When police engage in misconduct in New York, the Civilian Complaint Review Board is supposed to hold them accountable. And when officers being investigated for misconduct lie to CCRB investigators, there are supposed to be consequences for that as well, with investigators empowered to recommend charges for untrue or misleading testimony. But while investigators do recommend those charges, and while in many instances the politically appointed board members follow through on those recommendations, board members also toss out charges of lying to the CCRB nearly one time in four, more than twice the rate at which they overturn other allegations.
Bafflingly, that reality has been obscured until now, partly because the CCRB's published data miscategorizes its own decisions in a way that makes it look to the public as though the board hasn't overturned allegations of deception at all.
Why is the data about police lying misrepresented in this way? Why is the board tossing out so many allegations that police lied to its own investigators? The agency won't say.
The police accountability work of the CCRB has always been tenuous and conditional. In the earliest days of the organization, the board was staffed by deputy police commissioners. To this day, the board doesn't have power to independently discipline officers who have engaged in misconduct, instead making non-binding recommendations to the NYPD. And until six years ago, CCRB investigators didn't even have a mechanism to make cops show up to give testimony in misconduct cases, or to make them tell the truth.
"It was becoming clear that officers did not feel like they had to give the CCRB either the full facts of what actually transpired, or the actual facts of what transpired," Fred Davie, the chair of the CCRB at the time, told Hell Gate. "Over and over again, through the objective corroboration of videos, eyewitnesses, et cetera, it was clear that we were having too many instances where officers were either not telling the truth or actually making things up or not providing all of the facts."
The CCRB sought new powers to address this, and in the 2019 election, New Yorkers overwhelmingly voted to give it to them, empowering the agency to "investigate the truthfulness of any material statement that is made within the course of the CCRB's investigation or resolution of a complaint by a police officer who is the subject of that complaint, and recommend discipline against the police officer where appropriate."
As a result of the ballot measure, the CCRB began charging officers under a new "Untruthful Statement," or "U," category of misconduct allegation. (Other types of police dishonesty not directed to CCRB investigators are, confusingly, categorized differently, under the "Abuse of Authority" category of CCRB allegations). There are four types of U allegations: false statements, misleading statements, inaccurate statements, and impeding an investigation. (This last category functions exclusively as a coercive tool against officers who are refusing to cooperate with CCRB investigators.)
Not counting this last category, CCRB investigators have filed U allegations against police officers in hundreds of complaints since the Board first took jurisdiction in 2019.
But in 22 percent of those cases, the Board panel considering the charges overturned the investigators' determination, finding either that the officer hadn't made an untruthful statement or that there wasn't enough evidence to determine whether the officer had made an untruthful statement. That percentage is more than twice the average rate at which the board has overturned all types of allegations in recent years.
Investigators don't file U allegations lightly, Mac Muir, a former CCRB supervisor who went on to run police oversight in Oakland, California, told Hell Gate. "Investigators are informally trained to be very conservative with untruthful and false official statements," Muir said, "so by the time a case gets to the board, it almost always has well beyond a preponderance of the evidence—closer to 'clear and convincing' or 'beyond a reasonable doubt.'"
The situations that gave rise to the flipped U allegations range widely. Many involve police claiming they "can't recall" encounters in which they're accused of hitting someone, choking them, illegally frisking them, and the like, often even after being confronted with body-worn camera footage, vehicle geolocation data, or other conclusive evidence that ought to refresh their memories. Some officers were written up on U allegations multiple times across unrelated cases, only to have all the allegations flipped by the board.
U allegations are unique among CCRB allegations in that they aren't misconduct that directly victimizes a member of the public, so unlike other flips, when the Board overturns a U recommendation, it isn't invalidating the claims of a regular New Yorker. U allegations are brought by investigators themselves when they feel a cop has lied or shaded the truth in a way that has meaningful consequences for the investigation. If the CCRB's mandate is police accountability, U allegations are the backstop to that mandate. If investigators can't hold police to account when they try to weasel their way through a misconduct investigation, it calls the whole agency's mission into question. So why is the board invalidating U allegations so much?
We posed this question to CCRB spokesperson Dakota Gardner, who did not answer, responding instead with the following statement: "The CCRB investigates all allegations of police misconduct within the authorities given to it by the New York City Charter. All Agency staff work to support the Board’s final decision-making process. The Board's determinations are the formal decisions of the Agency, made following the Board's own in-depth review of the facts of each case. Since the CCRB was given the authority to investigate allegations of untruthful statements made by NYPD officers during Agency inquiries, it has substantiated such allegations against 200 members of service."
The penalties for Untrue Statement charges can be severe, according to the NYPD's disciplinary matrix—an officer found guilty of making a false statement is supposed to be fired. It's conceivable that board members are hesitant to substantiate allegations that can carry such heavy consequences for officers, Davie, the former CCRB chair, told Hell Gate—and if that's the case, he said, perhaps the penalty ought to be revisited. "But certainly doing nothing and flipping allegations at such a high rate is not a solution," he added. "It suggests something's amiss. Allowing police officers to get away with making false statements to the CCRB, on its face, would seem to hinder the effectiveness of the agency."
Significantly, you wouldn't know that the CCRB is overturning its own investigator's findings that cops were lying to them at an alarming rate if you looked at the data the agency shares through the City's Open Data Portal.
That's because, mysteriously, in every case where the board flipped a substantiated U allegation, the public data doesn't list a U allegation as being made at all. Instead, the U allegations have been recategorized in the publicly available data to "Abuse of Authority/Other" allegations.
But traces of the original U allegations remain. For cases where redacted closing reports are available—many of them collected on the NYPD watchdog website 50-a.org—the closing reports show the original U charge, even as the public data for these cases shows the charge changed to an "Abuse of Authority."
There isn't any obvious legitimate reason why the cases would be erroneously categorized in the public data. Indeed, U allegation cases for which the board didn't reverse investigators' recommendations are listed in the public data accurately. But the miscategorization does serve to obscure the underlying pattern: that board members are more likely to let police off when they're accused of lying to investigators than they are for other allegations.
That's a big deal, said Andrew Case, supervising attorney at LatinoJustice and a former director of communications for the CCRB. "If they're unsubstantiating or flipping an allegation and then recategorizing it, what they're doing is hiding the fact that the allegation was even made."
There isn't actually any legal bar to the CCRB, or any government agency, posting inaccurate or even deliberately scrambled data for public consumption, said John Kaehny, executive director of the good government group Reinvent Albany. "When it comes to accurately representing a statistical finding, they can make stuff up," Kaehny said. "That's bad because it undermines confidence in government, it creates cynicism and mistrust, and it's particularly bad when you're an oversight agency like CCRB. But as far as I know, there's no sanction if they functionally falsely classify something like this."
What accounts for the misclassification of the CCRB's public data? Is there some innocent, technical explanation for it? We pressed Gardner, the CCRB spokesperson, on this point. He declined to answer, referring us back to his nonresponsive statement.