New York City Law Blog

Your Civil Rights Are Precious

Mayor de Blasio’s Bad Year

On December 18, the New York City Department of Investigation issued a decent report on the New York Police Department’s failed response to the George Floyd protests earlier in  2020. I didn’t expect this. Indeed, when Mayor Bill de Blasio designated the Department of Investigation (and the Corporation Counsel) to investigate police misconduct during these protests, I assumed – reasonably, I think – that these agencies would whitewash the police response; this was clearly what the Mayor had wanted. I was able to place an essay decrying the situation as an example of the continuing systemic failure to police the police in this City.

No other expressions of frustration by me can do better than the DOI Report, but one can throw in the Mayor’s self-serving, insincere, pre-recorded YouTube response, linked below. Listen to his false, measured tone when he defends the NYPD on his weekly radio interview on The Brian Lehrer Radio Hour.

The DOI report came in time to remind the world that police misconduct is endemic, just as George Floyd’s death was receding from collective memory. It does a public service to remember that police misconduct is an abysmal problem, committed by police officers targeting mostly people of color, who lie at will. The DOI report, written by the Commissioner the Mayor appointed, reminds everyone that police misconduct is not a lie; it is not overblown. Indeed, it is so rampant that The American Medical Association considers it a public health problem. (The AMA’s reporting is available here: https://www.ama-assn.org/delivering-care/health-equity/why-police-brutality-matter-public-health.)

The DOI report is long, but you might listen to the Commissioner’s press conference and then consider the Mayor’s self-serving, insincere, pre-recorded YouTube response. (Link below.) The Mayor looks disheveled in this video. The lighting is low – I assume the atmospherics were intentional: to make him appear sympathetic, an everyman without a tie, rather than a failed bureaucrat. Listen to his words as I parse below. They are not apologetic; they deflect blame. You might also listen to the false, measured tones the Mayor delivers on his weekly radio interview, as he tries to defend the NYPD. (“The Brian Lehrer Radio Hour,” podcast linked below.) “We have to do better,” the Mayor says is a deflection of blame. Who is “we?” The Mayor later undercuts his logic by stooping so low to attribute the police violence as a response to “looting, which we hadn’t seen in decades.” Come on, Mayor Bill. The word “looting” probably bothered you to say because looting did not pop out of nowhere. Instead, it is objectively a dog-meat code word tangential to racism. Mayor, one of your nemeses, President Trump, used several variants on “looting” to scare white voters away from Biden. His strategy almost worked. Even as you begin your last year in lame-duck stewardship, do you realize what you’ve done to your reputation?

I refer to myself as a civil rights lawyer, but I’m just a guy who ended up in law who appreciates freedom. I have, therefore, expressed grave disappointment in Mayor de Blasio. His apologies are not accepted, at least not by me. The Mayor blames the brutality at the protests, documented in the DOI report, on “a bad year.” All politicians must accept the possibility that there will be a bad year. Rising to the challenges of a lousy year makes a politician into a Statesman. Other city mayors rose to the tests of crisis and accepted responsibility. Still, the Mayor won’t let go of his grip on the defense of an abusive, out-of-control NYPD. “The vast majority of officers did their job,” you say on YouTube. Then you add, “[w]e have to retrain our officers differently.” Those are canned responses, not what citizens want to hear now. A year left in office, and now he’s going to retrain? The Mayor says – again, now – that “the vast majority of police officers…” etc. The “Bad Apples” theory never satisfies. It keeps those officers one might characterize as decent in hiding because they never speak out. Does the Mayor mean the vast majority of those who are basically decent but won’t tell on bad sibling officers, even if that means to lie?

Two weeks after the DOI Commissioner’s Report, the City’s Corporation Counsel issued its own. The Corporation Counsel is the City’s chief lawyer, James Johnson, a man with an impressive pedigree who has held that office for about a year. But his pedigree did not rise to the occasion. Yes, the report was informative; some details are attention-grabbing. In my opinion, however, despite the scholarly tone, Johnson’s report dissatisfies, mainly because it is too intellectual. This approach denies – or at least avoids confronting – the problems of community policing in New York City. I enjoyed digressive footnotes, well-placed references to social science, plus some excellent quotations. But the discussion about how the baked-in pressures of the COVID-19 pandemic fueled the protests took up too much debate, which has no cohesive thesis. Indeed, many digressions are interesting; one footnote asks whether George Floyd’s death – a recorded lynching resulting in an international response – might have taken less than 8 minutes. Who cares! (I have not been able to sit through the video after minute two.) Such minutia distracts from the horrors that preceded these protests – Floyd’s in particular, but the deaths of so many others in police custody. The Floyd protests did not originate from action in New York City – but here is where the response was likely because the NYPD acts with near impunity. The report only mentions the word “brutality” twice and only through quotations of others who did not write Johnsons’ story. I suppose that Counsel’s Report mined the phrase “police brutality” from a search engine, and the best two from civil libertarians of stature made the cut. The Corporation Counsel cannot use the phrase “police brutality.” He is counsel to the NYPD, whether he would dispute that characterization or not.

The recommendations provide a most bureaucratic roadmap for what the police are to do in similar situations as we advance. The experts with whom the report’s authors consulted – including a think tank devoted to social justice issues – made a good impression. But in the end, the recommendations sound in bureaucracy-speak. They say what New Yorkers have heard so many times before. The tone is not apologetic because the report’s premise is that there is nothing to apologize for in a pandemic. Instead, the message is dressed in a smattering of social-science discussion. Some of it is stimulating, but to what effect? There are recommendations in the end, but they are abstruse and multi-layered. The proposals require unrealistic, complicated pre-planning for actions that one cannot predict. A convoluted proposal is no proposal at all. And, of course, the report does not fault the NYPD, nor the Mayor.

The Corporation Counsel’s report does not recognize a history of over-policing nor police brutality. To live in City where some live in a Police State: That reduces the quality of life for many, if not most, New Yorkers. Not just those who live in “high crime” neighborhoods, who bear the most significant burdens of over-policing, but privileged white people who wonder if New York is worth the pain. I don’t want to live in a city that ignores civil rights any more than I wanted to live another four years with Donald Trump as President. The report shows that my quality of life, at least as it applies to my attention to civil rights, will remain for at least another year. I’m naturally optimistic, and I hope I’m wrong. I blame de Blasio for abandoning what he said were his principles. But perhaps this is the lesson. Maybe no Mayor can control the NYPD or its unions. I shudder to think that this might be true.

The New York City Department of Investigation report is available here: https://www1.nyc.gov/assets/doi/reports/pdf/2020/DOIRpt.NYPD%20Reponse.%20GeorgeFloyd%20Protests.12.18.2020.pdf

The Commissioner’s Press Conference is available here: https://www.youtube.com/watch?v=dvpM4YpGDO4&ab_channel=NewYorkCityDepartmentofInvestigation

The Mayor’s YouTube response to the DOI report, a sad and false mea culpa, is here: https://www.youtube.com/watch?v=SUB0Qtxwjak&ab_channel=NYCMayor%27sOffice

Brian Lehrer’s interview with Mayor de Blasio about the Report is available here. (I recommend his radio show in general, and he very nicely cross-examines the City’s failed Mayor in this episode.) The particular podcast episode of which I speak is available here: https://podcasts.apple.com/us/podcast/the-brian-lehrer-show/id73331636?i=1000502841762

The Corporation Counsel’s Report is available here: https://www1.nyc.gov/assets/law/downloads/pdf/ProtestReport-np.pdf

My article in Salon, warts and all, describes the horrors of police abuse I’ve witnessed since 1988. It is available here: https://www.salon.com/2020/06/03/bad-apples-are-not-the-problem-americas-police-have-a-long-legacy-of-brutal-misconduct/

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