posted 2013-02-06 00:00:00

The Myth of the Broken Windows

NYPD deputy inspector misinforms Kroll of vandalism

Background: On Nov. 21, 2011 students and faculty attended a public hearing to voice their concerns about the five-year tuition hike plan. The lobby of the Vertical Campus at Baruch College filled with at least 100 non-violent protesters. Baton-wielding Public Safety officers, with help from the NYPD, forcefully ejected students from the lobby. During the scuffle 15 students were arrested. The Envoy reported extensively on the events and received attention in the CUNY community for pointing out the inaccuracies in Chancellor Matthew Goldstein's official statement of the protest, particularly the chancellor's denial of NYPD participation at Baruch College. CUNY hired Kroll, a third-party risk mitigation firm, to conduct an investigation into the incident and produce a report based on their findings. Members of the Envoy were heavily cited in Kroll's report, however many problems exist with the report's findings and representation of facts.

The report claims that protesters "broke windows" on their way to Baruch from Madison Square Park. It is highly unlikely this is true. The claim stems from an interview with NYPD Deputy Inspector Ted Bernsten, however the claim is dubious for a number of reasons, and the Kroll report fails to hold the deputy inspector's claims to the proper scrutiny any credible investigation requires.

For starters, the interview with Deputy Inspector Bernsten is dated Sep. 4 2012 -- ten months after the Baruch incident. Seasoned investigators, especially those with NYPD backgrounds (such as one member of the Kroll investigative team, who is an ex-NYPD detective), would know that the credibility of an eye witness decreases with time -- memory is fallible. Ten months is a lot of time for a white-shirted officer to remember whether or not windows were broken at any of the number of protests he personally witnessed in the year since Occupy Wall Street set up camp. Around the time of the Baruch incident, Occupy protests were a daily reality for the NYPD.

Also, given the way the NYPD has handled the Occupy protests in the months leading up to and following the Baruch lobby protest, it is highly improbable that protesters in fact broke any windows -- simply because there is no record of mass arrests happening between Madison Square Park and Baruch. Had a protester broken a window, the match never would have made it to Baruch. The lobby protest would never have happened and the Kroll report would never have been commissioned.

During the Occupy movement's height, mass arrests had occurred for "obstructing traffic" - the legal term for stepping foot off the sidewalk. Four days prior to the Baruch protest, scores of officers stormed and sealed a post-eviction Zucotti Park because "a battery was thrown." The previous month, the NYPD had arrested over 700 protesters in a single swoop for attempting to cross the Brooklyn Bridge.

Indeed, other police departments around the county are much less likely to react with heavy hands to harmless crowd behavior than the NYPD is. The Oakland Police Department, with its poor reputation for abusing tear gas, is known to allow protesters to march in the streets without a permit when the crowd behaves nicely.

A famous Occupy Wall Street crowd control tactic used by the NYPD is to declare a side walk a "frozen zone." The legal grounds for this maneuver are highly questionable and no one has been able to explain it in terms of the law. However, nonetheless, when the NYPD declares an area a frozen zone, what happens next is the formation of a front line preventing the advance of the crowd followed shortly by unrestrained beatings and mass arrest. Chief of Department Joseph Esposito, the NYPD's highest ranking uniformed officer, has been personally observed scolding officers for the low levels of restraint they exhibit in the throws of a frozen zone.

Allowing the march to continue to Baruch despite the protesters "breaking windows" is uncharacteristic of the NYPD's Occupy Wall Street activities at the time, and undoubtedly the NYPD would have declared the area frozen if in fact a deputy inspector witnessed acts of vandalism. This coupled with the fact that not a single other witness corroborates the deputy inspector's testimony should be enough to discount the statement as improbable. However, Kroll raises no question to the deputy inspector's claim. The claims are perpetuated as if truths.

More likely, Deputy Inspector Bernsten simply mixed up his memories.

Read more Kroll Report analysis: NYPD Involvement Understated by Kroll, Chancellor Exempted for False Statements

The Envoy's original Baruch coverage: Unexpected Clash Occurs at Baruch Public Hearing

Our in-depth video analysis: NYPD Highly Involved in Baruch Protest

Download your copy of the Kroll report here: CUNY Kroll Report