How NYPD Commissioner Caban Buries Officers’ Disciplinary Cases — ProPublica

Brianna Villafane was in Lower Manhattan protesting police violence in the summer of 2020, when officers charged into the crowd. One of them gripped her hair and yanked her to the ground.

“I felt someone on top of me and it was hard to breathe,” she said. “I felt like I was being crushed.”

The New York City civilian oversight agency that examines allegations of police abuse investigated and concluded that the officer had engaged in such serious misconduct that it could constitute a crime.

Villafane received a letter from the agency about its conclusions. “I was happy and I was relieved,” she recalled. The next step would be a disciplinary trial overseen by the New York Police Department, during which prosecutors from the oversight agency would present evidence and question the officer in a public forum.

Then last fall, the police commissioner intervened.

Exercising a little-known authority called “retention,” the commissioner, Edward Caban, ensured the case would never go to trial.

Instead, Caban reached his own conclusion in private.

He decided that it “would be detrimental to the Police Department’s disciplinary process” to pursue administrative charges against the officer, Gerard Dowling, according to a letter the department sent to the oversight agency. The force that the officer used against Villafane was “reasonable and necessary.” The commissioner ordered no discipline.

Today, Dowling is a deputy chief of the unit that handles protests throughout the city.

His case is one of dozens in which Caban has used the powers of his office to intervene in disciplinary cases against officers who were found by the oversight agency to have committed misconduct.

Since becoming commissioner last July, he has short-circuited cases involving officers accused of wantonly using chokeholds, deploying Tasers and beating protesters with batons. A number of episodes were so serious that the police oversight agency, known as the Civilian Complaint Review Board, concluded the officers likely committed crimes.

As is typical across the United States, New York’s police commissioner has the final say over officer discipline. Commissioners can and often do overrule civilian oversight boards. But Caban’s actions stand out for ending cases before the public disciplinary process plays out.

“What the Police Department is doing here is shutting down cases under the cloak of darkness,” said Florence L. Finkle, a former head of the CCRB and current vice president of the National Association for Civilian Oversight of Law Enforcement. Avoiding disciplinary trials “means there’s no opportunity for transparency, no opportunity for the public to weigh in, because nobody knows what’s happening.”

Indeed, the department does not publish the commissioner’s decisions to retain cases, and the civilian oversight agency makes those details public only months after the fact. Civilians are not told that the Police Department ended their cases.

To piece together Caban’s actions, ProPublica obtained internal records of some cases and learned details of others using public records, lawsuits, social media accounts and other sources.

Retention has been the commissioner’s chief method of intervention. He has prevented the cases of 54 officers from going to trial in his roughly one year in office — far more than any other commissioner, according to an analysis of CCRB data. His predecessor, Keechant Sewell, did it eight times in her first year, even as she faced more disciplinary cases.

In addition, under Caban, the Police Department has failed to notify officers that the oversight agency has filed charges against them — a seemingly minor administrative matter that can actually hold up the disciplinary process. The rules say that without this formal step, a departmental trial cannot begin. Seven cases have been sitting with the department since last summer because it has never formally notified the officers involved, according to the CCRB.

These cases are particularly opaque, as there is no publicly available list of them.

In one episode, the CCRB found that an officer had shocked an unarmed man with a Taser four times while he was trying to back away.

“He Tased me for no reason,” recalled William Harvin Sr. “He was coming to me, Tasing my legs, my back.”

The review board found that the officer, Raul Torres, should face trial. But the Police Department has yet to move the case forward, a fact Harvin learned from a reporter. “They take care of their own,” he said, shaking his head. (Torres, who has since been promoted to detective, declined to comment and his lawyer said the officer had “no choice” but to use force.)

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. Sewell set aside four plea deals during her first year as commissioner.

For one officer, Caban rejected two plea deals: In the first case, the officer pleaded guilty to wrongly pepper-spraying protesters and agreed to losing 40 vacation days as punishment. Caban overturned the deal and reduced the penalty to 10 days. In the second, the officer pleaded guilty to using a baton against Black Lives Matter protesters “without police necessity.” Caban threw out the agreement, which called for 15 vacation days to be forfeited. His office wrote that it wasn’t clear that the officer had actually hit the protesters, contrary to what the officer himself already admitted to in the plea. The commissioner ordered no discipline.

The under-the-radar moves run counter to Mayor Eric Adams’ pledge during his candidacy to improve policing by “building trust through transparency.” This year, in his State of the City address, Adams also promised that cases of alleged misconduct would “not languish for months.”

In a statement to ProPublica, a spokesperson for the mayor’s office defended the Police Department and Caban’s record: “Mayor Adams has full confidence in Caban’s leadership and ability to thoroughly review all allegations of police misconduct, and adjudicate accordingly.”

A Police Department spokesperson declined to answer detailed questions, responding instead with a one-sentence statement: “The NYPD continues to work closely with the Civilian Complaint Review Board in accordance with the terms of the memorandum of understanding.”

That memorandum stemmed from a political compromise reached about a decade ago. Concerned that the department’s policing tactics were too aggressive, members of the City Council pushed for the CCRB to be able to prosecute cases rather than simply make recommendations to the police commissioner.

The final memorandum, produced after protracted negotiations with the Police Department, included the mechanism that has since allowed Caban to intervene in disciplinary cases. The agreement states that the commissioner may take cases away from CCRB prosecutors if the commissioner determines that allowing the agency to move ahead will be “detrimental to the Police Department’s disciplinary process” or if the “interests of justice would not be served.”

Chris Dunn, the legal director of the New York Civil Liberties Union, objected at the time to that veto power. Shown the number of cases that Caban has retained, he told ProPublica, “This is exactly why we were so concerned about this authority.”

The agreement stipulated that retentions can be used only on officers with “no disciplinary history,” a limitation that Caban and other commissioners have not always followed. Caban has on three occasions retained cases of officers who the CCRB had previously found engaged in misconduct.

While commissioners can still choose to impose significant punishment after retaining a case, they often don’t. In 40% of the cases that Caban has retained, he has ordered no discipline. In the cases in which he has ordered discipline, it has mostly been light, such as the loss of a few vacation days. The most severe punishment, ProPublica found, was docking an officer 10 vacation days for knocking a cellphone out of the hand of someone who was recording him.

A Retreat Under Adams

Disciplinary trials can produce significant consequences for officers — if they’re allowed to proceed.

In 2018, CCRB prosecutors brought charges against the officer who killed Eric Garner, the Staten Island man whose cries of “I can’t breathe” helped ignite the Black Lives Matter movement. It would be a last chance to hold the officer, Daniel Pantaleo, accountable after a grand jury had declined to indict him. The commissioner at the time, James O’Neill, moved to handle the case internally, according to multiple current and former review board officials. (O’Neill did not respond to a request for comment.)

The CCRB, however, pushed back. “I went to war,” recalled Maya Wiley, the chair of the board at the time, who went to City Hall to argue against the Police Department’s plans. Officials in Mayor Bill de Blasio’s administration overruled the commissioner and let the trial move ahead. Pantaleo was found guilty of using a banned chokehold. Amid huge public interest and scrutiny, the police commissioner then fired him.

The current approach to police discipline under Caban is something civil rights advocates attribute to his boss, Adams, a former police captain who has struck a tough-on-crime image and opposed policing reforms since taking office two years ago. “We cannot handcuff the police,” Adams told reporters when vetoing two criminal justice reform bills in January.

Last year, the mayor reportedly urged Sewell to reject recommended disciplinary action against a top uniformed officer, who was also an Adams ally. She declined and pushed to discipline the officer, resigning shortly afterward. Mr. Adams then appointed another close ally to the position: Caban.

Caban has his own history with the disciplinary process. Over his 30 years on the force, he has twice been found by the CCRB to have engaged in misconduct, making him an outlier in the department. The vast majority of officers have never been found by the oversight agency to have committed any misconduct.

In one case, he was ordered to complete more training after he arrested a civilian for not providing ID. In the other, related to refusing to provide the names of officers to a civilian who said they had mistreated her, there is no record of discipline.

The Police Department did not comment on Caban’s record, but it previously said, “Caban’s awareness of that process will only help him bring a fair and informed point of view to those important decisions.”

Caban recently rejected discipline in a case in which two officers had killed a man in his own apartment during a mental health crisis. The chair of the review board criticized the decision, a move that earned Adams’s ire. She also requested more resources to investigate complaints, which rose 50% last year. Instead, the Adams administration imposed cuts, forcing the board to stop investigating various kinds of misconduct, including officers who lie on the job.

“In this administration we have a mayor who runs the Police Department,” said Dunn, of the New York Civil Liberties Union. “He sets the tone, and the tone is ‘we’re cutting police accountability and discipline.’”

The police union, the Police Benevolent Association, disagrees, saying Caban’s actions are a critical counter to what it sees as frequent overreach by the civilian oversight board. “The police commissioner has a responsibility to keep the city safe,” the union’s president, Patrick Hendry, said in a statement. “CCRB’s only goal is to boost their statistics and advance their anti-police narrative by punishing as many cops as possible.”

Last fall, Caban sent his own signal. He gave one of the department’s top positions to an officer who tackled and shocked a Black Lives Matter protester with a Taser in the summer of 2020. Tarik Sheppard, a captain at the time, was heading to a disciplinary trial when his case was retained a year later, with no discipline given. Sheppard is now deputy commissioner for public information. He regularly appeared on television this spring to talk about the Police Department’s response to campus protests over the Israel-Hamas war.

The outcomes have been different for the victims. Destiny Strudwick, the protester who was tackled and shocked with a Taser, has struggled since the encounter nearly four years ago. “Sometimes I feel like the human psyche is only made to handle so much,” she said. “And what happened to me, it just was too much.”

Sheppard did not respond to requests for comment.

The Police Department never informed Strudwick or Villafane that the cases against the officers who hurt them had been upended. After learning what had happened, both felt that the department had denied them justice.

“That makes my heart sink,” said Strudwick, after ProPublica told her of Sheppard’s retention.

As for Villafane, she gasped when she was shown the Police Department letter wiping away the case against Dowling, who did not respond to requests for comment. She slowly read a line out loud, “His actions therefore do not warrant a disciplinary action.”

She shook her head. “He’s supposed to be protecting us and he’s hurting us,” Villafane said. “Who am I supposed to call to feel safe now? Not him.”