2024 Law Enforcement Misconduct Investigative Office Annual Report

Law enforcement officers are empowered with broad authority to stop people, conduct searches, make arrests, and use force to do so. Yet despite these sensitive and sometimes dangerous activities, community members have limited access to data concerning interactions between law enforcement and the public. 

While New York has taken initial steps to improve law enforcement transparency, our laws do not cover many important indicators. With hundreds of law enforcement agencies in New York, to the extent that some individual agencies separately collect and track data, the data is often inconsistent and hard to access.[15] As a result, community members and the state and local governments that represent them may be left in the dark when it comes to key information about policing and its impact.[16] 

The data that is available, both in New York state and across the country, suggests that enforcement often disproportionately falls on people of color.[17]

There is a growing movement towards transparency, with nearly half of U.S. states now requiring data collection when an individual is stopped by law enforcement and most states prohibiting bias-based profiling.[18] New York should join these states by mandating uniform statewide data collection and by banning bias-based profiling by law enforcement.

One important component of such legislation would be to prohibit agencies from relying on race and other protected characteristics in initiating or determining the scope of law enforcement action, including pedestrian and traffic stops, searches, and arrests. This prohibition not only would bring New York in line with most other states, but also would permit New York to access a federal funding program to help support the collection and analysis of police traffic stop data as a means of reducing profiling.[19] To provide just a few examples, states like California,[20] Connecticut,[21] and Kansas[22] have all banned bias-based profiling in this manner.[23]

In addition, law enforcement agencies should track and report a standardized set of data on traffic and pedestrian stops including the duration and location of each encounter, the reason the encounter was initiated and its result, the perceived race, gender, and age of the person stopped, and actions taken by the officer during the encounter such as ordering a person out of a vehicle, handcuffing, searching people and vehicles, seizing property, making arrests, and using force.[24]

Law enforcement agencies should also make their policies publicly available online, except for policies that, if disclosed, would substantially undermine ongoing investigations or endanger officers or members of the public. They also should be required to publish collective bargaining agreements and disclose the amount they spend on settlements relating to alleged misconduct. 

Given the logistical challenges involved, data collection should be facilitated by a centralized state agency such as DCJS. DCJS would also periodically collect and publish key data reported by law enforcement agencies. These efforts could be supported by the federal funding that would be made available by the anti-profiling provision of the legislation. 

Data collection and reporting systems have been implemented in states such as New Jersey[25] and California[26] and were recommended for police departments in the 2015 Final Report of the President’s Task Force on 21st Century Policing.[27] 

In sum, legislation that bans profiling and requires agencies to track and publicize important data and policies would advance public accountability, help agencies manage and evaluate their own performance, and further LEMIO’s statutory mission to enhance the effectiveness of law enforcement and protect civil liberties and civil rights.[28]

Legislation to remove obstacles to strong independent civilian oversight could improve accountability and help prevent misconduct, particularly in the wake of the Court of Appeals’ recent ruling in Rochester Police Locust Club, Inc. v. City of Rochester. 

In 2020, Rochester residents voted to create a civilian Police Accountability Board (PAB) authorized, among other things, to discipline Rochester police officers for misconduct. In the Rochester Police Locust Club ruling, the Court of Appeals stripped the PAB of its disciplinary authority, holding that a 1985 change to municipal law in Rochester meant that, from that point forward, the discipline for Rochester police would be subject to collective bargaining with the local police union, regardless of any future municipal law-making or referenda. This ruling followed other Court of Appeals decisions in which the Court had concluded that the specific local legislative history of other municipalities (in particular, New York City, Schenectady, and Walkill) meant that those other municipalities, unlike Rochester, retain control over discipline without union approval. Both the majority and dissent noted that the ultimate resolution of these complex issues rests with the state legislature.[29]

Over the past several decades, many jurisdictions have established external civilian-led entities designed to provide independent oversight of law enforcement agencies.[30] The development of these civilian oversight entities generally has resulted from concerns over inadequate internal accountability processes and resulting breaches of public trust. Recently, prompted by increased scrutiny in the wake of high-profile incidents of police misconduct, civilian oversight entities have expanded—both in number and in the extent of their authority—in New York and across the country.[31]

As the ruling in Rochester Police Locust Club makes clear, despite the trend towards local civilian oversight, certain state laws have had the unintended consequence of restricting the development of civilian oversight entities. The civil service laws at issue in Rochester Police Locust Club are one example. As another example, Unconsolidated Law § 891 has been interpreted to prevent non-police personnel from presiding over police disciplinary hearings, unlike disciplinary hearings for other municipal employees.[32]

In the coming session, the legislature should address these issues and, more generally, facilitate civilian oversight by removing restrictions that prevent localities from determining the best way to establish police oversight and accountability mechanisms that serve the needs of their communities.[33]

Another way to remove obstacles to strong independent civilian oversight is to improve civilian oversight agencies’ access to sealed records. New Yorkers are protected by laws that restrict access to—or “seal”—certain criminal justice records maintained by law enforcement agencies and the courts. These sealing laws serve important functions, but they can unintentionally hinder investigations of police misconduct. LEMIO and oversight entities such as civilian review boards often require access to sealed criminal justice records to fully investigate allegations of misconduct. For example, investigators may need to review body-worn camera footage, arrest records, and other documents related to incidents involving police interaction with young people or cases in which charges were dismissed—yet access to these records by OAG and other oversight entities may be blocked by sealing laws (although Executive Law Section 75 permits OAG to access sealed records maintained by covered agencies). 

Legislation to address this problem should amend various provisions of the Criminal Procedure Law, Civil Rights Law, and Family Court Act to make clear that OAG, as well as other agencies investigating misconduct, can access sealed records as needed.

Law enforcement officers make more than a million traffic stops each year in New York.[34] These stops may involve speeding and safety-related issues, but many stops are based on Vehicle and Traffic Law (VTL) violations that are less critical to safety, such as an expired registration or equipment violations like a broken taillight or tinted windows. 

Under current law, these traffic stops can be “pretextual” in nature. In other words, the primary reason for the stop may not be the potential VTL violation, but rather the officer’s hunch—which on its own would not meet the constitutional standard—that stopping the car might lead to evidence of another offense.[35] Given the wide range of potential VTL violations, it is not hard to find a reason to stop a car and hold its owner on the side of the road.

Traffic stops may seem commonplace, but they can have serious consequences that range from the financial burdens of tickets to lengthy roadside detentions and searches. The racial disparities are significant. Black drivers are far more likely to be pulled over than white drivers.[36] While most New York agencies do not track searches and their outcomes, analyses from other states that do track data show that while drivers of color are more likely to be searched, the likelihood of officers finding contraband from those searches is much lower than for white drivers who are searched.[37] And, tragically, some of the high-profile deaths of individuals at the hands of police over the past decade originated with simple traffic stops that escalated into violence or high-speed pursuits.[38]

Some states and localities have attempted to mitigate the disparities and harmful outcomes from traffic stops by limiting stops for low-level equipment violations, repealing excess fees and implementing voucher programs to help fix equipment issues, and restricting high-speed pursuits to stops involving specific serious offenses. New York should consider legislation that adopts these reforms across the state.

Jurisdictions across the country have banned police stops for low-level equipment violations, including states such as Virginia and Oregon, localities such as Philadelphia, Pittsburgh, and Memphis, and various local police departments across the country.[39] These jurisdictions have met with successes: in Philadelphia, Pennsylvania, evidence suggests that, because police officers spend considerable time and resources enforcing low-level violations that fail to make roadways safer, officers were able to redirect those resources to deal with serious issues more effectively and were able to get more guns off the street.[40] Similarly, in Fayetteville, North Carolina, after police stopped conducting stops for certain low-level equipment violations, car accidents decreased and crime was unaffected, while racial disparities in traffic stops were reduced.[41] Components of such legislation include prohibiting police officers from initiating traffic stops for specified low-level equipment and traffic violations, rendering inadmissible in criminal actions any evidence derived from a traffic stop initiated on prohibited grounds, and requiring robust data collection on traffic stop encounters. 

Jurisdictions across New York and country have also begun to address the financial burdens of fines and fees associated with traffic stops.[42] As a report by the Vera Institute found, even low-level violations come with high financial costs: a single window tint violation can cost $340 in fines, fees, and surcharges in New York.[43] The cost of multiple traffic tickets can range in the thousands, a cost that many households cannot afford.[44] Some localities in New York, such as Buffalo, have repealed local fees associated with traffic infractions in light of the financial hardship they impose on residents.[45] Several localities across the state have also implemented voucher programs, where community groups, government agencies, or police officers issue vouchers that cover the costs of fixing equipment violations such as broken headlights and taillights, or have implemented programs waiving fines if the driver can show the equipment is fixed.[46] New York should consider legislation that eliminates the use of fees and surcharges imposed on those convicted of offenses under the penal and vehicle and traffic laws,[47] and should consider implementing the issuance of vouchers by community groups and government agencies for low-level equipment violations statewide. 

Finally, a growing number of municipalities and law enforcement agencies across the state and country have begun to address the dangers of high-speed vehicle pursuits. A recent national study found that police pursuits resulted in the death of more than 3,000 people from 2017 to 2022, more than 500 of whom were bystanders, and that the vast majority of police vehicle pursuits were to stop drivers suspected of committing minor vehicle and traffic violations or lower-level crimes.[48] In Buffalo, pursuits are banned where the reason for the attempted stop is a Vehicle and Traffic Law violation, a misdemeanor, or a non-violent felony.[49] In Albany, officers are required to consider several factors before starting a chase, such as the seriousness of the offense for which the person is pursued, the present danger the fleeing person poses to the public, and the possibility of apprehending the person at a later time.[50] Statewide legislation should restrict high-speed pursuits to a limited set of circumstances, such as where officers have cause to believe a serious or violent offense has been or will be committed, or where a driver’s conduct threatens immediate harm to themselves, bystanders, or officers.

Our previous annual reports have called for legislation to help localities establish specialized mental health units as alternatives to police response to situations involving mental health emergencies. Troubling statistics confirm the disparate harm associated with the status quo. Studies indicate that people with mental illness generate one in ten calls for police service, and account for at least one in four fatal police encounters.[51] People with serious mental illness are more than 11 times as likely to experience police use of force, more than ten times as likely to be injured, and 16 times more likely to be killed by law enforcement as those without serious mental illness.[52] Recent federal civil rights litigation has highlighted how failure to provide alternative, non-police responses to mental health emergencies could constitute a violation of anti-discrimination law.[53]

Recognizing the problems resulting from relying on police as the default first responders to mental health crises, many local governments are turning to co-responder models (in which civilian specialists pair with police responders) or alternative first responder models (in which armed police are not involved in the response).[54] Researchers at the Community Safety Workgroup have documented over 100 alternative crisis response units operating in the United States, as of May 2024.[55]  

Cities developing new alternative crisis response models have achieved early successes. Eugene, Oregon, a pioneer of non-police response to mental health emergencies, adopted Crisis Assistance Helping Out on the Streets (CAHOOTS) in 1989, which led to responders requiring police backup in only 1% of mental health calls.[56] The city dispatches two-person teams of crisis workers and medics from Eugene’s White Bird Clinic to respond to 911 calls involving an individual in behavior health crisis.[57] As of 2019, the CAHOOTS team answered approximately 17% of the city’s police department calls and was estimated to save the city approximately $8.5 million in public safety spending annually.[58]  In Durham, North Carolina, following the implementation of the Holistic Empathetic Assistance Response Team (HEART), a 2022 study documented a 34% drop in low-level crime in neighborhoods where the mental health responders operated in Denver, compared to neighborhoods that did not yet have responders.[59] 

New York has also seen the development of mental health programs, such as New York City’s Behavioral Health Emergency Assistance Response Division (B-HEARD), a co-response program piloted in 2021.[60] Albany launched the Albany County Crisis Officials Responding and Diverting (ACCORD) Program in 2021 as a pilot in Hilltowns, with plans to expand to Albany by 2025.[61] The City of Rochester has also experimented with a Person in Crisis team, but received early criticism for its inconsistent early implementation.[62] Because few New York state alternative response programs have surpassed preliminary implementation, where they have been piloted at all, state legislators have an important role to play in incentivizing the development of new and more sophisticated models via funding and technical assistance in establishing these programs. 

Accordingly, we strongly recommend legislation to help localities establish specialized mental health units that are specifically trained and equipped to provide assistance to those in mental health crisis, including by providing funding and technical support. Such legislation could also require training for emergency dispatchers and potentially create regional mental health councils to provide structure and oversight to local responses. Building up non-law enforcement responses to people struggling with mental illness has the potential to better allocate resources towards helping people in need of mental health assistance and decrease the risk of harm from police encounters.

Video footage of interactions between law enforcement and the public can promote accountability for misconduct that might otherwise go undetected and protect officers who are wrongly accused. As recommended in the October 1, 2024 annual report of OAG’s Office of Special Investigation, the legislature should require by statute that all police and sheriff’s departments deploy and use body-worn cameras and dashboard cameras in all encounters with members of the public. The statute should provide smaller departments with funding from the state as needed for such deployment and training by DCJS as needed for such use. The statute should permit departments to create exceptions to such deployment or use, but exceptions must be limited to specific and clearly articulated and justified law enforcement need.[63]