NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2963
SPONSOR: Wright TITLE OF BILL: An act to amend the civil service law, in relation to
improper employer practices regarding conduct of police officers
PURPOSE OR GENERAL IDEA OF BILL:
This bill would end a misinterpretation of the 48 hour rule for New York
city police officers which gives them extraordinary rights over average
citizens.
SUMMARY OF SPECIFIC PROVISIONS:
This bill will amend section 209 of the civil service law by adding a
new section 209-b.
JUSTIFICATION:
The Rule - The "48-hour rule" provides that officers under investigation
as suspects (not witnesses) for an incident are not required to speak to
ranking members of the department about the case for two business days
(48 hours) following the time they become a suspect. Officers who are
serving merely as witnesses in a case cannot be questioned regarding the
incident for four hours after they have been identified as a witness.
If, at any time during the investigation of the offense for which the
officer is acting as a witness, the officer becomes a suspect or is in
danger of becoming a suspect, the 48-hour rule goes into effect.
Reasons for Abolition of Rule - One interesting argument is that the
48-hour rule has been implemented incorrectly. Patrol Guide 118-9 states
"notify member concerned two (2) business days prior to date of hearing
to permit member to obtain and confer with counsel" (emphasis added).
The operative word is "hearing" not "questioning" or "interrogation" and
"investigation." The word "hearing" constitutes a completely different
situation than merely wanting to ask the officer some initial questions.
Consequently, one could argue that under the existing collective
bargaining agreement the 48-hour rule only applies to a formal hearing
and that the current use of the 48-hour rule has been erroneous.
The "48-hour rule" is not necessary and provides a perceived advantage
to police officers in investigations which makes it appear that they are
receiving favored treatment. Police officers - - like all citizens,
including government employees - - are protected by the Fifth Amendment
right against self-incrimination and, consequently, do not need a
"48-hour rule" to protect them against self-incrimination in criminal
cases. Moreover, even in an internal NYPD investigation any incriminat-
ing statement made by an NYPD employee would be barred from being used
in any subsequent criminal proceeding against the employee.
It is true that a NYPD employee, like any other government employee, can
be punished, even terminated, for not answering questions or falsely
answering questions in a civil (non-criminal) internal NYPD investi-
gation. This is how it is. This is how it should be. A governmental
employee does not have a right against self-incrimination in a civil
(non-criminal) matter. A governmental employee also does not have a
right not to respond to questions concerning his/her job performance.
Government officials - - including NYPD personnel - - can surely be
examined and required to respond to inquiries about their performance of
public duties. Indeed, such persons can be punished or even terminated
for failing to account properly for their performance.
On the other hand, the "48-hour rule" (which often becomes a 480-hour
rule) leads investigators to lose their intensity and focus as time
draws on and as they begin to work on other items. The longer investi-
gators must wait to question the employee, the greater the possibility
vital evidence may disappear or may be lost. Also, the longer the
investigator must wait to question the employee, the greater the possi-
bility that the matter will be "swept under the rug" or forgotten.
The public's perception is that the "48-hour rule" provides police offi-
cers with an unfair advantage, and that it gives the police officer time
to "construct" his/her story to fit the emerging facts surrounding the
incident in question. The public's perception is, also, that the
"48-hour rule" is one of the reasons why so few police officers are held
accountable for violating the rights of New Yorkers. These perceptions
lead to an increased cynicism on the part of the public regarding inves-
tigations of police officers, resulting in a worsening of police-commu-
nity relations.
It is our view that we do not have to allow this unnecessary and unfor-
tunate situation to continue. We need to send a strong, visible message
to all New Yorkers - - including police officers - - that when incidents
alleging police misconduct occur, the investigations will be conducted
in the same way as they would for any governmental employee. In short,
the way we investigate a police officer should be no different than the
way we investigate all other governmental employees. There should be no
special rules or privileges for NYPD personnel when it comes to investi-
gating possible misconduct. The "48-hour rule" needs to be abolished.
This does not mean that where there is a criminal investigation that
officers routinely will be immediately questioned. In many instances,
including the high profile alleged police brutality case, the prosecutor
will not question the suspect, or want the police to do so, because of
the Fifth Amendment concerns and a desire to avoid immunizing the offi-
cer. Yet, the public hears over and over that the reason why the offi-
cer is not being questioned is because of the 48-hour rule. This is, at
a minimum, misleading and adds to a further deterioration of police-com-
munity relations.
We need to recommend that the Mayor oppose any continuation of the
"48-hour rule." We need to recommend that the Mayor, through the collec-
tive bargaining process, take those steps that are necessary to elimi-
nate the "48-hour rule" immediately.
LEGISLATIVE HISTORY:
2011: A.1848 2009: A.1497 2007: A.1051
2005-06: A.6363
2003-04: A.6768
2001 - 2002 A.6544
1999 - 2000 A.4115
1997 - 1998 A.8873A
FISCAL IMPLICATION:
None.
EFFECTIVE DATE:
Immediately.
