the board, who vote on whether to uphold the findings.
Board members are appointed by the mayor, the City Council, or the NYPD commissioner. Panels generally consist of three board members, and though it's not part of the board's official rules, by convention at least one member of each panel is an NYPD appointee. Because the NYPD appointees are, on average, more protective of police officers and more skeptical of accusations that those officers have engaged in misconduct, all it takes is one of the other political appointees on a panel to join the NYPD appointee to effectively nullify the findings of investigators.
To be clear, this is literally, formally, how the system is supposed to work. "It is the job of CCRB investigators to investigate and come up with a recommendation, but the final decision on charges is vested in the appointed board members themselves," CCRB Executive Director Jonathan Darche told Hell Gate.
Nevertheless, a panel that looks at a slate of accusations that the investigators have deemed to be substantiated by evidence and tosses out half of them is a historic shift for the board, and it suggests that something is amiss: Either staff investigators are saying the evidence supports twice as many accusations as it actually does, or political appointees are burying half the cases where evidence supports the accusations.
The March 31 panel was composed of Joe Fox, a 37-year veteran of the NYPD, appointed by the department to the board in 2023; AU Hogan, named to the board by City Council in 2022; and Pat Smith, a veteran of the New York Post and the Rubenstein public relations behemoth, appointed by Eric Adams in 2023.
On this panel, Smith joined with Fox in creating majorities voting to reverse nearly half of the substantiated findings by staff investigators. Out of 570 allegations presented to the panel, investigators had found enough evidence to recommend substantiating 190 of them. The panel reversed 91 of those recommendations, for a flip rate of 48 percent. In 40 of those allegations, the board members found that notwithstanding the investigators determining that there was enough evidence to substantiate the charges, there actually wasn't. In 47 of the allegations, the board members overruled the staffers recommendations because they found that the behavior the cops engaged in was actually within NYPD guidelines. And in three cases, the board members found that even though investigators said they'd found enough evidence to substantiate the accusations, the evidence actually disproved the accusations.
The police misconduct alleged in the cases flipped by the board members ranges from discourtesy to abuse of authority for things like unjustified stop-and-frisks to improper use of force, like pulling a gun during a traffic stop.
The panel overturned 29 staff findings of misconduct in a single case from late 2023, involving dozens of cops responding to 911 calls of shots fired in Brooklyn, searching for suspects described by witnesses as young Black men wearing all black. Some of the people police detained, frisked and arrested that day fit the description. Some had weapons on them. But police also arrested a teen who didn't have a weapon, without probable cause. They also arrested, handcuffed, and allegedly punched another teen simply because he said something rude to them after they ordered him to disperse. Many of the officers failed to turn on their body-worn cameras when police guidelines say they should have, and several of them weren't wearing cameras at all.
CCRB investigators were hardly unfair to the police in their assessment of what happened that day: Out of 68 initial allegations of misconduct in the Brooklyn case, they found that 17 of the allegations actually fell within NYPD guidelines. Cursing at the teens was fine, they ruled, given the urgency of the situation. Pointing a taser at an unarmed teen who was wearing black and had run from the cops was reasonable and not misconduct. But where they found evidence to support it, the staff recommended misconduct charges. The board panel erased it all. The bad arrest, the trumped-up charges because a teen was rude, the numerous failures to record encounters on body-worn cameras as required, all of them were swept under the rug.
This is not the first time CCRB flip rates have made headlines. In the spring of 2021, an internal report detailing flip rates leaked to The CITY showed that NYPD appointees were flipping investigators' recommendations at a rate far higher than other board members. The author of the report was fired.
Pat Smith's hostility to civilian complaints against police officers was well established before the March 31 panel. In recent board meetings he has been vocal about his belief that too many civilians file complaints about police officers to the CCRB, and that the CCRB should be doing more to discourage them from doing so—specifically, by threatening them with perjury.
"This city would be better served if complainants were required to give their statement under oath with a penalty for perjury," Smith told his fellow board members in February. "If it's a malicious act, then there's a penalty."
Perhaps drawing on his years as a newspaperman, Smith took the opportunity of the board's February meeting to read into the record a lengthy statement that read a lot like an opinion column, bemoaning the "many cases" in which "officers are victims of malicious lies by people who just want to stick it to a cop. They can do that because there is no punishment for a member of the public to lie to the CCRB."
Andrew Case, a lawyer with LatinoJustice USA and a former CCRB spokesperson, pushed back on Smith's argument. "There are very good reasons that people are not prosecuted for perjury for complaining about police officers," Case told the board. "It creates a terrible disincentive and scares people off to believe that they will be arrested if they raise issues with police, because they do not trust that they will be heard fairly and that they will not be subject to retaliation."
Cops aren't special, Case said. Teachers, taxi drivers, and all manner of municipal employees all sometimes face false accusations of misconduct and the reality that those accusations are publicly available. "We believe in this city that the City employees are mature enough and able enough to withstand the possible hard feelings of being accused of something, particularly if they're eventually exonerated or unfounded," he said.
Eleven days after the former Post reporter read his opinion piece into the record, the New York Post published an unbylined opinion piece that was remarkably similar. A CCRB spokesperson declined to make Smith available to speak with Hell Gate.
At the March CCRB board meeting, Smith was once again calling for oaths and perjury threats against people whose complaints against police officers are deemed unfounded. Some of his fellow board members were clearly growing weary of it, and were irked at what seemed like a public media campaign undermining the purpose of the Civilian Complaint Review Board orchestrated from within its own membership.
"I was very alarmed at receiving and reading an op-ed in the New York Post that mimicked your testimony at last month's hearing almost to a T, and that put the emphasis on the Civilian Complaint Board on clearing police officers," said Esmerelda Simmons, a board member appointed by the public advocate. "We need to realize that this agency is about civilian complaints, adjudicated by civilians, whose emphasis is in looking at whether or not New Yorkers were treated correctly by police officers. We honor police officers as much as you do, but our job is to listen to the complaints of the civilians, and we should not make that any more onerous and threatening by putting them under the threat of perjury."
Smith, for his part, insisted at length and with some specificity that there was nothing untoward in his crusade getting taken up in the pages of the paper he used to work at. The column wasn't written by him, he said, but by "someone at the New York Post who was doing the editorial board who is a former state assembly member, who is a Democrat, and who is a person of color—just, I wanted to get that all out there, so there's no assumption that, you know, Rupert Murdoch was doing this," Smith said. "Michael Benjamin at the New York Post wrote that editorial. I did not write it. It was not my opinion. Well, I do agree with it. But just to be clear, I was not running around writing editorials in the newspaper."
John Siegal, another mayoral appointee to the board, was even sharper, calling Smith's effort to gatekeep people's ability to petition the government "just an un-American proposal" that Smith is pushing "for the expressed purpose of reducing the number of complaints."
"CCRB can't win, right?" Siegal said. "The very same people who think that we substantiate too many charges against officers are now complaining that we have too many unfounded claims. So, we're getting kicked in both directions from the same people."
A couple weeks later, Smith sat on the March 31 panel that made 91 police misconduct allegations substantiated by CCRB investigators disappear.