IN RE: POLICE BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK (2024)

Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered January 3, 2024, which, to the extent appealed from, denied the petition in this hybrid proceeding, brought pursuant to CPLR articles 30 and 78, to declare invalid and annul new regulations promulgated by respondent agency Civilian Complaint Review Board (CCRB), unanimously affirmed, without costs.

CCRB's expansion of the definition of “Abuse of Authority” to include “improper use of body worn cameras [(BWC)]” is not irrational, unreasonable or inconsistent with the governing statute and should be given deference (see Matter of Lynch v. New York City Civilian Complaint Review Bd., 206 A.D.3d 558, 560, 171 N.Y.S.3d 482 [1st Dept. 2022], lv denied 39 N.Y.3d 902, 2022 WL 14986973 [2022]).  The definition's expansion is rational and supported by, among other things, CCRB's detailed study regarding BWCs which found that officers often turned on their BWCs too late, prematurely turned them off, or failed to use them at all.  Moreover, the expansion is neither arbitrary nor capricious (see CPLR 7803[3];  Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974]).  And, our prior cases concerning other expansions of the “Abuse of Authority” definition do not compel a different result (see e.g. DiGiacomo v. New York City Civilian Complaint Review Bd., 214 A.D.3d 531, 186 N.Y.S.3d 22 [1st Dept. 2023];  Matter of Lynch, 206 A.D.3d 558, 171 N.Y.S.3d 482).

The addition of a definition of “severe act of bias” was not done in excess of jurisdiction or in an arbitrary and capricious manner (see CPLR 7803[2]-[3];  Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974];  see also 38–A RCNY 1–01).  This regulation is not “inconsistent with the statutory text” since the City Counsel expressly delegated to CCRB the authority to define the phrase (Matter of Juarez v. New York State Off. of Victim Servs., 36 N.Y.3d 485, 493, 143 N.Y.S.3d 310, 167 N.E.3d 478 [2021];  see N.Y. City Charter § 441[b][2]).  Moreover, contrary to petitioners’ contentions, the categories of conduct in the regulation may appropriately be considered severe acts (see Fleming v. Graham, 10 N.Y.3d 296, 301, 857 N.Y.S.2d 8, 886 N.E.2d 769 [2008] [“ ‘Severe’ is variously defined as something ‘[c]ausing sharp discomfort or distress’ ․ something ‘[e]xtremely intense,’ as in ‘severe pain,’ ” or “something ‘of a great degree or an undesirable or harmful extent’ ” (internal citations omitted)];  see also Matter of Juarez, 36 N.Y.3d at 492–493, 143 N.Y.S.3d 310, 167 N.E.3d 478;  compare 18 USC § 242;  Wilkins v. Gaddy, 559 U.S. 34, 36–40, 130 S.Ct. 1175, 175 L.Ed.2d 995 [2010];  Bearchild v. Cobban, 947 F.3d 1130, 1144–1145 [9th Cir.2020];  Washington v. Hively, 695 F.3d 641, 643 [7th Cir.2012]).

The new regulation delegating CCRB's authority to initiate complaints was also an appropriate exercise of jurisdiction.  Petitioner does not challenge the breadth of the delegation but argues that CCRB is not authorized to delegate this authority at all.  A plain reading of the Charter shows that CCRB is empowered to initiate complaints on its own and to “appoint such employees as are necessary to exercise its powers, including but not limited to the power to initiate complaints ․ and fulfill its duties” (N.Y.C Charter § 440[c][1], [5]).

The amendment renaming two disposition categories — from “unsubstantiated” to “unable to determine,” and from “exonerated” to “within NYPD guidelines” — was not arbitrary and capricious (CPLR 7803[3]).  There is evidence in the record to support CCRB's position that the changes would promote understanding by the public, both from feedback it received and from public hearing testimony.  Petitioners’ arguments to the contrary do not prove a lack of “sound basis in reason” or that the changes were “taken without regard to the facts” (Matter of Pell, 34 N.Y.2d at 231, 356 N.Y.S.2d 833, 313 N.E.2d 321).  These changes may not be disturbed simply because petitioners question the “ ‘wisdom’ of the agency's approach” as to the terminology used (Matter of Juarez, 36 N.Y.3d at 492–493, 143 N.Y.S.3d 310, 167 N.E.3d 478).

We have considered petitioners’ remaining contentions and find them unavailing.

Motion for leave to file an amicus brief, granted.