Families of those killed by police can request an independent investigation. In Brooklyn, most have not.

Strict rules surround the investigation of police killings — and those rules may be getting stricter.

October 7, 2019 Noah Goldberg

Victoria Davis' brother, Delrawn Small, was shot and killed by an off-duty police officer on July 4, 2016. Eagle photo by Paul Frangipane

The roadblocks to independent investigation

A few months after the acquittal of Officer Isaacs, Davis was encouraged by others who had lost family members in police killings to file a complaint with the CCRB that would trigger an investigation into the encounter.

“I didn’t know about any of these processes until after the trial really — and I just truly believed Isaacs was going to be found guilty,” Davis told the Eagle.

With no complaint lodged in cases like these, no investigation is ever initiated. The board cannot automatically investigate NYPD shootings or instances in which officers kill civilians — a restriction codified in the City Charter.

Delrawn Small. Image courtesy of Victoria Davis

In Brooklyn, more than half the deaths of civilians at the hands of police since the death of Eric Garner have not been investigated by the CCRB, the Eagle has learned. Of the last 19 cases in Brooklyn in which people were killed by police, just four resulted in a complaint filed with the CCRB, according to the agency.

“It’s an awful number,” said Brett Stoudt, an associate professor at the Graduate Center of CUNY who studies the NYPD and policing. One of the main obstacles to filing a complaint is simple, Stoudt said: many people just don’t know about the CCRB.

Among the cases the board is not investigating are high-profile incidents like the deaths of Saheed Vassell and Dwayne Jeune. Attorney General Letitia James investigated the Vassell killing and decided not to bring charges against the officers involved, though Vassell’s family continues to call for their termination from the NYPD.

As a matter of policy, the agency does not reach out to family members or victims of police misconduct to ask them to file a complaint — but whether or not the agency could do so legally is unclear.

A proposal to change existing policy

Former CCRB director Mina Malik believes that the board should be able to initiate investigations on its own.

“Like other jurisdictions, the CCRB should have the ability to investigate police-involved shootings automatically, regardless of whether a formal complaint is filed and particularly where a civilian death is the result,” Malik told the Eagle.

Some academics and prosecutors agree with her.

“From my perspective, there’s not even a question. It’s an excellent idea,” said Stoudt. “If it’s come to a point where a representative of the state has to pull out a gun, then for whatever reason, there should be oversight of it. Maybe there was a self-defense reason, often there isn’t or it’s complicated.”

The intersection in Cypress Hills where Wayne Isaacs shot and killed Delrawn Small. Eagle photo by Paul Frangipane

Jose Nieves, the prosecutor who handled the Isaacs case for the Attorney General’s Office, believes the CCRB should be able to begin its own investigation after the criminal case is over. Automatic investigation, he said, would help victims’ families achieve some sort of justice.

“Right now, it’s a Catch-22. The people who have the authority to make a complaint don’t know they can do so, and the agency willing to go forward with the investigation can’t until there is a complaint,” Nieves told the Eagle.

Bringing about this kind of change, however, would require a change to the City Charter.

The charter is the city’s own constitution, which sets the laws and the scope for city departments and agencies.

In its current state, the charter invests the CCRB with power to “receive, investigate, hear, make findings and recommend action upon complaints by members of the public.”

Good government group Citizens Union recommended five changes to the CCRB through the 2019 Charter Revision Commission — a body tasked with offering changes to the otherwise static document. After the commission makes its suggestions, the proposed changes appear on the ballot when city residents go to the polls.

One of Citizens Union’s recommendations to the commission was to permit the CCRB to “initiate an investigation into reported or known incidents of police misconduct within its jurisdiction in the absence of a complaint.”

The recommendation was not included in the Charter Revision Commission’s final ballot questions, meaning New Yorkers will not vote on it come November.

“Within the commission that never came up as an issue to be considered for a charter change,” said former Brooklyn Councilmember Sal Albanese, who sat on the 2019 Charter Revision Commission. “There was no support for it. There was never a compelling case for us to consider that. There were 15 commissioners, and no one made the argument that CCRB should auto-investigate police shootings.”

Albanese himself is against the idea. “I don’t think CCRB should delve into an area where there’s a clear cut rationale for police using deadly force,” he said.

Legal challenges present potential for tighter restrictions

On top of the fact that the CCRB can only investigate complaints from civilians, the union that represents police officers challenged the agency in court over who can file complaints to begin with.

The Police Benevolent Association, through its lawsuit, is aiming to further restrict the types of cases the CCRB investigates, as complaints filed with the agency against the NYPD spike. The challenge, if successful, could directly affect the ability of people like Davis to register complaints on the behalf of relatives.

In 2016, the CCRB adopted a slate new rules, some of which codified already practiced agency norms — such as the ability of the agency to receive complaints from “non-witnesses with personal knowledge of police misconduct,” a category which broadly includes family members of those alleging misconduct, and would also include relatives of those killed by police officers.

Five of these adopted rules were struck down in February 2019 by a Manhattan Supreme Court judge, including the one that allowed for complaints to be filed by both non-victims with personal knowledge of police misconduct and another that allowed for non-victims without personal knowledge to file complaints — such as people who saw an incident of alleged misconduct on social media and forwarded it to the CCRB.

Manhattan Supreme Court Judge Melissa Crane found the rules “arbitrary and capricious and likely to cause more harm than good.”

The CCRB argued that allowing non-victims to file complaints is both important and common practice.

“Not every victim of police misconduct may be aware that CCRB exists,” lawyers for the CCRB argued in a Sept. 19 appeal of the decision. “Others may know about the CCRB, but fail to understand its independence from the NYPD. Still others may fear retaliation, complication of a misconduct victim’s ongoing criminal case, public embarrassment or other negative ramifications from reporting police officer misconduct.”

As the CCRB proceeds with its challenge to the ruling, they continue to accept complaints filed by family members, a spokesperson confirmed to the Eagle.

Another rule struck down by the Manhattan judge was one that the PBA argued allowed the CCRB to begin investigations without a complaint — though the CCRB denies that it does so.

“The Board has the power to review incidents involving members of the New York City Police Department and investigate Cases arising therefrom within the Board’s jurisdiction under the New York City Charter,” the adopted 2016 rule reads.

The judge agreed with the PBA’s position that the rule is too broad and could allow the CCRB the ability to investigate alleged police misconduct without first receiving a complaint.

“The rule would allow respondents to expand its charter to solicit complaints actively, rather than ‘investigating upon complaint.’ The revised rule therefore goes beyond CCRB’s jurisdiction,” the judge wrote.

The CCRB, in its September appeal, is not challenging the judge’s stance on that particular rule. Their case for the others will not be heard until next year, a spokesperson for the CCRB said.

The PBA did not respond to multiple requests for comment on automatic investigations by CCRB into use of force or shootings by police that result in death.

In Small’s case, the CCRB did not receive a complaint in the case until after Officer Isaacs was acquitted, according to a spokesperson for the board.

Victoria Davis’ search for justice may have been delayed — but it’s back on track. She filed a complaint with the CCRB after Officer Isaacs was found not guilty of murder, and now she waits as the board to finishes its investigation.

She named her son, now 1 year old, Justice — and says she’ll continue to agitate for police reform.

“It’s all about not having officers who are able to just kill with no problem, no second thought,” she said.

Additional reporting by David Brand.

Update (2:45 p.m.): This story has been updated with further clarification about the role of the CCRB’s Community Outreach Unit.