Hate Crimes 

What did the September 13, 2011 DOJ Technical Assistance Letter to Suffolk say about hate crimes?

Among the issues that we are investigating is the claim that SCPD engages in discriminatory policing, that its approach to the Latino community discourages Latino victims from filing complaints and cooperating with the police, and that the Department fails to investigate crimes and hate-crime incidents involving Latinos. While we have not yet made findings, we believe that several SCPD policies may contribute to these concerns: (1) Chapter 16, Section 4, “Arrest and Prisoners: Arrest or Detention of Non-U.S. Citizens or Persons with Dual Citizenship;” (2) Chapter 24, Section 6, “Investigations: Hate Crimes;” and (3) Chapter 13, Section 8, “Reporting Police Activities.” Our recommendations for revisions are provided below. 

SCPD Should Modify Certain Policies and Procedures that Affect Latinos 

(2) Chapter 24, Section 6: “Investigative Operations of Hate Crimes” 

SCPD policy that governs the investigative procedure of the Hate Crimes Unit is inconsistent with SCPD’s duty to provide Limited English Proficiency (“LEP”) individuals with adequate services. 

As currently written, this departmental order requires that “[i]n every case where a hate crimes unit investigator is consulted and determines that an incident is not a hate crime, an investigator from the hate crimes unit will conduct an in person follow-up interview with the complainant.” (emphasis added). During our investigation it appeared that, despite the order, hate crimes detectives rarely conduct an in-person follow-up interview with complainants. Indeed, during the course of our interviews, we spoke with victims and individuals who complained that they did not receive any form of follow-up interview by SCPD for incidents that they perceived to be bias-related and potential hate crimes. 

To address this issue, we recommend SCPD revise or modify this policy to require its Hate Crimes Unit (“HCU”) to contact all hate crimes victims and possible victims, but to allow these contacts to be either in person or via telephone. SCPD should also mandate that these contacts be made within a specific time frame and be documented to demonstrate that procedure was followed. Further, we strongly recommend that SCPD develop a quality assurance mechanism to prompt detectives to contact victims or possible victims with status updates at periodic, reasonable intervals. This will ensure that victims are kept abreast of the status of investigations and build trust with residents. To ensure effective communication with victims who are LEP, detectives must use language assistance services, such as competent bilingual staff or telephonic interpreter services. We commend SCPD for implementing measures to this end, such as the installation of interpreter cell phones in some police patrol units and the installation of interpreter telephones in public police facilities, as mentioned in County Attorney Malafi’s May 11, 2011 letter. However, we have received reports that these services are not always available, or that individuals with LEP needs have not been given access to such services. This will be discussed further in our formal findings letter. 

We also recommend that the supervisor(s) of the HCU routinely conduct random audits of hate crime investigations each month. The routine audit should, focus on among other things, the quality of the investigation and whether officers make contact with victims or alleged victims or at least attempt to make contact and are accurately documenting their efforts. This additional level of scrutiny also will help ensure that victims are kept informed. 

(3) Chapter 13, Section 8: Reporting Police Activities 

SCPD policy that governs when an officer is required to make a report of an incident is too vague with regard to the term “Youth Disturbances,” and it likely will result in underreporting and inadequate tracking of hate or bias incidents by youths against immigrant individuals. 

Departmental policies permit officers to fail to report incidents even though the information gathered may be useful for investigative purposes. This raises a particular concern with respect to hate crimes. Currently, officers may “dispose of a call” and not prepare a field report with respect to: 

(3) Calls which are non-criminal (no offense committed), and
(a) Have either an anonymous complainant or a complainant that declines/refuses an interview or is not physically present, or
(b) Have a complainant, and the information provided by the complainant does not necessitate the preparation of a Field Report, such as:
(1) Youth Disturbances. . . . 

See Paragraph VI(7)(a)(1)-(3) of Chapter 13, Section 8. 

We strongly recommend that SCPD modify Chapter 13, Section 8 to eliminate the use of the term “non-criminal.” The current “non-criminal” label may diminish the level of investigation given to a matter. Merely because a complainant is reticent, anonymous or no longer available does not properly obviate the need for accurate reporting. Indeed, there are many victims in the immigrant community who may be reluctant to cooperate, terming a matter “non-criminal” may also be unintentionally affecting the County’s ability to assess how many hate crimes or incidents may be occurring at any given time. 

Further, we also recommend that SCPD delete (a)(3)(b)(1) which lists “Youth Disturbances” as one of the instances in which officers are not required to prepare a field report even though they receive a complaint. The term “Youth Disturbances” is vague and undefined and could result in SCPD missing critical patterns of crime. For example, if an officer were called to a scene of a man being shot at by youths carrying BB guns and the youths then ran away, that officer might describe the incident as a “Youth Disturbance.” In fact, the offense itself could be a precursor to a more severe string of violence by those youths. Our example is not hypothetical, but rather taken from the facts prior to the death of Marcelo Lucero in November 2008. As you will recall, after the death of Mr. Lucero, other Latino men came forward and claimed that they had been attacked (glass bottles thrown at them, being harassed, or having BB guns shot at them) by the same teenagers. One Latino man in particular claimed that he had been shot at by youths with a BB gun on the same evening and alleged that SCPD had called the incident a “disturbance.” 

II. HATE CRIMES UNIT 

Hate crimes can have a debilitating effect on a community. When these types of crimes go unaddressed, community members quickly develop a perception of police apathy that undermines the ability of the force to protect the community. During our interviews with members of the immigrant community, we found that many felt that “immigrant bashing” was abetted by SCPD through inaction. Our review of SCPD policies has revealed at least three factors that contribute to inadequate hate crime response: (1) Erroneous reporting of hate crimes from SCPD to New York State, (2) Vague and conflicting instruction and policies to officers regarding hate crimes, and (3) Insufficient mechanisms and processes for tracking hate crimes/incidents and following up on hate crime/incident complaints. Although we commend SCPD for establishing a dedicated county-wide Hate Crimes Unit, we recommend that SCPD continue to develop a more effective response to hate crimes and bias incidents. 

A) SCPD’s Hate Crimes Unit Has Long Misunderstood How to Report Hate Crimes, and there is No Indication that the Problems Have Been Fully Rectified 

A June 2004 letter from Mr. James Seymour, New York State Hate Crimes Reporting Coordinator, to SCPD illustrates that SCPD, in the fairly recent past, has not been correctly reporting hate crimes to the NYS Department of Criminal Justice Systems (“DCJS”).
Mr. Seymour’s memorandum stated that: 

“[s]ome of your reported Making Graffiti incidents comments noted Anti-Jewish or Anti-Black symbols were drawn. If the officer had charged PL 145.00 Criminal Mischief 4th instead of or in addition to Making Graffiti, the incident would be considered a hate crime. Charge PL 145.60 [(Making Graffiti)] only and it is not recognized as a hate crime.” 

The New York State Hate Crimes Statute, New York Penal Law § 485, provides generally, for the enhancement of the penalties for certain “specified offenses” when the perpetrator of the offense selects his or her victim or commits the act or acts constituting the offense because of what the perpetrator believes is the victim’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person. See N.Y. Penal Law § 485.05 (McKinney 2003) for a list of cognizable offenses that can be considered hate crimes. The statute refers to these as “specified offenses.” As the letter from Mr. Seymour notes, “Making graffiti” does not appear on the list of specified offenses; “Criminal Mischief in the 4th  degree” does. 

Therefore, because the officers who initially responded to these incidents did not charge the incidents correctly as specified offenses defined by the statute, the incidents were “not counted” as hate crimes. New York State Division of Criminal Justice Services, Memorandum to Detective/Sargent [sic] Robert Reecks, Suffolk County PD, June 14, 2004. 

It appears from this letter that SCPD was sensitive to hate crimes in 2003, but lacked a procedural or legal understanding of what type of charged offense could be recognized as a hate crime. Because this is a matter which could possibly be addressed by training, DOJ requests that SCPD submit documentation illustrating the concrete steps it has taken to improve training regarding charging hate crimes. DOJ recognizes that SCPD may have improved its ability to correctly report hate crimes to NYS DCJS in the seven years since this letter was written. 

B) Definitions and Examples of Hate Crimes Provided in Various Policy and Instructional Documents are Vague and Inconsistent 

In addition to the mistakes that have been discovered in SCPD’s external reporting mechanisms, SCPD’s internal guidance with respect to hate crimes is vague and inconsistent. SCPD presents its descriptions of hate crimes law in ways that may be confusing to officers because the definitions are frequently inconsistent and inadequately explained. For example, in the sheet titled “Hate Crimes Q&A,” the following question and answer dialogue appears: 

Q: “Is painting/drawing of a swastika on a public place an example of a hate crime?” A: “Only if it’s specifically directed at an individual or individuals.” 

The above description of the law does not require that there be evidence that the subject “specifically directed [the symbol] at an individual or individuals;” rather, according to this description of the law, the law presumes that one who paints a noose or swastika is, by that very act, directing the symbol to an individual or individuals. SCPD should clarify these two descriptions of the law so that they are presented in a way that is consistent—and correct—to officers. If officers are given conflicting or inaccurate statements of what the law requires regarding the painting of nooses and swastikas, the county and the state lose the ability to accurately track these forms of hate crimes. 

Another example of how the SPCD’s materials provide inadequate instructions to officers regarding the charging of hate crimes is that, although the packet “No More Hate” describes several charges, including “aggravated harassment in the second degree” (prohibiting various forms of assault and battery against another that is motivated by race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation), “aggravated harassment in the first degree” (prohibiting damaging religious premises and painting swastikas and nooses,” and “aggravated disorderly conduct” (prohibiting disrupting a religious service), it does not list the full panoply of charges that officers can use when a crime is motivated by animus towards one of the protected groups. For example, in its 2004 letter, DCJS notes that charging the perpetrator of a graffiti drawing that contains, for example, anti-Jewish slogans with “criminal mischief” would allow the charge to come under the definition of a hate crime. (See New York State Division of Criminal Justice Services, Memorandum to Detective/Sargent [sic] Robert Reecks, Suffolk County PD, June 14, 2004). The packet “No More Hate” describes the law in general that prohibits graffiti, but inexplicably lacks a description of the charge that would allow the crime to be upgraded to a hate crime. 

Additionally, there is no mention in this packet or in any of the other documents provided by Suffolk County that attempts or conspiracies to commit hate crimes are also chargeable offenses. Further, there is no instruction for officers on how to determine whether a suspect has a hate-based motive. These details are critical because pursuant to NY Penal Law § 485.05 (McKinney 2003) in order to charge a hate crime, there must be a specific motive—one that is directed toward an individual based on one of the prohibited categories. Accordingly, if officers are to correctly identify and charge hate crimes as hate crimes, they have to be able to accurately detect such motives. 

Finally, there is no mention in any of these materials that youths can be charged with hate crimes. Officers need to be informed clearly that youths are capable of committing hate crimes. The tendency to brush off attacks as “just kids being kids” fails to recognize the severity of criminal conduct in which minors may engage, as seen from the murder of Marcelo Lucero, whose attackers were high school-aged youths. Greater detail and consistency are required throughout these documents in order for officers to have the direction they need to correctly charge hate crimes and prevent hate crimes from occurring. 

While we understand the HCU is charged with investigating hate crimes, as well as “hateful incidents,” there does not seem to be a clear definition of what constitutes a hateful incident. Bias driven behavior, even if it does not rise to the level of a hate crime, can be significant, and it should be addressed. Unchecked, it can develop into serious hate crimes, as evidenced by the events preceding the death of Marcelo Lucero. 

To better anticipate and address bias incidents, SCPD should develop clearer definitions of what constitutes a “bias incident” or “hate incident.” During our on-site visits, we saw multiple references in documents, including arrest reports and incident reports, to bias incidents and hate incidents. However, while examples of “hateful incidents” have been offered, such as painting a swastika on a stop sign, none of the SCPD officials we met with were able to provide a clear definition of a hateful incident. 

C) SCPD Should Develop Better Methods to Track Hate Crimes/Incidents and Follow Up on Hate Crime/Incident Complaints 

In addition to providing clear definitions of “hate incidents” and “hate crimes,” SCPD should develop a better system for tracking these types of incidents and crimes. For example, in “SCPD Internal Correspondence” between February 5, 2008, and May 4, 2011, there are monthly reports regarding the hate crimes cases reported from the same month the previous year, broken down by race, religion, ethnicity, sexual orientation, disability, and “non bias.” However, it does not appear from these reports that SCPD accurately tracks or trends this data. Such tracking and trending will assist in observing patterns of behavior and areas which require further attention. 

We also suggest that SCPD also conduct a crime victim survey, which would enhance its ability to identify and understand trends. Such a survey could provide SCPD with a basis to compare its internally generated data and assess the accuracy of its reporting mechanisms. For example, if the number of hate crimes reported has decreased from one year to the next, but a crime survey illustrates an increase or stagnation in hate crimes, that could serve as evidence that the HCU is unsuccessful in decreasing hate crimes and does not have sufficient reporting mechanisms in place. If, however, the number of hate crimes reported has increased, and has kept pace with any increase in hate crimes that were reported in the victimization survey, that would illustrate to the HCU that its reporting mechanism is working, even though it has not been successful in decreasing hate crimes. Finally, if the victimization survey showed a decrease in hate crimes that could illustrate that the HCU is succeeding in reducing hate crimes. The National Crime Victimization Survey distributed by the Bureau of Justice Statistics could serve as a model. SCPD may be able to partner with local universities and non-profit organizations to develop a plan to distribute such surveys.

SCPD also needs to improve its follow-up after receiving a complaint of a hate crime or incident. We recommend that SCPD provide a status update, within a reasonably prompt timeframe, to a person who has reported an incident of hate-related conduct to an officer (such a person might be a witness, victim, or potential victim of the incident). If SCPD contacts LEP individuals, it must use appropriate language assistance services including competent bilingual staff who speak the non-English language or telephonic interpreter services. 

Public confidence in the police department will increase and the public will assist the Department to ensure public safety once the public witnesses that hate crimes are being properly documented and investigated. In the wake of past violent attacks against immigrants in Suffolk County, the SCPD should take proactive and deliberate steps to ensure that the HCU remains committed to investigating all hate crimes in an effective and independent manner. 

What did the January 11, 2014 DOJ Settlement Agreement require SCPD to do? (English) (Spanish)

Complaints regarding hate crimes or hate incidents will be forwarded to an HCU investigator for review and investigation. 

SCPD will implement a policy to track, analyze and report patterns and trends regarding hate crimes and hate incidents.
 Within one year of the Effective Date and annually thereafter, SCPD will produce a report mapping and analyzing for potential patterns and trends all hate crimes and hate incidents which have occurred over the previous six months. The report will detail SCPD's planned response to any identified pattern or trend. Throughout the pendency of this Agreement, the report will be provided to the United States at least five business days before the report is made public. 

SCPD will implement a policy describing its HCU quality assurance process that ensures that HCU investigations follow proper techniques and procedures.
Six months after the Effective Date, and every six months-thereafter throughout the pendency of this agreement, SCPD will forward to the United States a report describing all random audits of HCU investigations completed within the current six-month time period and any corrective actions planned or taken as a result of the audits.

How has SCPD complied with DOJ’s guidance and the provisions of the Settlement Agreement?

On November 8, 2013, Charles Lane of WSHU reported that, in the wake of DOJ’s 2011 finding that SCPD had a basic misunderstanding of hate crime law, reported hate crimes in Suffolk County tripled (from 39 in 2011 to 117 in 2012).  That increase was so significant that it increased reported hate crimes statewide by 30%.  Police reportedly attributed the increase to reclassification rather than an actual spike in hate crimes.  They acknowledged that they previously only classified swastika graffiti as a hate crime when the offender(s) 1) knew the victim(s) and 2) had hateful intent.  According to Lane, the change in classification was informed by police acknowledgement that the act alone qualifies it as a hate crime.  From 2012 through 2015, outside of NYC, Suffolk County led the state in reported hate crimes, peaking at 44% of those reported in 2014.  In 2015, Suffolk reported 42% of hate crimes reported outside of NYC.  By 2016, that number declined to 21%.  In 2019, it was a mere 6%.  By contrast, Nassau County reported 15% of reported hate crimes outside of NYC in 2015; in 2019 the number reported by Nassau County accounted for 22%.  

In spite of the 2012 adoption of DOJ’s 2011 classification guidance and the November 2013 acknowledgment to WSHU reporter Charles Lane that swastika graffiti, in and of itself, is a hate crime, in March 2021, a SCPD Hate Crimes Unit representatives informed UJPLI representatives that only swastika graffiti incidents that involve a specific victim are classified as making graffiti, which is categorized as a property crime rather than a specified hate crime. The representative cited, as an example of such a ‘victimless’ property crime, a swastika graffiti incident that occurred in Caumsett State Park.  Ironically, between February 2019 and March 2021, Governor Andrew Cuomo’s office directed the NYS Police Hate Crimes Task Force to assist in the investigation of no fewer than six separate swastika graffiti incidents that occurred in state parks in Suffolk County.  None of those press releases mentioned or identified any particular victim.  While that unambiguously inaccurate reporting criterion directly contradicts DCJS and DOJ hate crimes guidance and 2013 acknowledgments regarding proper reporting, it is consistent with the unparalleled decline in reported hate crimes between 2015 and 2019.

The NYS DCJS Hate Crimes Reporting Coordinator and DOJ reminded SCPD that failure to designate swastika graffiti as criminal mischief would prevent such incidents from being recorded, tracked and mapped as hate crimes.  SCPD’s HCU representative explained that decision not to classify all swastika graffiti as criminal mischief, a specified hate crime, is influenced by the Suffolk County District Attorney’s office.  In addition, in spite of SCPD’s obligation to produce and make public reports “mapping” hate crimes, as of March 2021, requests by UJPLI representatives for hate crime maps were denied by SCPD HCU representatives.    

Suffolk County’s policing reform plan dodges the People’s Plan evidence-based reform proposals by offering attitudinally-correct yet content-free platitudes and contemptibly disingenuous assurances: 

TECHNOLOGY AND SOCIAL MEDIA: In 2020, the Department’s Real Time Crime Center became part of the New York State Division of Criminal Justice’s (DCJS) Crime Analysis Center (CAC) Network. As a member, the network provides the Department access to intelligence information, data-sharing and cutting edge technology. The Center provides a direct line of communication between agencies to promote the timely exchange of information from various sources; this includes law enforcement, public safety and the private sector. The Department develops, utilizes and shares hate crime data using mapping technology that enables it to identify patterns and surge resources accordingly.

As reflected on the Department’s “Crime Unit Information Handout”, any acts or threats of violence, property damage, harassment, intimidation, or other crimes motivated by hate and bias and designed to infringe upon the rights of individuals are viewed very seriously by the Suffolk County Police Department and will be given the highest priority. The Department shall employ necessary resources and vigorous law enforcement action to identify and arrest Hate Crime suspects. LGBTQ+ is designated as a protected class, and thus receives the same protections and rights set forth by NYS Law, and Constitutional protection under the Civil Rights protection clause. 

The Administration of Justice sub-committee of the Human Rights Commission is comprised of 4 independent members who are tasked with actively working with the Department on matters of concern to the Commission, such as: the tracking of complaints against the SCPD, incidents involving the use of undue force, the Internal Affairs Bureau complaint process, policies and procedures regarding the designation of a "hate crime" to incidents involving bias, the recording of racial data on stops and searches, and increasing minority representation in the police service. 

For years, SCPD conspicuously failed to conduct recommended surveys to gauge the effectiveness of its policing policies and strategies and to modify them accordingly.  It also ignored the recommendation to have stakeholders participate in the development of the surveys.  This is consistent with the Department’s history of running a black-box operation. 

The ‘assurance’ that SCPD’s enforcement strategy is informed by DCJS reporting and mapping of Hate Crimes is deceitfully disingenuous. DCJS aggregates data reported to it by law enforcement agencies throughout New York State.  When SCPD fails to properly classify swastika graffiti or other hate crimes, those incidents are lost to DCJS since they are not reported as specified Hate Crimes in the first instance.  Viewed within the context of SCPD’s knowing and intentional misclassification and reporting of swastika graffiti incidents, such deliberately deceitful rhetorical sleight of hand is an indictment of the integrity of leadership.   Beyond that, the Department’s acknowledgment of the value of crime mapping magnifies its failure and refusal to fulfill its obligation to prepare Hate Crime Maps and to provide them to the public.

When it comes to investigating and reporting Hate Crimes, SCPD’s leadership has unclean hands. Its unwritten policy is to green light hateful conduct and to gaslight the public about it.