Lying Is Supposed to Cost You Your Job at the NYPD. It Almost Never Does
In a new lawsuit, a man charged with and cleared of gun possession says police officers framed him, and that it wasn't the first time they had been caught lying.
7:14 PM EDT on April 6, 2023
In New York City, cops who lie during the course of their work are not supposed to remain on the job. Since 2007, the NYPD's patrol guide has made "intentionally making a false statement regarding a material matter" grounds for dismissal. In reality, NYPD officers are almost never fired for lying. A 2022 report found that of the 200 officers that the Civilian Complaint Review Board had determined to have lied over the last decade, none were dismissed.
On Thursday, a Bronx man named Frankie Breton, who was charged with gun possession by two NYPD officers with long histories of untruthfulness, filed a civil lawsuit against the City and the police department, seeking monetary damages for his four-year court saga that ended with a jury acquittal last summer. Breton is alleging that cops planted both a firearm and marijuana on him; perjury by his arresting officers during court proceedings; malicious prosecution; and that the City and the NYPD are negligent in the hiring, training and, supervision of its police officers. The lawsuit also ticks off decades of failure by the NYPD to deal with lying cops and lists more than a dozen examples of Bronx criminal cases involving officers with documented untruthfulness issues.
"Frankie was railroaded by two police officers who are part of a larger problem of cops who commit perjury and aren't dismissed by the NYPD like they should be, and the prosecutors who rely on those cops to initiate prosecutions and testify at trial," said attorney Andrew Stengel, who represented Breton in his criminal case and filed the civil rights suit in Bronx County Supreme Court today.
In March 2018, Breton was arrested on Andrews Avenue by Officer Valdrin Nikqi and Sergeant Elvin Pichardo from the 46th Precinct. Shortly before the arrest, Breton was standing on a sidewalk holding a plastic bottle of water in his hands. Footage from the encounter shows Breton pacing on the sidewalk when an unmarked car pulls up near him in the street and Pichardo approaches in plainclothes. As the cops approach, Breton pulls his hood back with his left hand, which appears empty. Pichardo tries to grasp Breton's hands. A small object tumbles to the ground, later determined to be a transparent plastic tube filled with a couple grams of cannabis (then considered illegal under New York state law). According to Breton's complaint, Pichardo had attempted to hand him the tube, but he refused, and it fell to the ground. Stengel's argument throughout the legal proceedings has been that Pichardo was trying to "flake" Breton, a term widely used in the NYPD and New York City's criminal justice world for planting evidence to justify a search or a criminal charge.
The footage then shows Breton being pushed out of sight into an alcove, which is when Nikqi and Pichardo claimed to have found a loaded handgun in Breton's clothes. The next day, the 46th Precinct posted a tweet with a photo of the gun supposedly seized by Nikqi's team:
In his criminal defense and in his new lawsuit, Breton has denied that he had a gun when the police stopped him. During the four years it took for Breton's case to go to trial, Stengel uncovered multiple confirmed instances and cases where Nikqi and Pichardo had been untruthful, according to Breton's complaint.
In 2016, Nikqi claimed under oath that after he approached 25-year-old Joseph Turnbull in the Bronx, Turnbull told him, "I have a gun, officer. I ain't gonna lie," before Nikqi found a loaded .22 caliber pistol. Footage of the incident obtained by Turnbull's attorney appear to contradict Nikqi's version of events. In the video, Nikqi jumps out of a vehicle, with three other officers following behind him, and runs to Turnbull as soon as their car pulled up. No interaction can be seen beforehand. In less than 10 seconds, Nikqi has Turnbull up against a car and in handcuffs. The Bronx district attorney dismissed the case after a judge pointed out that Nikqi had perjured himself.
Pichardo's record of alleged untruthfulness stretches back to 2009, when NYPD Internal Affairs charged him with unauthorized access of a computer system. According to the transcript of a 2009 hearing, Pichardo claimed in a deposition that "the reason he was doing that was because of his brother, who was overseas, and that he was checking a warrant." The allegations against Pichardo were sustained, according to a portion of his Internal Affairs file read aloud in a court case.
And in 2013, Pichardo was accused of planting evidence on a detainee in Manhattan's 34th Precinct. Additionally, within a year of Breton's arrest in the spring of 2018, Pichardo was found to have made false statements to civilian investigators about an unlawful search of a car, according to Breton's complaint.
Despite extensive issues with both officers' records, Bronx District Attorney Darcel Clark continued with the prosecution of Breton's gun charge. After a two-and-a-half week trial this past summer in Bronx Superior Court, a jury acquitted Breton of all charges. Both Nikqi and Pichardo testified and repeated their claims about spotting a tube of marijuana in Breton's hand when they first contacted him, despite the video footage that was shown to the jury that shows Breton's hands were holding a water bottle.
Neither Nikqi nor Pichardo were dismissed by the NYPD, or received substantial discipline from Internal Affairs, for their documented incidents of perjury and untruthfulness. In fact, both have since advanced in the department's ranks. Nikqi was promoted to detective third grade in May 2020 and now serves with the citywide Firearms Investigation Unit, while Pichardo made lieutenant in June 2022 and is assigned to the 46th Precinct.
"What's so shocking about Frankie's case is the Bronx district attorney knew these two police officers were liars, had video of one cop trying to plant something on my client, and still said, 'Screw it, let's go to trial,'" Stengel told Hell Gate. "I can't imagine a worse violation of a citizen's liberty than what happened to Frankie."
The Bronx district attorney's office did not immediately respond to a request for comment.
In an emailed statement, an NYPD spokesperson claimed that neither Nikqi nor Pichardo had anything in their personnel records that indicated a lack of truthfulness.
"Nothing you have provided is indicative of a false or misleading statement by Lt. Pichardo. A further investigation following the DAs dismissal of [Mr. Turnbull's] case regarding Det. Nikqi revealed that the camera footage provided was captured by a motion censored [sic] camera and as a result 17 seconds of video that took place outside the motion detection was not captured, this was not considered when the case was initially dismissed. Moreover, the officers you reference have no pending or closed cases for false or misleading statements with the NYPD or CCRB. In addition these officers were not included on any adverse credibility lists provided by the City's five district attorneys," the department's statement read.
To Barry Kamins, a retired Manhattan Supreme Court judge and the past president of the New York City Bar Association, the ongoing employment and promotion of officers like Pichardo and Nikqi demonstrate a far deeper problem with accountability at the NYPD. "Why are these people still on the force?" Kamins asked. "Somebody clearly doesn’t think these incidents are bad enough—there's a message coming from the top of the police department that we're not going to treat this seriously."
The NYPD's decision to retain and promote Detective Nikqi and Lieutenant Pichardo in light of their documented truthfulness issues is representative of a deeper failing in the department's oft-scrutinized disciplinary system.
Though Breton's civil complaint seeks damages for the individual incident, the lawsuit cites an additional dozen officers that, together, constitute an alleged pattern and practice of the NYPD systematically downgrading or foregoing discipline for cops found uncredible by the courts or their own internal disciplinary processes.
Widespread acknowledgment of police perjury as a major issue occurred during the 1994 hearings of the Mollen Commission, convened by then-Mayor David Dinkins after Michael Dowd and five other Brooklyn cops were arrested in Long Island on drug conspiracy charges. Several instances of police abetting or taking part in drug-related offenses were uncovered by the commission, as well as evidence that at least 40 internal corruption cases were buried by Internal Affairs, and that former police commissioners had ignored or covered up systematized corruption, including rampant perjury and untruthfulness by police officers. The following year, the Mayor's Commission to Combat Police Corruption was created. Though widely ignored today, the commission still generates reports about the NYPD's internal accountability process.
A 2007 amendment to the NYPD patrol guide made perjury or willing untruthfulness a fireable offense, but the commission has found that the NYPD continues to rarely hold officers to that standard. In 2015, the commission's annual report examined 28 cases where officers were alleged to have made false statements in their official capacity, and found that none resulted in dismissal. Succeeding reports found Internal Affairs routinely charges officers with lesser administrative violations in cases where they are alleged to have made false statements, and if and when those charges are substantiated, disciplines those officers well short of what untruthfulness is supposed to carry—dismissal.
Arnie Kriss, who was deputy commissioner for trials at the NYPD under Mayor Ed Koch, believes perjury by police personnel is extremely troubling. "You commit perjury in the courtroom or on a report? You're outta here," he said. "There's no justification, because that results in a wrongful conviction, a person perhaps going to jail, maybe getting exonerated after serving five or so years, and then the City of New York will have to pay out a shitload of money."
Journalistic investigations have also affirmed the NYPD's longstanding inability or refusal to terminate lying cops. A 2018 Buzzfeed News investigation analyzed leaked disciplinary files from 2011 through 2015, and found that 319 officers were permitted to keep their jobs despite confirmed misconduct allegations that rose to the level of termination; 50 of those officers were found to have made inaccurate or misleading statements to grand juries, district attorneys, internal affairs investigators, or in official reports.
Investigating and disciplining cops accused of making false statements was solely the responsibility of the NYPD's Internal Affairs Bureau until 2019, when a ballot initiative modified the City Charter to give the Civilian Police Review Board authority to hold officers accountable for lying during the independent oversight agency's investigations and to prosecute such violations administratively. But as with all CCRB cases, final disciplinary decisions rest with the NYPD commissioner.
The independent oversight body, which is struggling with a skeletal budget that impedes its ability to function, has long been the target of NYPD ire. The CCRB struggles to obtain basic information about misconduct allegations from the department, such as body camera footage, which has been shown to drastically increase its substantiation rate.
Critically, the CCRB's effectiveness relies on the cooperation of the police commissioner, who can unilaterally void confirmed misconduct cases even after a full administrative trial in front of an NYPD judge. Current NYPD Commissioner Keechant Sewell has imposed CCRB-recommended discipline at a rate far below her predecessors. Even prior to the mayoralty of former NYPD captain Eric Adams, NYPD commissioners routinely overturned or downgraded penalties against 71 percent of all officers found guilty of misconduct by either the CCRB or Internal Affairs over the past two decades. More than 200 cops were found to have lied to the Civilian Complaint Review Board over the past decade, according to a 2022 report by the nonprofit civil rights group Latino Justice—none were fired.
"Everything on this issue comes from the police commissioner—if Sewell wants to deal with this issue, she fires these cops, she doesn't promote them," Kriss said. "Unless a firm message is set out by the commissioner, change isn't going to happen."
Meanwhile, the tab for police misconduct continues to rise. In 2022, the City paid out $121 million to settle NYPD-related misconduct claims, the highest amount in five years and $34 million over the 2021 tally. And the full bill from the NYPD's summer-long police riot in 2020 has yet to come due.
While Breton's criminal case may have concluded in his favor, his suit against the City is one more (potentially costly) indicator of the NYPD's reluctance to discipline officers who lie. "With the news that the commissioner ignored disciplinary recommendations in more than half of CCRB cases and $121 million in civil rights payouts in 2022," Stengel said, "the failure to dismiss police who commit perjury is more important than ever."
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