Richard Emery (NYLJ/Rick Kopstein)
When Mayor Bill de Blasio decided the much-maligned Civilian Complaint Review Board (CCRB) needed a major makeover, he turned to an attorney with a career-long history of taking on the establishment—both as an outsider and an insider.
Richard Emery, 68, is a founding partner of Emery Celli Brinckerhoff & Abady. He was a New York Civil Liberties Union staff attorney and director of the Institutional Legal Services Project in Washington state, representing detainees of juvenile and mental health facilities, before becoming a partner at Laneknau Kovner & Bickford. While there, he challenged the New York City Board of Estimate under the one-person, one-vote rule and won a unanimous U.S. Supreme Court decision.
Since then, Emery, a 1967 graduate of Brown University and 1970 graduate of Columbia Law School who lives in Manhattan, represented a class of 100,000 pretrial detainees who were illegally strip searched, and led an effort to open police records to the public. He represented a Duke lacrosse player wrongly prosecuted for rape in North Carolina, and currently represents the trainer of former baseball star Roger Clemens in a defamation action against the famed pitcher.
Emery has also worked within government structure to effect reform. He is a member of the Commission on Judicial Conduct and, during the administration of former Gov. Mario Cuomo, served on a government ethics investigatory committee.
Q: What led you to civil rights law?
A: The hypocrisy of Vietnam War and my identification with those who died in, and were scarred by it, compared to me and many others who had the means to avoid that government-inflicted tragedy; the saga of Muhammad Ali’s opposition to the war and his draft refusal. Also, a fraternity blackball of a fine man of color who was my friend for a time after I resigned in protest.
Q: What is your role and the role of the Civilian Complaint Review Board and how does it mesh with the new NYPD inspector general?
A: I hope my role will be to conceive and implement reforms so that people who complain to us, and police officers, know that they will get a prompt, fair hearing.
Without confidence that abusive police conduct will have consequences, community relations with NYPD will never improve and fear of the police will persist. And without cops knowing that when they are falsely accused they will be quickly absolved, officers cannot and will not do their jobs with the sense of service, mission and purpose that every fine officer must have.
The interaction between CCRB and the new IG will be totally cooperative, open and transparent. We, at the CCRB, have the unique position of being the repository of raw data–all complaints. In the new CCRB, we will be analyzing that data to anticipate trends, problem precincts, commands and officers, and patterns that emerge in community-police interactions.
There will undoubtedly be overlap and lots of cooperation with the IG. We look forward to pooling resources to be able to forewarn Commissioner William Bratton and the public so that training and prophylactic action by the department can avoid deterioration of, and stimulate a new era of enhanced police-community relations.
Q: You have expressed concern over the police department’s use of “chokeholds” to restrain suspects. What is the issue here and how can the CCRB deal with it?
A: Actually, the NYPD has expressed the concern about the use of chokeholds and has, for about 20 years, had the most restrictive standard for instructing officers to prevent them. The patrol guide forbids any police action that “may” restrict breathing. In other words, to constitute misconduct under the patrol guide standard, as I read it, any action by an officer that constitutes a realistic threat to inhibit breathing is forbidden.
What the CCRB can do is monitor and track chokehold allegations so that we, not only investigate for possible discipline, but also warn the NYPD if these claims are escalating or appear serious. Our chokehold study, which is in preparation will hopefully start the CCRB down this track. We will be doing this same sort of monitoring and early warning with any spike in allegations of this and other forms of troubling conduct.
Q: Many people, including you, have characterized the CCRB as ineffective. What can you do to change that perception?
A: First and foremost, we need to separate the wheat from the chaff: we must have systems to identify the most serious and well-documented complaints at the outset, and put those cases on a fast track so that officers are exonerated quickly when appropriate, and complainants who are victims of serious abuse or identified patterns of abuse get those issues addressed immediately.
Also, we need to keep in close contact with the people who complain during the process, emphasize the option to mediate complaints, make sure that substantiated complaints result in appropriate discipline, and stimulate a now non-existent respect for the CCRB among both police officers and the community at large.
Q: What is your message to the police department and the public?
A: It’s a new day at CCRB.
As quickly as humanly possible, we are reforming the process and systems so that complainants and officers get justice quickly. And, just as importantly, we will be detecting patterns of conduct by both cops and complainants to see how we can help the department and the CCRB better respond to abuse and enhance police-community relations.
Q: In the McBean case, you represented a class of about 100,000 pretrial detainees who were illegally strip searched, a matter that cost the city some $33 million in settlements. What did you learn from that case, and how will it instruct your position with CCRB?
A: This and many other cases starkly demonstrate that unrestrained governmental power over ordinary people inevitably leads to degradation and abuse of fundamental human rights and integrity.
Strip searching everyone as an assertion of power, rather than for a security function, and then lying about it, make Riker’s Island a hell hole, just as it is now for this and many other reasons, such as those documented by Southern District U.S. Attorney Preet Bharara in his recent report on the abuse of teenage inmates.
Over and over again we too often see otherwise decent human beings behaving miserably because our system of government has assigned them a role of control over other people. By virtue of that role, and the power it gives the officer, the guard, the social worker, the people controlled are dehumanized.
Government seems to make us forget that there by the grace of God go us. People in power too often dissociate from those they rule and control. Restraining that disgusting human impulse is what makes for a decent society that is moral enough to support all humans, as humans. If we don’t do at least that, none of us can expect much for ourselves and those we love.
The CCRB and other oversight government agencies, when they function effectively, serve as a check on this type of inevitable human abuse, just as does the ACLU and many other private watchdogs.
Q: As a member of the Commission on Judicial Conduct, you are perhaps the most active dissenter. What do you see as the flaws in the Code of Judicial Conduct, and the application of those rules by the commission?
A: I have several pet peeves.
We live in a system with elected judges but, hypocritically, we pretend that judges should refrain from politics—this is absurd and a violation of the First Amendment.
In my view, it’s a no-brainer that judges should forfeit their exalted status and their job when they use the power of their office for personal gain for family, friends or themselves. Over and over the commission has been too lenient in these cases.
Finally, I am very tolerant of a judge’s behavior on the bench except for the arbitrary use of functionally unreviewable abusive actions such as illegally jailing for contempt.
At every step of the commission process, however, it is essential to support judicial independence by not second guessing judges in their official capacity. Appeals are the remedy for these errors and judges need to be supported so nothing can intimidate or improperly influence their decisions.
Q: As someone who sat on Gov. Mario Cuomo’s Commission on Integrity in Government, can you discuss that effort in light of the more recent Moreland Commission controversy? How were they similar and dissimilar, structurally and in what they accomplished?
A: Our commission had seven people, led by Chair John Feerick and the esteemed presence of Cy Vance Sr. and Court of Appeals Judge Bernie Meyer. In my view, no commission—like the current one—can work with three chairs and 25 members. It’s a formula for failure.
With ours, not once did anyone, let alone the governor or his staff, play any role in our process or decisions. Then again, I am not sure that even under these ideal circumstances we accomplished much.
We revealed that influence peddlers gained leverage by lobbying and raising money for candidates. That dual role is corrupting. But nothing changed and Albany seems worse than ever.
I have no doubt that the current Gov. Cuomo would like to transform that culture and is acting with that in mind. But first and foremost, he is a pragmatist and I think he has been hoisted on the petard of pragmatism; he tried to get something done by grabbing a tar baby and now, surprise, surprise, he can’t get the tar off his hands.
I am not cynical enough to believe that he intended this effort to fail. The failure here is more a function of his belief that he could get this done all by himself, controlling the process from beginning to end. That never works, no matter how well-intended the effort. .
Q: What, in your opinion, will it take to “clean up Albany”?
A: Three things: real public financing of elections; redistricting reform; enhanced voter participation.
Public financing must be based on the New York City system. It is not perfect but it allows people to challenge incumbents and it keeps politicians relatively honest. I think overall these days, the city compares favorably to Albany.
Redistricting reform is critical. By allowing each legislative house to redistrict itself, governors have forever been complicit in disenfranchising voters so that representatives pick voters rather voters picking their representatives.
That is unacceptable.
Regrettably, the newly proposed state constitutional amendment is a fraud on the public and should be rejected. It perpetuates this unholy deal and insults voters and the public with a guarantee of perpetual blatant gerrymandering on behalf of incumbents. Once in power, forever in power in New York. That’s a big part of what leads to corruption and influence peddling.
Finally, if voters can be convinced their votes actually count, perhaps they will participate in higher numbers. Voting on a workday is an anachronism rejected by all current democracies other than the United States. Registration barriers continue and must be eliminated. Voter fraud is a myth that is used as a justification for suppressing voting. It is itself a fraud and a travesty used to protect incumbents.
Q: What do you consider your most interesting case, and which was the most significant?
A: The most significant case I handled was in the Supreme Court and led to the elimination of the Board of Estimate. It allowed for a transparent New York City government when, historically, all governance was done in the back room of the Board of Estimate Chamber.
County leaders can no longer deliver corrupt deals through the borough presidents’ Board of Estimate vote. We now have actual accountability in city government.
Ironically, some of the most interesting cases have been the trials of commercial cases in front of juries—contract disputes and complicated commercial real estate deals.
I love to try to get to the simple equities in complex situations, to get a jury to understand. That’s what’s fun and challenging these days. I hope to do that for a long time to come, though chairing the CCRB will also be a new, exciting challenge.