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Civilian Complaint Review Board
§1-01 Definitions. As used in this chapter: Chair. "Chair" shall mean the Chair of the Civilian Complaint Review Board, appointed pursuant to New York City Charter §440(b)(1). Civilian Complaint Review Board. "Civilian Complaint Review Board" or "Board" shall mean the entity established by Local Law No. 1 for the year 1993, codified as §440 of the New York City Charter. Commissioner. "Commissioner" shall mean the Police Commissioner of the New York City Police Department. Executive director. "Executive director" shall mean the chief executive officer of the Civilian Complaint Review Board, appointed pursuant to New York City Charter §440(c)(5). Mediation. "Mediation" shall mean an informal process, voluntarily agreed to by a complainant and the subject officer and conducted with the assistance of a neutral third party, engaged in for the purpose of fully and frankly discussing alleged misconduct and attempting to arrive at a mutually agreeable resolution of a complaint. Police Department. "Police Department" shall mean the New York City Police Department.
§1-02 Jurisdiction. The Board shall receive, investigate, hear, make findings and recommend action upon complaints by members of the public against uniformed members of the New York City Police Department that allege misconduct involving excessive use of force, abuse of authority, discourtesy, or use of offensive language, including, but not limited to, slurs relating to race, ethnicity, religion, gender, sexual orientation and disability. The jurisdiction of the Board shall include the prosecution of substantiated civilian complaints pursuant to a Memorandum of Understanding (MOU) executed by the Board and the Police Department during the period that such MOU is applicable. The findings and recommendations of the Board, and the basis therefor, regarding case investigations and administrative prosecutions shall be submitted to the Police Commissioner.
§1-11 Written Complaints. Written complaints may be mailed to the Board office or may be submitted in person at that office during operating hours. Written complaints may be filed on forms furnished by the Board. The Board will accept written complaints filed at local precincts and forwarded by the Police Department.
§1-12 Telephone or In-Person Complaints. Telephone complaints will be received twenty-four hours a day, seven days a week by the Board. Complainants may also report complaints in person at the Board office during operating hours. Complaints may also be filed at public locations to be designated by the Board.
§1-13 Referrals of Complaints. When the Board receives a complaint about persons or matters not within the Board's jurisdiction, the Board shall refer the complaint to the appropriate agency. When the Board receives a complaint that concerns persons and matters both within and not within the Board's jurisdiction, it shall, except as otherwise provided in §1-22 and §1-44, investigate and determine those aspects of the complaint that concern persons and matters that are within the Board's jurisdiction, and shall refer those aspects of the complaint not within the Board's jurisdiction to the appropriate agency for action.
§1-14 Notification to the Police Department. With respect to complaints about officers and matters within the Board's jurisdiction, the Board shall notify the Police Department of the actions complained of within a reasonable period of time after receipt of the complaint.
§1-21 Statement of Policy. The procedures to be followed in investigating complaints shall be such as in the opinion of the Board will best facilitate accurate, orderly and thorough fact-finding.
§1-22 Method of Investigation of Complaints. In investigating a complaint, Board investigatory personnel may utilize one or more of the methods set forth in this subchapter, and any other techniques not enumerated here, as may be useful in conducting an investigation. Where appropriate, the Executive Director may recommend that a case be closed prior to investigation on the basis that the complaint concerns persons or matters not within the Board's jurisdiction or does not state a prima facie case. Such recommendations shall be subject to approval by a panel or the Board in accordance with §1-32(b).
§1-23 Obtaining Documentary and Other Evidence. (a) Board investigators may make written or oral requests for information or docu- ments. (b) Board investigators or, as provided in §1-32(c), a panel established pursuant to §1-31, may interview the complainant, the subject officer or witnesses. (c) Board investigators may make field visits for purposes such as examining the site of alleged misconduct and interviewing witnesses. (d) Upon a majority vote of members of the Board, subpoenas ad testificandum and duces tecum may be served. Board subpoenas are enforceable pursuant to relevant provisions of Article 23 of the New York Civil Practice Law and Rules. (e) The Board may obtain records and other materials from the Police Department which are necessary for the investigation of complaints submitted to the Board, except such records and materials that cannot be disclosed by law. In the event that requests for records or other evidence are not complied with, investigators may request that the Board issue a subpoena duces tecum or a subpoena ad testificandum.
§1-24 Conduct of Interviews. (a) It is the intent of these Rules not to alter the rights afforded to police officers by the Police Department Patrol Guide with respect to interviews so as to diminish such rights, including but not limited to the right to notice of an interview, the right to counsel, and the right not to be compelled to incriminate oneself. (b) A member of the Police Department who is the subject of a complaint shall be given two business days notice prior to the date of an interview, to obtain and consult with counsel. A member of the Police Department who is a witness in an investigation of a complaint shall be given a period of time, up to two business days, to confer with counsel. (c) All persons interviewed may be accompanied by up to two representatives, including counsel. Such counsel or representative may advise the person interviewed as circumstances may warrant, but may not otherwise participate in the proceeding. (d) Prior to the commencement of the interviewing of a police officer, the following statement shall be read to such officer: "You are being questioned as part of an official investigation of the Civilian Complaint Review Board. You will be asked questions specifically directed and narrowly related to the performance of your duties. You are entitled to all the rights and privileges guaranteed by the laws of the State of New York, the Constitution of this State and the Constitution of the United States, including the right not to be compelled to incriminate yourself and the right to have legal counsel present at each and every stage of this investigation. If you refuse to testify or to answer questions relating to the performance of your official duties, your refusal will be reported to the Police Commissioner and you will be subject to Police Department charges which could result in your dismissal from the Police Department. If you do answer, neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceedings. However, these statements may be used against you in relation to subsequent Police Department charges." (e) Interviews shall be scheduled at a reasonable hour, and reasonable requests for interview scheduling or rescheduling shall be accommodated. If possible, an interview with a police officer shall be scheduled when such officer is on duty and during daytime hours. Interviews may be conducted at the Board's offices or other locations designated by the Board. (f) The interviewer shall inform a member of the Police Department of the name and position of the person in charge of the investigation, name and position of the interviewer, the identity of all persons present at the interview, whether the member is a subject or witness in the investigation, the nature of the complaint and information concerning all allegations, and the identity of witnesses and complainants, except that addresses need not be disclosed and confidential sources need not be identified unless they are witnesses to the alleged incident. (g) The interviewer shall not use off-the-record questions, offensive language or threats, or promise of reward for answering questions. (h) The interviewer shall regulate the duration of question periods with breaks for such purpose as meals, personal necessity and telephone calls. The interviewer shall record all recesses. (i) Interviews shall be recorded either mechanically or by a stenographer. (j) If a person participating in an interview needs an interpreter, he or she shall advise the Board investigator of such need as soon as possible after being notified of the date and time of the interview. A qualified interpreter will be obtained from an official registry of interpreters or another reliable source. (k) Reasonable accommodations shall be made for persons with disabilities who are participating in an interview. Persons requiring such accommodations shall advise the Board investigator of such need as soon as possible after being notified of the date and time of the interview.
§1-31 Assignment of Cases. When the investigation of a case has been completed by Board staff, or a recommendation has been made by the Executive Director that the case be closed prior to investigation, the Chair shall assign the case to a panel consisting of at least three Board members, or may assign the case to the full Board for review. Panel shall be designated by the Chair, provided that no such panel shall consist exclusively of members designated by the City Council, or the Police Commissioner, or selected by the Mayor. Panel membership shall be rotated on a regular basis.
§1-32 Panel or Board Review of Cases. (a) The panel or the Board shall review the investigatory materials for each assigned case, and prepare a report of its findings and recommendations. (b) Where the Executive Director has recommended pursuant to §1-22 that a case be closed prior to investigation, the panel or the Board shall review such recommendation, and prepare a report of its findings and recommendations. (c) The panel or the Board may, if it deems appropriate, return a case to investigative staff for further investigation or a panel may, upon approval of the Board, conduct additional fact-finding interviews in accordance with the provisions of §1-24. (d) Panel findings and recommendations shall be deemed the findings and recommendations of the Board. However, upon request of a member of the panel, or upon the direction of the Chair at the request of any member of the Board, the case shall be referred to the full Board for action in accordance with the provisions of §1-41.
§1-33 Case Dispositions. (a) No finding or recommendation shall be based solely upon an unsworn complaint or statement, nor shall prior unsubstantiated, unfounded or withdrawn complaints be the basis for any such finding or recommendation. (b) Panels or the Board shall employ a "preponderance of the evidence" standard of proof in evaluating cases. (c) A report of the findings and recommendations with respect to each case investigation reviewed shall be prepared and transmitted to the Police Commissioner. Where the disposition of one or more allegations is "Substantiated," as defined in subdivision (d) of this section, such report shall be forwarded in writing within five business days of such substantiation and shall include appropriate pedigree information regarding the subject officer, the case number and any other control or serial number assigned to the case, and a summary of the pertinent facts. (d) Panels or the Board shall utilize the following categories of case investigation dispositions for their reports to the Police Commissioner: (1) Substantiated: the investigation disclosed sufficient evidence to establish by preponderance of the evidence that the subject officer has committed the alleged act of misconduct. (2) Unsubstantiated: the investigation disclosed insufficient evidence to establish by a preponderance of the evidence that the alleged misconduct occurred. (3) Exonerated: the subject officer did not commit an act of misconduct, i.e., the incident occurred but the officer's actions were lawful and proper. (4) Unfounded: the acts complained of did not occur. (5) Complaint withdrawn. (6) Complainant or victim unavailable. (7) Complainant or victim failed to cooperate. (8) Case closed prior to investigation. (9) Department employee unidentified. (10) Referred to another agency. (11) Complaint mediated. (12) Other: to be specified by the Board.
§1-41 Introduction. It is the intent of this subchapter to implement the provisions of the Memorandum of Understanding executed by the Board and the Police Department during the period that such MOU is applicable. Upon substantiation by the Board of one or more allegations of excessive use of force, abuse of authority, discourtesy or use of offensive language, the Board shall undertake the responsibility for administrative prosecution of the case. The Board shall independently conduct its administrative prosecution. At the conclusion of the administrative prosecution, the Board shall forward to the Commissioner a final recommendation reflecting the results of its prosecution of the case. The Commissioner shall retain in all respects the authority and discretion to make final disciplinary determinations.
§1-42 Prosecutorial Discretion. The Board may in its prosecutorial discretion consider all available levels of Police Department disciplinary penalties in evaluating a substantiated case ranging from informal discipline such as Instructions or Command Discipline through formal discipline of Charges and Specifications. The Board may conduct plea negotiations and reach agreements with subject officers and their attorneys, subject to the Commissioner's approval, or schedule cases for hearing before the New York City Office of Administrative Trials and Hearings (OATH). The Board may also elect to recommend that the case be dismissed or otherwise not be prosecuted.
§1-43 Coordination with Police Department. In the course of the administrative prosecution, the Board and Police Department shall communicate as necessary to ensure timely and effective prosecution as follows: (a) The Police Department shall notify the Chair and the Executive Director if an expedited prosecution is necessary, and the Board shall make every reasonable effort to conclude the prosecution and provide a recommendation to the Commissioner within the requested time frame, including contacting OATH as necessary to request expedited procedures as provided in §1-26(c) of Title 48 of the Rules of the City of New York. (b) The Board may request from the Police Department a summary of the subject officer's employment history, which shall be provided within ten business days of its receipt of the request. The Board may similarly request a summary of employment history for a witness officer upon demonstrating to the Police Department a particularized need for such summary based upon the facts and circumstances of a specific administrative prosecution. (c) The Police Department shall advise the Board whether the subject officer is on probation, dismissal probation, or the subject of any other type of Police Department monitoring program or procedure relevant to the prosecution of the substantiated com- plaint. (d) Where the Police Department determines that administrative prosecution of a substantiated civilian complaint would be inadvisable or inappropriate for reasons outside the control of the Board, the Police Department may make a written request to the Chair and the Executive Director that the Board refrain from commencing or continuing its prosecution until such time as the prosecution would no longer interfere with a pending matter or otherwise be inappropriate. The request shall include any explanatory information that the Police Department can reasonably provide. Upon receiving such request, the Board shall not commence or continue a prosecution as requested until it receives a written notification from the Police Department no longer than twenty business days from the Police Department's determination that the prosecution need no longer be delayed. (e) If the Board becomes aware of possible misconduct which falls outside its jurisdiction of excessive use of force, abuse of authority, discourtesy or use of offensive language, the Board shall immediately refer the allegation of other misconduct to the Police Department for investigation and shall not itself undertake the prosecution of such allegation. The Board shall provide assistance to the Department as requested for purposes of investigation or prosecution of the alleged misconduct. If necessary, the Board and the Police Department shall coordinate their separate prosecutions of such related cases.
§1-44 Conclusion of Administrative Prosecution. At the conclusion of the administrative prosecution, in all instances other than cases culminating in a report and recommendation by OATH, the Board shall forward to the Commissioner a final recommendation reflecting the results of its prosecution of the case. The Board shall include all relevant forms, memoranda and background information to assist the Commissioner in making and implementing a final disciplinary determination. If the case culminated in a hearing before OATH, upon receipt of a report and recommendation by OATH, CCRB may provide to the Police Commissioner a letter commenting on the OATH report and recommendation.
§1-45 Police Commissioner's Determination. (a) In all instances other than cases culminating in a report and recommendation by OATH, upon receiving the final recommendation of the Board with accompanying documents, the Commissioner may accept, reject, or modify the recommendation presented, or may ask the Board for additional investigative or background information in its possession. He or she may also request further investigation or development of the record in the case. If the Board's recommendation is rejected or modified, the Board will then be responsible for implementing the Police Commissioner's decision and taking the appropriate follow-up action as directed. After taking the appropriate follow-up action, the Board shall forward to the Police Commissioner a final recommendation as provided in §1-44. (b) In cases culminating in a report and recommendation by OATH, the Police Commissioner may accept, reject, or modify the report and recommendation based upon the record presented. He may in the alternative remand the matter to OATH, stating his reasons therefor, with instructions for further proceedings as appropriate. In the event of such a remand, CCRB shall take appropriate steps in conformance with the reasons set forth in the Police Commissioner's statement for remand to reopen the case. (c) The Department shall notify the Board of the final disciplinary result and specific penalty in each case within thirty calendar days of the imposition of the specific penalty.
§1-46 Meetings of the Board. (a) The full Board shall meet at least one time each month, at which meeting it shall consider cases referred to it and conduct any other business. (b) If a case has been referred to the Board, the Board may take such action as it deems appropriate, including, but not limited to, making its own findings and recommendations, remanding the case to a referring panel for further consideration or action, and remanding the case for further investigation.
§1-47 Panel and Board Meetings: General Matters. (a) If a Board member has a personal, business or other relationship or association with a party to or a witness in a case before a panel to which such member has been assigned, the member shall disclose this situation to the Chair, and shall request that the case be transferred to another panel. If a Board member has such relationship in a case before the full Board, the member should recuse himself or herself from deliberations or action in connection with that case. (b) Board members must be present at a meeting of the Board or a panel in order to register their votes.
§1-48 Communications with and Notifications to Complainants Regarding Status of Complaints. (a) Within seven business days of the receipt of a complaint, the Board shall notify a complainant by telephone or letter that the Board has received his/her complaint, and shall identify the case number and staff member(s) assigned to the case. (b) The Board shall advise a complainant by letter, within forty-five days of the filing of a complaint, of the status of his/her case. If the investigation is not completed within ninety days of the filing of a complaint, the Board shall again advise the complainant of the status of his/her case. (c) The Board shall advise the complainant within five business days of the completion of the case investigation. (d) The Board shall notify the Complainant by letter of its findings and recommendations regarding the case investigation within seven business days of the Board's submission of the findings and recommendations to the Police Commissioner. If the case is substantiated, the Board shall include notice to the complainant that the Board is responsible for undertaking the administrative prosecution of the complaint. (e) Following an administrative prosecution, the Board shall notify the complainant by letter of the final action taken by the Commissioner within seven business days of the Board's receipt of the Commissioner's final decision. (f) Where the parties have agreed to mediate a case, the provisions of paragraphs (b), (c) and (d) of this section shall not apply.
§1-49 Mediation. (a) A complainant may choose to resolve a complaint by means of mediation, provided the subject officer agrees to mediation as provided herein, and unless the Board or a panel thereof determines that the complainant is not appropriate for mediation. (b) Unless the Board or panel thereof determines that a complaint is not appropriate for mediation, a complainant requesting mediation and the subject officer shall be sent a notice formally offering them the opportunity to voluntarily engage in the mediation process. (c) Both the complainant and the subject officer must agree to mediation within ten days of such notification being sent in order for mediation to proceed. In the event one or both parties do not agree to mediation, the complaint shall be referred to Board investigatory personnel for investigation. The mediator shall be designated by the Executive Director. (d) Written notice of the time, date and location of the first mediation session shall provided to each party. Such notice shall be accompanied by a description of procedures and guidelines for mediation. Subsequent session(s) shall be scheduled by the mediator if the mediation is not completed at the first session. (e) Those present at the mediation session shall include the complainant, the subject officer and the mediator. Where appropriate, arrangements may be made for a translator or interpreter to be present. In the case of a complainant who is a minor, a parent or legal guardian shall be present. Where the Executive Director determines that a complainant who is an adult requires assistance in order to comprehend or participate in mediation, such adult may be accompanied by a family member or legal guardian. Parties' representatives or counsel may be available outside the room where the mediation is being conducted. (f) All information discussed or statements made at a mediation session shall be held in confidence by the mediator, and the parties shall also agree in writing to maintain such confidentiality. No stenographic record, minutes or other record of the mediation session shall be maintained. (g) The mediation session(s) shall continue as long as the participants believe that progress is being made toward the resolution of the issues. The mediation process shall terminate if either party announces its unwillingness to continue mediation, the mediator believes no progress is being made, or the complainant fails to attend two or more mediation sessions without good cause shown. (h) If mediation is successful, the parties shall sign an agreement stating that each believes the issues have been satisfactorily resolved. The mediator shall advise the Board that the mediation has been successfully concluded, and the Board shall forward this information to the Police Commissioner. (i) If the mediated case is not successfully resolved, the mediator shall notify Board staff of his or her intent to pursue a complaint, and the complaint shall be referred to Board investigatory staff for investigation.
§1-50 Reconsideration or Reopening of Cases. Where new evidence is obtained or a previously unavailable or uncooperative party becomes available with eighteen months of the Board's submission of findings and recommendations to the Police Commissioner, and such new evidence or the availability of such party may reasonably lead to a different finding or recommendation, a case may, at the Board's discretion, be reopened at the request of a party and where appropriate, an amended report may be prepared and submitted to the Police Commissioner.
Fuente / Source: Public Access Portal to the Laws of the City of New York
Ultima actualización: February, 2008