HUMAN RIGHTS WATCH Shielded from Justice: Police Brutality and Accountability in the United States
New York:

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Case of Abner Louima: In the early morning hours of August 9, 1997, police officers arrested Abner Louima, a legal Haitian immigrant, outside a Brooklyn nightclub following altercations between police and clubgoers.79 During the trip to the station house, officers allegedly stopped twice to beat Louima, who was handcuffed. At the 70th Precinct station house, two officers, Justin Volpe and Charles Schwarz, allegedly shouted racial slurs and Volpe allegedly shoved a wooden stick (believed to be the handle of a toilet plunger or broom) into Louima's rectum and mouth. Volpe reportedly borrowed gloves from another officer and walked through the station house with the wooden stick, which was covered with blood and excrement; the gloves were recovered, but the wooden stick was not found on the scene. Louima was placed in a holding cell, where other inmates complained that he was bleeding. An ambulance was eventually requested to take him to a hospital, but he was held for three hours in the cell bleeding following thealleged beating and torture.80 Once at the hospital, doctors confirmed Louima's serious internal injuries were consistent with his allegations; internal organs were ruptured, and his front teeth had been broken. For the first three days of his two-month hospitalization, Louima was reportedly handcuffed to his bed.81

It appears that no officer at the station formally reported the alleged attack, and in the months following the incident, only two officers came forward to provide useful information.82 One of the officers who provided information was transferred out of the 70th Precinct and reportedly provided with security in case of retaliation by fellow officers. According to reports, eleven NYPD members of various ranks were facing disciplinary sanctions for failing to provide information, or lying, to investigators.83

A nurse at the hospital where Louima was treated reportedly called the Internal Affairs Bureau to report the serious injuries later on the day he was hospitalized - the same day the incident took place - yet her complaint was not logged properly or submitted to the district attorney's office, as required.84 The first officially logged complaint was thirty-six hours later, when Louima's family reported the alleged attack to the IAB. IAB reportedly did not go to the 70th Precinct station house until more than forty-eight hours after the alleged attack.85

After the incident, the commanding and executive officers of the 70th Precinct were reassigned, and another fourteen officers reportedly were placed on modified assignment or suspended.86 According to the NYCLU, the fourteen officers who were either arrested, suspended, transferred or placed on desk duty in the week following the alleged torture of Louima had been accused, among them, of eleven prior unsubstantiated excessive force complaints and of another five misconduct complaints that had been ruled inconclusive or resolved through conciliation.87

On August 18, 1997, U.S. Attorney Zachary W. Carter announced that the Justice Department would initiate a preliminary "pattern or practice" civil investigation of the police force.88 Carter described the incident: "...[O]ne or more officers are alleged to have committed an act of almost incomprehensible depravity within the police precinct and with the apparent expectation that they could get away with it."89 One of Louima's attorneys initially filed a $55 million lawsuit against the city, which was later reportedly amended to seek $155 million.90

Volpe and another officer were charged in state court with aggravated sexual abuse and first-degree assault. Two other officers were charged with beating Louima during the drive to the police precinct, and racial bias charges were subsequently added against all four.

In February 1998, federal prosecutors took over the case, indicting the four officers named in the state indictments and a sergeant accused of attempting to coverup the incident.91 The sergeant and Volpe were also indicted on charges relating to the alleged beating of another Haitian immigrant who was a bystander near the nightclub on the same night; the sergeant was accused of attempting to cover up the beating.92 Federal control of the case makes longer sentences possible, but if the federal case is unsuccessful, the New York constitution does not allow the state to retry the implicated officers.

Officer Francis X. Livoti: On December 22, 1994, Anthony Baez, age twenty-nine, was playing football with family members at the Baez home in the Bronx.93 When the ball hit a parked police car more than once, one of the officers in the car, Francis X. Livoti, reportedly became angry and arrested Anthony's brother, David Baez, for disorderly conduct. When Anthony Baez told Livoti to calm down (Livoti later claimed Anthony pushed him), Livoti allegedly used a chokehold, resulting in Baez's death. During his administrative disciplinary hearing, Livoti admitted becoming annoyed with the way David Baez was standing, "daring me to take some action."94 Also in his administrative hearing, Livoti claimed that he attempted to handcuff Anthony Baez and they fell to the ground together. Asked if his arm ever touched Anthony Baez's neck, Livoti replied, "I'm sure that it must have at some brief period of time."95 The city's chief medical examiner, Dr. Charles S. Hirsch, found that Baez died of asphyxiation and suffered large bruises on his neck and burst blood vessels around his eyes and larynx. Hirsch found Baez's asthma a minor contributing factor to his death and noted that his case was a textbook example of a death cause by a chokehold.96 Of the fourteen city police departments examined byHuman Rights Watch, only four (San Francisco, Washington, D.C., Los Angeles, and Minneapolis) still allow chokeholds.97

Livoti reportedly had been the subject of at least eleven brutality complaints over an eleven-year period.98 He had been in the force's monitoring program because of these complaints, but then was removed from the program.99 Livoti was the PBA union delegate for the 46th Precinct. A PBA lawyer said of Livoti, he is "what you want more of in the Police Department: an honest, dedicated, decent young man."100

Livoti was acquitted of "criminally negligent homicide" charges in a judge-only trial ending in October 1996. Acting State Supreme Court Justice Gerald Sheindlin explained, "I do not find that the defendant is innocent," but he believed that the prosecution had not proven its case.101 In referring to conflicting officer testimony, the judge referred to a "nest of perjury" within the department.102 In September 1997, the Bronx District Attorney's office announced it would reopen its perjury inquiry involving fifteen officers of the 46th Precinct; the inquiry was to focus on what took place at the station house after Baez died.103

After his acquittal on criminal charges in the Baez case, Livoti was prosecuted administratively to ascertain whether he broke departmental rules by applying achokehold and whether he falsely arrested David Baez.104 In February 1997, Livoti was fired for breaking department rules by using a chokehold, which is prohibited. In discussing the dismissal, Police Commissioner Safir stated, "[T]his department will never tolerate an officer who is abusive or brutal," but also stated he would "certainly not pretend that there are not others [officers] out there who might act inappropriately."105 The dismissal reportedly stripped Livoti of his pension benefits.

In January 1998, Livoti was indicted by a federal grand jury on charges of assault and causing bodily harm in the Baez case.106 Baez's family reportedly filed a $48 million lawsuit against the city.107

One complaint against Livoti that eventually was substantiated by the CCRB involved the September 1993 non-lethal choking of a sixteen- year-old, Steven Resto, who was allegedly detained for riding a go-cart recklessly.108 On October 1, 1997, Livoti was convicted on charges of reckless endangerment and assault in the Resto case and sentenced to seven and half months in prison.109 According toResto's mother, the CCRB did not contact her or her son until the Baez case received press attention some fifteen months after the Resto incident involving Livoti.110

Transit Officer Paolo Colecchia:111 On July 4, 1996, Nathaniel Levi Gaines, Jr., was shot in the back and killed by Officer Colecchia on a Bronx subway platform after Gaines had been frisked and Colecchia knew he carried no weapons. The victim was black, the officer was white. Colecchia waited two days before providing his account of what had taken place.112For example, after the December 25, 1997, fatal shooting of William Whitfield by a Brooklyn police officer, investigators did not immediately request an interview and the officer was to be interviewed at least six days after the shooting. Robert D. McFadden, "Police officer has yet to give his account of fatal shooting," New York Times, December 28, 1997.0 Colecchia had a history of complaints - three for excessive force in 1994; all had been found unsubstantiated, though he was found to have given false statements to superiors investigating the complaints.113

He was indicted on August 15, 1996 on charges of first-degree manslaughter and was suspended from the force while the case was pending. Even Mayor Giuliani, who generally has defended police officers when they have been accused of brutality, stated, "There does not appear to be an explanation for it."114

On May 29, 1997, Colecchia was convicted on second-degree manslaughter charges, and on July 21, 1997, he was sentenced to one and one-half to four and one-half years in prison; his attorney said he planned to appeal the conviction.115

Officer Francisco Rodríguez: In April 1993, Edward Domínguez was the passenger in a friend's car that broke down in the Bronx as a police squad car followed it. Officers reportedly suspected Domínguez and his friends had stolen the car. Domínguez was arrested though never charged. During the arrest, Officer Rodríguez allegedly kicked Domínguez in the testicles; later, one testicle had to be surgically removed due to the injury. At the station house, Domínguez repeatedly complained to a sergeant that he had been injured, and the sergeant, while placing his hand on his gun, reportedly responded by telling him that he had fallen down and had not been hurt by an officer.

After the case received attention, when the district attorney's office brought charges against Rodríguez, police officials all expressed outrage over his conduct. Yet, before the case was noticed by the district attorney, a departmental disciplinary trial in 1994 showed a much more lenient attitude. The same officials had recommended only a loss of thirty days' pay and departmental probation after he was found guilty of using physical force.116

When the Bronx district attorney learned of the case, he prosecuted Rodríguez for second-degree assault and the sergeant for intimidating a witness. Rodríguez was acquitted in a non-jury trial on March 10, 1998, and the sergeant, who has since retired, was acquitted by the same judge.117 It was expected that Rodríguez would be reinstated.

Detectives Patrick Brosnan and James Crowe: The killings of Antonio Rosario (age eighteen) and Hilton Vega (age twenty-two) undermined the reputation of the CCRB when its findings were repudiated by the police department. On January 12,1995, Rosario and Vega were shot dead by 46th Precinct plainclothes detectives inside a Bronx apartment.118 A third target, Freddie Bonilla (age eighteen) was shot by the detectives and survived. There are several accounts of what transpired prior to the shootings. The police were reportedly called to the home of a couple because the couple stated that they feared they would be robbed, while the young men were reportedly attempting to obtain payment in relation to a marriage scam involving illegal immigrants.119

The detectives reportedly shot at the men between twenty-three and twenty-eight times. Rosario, Vega and Bonilla were armed but there were conflicting reports about whether any of them drew their weapons.120 According to reports citing the Medical Examiner's report, Vega was hit with eight bullets - in his back, buttocks, back of the head and front left forearm. Rosario was hit with fourteen bullets - eight in his back or buttocks, two in his side, two in his right arm, one in his hip, and one in his armpit.121 Bonilla's left ankle was shot. According to a pathologist hired by one of the victims' families, the men were lying on the floor as they were shot. And according to the account provided by Bonilla to a newspaper columnist, the men had followed the officers' instructions to surrender and lie prone on the ground when the officers shot them.122

The CCRB found that the detectives had used excessive force, but when its report was sent to the police commissioner, he ignored the CCRB's substantiation of the charges.123 This undermined the CCRB by exposing its lack of power. Detective Brosnan was allowed to retire - without facing departmental charges - with benefits, including a disability pension after he claimed hearing damagesuffered during the shooting of the young men.124 The CCRB's executive director, Hector Soto, resigned soon after this and another disputed case. The families filed a civil lawsuit, a grand jury declined to indict the detectives, and federal investigators reportedly reviewed the case.125

Officer Michael J. Davitt: The shooting of William Whitfield on December 25, 1997 by Officer Michael J. Davitt uncovered the disturbing fact that an officers' records on shooting incidents had not previously been tracked or subject to review. Officer Davitt reportedly shot and killed Whitfield, who was unarmed.126 Officers were responding to a report of shots being fired when Whitfield, who reportedly was uninvolved in the incident to which the officers were responding, did not obey the officers' orders to stop and entered a store. Officer Davitt claims he believed the keys or hat Whitfield was holding were a gun and shot him.

After the incident, it was discovered that Davitt had been involved in more shootings than any other officer on the city's force, shooting nine times in fourteen years.127 Davitt reportedly had also been the subject of twelve unsubstantiated complaints.128 After Davitt's shooting record was made public, Commissioner Safir announced that officers' shooting incidents would now be tracked and reviewed, surprising police abuse monitors and others who assumed such tracking was routine.(See below.) At the time of this writing, the shooting was being investigated by IAB, and the district attorney's office and was under review by federal prosecutors.129

79 David Kocieniewski, "Man says officers torture him after arrest," New York Times, August 13, 1997; Dan Barry, "Precinct chief is transferred in torture case," New York Times, August 15, 1997; Garry Pierre-Pierre, "New York Haitians sensing betrayal in a land of refuge," New York Times, August 18, 1997; Michael Cooper, "2nd officer gives account of sex assault of Haitian," New York Times, August 18, 1997; Ian Fisher, "Residents wary of police at 70th precinct," New York Times, August 15, 1997; David Kocieniewski, "2 more officers disciplined in Louima case," New York Times, February 19, 1998.

80 David Kocieniewski, "Precinct silence on Louima is still unanswered question," New York Times, February 27, 1998.

81 According to Mayor Giuliani on ABC News Nightline, February 26, 1998.

82 Dan Barry, "Officers' silence still thwarting torture inquiry," New York Times, September 5, 1997. One officer reportedly did anonymously call a newspaper columnist about the incident. ABC News Nightline, February 26, 1998. And the U.S. attorney and Bronx district attorney claimed that "numerous"officers had cooperated with the federal investigation without describing whether more officers from the station house in question came forward. Joseph Fried, "U.S. takes over the prosecution of New York officers in beating," New York Times, February 27, 1998.

83 David Kocieniewski, "2 more officers disciplined in Louima case," New York Times, February 19, 1998.

84 John Kifner, "Early tip was mishandled in torture case, police say," New York Times, August 23, 1997.

85 "What happened on the morning of the beating and the days afterward," New York Times, August 26, 1997.

86 David Kocieniewski, "Man says officers tortured him after arrest," New York Times, August 13, 1997, Dan Barry, "Officer charged in torture in Brooklyn station house," New York Times, August 14, 1997, "New York police shakeup after alleged attack," Blaine Harden, "Civil rights investigation targets N.Y. police," Washington Post, August 19, 1997.

87 NYCLU report, September 1997, p. 11.

88 See legal section.

89 Blaine Harden, "Civil rights investigation targets N.Y. police," Washington Post, August 19, 1997.

90 Joseph P. Fried, "In a brutality case, a legal dream team and questions of overkill," New York Times, November 9, 1997. There were also reports that the Louima was seeking $450 million in damages. Dale Russakoff, "U.S. indictment broadens New York police assault case," Washington Post, February 27, 1998.

91 Fried, "U.S. takes over," New York Times, February 27, 1998; John J. Goldman, "5 New York officers charged in torture case," Los Angeles Times, February 27, 1998; Russakoff, "U.S. indictment," Washington Post, February 27, 1998.

92 Ibid.

93 Michael Cooper, "Officer gives his account in Bronx death," New York Times, January 16, 1997; Amnesty International, "Police brutality," pp. 29-30.

94 Cooper, "Officer gives his account," New York Times, January 16, 1997.

95 Ibid.

96 Ibid. Chokeholds were banned by the NYPD in October 1993 after the deaths of several suspects in custody from apparent asphyxia. See NYPD Interim Order No. 29, dated October 20, 1993.

97 According to Law Enforcement Management and Administrative Statistics, 1993 (Washington, D.C.: Bureau of Justice Statistics, September 1995), pp. 169-180.

98 Clifford Krauss, "Case casts wide light on abuse by police," New York Times, April 15, 1995 and Cooper, "Officer gives his account," New York Times, January 16, 1997.

99 Krauss, "Case casts wide light," New York Times, April 15, 1995.

100 Ibid.

101 David M. Herszenhorn, "Judge assails but acquits officer in man's choking death," New York Times, October 8, 1996; Matthew Purdy, "NY judge explains acquittal of officer in choking death," New York Times, October 9, 1996; Jan Hoffman, "When is homicide criminally negligent," New York Times, October 8, 1996

102 The one officer who gave an account that contradicted the other officers on the scene, Officer Daisy Boria, was reportedly transferred out of the 46th Precinct.

103 Neil MacFarquhar, "Possibility of police perjury is the focus of new inquiry," New York Times, September 19, 1997.

104 Department lawyers attempted to keep the hearing closed to the public, claiming that it might adversely affect the federal criminal civil rights probe underway, but Baez's family and others contended it was just an effort to keep embarrassing information from the public.

105 "Officer acquitted in slaying is fired for `aggressiveness,'" Washington Post, February 23, 1997; Grant McCool, "New York officer fired on brutality charge," Reuters, February 21, 1997, [Wire Service].

106 David W. Chen, "Federal jury indicts NYC officer in choking death," New York Times, January 14, 1998.

107 Leonard Levitt and Graham Rayman, "The verdict: acquittal," New York Newsday, October 8, 1996.

108 Ibid.

109 Barbara Stewart, "Ex-police officer receives jail term in choking case," New York Times, November 8, 1997, Neil MacFarquhar, "Ex-officer, acquitted in earlier death, guilty of choking," New York Times, October 3, 1997. At the time of this writing, he remained free on bail pending an appeal. "Ex-officer indicted in choking," New York Times, January 14, 1998.

110 Stewart, "Ex-police officer receives jail term," New York Times, November 8, 1997.

111 In early 1995, the transit and housing police were merged into the NYPD.

112 Officers are permitted to wait forty-eight hours to obtain and confer with counsel before providing information if a serious violation is alleged or if sufficient justification is present although the alleged violation is minor. Patrol Guide procedure 118-9 as described in a letter to Human Rights Watch from John P. Beirne, Deputy Chief, Office of Labor Relations, NYPD, May 15, 1998. In practice, the officer is often allowed more than forty-eight hours because an investigator must request an interview before the forty-eight hour clock begins, and weekends are not counted.

0 For example, after the December 25, 1997, fatal shooting of William Whitfield by a Brooklyn police officer, investigators did not immediately request an interview and the officer was interviewed at least six days after the shooting. Robert D. McFadden, "Police officer has yet to give his account of fatal shooting," New York Times, December 28, 1997.

113 Rachel L. Swarns, "Policeman is indicted in killing of unarmed man in subway," New York Times, August 16, 1996.

114 Clifford Krauss, "Tests raise doubts about justification of shooting," New York Times, July 10, 1996.

115 Randy Kennedy, "Cop sentenced for shooting unarmed man in the back," New York Times, July 22, 1997.

116 Jim Dwyer, column, "Police dept goes soft on its brutes," Daily News, October 10, 1996; Dan Barry and Deborah Sontag, "Disrespect as catalyst for police brutality," New York Times, November 19, 1997; Joel Berger, attorney, speech to the Staten Island NAACP, October 1996; David M. Halbfinger, "Officer cleared in kicking incident," New York Times, March 12, 1998.

117 Halbfinger, "Officer cleared in kicking incident," New York Times, March 12, 1998. The judge cited inconsistencies in medical records and in Domínguez's testimony.

118 David Stout, "Failed robbery tactic led to fatal shootout in Bronx," New York Times, January 14, 1995; interview with Richie Perez, National Congress for Puerto Rican Rights, August 23, 1996.

119 Matthew Purdy and Garry Pierre-Pierre, "Police barrage still resounds," New York Times, August 20, 1995.

120 Ibid.

121 Ibid.

122 Juan Gonzalez, column, Daily News, August 31, 1995.

123 On the advice of their lawyers, neither of the detectives were interviewed by the CCRB. Garry Pierre-Pierre, "Board says 2 officers used excessive force on suspects," New York Times, July 28, 1995.

124 Brosnan had previously worked as a bodyguard for Mayor Giuliani. Purdy and Pierre-Pierre, "Police barrage still resounds," New York Times, August 20, 1995. David Kocieniewski, "The trial room," New York Times, December 19, 1997.

125 When Human Rights Watch inquired about the status of the federal inquiry, the U.S. Attorney's office would not provide information about whether the investigation continues or has been closed. Telephone inquiry, May 13, 1998.

126 David Kocieniewski, "Police's use of deadly force in New York is low for nation," New York Times, January 2, 1998.

127 Ibid. The first shooting took place while Davitt was off-duty and still on probation in 1983. David Kocieniewski, "Officers facing added scrutiny over shootings," New York Times, January 1, 1998.

128 Kocieniewski, "Officers facing added scrutiny," New York Times, January 1, 1998.

129 Ibid., and "US investigates shooting of unarmed man by police," New York Times, February 3, 1998.

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© June 1998
Human Rights Watch