One year after a city watch dog called out the NYPD for inadequate investigations into biased policing, the department has substantiated its very first complaint it received from the public. But the substantiated complaint is not against a police officer. It’s against a school safety agent. 

According to the NYPD, the safety agent stopped a Brooklyn high school student wearing “clothing associated with the Muslim faith” and made a comment to the student that ISIS should be notified. Police officials said it is in the process of seeking discipline against the safety agent for profiling on the basis of race and religion. 

No other details, including who made the complaint or when it was filed, were provided by the department. NYPD investigators were likely able to substantiate this case, because someone explicitly made a discriminatory comment. 

Yet, the allegation was one of many. In the first 10 months of 2020, members of the public made 211 complaints of biased policing against members of the NYPD, according to the police department. This is down from a little more than 500 complaints in 2019. In fact, complaints are down for the third year in a row. 

But during a time of historic protests against police brutality and racism, the NYPD is set to close another year investigating complaints of biased policing without finding any wrongdoing against officers. Last year, the city’s Department of Investigation found that police officials had failed to substantiate a single instance of bias out of nearly 2,000 cases going back to 2014. 

The NYPD’s handling of bias claims still very much needs improvement, as detailed in recent reports by the federal monitor overseeing the NYPD’s stop and frisk reforms.

“Profiling investigations should be pursued with the same vigor and creative thinking that NYPD investigators apply to criminal cases,” Peter Zimroth, the monitor, wrote in a January 2020 report.

Zimroth said that while “some” of the profiling investigations were “thorough and impartial,” he listed the following deficiencies: 

  • Investigators failing to actually interview the complainant or a witness
  • Taking too long to contact the person who filed the complaint or the officer accused of bias
  • Asking the complainant questions in a way that sounded as if the investigator had already reached a conclusion
  • Cursory interviews (Zimroth noted that some interviews with officers lasted less than four minutes)
  • Not following up on leads
  • Not connecting important pieces of evidence

“As a general rule, nobody is very good at investigating themselves,” said Christopher Dunn, the legal director of the New York Civil Liberties Union. (He represents plaintiffs in one of three stop and frisk cases that prompted reforms overseen by the federal monitor.)

The city’s Civilian Complaint Review Board investigates certain types of police misconduct, such as public complaints about an officer’s abuse of authority or use of force. But it does not investigate whether an officer’s actions were motivated by bias. 

The persistent racial disparities in law enforcement, however, prompt a need to seriously investigate bias, Dunn said. 

Though the number of police stops has declined dramatically from the peak of stop and frisk practices in 2011, the same disparities remain. Last year, approximately 90 percent of people stopped by police were non-white. 

Marijuana arrests have also dropped, especially since the city decriminalized marijuana offenses last year. However, in 2019, Black and Latino people made up a staggering 92% of those arrested for marijuana offenses, even though research has shown that white people use marijuana at the same or more frequent rates. 

And this past spring, when the NYPD enforced social distancing at the height of the pandemic, 80% summonses officers issued were to Black and Latino people.   

“Of course there's racial profiling out there,” Dunn said. “The debate is just how much of it there is. Nobody — even in the department — would say it doesn't happen. Yet they're not finding any of it, they claim.”

The NYPD developed a system of processing and investigating claims of profiling because it was ordered to do so by a federal judge. In her 2013 ruling in the city’s landmark case on street stops, Judge Shira Scheindlin found that the NYPD for years racially discriminated against Black and brown New Yorkers with its stop and frisk practices. She ordered numerous reforms, including requiring the police department to track and investigate allegations of biased policing. 

The NYPD has been creating these systems with Zimroth since 2014. He has made several recommendations based on expertise he pulled from within the NYPD itself: He spoke with homicide detectives and other seasoned investigators about their best practices. The NYPD revised its guide for investigating bias complaints, based on Zimroth’s recommendations, and that guide was approved by the court last week.      

The NYPD provided updated numbers on profiling complaints, but it did not offer comment for this story. However, in its response to the Department of Investigation’s report last year, police officials wrote that the NYPD is committed to addressing misconduct in any form, including allegations of biased policing.

“Any implication or inference that the Department is reluctant to substantiate such complaints is entirely misplaced,” read their statement. 

Police officials, along with authors of the Department of Investigation report, said it was difficult to prove acts of profiling, because doing so required finding “proof of intent and motivation for the police action taken.” 

Dunn takes issue with the notion that bias is not a provable offense, and he argues that the NYPD’s standards for investigating such claims are too narrow. He said the NYPD essentially relies on an officer admitting wrongdoing or evidence that an officer made a racially offensive comment. 

“Rarely does anyone write an email saying, 'You're fired because you're Black.' You just don't see that,” said Dunn. “But in this department, they're not finding racial profiling unless essentially somebody has done that — as opposed to drawing a conclusion from all the circumstances of whatever happened.”

Corey Stoughton, attorney-in-charge of the Law Reform Practice at the Legal Aid Society, said relying on bias complaints submitted by the public is problematic to begin with. Like Dunn, Stoughton also represents plaintiffs in one of the federal cases on police stops that require reforms overseen by the federal monitor, so she is privy to the monitor’s work with the NYPD on the issue.

“Complaints are always a sliver of the picture of what police practices actually are on the ground,” she said, and added that relying on complaints puts undue burden on people experiencing misconduct to report it. 

Stoughton said that the NYPD should take a more proactive approach to analyzing racial disparities in enforcement, and whether they exist because of bias. 

She said that revising procedures around investigating complaints of racial profiling, while important, will not address a broader cultural problem within the NYPD. 

“We are six years into the remedial process in this case, and we have made remarkably little progress on addressing the issue of racial disparity in stop and frisk and also the way the NYPD handles complaints of racial discrimination,” she said. “And we have a challenge in that there is not a very clear plan for how to address the culture issues that are the root causes of racial disparities.”