December 21, 2023
Mayor Eric Adams
New York, NY 10007
Police Commissioner Edward Caban
New York Police Department
1 Police Plaza
New York, NY 10038
Re: Administrative Prosecution of Lieutenant Jonathan Rivera for Shooting Allan Feliz
Dear Commissioner Caban and Mayor Adams,
The undersigned organizations write to express our concern regarding reports that the NYPD is considering exercising Provision 2 of its Memorandum of Understanding with the Civilian Complaint Review Board (“CCRB”) to prohibit the CCRB from moving forward with its administrative prosecution of Lieutenant Jonathan Rivera for shooting Allan Feliz.
Commissioner Caban: When you were first appointed, you spoke about how, as a Latino growing up in the Bronx, you and your brothers “were stopped, questioned and frisked, and I didn’t like how that felt.” Communities of color had reason to hope that you would fight against racial profiling and in favor of accountability for officers who targeted Latino men.
Allowing Lieutenant Rivera to escape punishment for shooting Allan Feliz would dash that hope. Mr. Feliz was a Latino who was racially profiled and illegally stopped. Once stopped, he was unlawfully detained further. Eventually, Lieutenant Rivera climbed into Mr. Feliz’s car, shot him, and left him lying in the street with his genitals exposed.
Now, there are reports that the NYPD may withdraw the case from the CCRB and prevent it from moving forward with its prosecution of Lt. Rivera. This would run counter to basic principles of police accountability. Even more, it would be a devastating blow to the Latinx community, given your status as the first Latino to run the NYPD. And from a legal perspective, Section 2 of the MOU does not permit the NYPD to revoke the CCRB’s jurisdiction in these circumstances.
Basic Accountability Principles Require a Disciplinary Trial
Mr. Feliz’s car was stopped on October 17, 2019, by PO Edward Barrett, who claimed that he observed Mr. Feliz not wearing a seatbelt. Neither of the officers present on the scene reported seeing the seatbelt violation, and Mr. Feliz is seen wearing his seatbelt on the body-worn camera footage. Once the officers saw there was no legal justification for the stop, the officers should have let Allan go instead of escalating the encounter. The body-worn camera shows that then-Sergeant Rivera climbed into the passenger side of the car, tasered, beat, and threatened to shoot Allan, and then shot him point blank in the chest. After he was shot, he was dragged out into the street and left there exposed.
The NYPD Force Investigation Division took over two years to investigate the case before deciding not to pursue discipline. And while the New York Attorney General declined to prosecute criminally, it did have “serious concerns about the NYPD’s handling of the incident,” and found that the officers deviated from NYPD protocols. See New York Attorney General Special Investigations and Prosecutions Unit, Report on the Investigation Into the Death of Allan Feliz, pages 3 and 12.
The CCRB subsequently conducted an investigation and substantiated allegations that then-Sergeant Jonathan Rivera abused his authority by threatening force and used excessive force by shooting Allan. The CCRB has filed charges and is prepared to administratively prosecute Lieutenant Rivera. The NYPD must immediately serve the charges so that the discipline process can move forward without any further delay.
Blocking the discipline process and allowing Lieutenant River to escape consequences for killing Mr. Feliz would only confirm that the NYPD remains unwilling or unable to hold officers accountable for serious misconduct.
The MOU with the CCRB Does Not Permit the NYPD to Remove This Case
The NYPD and the CCRB entered into a Memorandum of Understanding on April 22, 2012, that transferred the authority from the NYPD to the CCRB to conduct administrative prosecutions of NYPD officers against whom the CCRB had substantiated complaints of misconduct. Paragraph two of the NYPD-CCRB Memorandum of Understanding provides that the commissioner may revoke the CCRB’s jurisdiction to conduct administrative prosecutions in “limited circumstances” when prosecution “would be detrimental to the Police Department’s disciplinary process.” The MOU goes on:
Such instances shall be limited to such cases in which there are parallel or related criminal investigations, or when, in the case of an officer with no disciplinary history or prior CCRB complaints, based on such officer’s record and disciplinary history the interests of justice would not be served.
This provision provides for exactly two exceptions to the first provision of the MOU, which provides that “CCRB shall undertake the administrative prosecution of all civilian complaints against NYPD uniformed officers which have been substantiated by CCRB and in which CCRB has recommended that Charges and Specifications be preferred.” This MOU was in full force and effect on October 17, 2019, and has in no way or part been revoked or limited since its signing.
The Allan Feliz case does not meet either exception set forth in the MOU. There is no ongoing parallel criminal investigation. The NYPD’s Force Investigation Division declined to refer this case to any prosecutorial agency; the Attorney General, despite serious concerns about the matter, did not recommend bringing criminal charges.
Likewise, the second provision of paragraph 2 also does not apply. It applies only to officers with “no disciplinary history or prior CCRB complaints.” Lieutenant Rivera has been the subject of thirty-four CCRB allegations, two of which were substantiated before Lt. Rivera shot and killed Mr. Feliz.
There is no circumstance in which administratively prosecuting Lieutenant Rivera would be “detrimental to the Police Department’s disciplinary process.” Rather, it would be detrimental to the disciplinary process to deny the CCRB the opportunity to prosecute the allegations it substantiated.
We therefore respectfully request that, as required under the MOU and by the basic principles of accountability, the NYPD permit the CCRB to serve Lieutenant Jonathan Rivera and administratively prosecute him for using excessive force against Allan Feliz on October 17, 2019.
Center for Constitutional Rights
Make the Road NY
Immigrant Legal Resource Center
Arva Rice, Board Chair, Civilian Complaint Review Board
Jonathan Darche, Executive Director, Civilian Complaint Review Board
Deputy Mayor for Public Safety Philip Banks