Cops Aren't Supposed To Talk 'Public Policy,' But Bail Reform Is A Different Matter

NYPD Commissioner Dermot Shea has been a strident advocate for changing the bail reform laws that went into effect just over a month ago. He has written op/eds and traveled to Albany to lobby lawmakers. As a civilian administrator, this is part of his job. Uniformed officers, on the other hand, aren't supposed to engage in this kind of speech. According to the NYPD's patrol guide, uniformed officers are prohibited from expressing personal views or opinions on "any public policy matter" without the permission of the commissioner. But at least one uniformed officer has been deputized to engage in political advocacy.

The NYPD's Chief of the Department, Terence Monahan, visited a community meeting in Sunnyside last week and blamed an uptick in major crimes citywide on bail reform. “We are going to see the numbers rising and more people getting victimized,” Monahan told the crowd, according to the Sunnyside Post. Chief Monahan, who is the highest ranking uniformed officer at the NYPD, reportedly urged residents to contact their elected officials and tell them to change the law.

NYPD spokesperson Al Baker said he didn't interpret Monahan's comments as advocating for a change to public policy. "I see that as the voice of a committed and conscientious commander being responsible to citizens," Baker said.

Steve Zeidman, a law professor at CUNY and the director of the school's Criminal Defense Clinic who has advocated for bail reform, called Monahan's comments "outrageous."

"It's not what any police officer should be doing, in particular high-ranking police officers. Their job is to enforce the law," Zeidman said. "They're inflicting terror on people, unnecessarily and for political reasons."

Fred Lichtmacher, an attorney who has represented police officers and members of the public who have sued the department, said the NYPD's patrol guide "is written in a way that anybody could be written up for anything they do, and it's intended to be that way."

"The NYPD is a paramilitary organization in the worst sense. It's run as a fascist organization regarding the employees," Lichtmacher said.

There is no specific penalty spelled out for violating the provision that prohibits political or public policy advocacy, though it could be seen as a "Schedule A" violation, the least serious offense that could incur a reprimand or a loss of up to 5 days of vacation time.

"It's a toothless provision, so who gives a flying you-know-what," Lichtmacher said, adding that NYPD brass are treated very differently than rank-and-file officers. "They'll do anything they can to protect the royalty."

(Notably, the same policy covers social media usage and also prohibits officers from knowingly associating with people who "disseminat[e] defamatory material," which would seemingly prohibit sergeants from following the Twitter account run by their own union.)

"I don't think there's a problem with a police officer having an opinion about public policy," said Vincent Southerland, an NYU law professor and the executive director of NYU's Center on Race, Inequality, and the Law, who is a proponent of bail reform. "What I do think is problematic is when they marry that opinion to falsehoods and to fear, to push an agenda, and I think that's what's happening here."

The current bail reforms prevent judges from setting bail on almost all misdemeanors and non-violent felonies, but violent crimes and some misdemeanor charges involving domestic violence are still bail eligible. Judges must consider a defendant's risk of not returning to court, and the least restrictive conditions for every defendant. But judges may also set supervised release requirements, including electronic monitoring, but Commissioner Shea has called for giving judges the ability to jail suspects they deem "dangerous."

Southerland cautioned against amending the law to give judges this power.

"This notion that we have to give judges the discretion to determine who and who is not dangerous, I think that is a deeply problematic so-called 'fix.' The reality is that dangerousness is so often conflated with race, and becomes a proxy for race and a proxy for criminality," Southerland said. "If we give judges that kind of power or discretion, what we're gonna see is a system that actually operates in a way that is reflective of some of the biases and the worst fears that we have with respect to criminal justice—that you're being judged by who you are and your identity rather than the overarching circumstances of your life."

[UPDATE / 3:40 p.m.] At a press conference on crime statistics, Mayor Bill de Blasio was asked if he was comfortable with uniformed officers like Chief Monahan making public statements about bail reform.

"The commissioner and I have made our position clear and there's work going on to address the issue, including in Albany, so that's how we're approaching this as a city, as a police department—we're all on the same approach here, period," de Blasio said.

"And as a city, everyone in the media's talking about this issue," Chief Monahan said, "so at community council meetings throughout the city we're explaining to people what the issues are, as they go forward. Any questions about what needs to be done, well as a police department we're not making the changes, so I recommended that if there's any issue you have, you reach out to your local elected officials."

To be clear, here is a selection of what Monahan told Queens residents, according to the Sunnyside Post:

Commissioner Shea was also asked if his bail reform changes included any additional resources or pathways for defendants with mental health issues, but Mayor de Blasio interjected.

"There's a productive dialogue going on with leaders in Albany, we're not gonna to talk about the specifics of that dialogue," de Blasio said.

Additional reporting by George Joseph.