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Presumptive Discipline Protocol for Members of the Service Determined by the Department to Have Committed Act(s) of Domestic Violence

I. Purpose and Scope

The New York City Police Department (“Department”) takes every instance of alleged domestic violence seriously. Consistent with the values and tenets of our disciplinary process, discipline for domestic incidents must be imposed fairly and with equity. Fairness within a discipline system means taking the time and effort to objectively review the circumstances surrounding the alleged misconduct, including the reliability, intention and motivation of all witnesses, nature and impact of the misconduct on members of the public and the Department, the absence, presence and extent of harm, the level of training of the officer in question, and the tenure and history of the officer with the Department, as well as other mitigating and aggravating factors. Equity within a discipline system means holding every employee accountable for unacceptable behavior, without regard to rank, title, demographic or assignment. Each disciplinary matter is unique, requires a comprehensive analysis, and must consider the totality of the circumstances.

The most serious disciplinary cases involve allegations of unlawful behavior or criminal conduct. The Department investigates allegations of criminal conduct in conjunction with the appropriate prosecutor's office. This may result in both a criminal prosecution and ultimately an internal disciplinary proceeding, regardless of the outcome of the criminal matter. When a member of service1 ("MOS") is charged with a crime, the Department also files internal disciplinary charges against the member because criminal conduct always includes a corresponding violation of the Department's internal rules. Generally, the Department's internal disciplinary cases will not begin until criminal prosecutions have been fully resolved so as not to impede the criminal justice process. The standard of proof that must be established in a Department administrative proceeding is preponderance of the credible evidence while the standard of proof that must be established for a criminal conviction is one of beyond a reasonable doubt.

The Police Commissioner, by law, is responsible for the cognizance and control of the Police Department. As such, the Commissioner is the final arbiter of disciplinary findings as well as the appropriate penalty in disciplinary matters involving members of the police force.2

II. Definitions

Domestic Violence - When a member of the service engages in physical or other types of abuse of a member of their family/household.

Family/Household3 – Included are persons who are legally married to one another, were formerly legally married to one another, related by marriage (affinity), related by blood (consanguinity), have a child in common regardless of whether such persons have been married or have lived together at any time, not related by consanguinity (blood) or affinity (marriage) and who are, or have been, in an intimate relationship regardless of whether such persons have lived together at any time, currently living together in a family-type relationship, or formerly lived together in a family-type relationship.

Presumptive Penalty – The assumed penalty or penalty range generally deemed appropriate for a specific proscribed act. The presumptive penalty serves as the starting point for analysis during the penalty phase of a case, which must include consideration of the totality of the circumstances, strength of the evidence and any aggravating and or mitigating factors. The Police Commissioner, who is statutorily empowered to adjudicate discipline, makes the final determination and may deviate from the presumptive penalties. The penalty determination and the bases for deviations are memorialized as part of the final adjudication of the case.

Penalty Days - The loss of vacation days and or the imposition of suspension days. If a MOS was immediately suspended from duty pursuant to the nature of the misconduct, the forfeiture of suspension days, imposed prior to the final disposition of the case, may also be used as part of a disciplinary penalty.

Dismissal Probation – As part of a disciplinary penalty, the MOS concerned is dismissed from the Police Department, and he or she acknowledges that dismissal in writing, however the Department delays the imposition of the dismissal for a one-year period during which the MOS is placed on probation. During the one-year probationary period, the MOS's conduct is monitored and evaluated on a monthly basis, and the MOS's commanding officer is required to submit monthly reports assessing the MOS's conduct. If there is further misconduct within the probationary period, the Department may summarily dismiss the MOS without a formal hearing. Dismissal Probation is also used to enforce other conditions in disciplinary penalties; for example, when a MOS has admitted to, or been found guilty of, a domestic violence offense, they may also be required to participate in counseling services. Such MOS may be placed on Dismissal Probation to ensure their continued cooperation with counseling services, and to allow the Department to take immediate action against them if they do not successfully complete the mandated program(s). If, however, the MOS successfully completes the year on probation, the dismissal penalty will be waived and the MOS returned to a non-probationary status.

Dismissal or Forced Separation – The Police Commissioner, upon a finding or admission of wrongdoing in a disciplinary matter, has the authority to dismiss (terminate) a MOS from the Department. The Department may require that a MOS separate (forced separation) from the Department, in lieu of dismissal, as part of a disciplinary Settlement Agreement. A MOS may be entitled to all or part of their accrued pension benefits, as governed by New York State pension laws.

Physical Act of Domestic Violence – An act of domestic violence in which the MOS used physical force against the victim.

Additional Sanctions - In addition to the penalties outlined above, the Department may require MOS to participate in counseling or monitoring programs, designed to address the misconduct in which they were involved.

Additional Terms – Any terms not expressly defined herein shall have their same meanings in NYS Law, Departmental procedure or in common parlance.

III. Discipline for Domestic Violence Incidents

  1. Presumptive Penalties in Domestic Violence Cases
    1. MOS determined by the Department to have committed physical act(s) of domestic violence:4
      1. Forfeiture of 30 penalty days;
      2. Dismissal Probation for one year;
      3. Cooperation with counseling during period of probation – 24-week OASAS certified program;5 and
      4. Level-3 monitoring for one year.
    2. MOS determined by the Department to have committed non-physical act(s) of domestic violence/family offense will be subject to forfeiture of up to 30 penalty days as well as other penalty enhancements and or conditions imposed as appropriate.
    3. Dismissal/Forced Separation:
      1. MOS determined by the Department to have committed physical act(s) of domestic violence AND:
        1. Previously determined by the Department to have committed physical act(s) of domestic violence;6 or
        2. Clear and convincing evidence demonstrates that the MOS previously committed physical act(s) of domestic violence whether or not previously reported and or substantiated7 ; or
        3. Found guilty in a criminal proceeding for a domestic violence crime;8 or
        4. The act results in a serious physical injury; or
        5. Order of protection violated.
      2. MOS determined by the Department to have violated an order of protection for a second time
        1. Physical contact not required.
      3. MOS determined by the Department to have used, threatened use of or menaced victim with a firearm.
    4. Dismissal Probation for misconduct related to a domestic incident not involving a physical act (in addition to the forfeiture of penalty days):
      1. Previously determined by the Department to have committed an act of domestic violence;
      2. Alcohol related/involved;
      3. Weapon of any type (other than firearm) used or threatened;
      4. Endangering the welfare of a child;
      5. Violation of an order of protection; and or
      6. Other situations deemed appropriate based upon the facts and circumstances.
  2. Penalty Considerations & Intervention
    1. Settlement agreements for cases involving a physical act of domestic violence shall include the specific acts for which the MOS is admitting responsibility and accepting discipline.9
    2. Factors such as evidentiary issues, the likelihood of a successful prosecution, cooperation of the victim/witnesses, timeliness of resolution, the severity of any force employed, the nature of the restrictions enumerated in an order of protection and the nature of the exact circumstances of the altercation shall be considered when determining the appropriate penalty including any deviations from the presumptive penalties.10
      1. The MOS's complete history including tenure, prior discipline, accomplishments and evaluations as well as the likelihood of recurrence, role in the altercation (e.g. primary, only or co-aggressor) and any other relevant factors will also be considered.11
    3. Counseling Services Recommended for Domestic Incidents:12
      1. Director, Psychological Evaluation Section conducts an assessment of the member concerned
        1. Separation on medical and or fitness for duty grounds may be a consideration.
      2. Director, Counseling Services Unit evaluates each domestic violence case at inception
        1. Determines the appropriate level of the Domestic Incident Education Program to be administered.
    4. Monitoring Program:
      1. Any MOS placed on Dismissal Probation upon adjudication of a disciplinary case will also be placed in level-3 monitoring.
      2. Changes in duty status and service of charges and specifications (prior to adjudication of a case) will result in evaluation for placement in level-1 or level-2 monitoring as appropriate.
  3. Presumptive Penalty Enhancements

While the presumptive penalties outlined above are significant and reflect the seriousness of domestic violence offenses, certain aggravating factors may lead to additional penalties, over and above the presumptive penalties. The following aggravating factors may impact domestic violence penalties and result in an increase in the total number of penalty days. These increased penalties may be imposed upon a MOS determined to have committed act(s) of domestic violence whether or not such incident included a physical act. These factors and corresponding penalty enhancements are only a guide. Depending upon the facts and circumstances of the case, actual penalties may vary. Penalties may run consecutively or concurrently, depending on whether the aggravating factor(s) are determined to have occurred as part of a single incident, or if they occurred independently and represent separate acts. The Police Commissioner has the statutory authority to make the final determination as to the findings and any penalties related to a disciplinary matter.

Aggravating Factor Additional Penalty Range
Leaving the scene and failure to report/notify 5 days
Failure to report/notify 5 days
Failure to safeguard firearm during a DV incident 5-20 days
Children present w/reasonable risk of harm to child 10-20 days
Children calling 911 to report 10 days
Preventing 911 calls/preventing seeking assistance 10 days
Confiscating/damaging victim's phone 10 days
Calling or showing up at C/W's job and or harassing C/W 10 days
Coerce/threaten/intimidate witness and or C/W (including threatening third parties) 10 days
Damage property 10-20 days
Incident while on duty 10-20 days
Failure to notify re: service of OOP (member is the named respondent) 10 days
Failure to identify self to responding law enforcement personnel 10 days
Weapon/instrument used (other than firearm or SPI) 10 days
Menacing 10 days
Harming animal/family pet 10 days
Enter/remain without permission in victim's home/place of refuge 10 days
Preventing victim from leaving premises/vehicle 10 days
Vulnerable victim (elderly, incapacitated, etc.) 15 days
Unfit for duty 15 days*
Eviction 15 days
Alcohol a factor in the incident 5-15 days*
Stalking 20 days
Violate Order of Protection 20 days**
Level of injury – gradations of type & severity 5-30 days

* Also includes alcohol counseling and ordered breath testing
** Unless qualifies as a separation case

1 The term generally includes both uniformed and civilian members of the New York City Police Department.

2 See New York City Administrative Code § 14-115(a). See also New York City Charter § 434.

3 See NYPD Patrol Guide section 208-36, Family Offenses/Domestic Violence, effective 12/10/18.

4 See Commission to Combat Police Corruption, Eighteenth Annual Report of the Commission, August 2017 at p. 73.

5 The 24-week counseling program may be imposed as a condition of probation even if the MOS previously completed the 4 or 8-week Domestic Incident Education Program administered by the NYPD Medical Division.

6 See Eighteenth Annual Report at p. 71.

7 See Commission to Combat Police Corruption, Sixteenth Annual Report of the Commission, October 2014 at p. 53; See also Hon. Mary Jo White, Hon. Robert L. capers and Hon. Barbara S. Jones, The Report of the Independent Panel on the Disciplinary System of the New York City Police Department, January 2019 at p. 55.

8 See Eighteenth Annual Report at p. 53.

9 Id. at p. 73. This requirement may be waived if there is an ongoing proceeding in Criminal and or Family Court, or a criminal investigation related to the acts underlying the misconduct being adjudicated.

10 See Sixteenth Annual Report at p. 52; Eighteenth Annual Report at p. 73.

11 The Commission to Combat Police Corruption noted that, "subject officers who commit one domestic violence offense, in most circumstances, should be given the opportunity to rehabilitate themselves and conform their behavior to the standards required of law enforcement officers." Eighteenth Annual Report at p. 70.

12 These assessments occur following the incident and do not preclude the later imposition of the 24-week program as a condition of dismissal probation.