Concerns about the New York City Police Department’s Criminal Group Database and Associated Policing Practices

Via Mail
Inspector General Philip Eure
Office of the Inspector General
New York City Police Department
80 Maiden Lane
New York, NY 10038

Re: Concerns about the New York City Police Department’s Criminal Group Database and associated policing practices 
Dear Mr. Eure,

We write on behalf of the New York City Bar Association’s (the “City Bar”) Civil Rights Committee, Criminal Courts Committee, and Criminal Justice Operations Committee to highlight our concerns about the New York City Police Department’s (the “NYPD”) Criminal Group Database (the “Gang Database” or “Database”) and associated policing practices. We respectfully urge your office to investigate how the Database is compiled and used, and to issue a public report on your findings.[1]

The City Bar is an organization dedicated to equipping and mobilizing the legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice. The City Bar has approximately 25,000 members, all of whom are lawyers or law students in New York as well as other jurisdictions. The City Bar’s Civil Rights Committee is committed to advancing civil rights and eliminating discrimination. The Criminal Courts Committee studies the workings of the Criminal Term of the New York State Supreme Court, as well as the New York City Criminal Court. And the Criminal Justice Operations Committee focuses on issues relevant to New York State penal law and procedure and the functioning of the courts with regard to criminal cases.

We are concerned that overbroad criteria for placement in the Gang Database, combined with a lack of process and severe consequences for individuals listed therein, disproportionately and unjustifiably harm Black and Latinx people. Moreover, the NYPD’s practices related to the Gang Database have remained secret, preventing public understanding and oversight.  For these reasons, it is critically important that the Inspector General conduct an investigation and issue a public report about the Database.

One concern is that the bases that the NYPD uses to identify people for placement in the database are overbroad and open to discriminatory bias. While the NYPD has not provided definitions of the terms central to the database—“gang” and “crew”—what public information is available indicates that these terms are given a sweeping interpretation that might include a group of people who simply live in the same apartment building.[2]  The criteria for inclusion in the Database are similarly overbroad.  For example, the NYPD monitors social media accounts for “self-admissions” of affiliation.[3]  Such perceived “admissions” might include something as innocuous as youthful boasting or joking about a friend group, or something as easily misinterpreted as an emoji or hashtag.[4]  Critically, statements on social media relating to membership in a crew or affiliation with a gang are generally protected speech and not necessarily indicative of criminal behavior.  The NYPD’s “Operation Crew Cut,” created in 2013 to target “loosely affiliated groups of teens,” employed such online monitoring and has led to tens of thousands of individuals being placed in the Gang Database.[5] On June 13, 2018, NYPD Commissioner Dermot Shea testified before the City Council Committee on Public Safety that 99% of the approximately 17,600 people listed in the Gang Database were Black and Latinx—an astounding admission.[6] This is a particularly shocking statistic given that the overall New York City population is only 24.3% Black and 29.2% Latinx.[7] Thus, it is evident that the application of overbroad criteria for placement in the Gang Database has led to an overwhelmingly disproportionate placement of Black and Latinx individuals in the Gang Database.

Furthermore, the consequences for people who end up in the Gang Database are significant and wide-ranging. While the NYPD has not disclosed its information sharing policy,[8] alleged membership in a gang may be used as a factor in school discipline, criminal proceedings and sentencing, immigration benefits adjudications and removal proceedings, and even to deny someone a job.[9] Moreover, the impact of being labeled a gang member has the potential to increase and intensify future interactions with law enforcement including increased surveillance and searches.[10]

Gang database policing also dehumanizes members of Black and Latinx communities and severely restricts their freedom of association and their right to express themselves. Youth report feeling uncomfortable in their own neighborhoods and having to be careful about what they wear and who they are seen with out of fear that such factors will be used against them as evidence of gang involvement.[11] And because most gang raids take place in low-income communities, typically targeting NYCHA public housing developments, the practice effectively criminalizes poverty through ongoing surveillance over people living in those communities and their friends and family members.

Moreover, individuals receive no notice when they are placed in the Gang Database, and it is virtually impossible to challenge this designation.  While the NYPD has said they routinely remove people from the database,[12] the public has little insight into this process.

The lack of available information about these practices means New Yorkers are unable to have an adequate or informed public discussion about the methods being used to identify, arrest, and prosecute alleged gang members.  The NYPD has substantial discretion over the operation of the Gang Database and there is little public oversight.  Moreover, the NYPD has routinely denied Freedom of Information Law requests from individuals seeking information about whether they are listed in the Database.[13] Such a denial prevents full transparency to both the individuals placed in the Gang Database and the public, calls into question the integrity of the NYPD’s practices and procedures with respect to the Database, and raises due process concerns for those individuals placed in the Database.

In fact, experiences elsewhere have shown that gang databases are inherently inaccurate, discriminatory, and open to abuse. Moreover, they do not improve public safety.  In January of this year, more than a dozen Los Angeles police officers were suspended or reassigned after an incident in which a youth was mislabeled as a gang member.[14] The incident led to an investigation into whether this police unit was falsifying records.[15]

Similarly, the Inspector General of Chicago released a report in April 2019 on the Chicago Police Department’s (“CPD”) gang database describing major concerns regarding “the lack of transparency . . . in the CPD’s ‘gang database.’”[16] With regard to data quality concerns, the report noted that arresting officers would label occupations for those with “Gang Arrest Cards” as: “SCUM BAG,’ ‘BUM,’ ‘CRIMINAL,’ ‘BLACK,’ ‘DORK.’ ‘LOOSER [sic],’ and ‘TURD.’”[17] This unprecedented report on a city’s gang database “reveal[ed] serious flaws, unverifiable information, and calls on the department to make immediate changes.”[18] Underscoring the severe consequences of placement on such a database, the report noted that immigration officials, education agencies and the FBI accessed the CPD database more than a million times over the last decade.[19] The report recommended the CPD make changes if it continued to use the gang database, as it was riddled with inaccuracies.[20] As a result, Cook County, the county where Chicago is located, passed an ordinance ending its regional gang database.[21]

We are concerned that the same flaws highlighted in Chicago’s Office of the Inspector General report exist with respect to the NYPD’s Gang Database.  And these concerns are heightened in view of the broader context of the NYPD’s fraught history of engagement with communities of color.  This includes, most notably, the NYPD’s stop and frisk policy, which was found unconstitutional around the same time Operation Crew Cut began.[22]

Over the past three years, a coalition of legal and community advocates has repeatedly requested that your office investigate the NYPD’s practices and procedures with respect to the Gang Database. They have been joined in this request by various Assembly Members, state Senators and City Council members.[23]  Recently, four of the five candidates currently running for Manhattan District Attorney have indicated they are in favor of ending use of the database.[24]  We add our voice to calls for the Office of the Inspector General to investigate, review, and report on the following aspects of NYPD gang enforcement:

1. How is the NYPD using social media to collect intelligence? Are police officers using fake social media accounts to conduct surveillance and/or connect with certain groups or individuals as part of this process?

2. What investigative safeguards are in place to distinguish between actual criminal involvement and youthful boasting and symbolic posturing, which is entitled to First Amendment protection?

3. Is the NYPD using large-scale data mining software? How is that data used and stored? Is the NYPD sharing or using information obtained through private technology services, like Palantir, in collaboration with district attorneys and/or federal law enforcement officials?

4. How are members of specialized units that deal with gangs (i.e. gang squads) selected? How do those members compare with other officers in terms of numbers of claims of misconduct against them and/or use of force?

5. What processes are there to ensure that people who are removed from the Gang Database are removed from all NYPD labeling and tracking databases, as appropriate?

6. Is there racial bias or other protected status bias in the labeling of some youth criminal activity as “gang related” and thus included in the Gang Database?

7. What is the basis for the NYPD undertaking large-scale surveillance and enforcement action against young people in a specific area? Is it driven by relative crime rates, the availability of informants or other intelligence, political pressure, calls from the public, or other factors?

8. Does the NYPD share gang-related information with any outside agencies? Does the NYPD share any gang-related information with Homeland Security or Immigrations and Customs Enforcement? Does the NYPD seek gang-related information from any local, state, or federal agency?

9. How do the NYPD gang conspiracy investigations interact with ongoing “focused deterrence” and “Cure Violence” initiatives that seek to use different methods to control crime? What alternative strategies might the city pursue to reduce violence among young people that do not rely on surveillance, arrests, and prosecutions using the Gang Database? Have current gang enforcement practices undermined development of such strategies?

10. Should the NYPD continue its use of the Gang Database?

Thank you for your attention to these issues. We hope that your office will take seriously the need for an investigation of and public report on the NYPD’s practices related to its gang database and the impact of those practices on New York City communities, particularly low-income communities and communities of color.

Respectfully,

Zoey Chenitz, Co-Chair
Kevin E. Jason, Co-Chair
Civil Rights Committee

Terri S. Rosenblatt, Chair
Criminal Courts Committee

Tess M. Cohen, Chair
Criminal Justice Operations Committee