New York City lawmakers are calling for the police commissioner to be stripped of his power to short-circuit officer misconduct cases. And the Office of the Inspector General for the New York Police Department has begun an independent investigation into the commissioner’s use of the practice, known as “retention.”
The actions come in response to reporting by ProPublica last month that revealed how Commissioner Edward Caban has exercised this little-known authority to prevent dozens of cases of alleged abuse from getting a public hearing.
The commissioner instead has decided these cases in private, often ordering no discipline for the officers. Some episodes were so serious that New York’s police oversight agency, the Civilian Complaint Review Board, concluded the officers likely committed crimes. Victims were not told their cases had been set aside, and the decisions were only disclosed months later.
“The commissioner shouldn’t have the power of retention,” Councilmember Alexa Avilés said in an interview, citing ProPublica’s investigation, which was published in partnership with The New York Times.
Other lawmakers echoed that call. The commissioner’s ability to summarily end cases “should absolutely be repealed,” said Councilmember Tiffany Cabán, who is not related to the police commissioner.
The commissioner’s power comes from a memorandum of understanding that the City Council brokered in 2012. The agreement gave the CCRB the authority to prosecute misconduct cases in a departmental trial. But in a compromise with the NYPD, the memorandum also allowed the department to “retain” those cases.
“We said at the time that the memorandum of understanding was a bad idea,” said Christopher Dunn, legal director of the New York Civil Liberties Union. “We now know it creates problems. And it should be rescinded.”
Rolling back the commissioner’s power would not be easy. The NYPD would have to agree to revisit the memorandum of understanding, or, more ambitiously, City Council members would need to seek changes to the city law that grants the commissioner sole discretion over discipline.
“The council is limited by what it can do without the NYPD’s cooperation,” Public Advocate Jumaane Williams said. “But we’re at a point now that we need to push the envelope. I don’t think the commissioner should have the power of retention.”
Williams and Avilés co-sponsored NYPD transparency legislation last year that was met with stiff resistance from the mayor and the Police Department. The bill ultimately passed when the council overrode a mayoral veto. The lesson Avilés took from that: “When we try to legislate anything about the NYPD, we get furious pushback. It takes an enormous amount of political capital to push back against the mayor and NYPD.”
For his part, Caban has defended his use of retention, putting out a five-page statement in the wake of ProPublica’s investigation saying that his actions were “in compliance” with the memorandum of understanding. On Tuesday, a spokesperson for Mayor Eric Adams agreed, saying in a statement that “the Police commissioner continues to work within his bounds to ensure New Yorkers are both safe and policed fairly.”
Our reporting, however, found multiple instances where Caban’s actions seemingly violated the rules of the memorandum, which stipulates that retention can only be applied to officers with “no disciplinary history.”
Over the past year, Caban has on four occasions retained cases of officers who the CCRB had previously found engaged in misconduct, according to board records.
Meanwhile, civil rights groups are also taking issue with how the NYPD is handling discipline under Caban. On Monday, LatinoJustice filed a lawsuit against the department for failing to notify officers of the administrative charges against them in some cases. Without that formal step, a departmental trial cannot proceed.
ProPublica’s investigation found seven disciplinary cases that have been stymied since last summer because of such delays. One of them involved the man at the center of the lawsuit, William Harvin Sr. The CCRB found that he was repeatedly shocked with a Taser despite trying to back away from an officer. The board said the officer had engaged in misconduct and moved for a disciplinary trial in which prosecutors from the civilian board could present evidence and question the officer in a public forum.
Nearly a year later, the NYPD has yet to allow the case to move forward.
LatinoJustice’s suit argues that the NYPD’s failure to serve charges in Harvin’s case, as well as others, is “arbitrary and capricious.” It seeks a court order that would force the NYPD to notify officers and thus bring the cases to trial.
“The NYPD is doing everything it can to stymie the country’s largest civilian oversight agency,” said Andrew Case, supervising counsel at LatinoJustice. “It’s just bad government.”
The NYPD did not respond to requests for comment about the lawmakers’ calls, the city investigation or the lawsuit. The Office of the Inspector General for the NYPD declined to comment.
Commenting last week on a police killing in Illinois, Adams wrote: “I’ve spent my entire adult life fighting for public safety and police reform. I understand that public safety and justice must go hand-in-hand, and officers that abuse their badge must be held accountable.”
The mayor has said he supports Caban’s handling of officer discipline. On Tuesday, the Adams spokesperson said, “As mayor, he has committed to further reform of the NYPD’s internal case process — setting stricter timelines so that complaints are handled swiftly, and Commissioner Caban and his team are able to thoroughly review all allegations of misconduct and adjudicate accordingly.”
ProPublica’s investigation found that Caban, a close ally of Adams whom the mayor appointed to the position last year, has retained far more cases than his predecessors. Data from the CCRB showed he had prevented the cases of 54 officers from going to trial in his roughly one year in office. His predecessor, Keechant Sewell, did it eight times in her first year, even as she faced more disciplinary cases.
The news organization also found that in more than 30 other instances, Caban upended cases in which department lawyers and the officers themselves had already agreed to disciplinary action — the most times a commissioner has done so in at least a decade. For one officer, Caban rejected two plea deals.
In the month since the story was published, Caban has continued to sidetrack discipline cases. He has retained at least 11 cases over the past month. One of the officers whose case Caban has ended had been previously found to have engaged in misconduct.
Caban also recently overturned the plea deal that an officer had already agreed to for wrongly pointing his gun and threatening arrest. Caban changed the penalty from 20 lost vacation days to three.
