Inspector General for NYPD, New York Law Journal
By Eric Lane, interim dean and professor of public law and public service at the Maurice A. Deane School of Law at Hofstra University.
Throughout American history, public stress over security has resulted in aggressive law enforcement practices, often to the detriment of the constitutional rights of Americans. I met this dynamic head-on in the mid-1970s when I was counsel to the New York Assembly's task force investigating the state police's collection of dossiers on 500,000 New Yorkers who were not suspected of any criminal acts. This should have come as no surprise: during this same period, the Senate Church Committee's hearings revealed the FBI had kept files on a million innocent Americans and tried to disrupt the civil rights movement.
Fears of communism during the Cold War pushed law enforcement agencies, including the FBI and state and local police, to indiscriminately and often illegally collect information on law-abiding Americans. Fear generated by the bombing of Pearl Harbor led our government to imprison thousands of Japanese-Americans and was validated by the U.S. Supreme Court in Korematsu v. United States. It took more than 40 years for us to recognize the invidiousness of the internment and apologize for our actions. Today, Korematsu is one of the most reviled decisions in our law.
Now, fears of another terrorist attack have driven the New York Police Department to drastically expand its intelligence operations; it is now more like the FBI than the police department of a major American city. Its counterterrorism and intelligence departments have 1,000 officers conducting activities in 12 different countries with a budget over $100 million. Of course it is critical that the NYPD protect New Yorkers from terrorism. But how they do so makes a big difference in the framework of our constitutional democracy.
In 2011, the Associated Press published a Pulitzer Prize-winning series of articles showing how the NYPD spied on American Muslim communities. Documents show that the police's Demographics Unit monitored this population and built databases filled with innocuous details of their daily lives. With no apparent suspicion of criminal or terrorist activity, they followed people to the mosques where they worshipped, the restaurants where they ate and the offices where they worked. Agents infiltrated Muslim student groups at local colleges and universities and watched the websites of several others, including Yale, Columbia, and Rutgers University.
Such police activity crosses the constitutional line. It is, in effect, religious profiling. The basis for police actions are laid bare in its much-criticized report on "Radicalization in the West," which tells us that police are concerned with "unremarkable local [Muslim] residents" who might someday become terrorists. This position justifies the surveillance of every Muslim in New York City. Imagine if the police declared that they would spy on every Italian American in the city because they might one day join the mob. We would not stand for that.
The culprits in this narrative are not the police alone. Fault finally rests at the feet of our political leaders, who are too scared to put limits on the police department they are responsible for overseeing. Mayor Michael Bloomberg's stance is that what the NYPD has done was both "legal" and "appropriate," and City Council Speaker Christine Quinn has pretty much echoed the same view. Public sentiment has fed their reluctance—many in New York support such monitoring. As James Madison warned, a danger in a democracy is the willingness of its elected officials to be "the mere instrumentality of a major number of its constituents."
But public and political validation should not determine how government officials respond to potential violations of fundamental rights. Our public officials are sworn to uphold the Constitution, not disregard it when it is politically difficult.
While the NYPD's current counterterrorism tactics invite equal protection litigation under both the federal and state Constitutions, city leaders can take a smarter, proactive, and cost-efficient, approach. A bipartisan majority of the City Council supports legislation that would create an inspector general to oversee the police.
As a recent report by the Brennan Center for Justice demonstrates, the federal government has dealt with the risk of abuse by intelligence agencies by imposing on them a system of oversight that relies on an inspector general. The FBI and the CIA have worked with this system for decades. The Los Angeles Police Department has an independent police board and inspector general, and has seen crime drop to boot. The NYPD does not have comparable oversight. We need to fix this.
History has taught us that we cannot give free reign to the police and intelligence agencies and expect that they will always abide by our Constitution. The pressures on them to prevent crime and terrorism will always incentivize police towards pushing the envelope of their authority. An inspector general would counterbalance these pressures. It's time the NYPD had one.