The Loophole That Lets NYPD Keep Bad Officers on the Force—and Threaten Good Ones

The New York Police Department has been using dismissal probation, the practice of putting an officer on probation for a year while retaining full pay, to keep even the most extreme wrongdoers on the force.

Secret files obtained by BuzzFeed News reveal that from 2011 to 2015 at least 319 New York Police Department employees who committed offenses serious enough to merit firing were allowed to keep their jobs.

In each dismissal probation case, it’s the NYPD police commissioner—from 2011 to 2015, that’d be commissioners Bill Bratton and Ray Kelly, sequentially—who makes the final call, regardless of the recommendation generated by the preceding disciplinary trial.

Kevin Richardson, the NYPD deputy commissioner of the Department Advocate’s Office, defended the practice.

“The department is not interested in terminating officers that don’t need to be terminated. We’re interested in keeping employees and making our employees obey the rules and do the right thing,” he told BuzzFeed News. “But where there are failings that we realize this person should be separated from the department, this police commissioner and the prior police commissioner have shown a willingness to do that.”

Another spin? Former NYPD detective sergeant Joseph Giacalone, who served in internal affairs, defined the purpose of dismissal probation more specifically.

“Dismissal probation is supposed to be used for somebody who screwed up something big but it wasn’t intentional — they made an honest mistake.”

Unfortunately, dismissal probation is being used to protect officers who intentionally, repeatedly abuse their power and violate the law.

Many of the [319] officers [who kept their jobs via dismissal probation from 2011-15] lied, cheated, stole, or assaulted New York City residents. At least fifty employees lied on official reports, under oath, or during an internal affairs investigation. Thirty-eight were found guilty by a police tribunal of excessive force, getting into a fight, or firing their gun unnecessarily. Fifty-seven were guilty of driving under the influence. Seventy-one were guilty of ticket-fixing. One officer, Jarrett Dill, threatened to kill someone. Another, Roberson Tunis, sexually harassed and inappropriately touched a fellow officer. Some were guilty of lesser offenses, like mouthing off to a supervisor.

At least two dozen of these employees worked in schools. Andrew Bailey was found guilty of touching a female student on the thigh and kissing her on the cheek while she was sitting in his car. In a school parking lot, while he was supposed to be on duty, Lester Robinson kissed a woman, removed his shirt, and began to remove his pants. And Juan Garcia, while off duty, illegally sold prescription medication to an undercover officer.

Perversely, dismissal probation is also being used to penalize officers who’ve done nothing wrong.

[D]ismissal probation is also used to punish … officers arbitrarily, for reporting misconduct or just for getting on their supervisors’ bad sides.

Not only is NYPD knowingly putting citizens at risk by keeping bad officers on the force, the retention of these officers is costly, not cost-saving.

During his first six years on the force, officer Raymond Marrero was accused of viciously beating one person, falsely arresting another, assaulting a third, and fabricating evidence against a fourth. … All told, by 2014, the city had paid about $900,000 to settle accusations against officer Marrero. Publicly, neither he nor the city admitted any wrongdoing.

Internally, officers resent the inconsistency in how offenses are handled.

Outside of public scrutiny, there is no standard for how the NYPD punishes misconduct. Minor infractions may result in a warning in one case and a serious penalty in another.

The opacity of disciplinary proceedings gives free rein to those who would discriminate. One Latino officer found himself written up constantly over 14 years following his decision to join a class action suit claiming the NYPD applies discriminatory disciplinary standards.

Commissioner Kelly overrode a recommended lighter sentence to terminate the officer, Damon Porter, just a year before he became eligible for retirement. Nine months later, Kelly excused Marrero for assault and lying to department authorities.