Just Following Orders
Comparing the tactics of NYPD officials to the infamous Nazi defense "exposed in the judgments at Nuremberg" (they were just following orders), a federal court judge in Manhattan last week ordered the department and the city to hand over more than $2 million to a former police officer and her lawyers. Last October, a jury awarded $1.25 million in compensatory damages to Gloria Gonzalez after finding that top brass retaliated against her for filing a sexual-harassment lawsuit against the department.
In addition to denying the department's appeal for a new trial, Justice Victor Marrero ordered Dr. Stanley Edelman, head of NYPD medical services, and captains Anthony Kissik and Nicholas Witkowich to cough up $75,000, $25,000, and $10,000 respectively in punitive damages. The department and the city also must pay Gonzalez's attorneys nearly $900,000 in legal fees, plus interest on three years of back pay.
Finally, Gonzalez seemed to have her life back.
"It's over," said the 40-year-old Latina, who considered killing herself in 1998. "I didn't have a gun so I visualized putting one to my head. When I couldn't get a gun, I decided to overdose on Xanaxpills I was taking to control panic attacks. The day I was going to commit suicide, I remember faxing a note to my friend, Jennie Williams, a senior police administrative aide. I told Jennie I couldn't take it anymore. She called me after receiving the fax, and immediately we started to pray. I invited God back into my life and let him take over from there."
Gonzalez claimed that former lieutenant Joseph Powell sexually harassed her while the two worked at the 45th Precinct in the Bronx during an 18-month period, starting in 1992. She filed an internal complaint against Powell with the NYPD's Office of Equal Employment Opportunity in May 1994. OEEO officials said her complaint was "unsubstantiated." And at the trial, the jury did not find that Gonzalez had been sexually harassed by Powell, who retired in 1999. Gonzalez also alleged she was retaliated against by NYPD officials for filing the complaint, and during the trial, a former police sergeant testified that Gonzalez was placed on a "hit list" of officers who were to be fired.
In a 69-page decision, Justice Marrero, criticizing the NYPD officials for playing the blame game, recalled similar strategies used by the nearly two dozen men who helped run Adolf Hitler's Third Reich and carry out the Holocaust, when they were brought to the dock at Nuremberg in 1945 to answer for war crimes. The defendants all sought to minimize their importance in the chain of command.
"This argument is familiar," Marrero contended. "Each time it is heard it raises the same fundamental issues, often inducing profound tremors of concern when pronounced by high-ranking public authorities. The defense is officialdom's way of saying, 'The Butler did it,' and then erecting a now-infamous circle of pointing fingers in an effort to wall off accountability for misdeeds in high places. Behind the barricades, the commanders, if they acknowledge that any wrong occurred at all, play out a well-worn script typically shifting blame to indistinct powers-that-be above, or, more likely, to subordinates below."
In turn, Marrero wrote, department underlings argue that "they did nothing but serve as pawns, merely following orders of distant authorities known or unknownthe same commands the chiefs deny they uttered. And so, the argument holds, no one shamed in this circular chain of blame may be held liable for grievous wrongs that never happened, though their corporeal reality is all too manifest and painful.
"The dangerous lengths to which this line of defense is sometimes taken, as well as the dark regions on which it may border, were all definitely exposed in the judgments at Nuremberg," the judge added. "For the reasons there so tragically witnessed, longstanding safeguards against misuse of executive prerogative to push blame up and down official ranks in order to diffuse culpability have been embodied in our civil rights jurisprudence."
On a humid summer morning last week, Gloria Gonzalez caressed her freshly shampooed tresses, brewed coffee, and barked orders at Papillon, a porky, six-year-old English bulldog that was whimpering and pawing at a storm door. On that nearly tragic day when Gonzalez thought about putting a gun to her head, she could not shake Papillon's hangdog image. "He knew when I was upset," she said. "He was just so loyal to me. When I found someone I knew would love my dog the way I did, I felt it was okay to commit suicide. Still, I couldn't end my life, partly because of that dog."
But Gonzalez's biggest worry was for her 24-year-old daughter, Nikki, an actress who once worked as Jennifer Lopez's body double. She knew that no one could love Nikki more than her. There were times, she said, when her tormentors almost drove her over the edge by hinting that Nikki might be harmed. "Cops would make reference to the fact that they knew that my daughter was out of state and that she was 'a hot babe,' " Gonzalez recalled.
Gonzalez's 11-year ordeal at the hands of NYPD officials would break even the most hardened cop. "I lost my self-esteem," said the former beat cop who aspired to be a detective. "I was scared of what they could do to me. I was fighting a war." Gonzalez felt she had been dumped in a ditch naked: Every time she tried to get out it was like the entire force of 40,000 cops was kicking her 90-pound frame back into the ditch. "I had malnutrition. I had whittled down to nothing and couldn't think anymore. I was being tailed. I was alone. I became a recluse. I wore a mask, a cap, and put on dark glasses and came out only at night."
According to Justice Marrero's review of the case, Gonzalez finally threw in the towel when the NYPD played its toughest hand. After the department ordered her to submit to a drug test, investigators from the Internal Affairs Bureau went to Gonzalez's home to conduct the test or, if necessary, escort her to a facility where it would be administered. "Gonzalez testified that she feared for her safety in accompanying the officers; was concerned that the results of the test could be altered; and felt that the test was an aspect of the NYPD's harassment campaign to oust her," the judge wrote. "Accordingly, she refused to undergo the [test] or accompany the officers."
Slapped with disciplinary charges, Gonzalez was "led to believe that she would be fired if she did not resign." In April 1996, the day her trial was to begin, Gonzalez quit the force. "The trial record on the matter before the Court produced substantial dispute as to whether there was sufficient reasonable suspicion for the NYPD to order Gonzalez's [test] and whether in doing so the Department properly followed applicable internal procedures," Marrero found.
Two months after Gonzalez resigned, she was stopped in the Bronx for a traffic violation by Officer Mark Nell. She was taken to the 40th Precinct station house where Captain Nicholas Witkowich was in command. "Gonzalez described having been detained for 27 hours after being brought to the 40th Precinct under Witkowich's orders," the judge wrote. "She testified that at the station house she recognized an officer with whom she had worked at the 50th Precinct under Kissik; that this officer went to talk to Witkowich when she was brought into the Precinct; and that Witkowich himself later said to Gonzalez: 'I don't need commotion by a woman like you.' "
She claimed that Witkowich ordered that she be strip-searched and subjected to a Breathalyzer test. "Gonzalez introduced evidence suggesting that Mark Nell . . . did not believe she was then under the influence of alcohol and that the charge he wrote up at the time of the initial detention related to failing to stop at a traffic light and not possessing a driver's license or vehicle registration," the judge wrote. (Gonzalez did not have the documents with her.)
"Subsequently, however, under Witkowich's direction . . . meritless charges were added, including possession of marijuana allegedly found during a search of her car and criminal impersonation of a police officer," he added. "Evidence in the record supports Gonzalez's allegation that the basis for the charge of criminal impersonation was Gonzalez's having shown an expired police parking permit to Nell, although Nell gave ambiguous or conflicting accounts as to whether he believed Gonzalez had told him she was a current police officer. Cruz Gonzalez, a friend of Gonzalez traveling with her as a passenger at the time of the incident, corroborated Gonzalez's testimony that Gonzalez identified herself to Nell as a former police officer."
The criminal cases dragged on for three years. Every month Gonzalez went to court, making over 50 appearances. "I couldn't find work because I had been arrested," she said. "I had to tell the truth to potential employers." The marijuana count was later dropped, and a jury found Gonzalez not guilty of the impersonation charge. "Gonzalez claimed that Witkowich, motivated by retaliatory animus toward Gonzalez that had reached other NYPD officers, sought to humiliate her and prolong her detention after she was arrested," the judge wrote.
Gonzalez told the Voice that the criminal charges were designed to sully her reputation and ultimately prevent her sexual-harassment suit from going to trial. "They did not make it easy for me," she said. "Some of the cops and their supporters sat through the whole trial making faces, laughing while I was testifying. During the trial, they sent investigators to my home to intimidate my super and my landlord. The same old feelings about being stalked came back. They had the resources to hurt me."
At the trial, the judge noted, Gonzalez's lawyers presented evidence of the "personal campaign of adverse actions directed by Kissik," who was commander of the 50th Precinct station house. This campaign was "designed not only to silence Gonzalez and punish her for complaining of harassment, but also to make work conditions intolerable enough . . . to cause her to resign from the police force or to malign her enough to result in her termination."
The judge found that such abuse, "deriving from a high-ranking police precinct commander and aimed at a junior officer," supported Gonzalez's claim of "intentional infliction of emotional distress" against Kissik; that his "misconduct" was not an "isolated incident"; and that it continued "over a period of months" after Gonzalez was twice assigned to the 50th Precinct.
"Moreover," Marrero wrote, "the distress Gonzalez claimed she suffered entailed not just the mortifications of unrelenting petty harassment, but on at least one occasion having been ordered out of the precinct on patrol without proper equipment, which Gonzalez stated made her feel that her personal safety and that of the public were placed in danger."
Marrero cited the testimony of Adam Alvarez, a former investigator in the department's Advocate's Office who was assigned to review the disciplinary charges against Gonzalez, that "Kissik not only ordered officers working under him to 'ride Gonzalez' but also coordinated his efforts to oust her with high-ranking officials in the NYPD's top echelons."
The judge backed the jury's finding that Dr. Edelman also was guilty of intentional infliction of emotional distress. Edelman did not appear at the trial. "Edelman, like Kissik," declared Marrero, "took numerous actions that caused Gonzalez to be suspended multiple times and created a distorted record to make her appear insubordinate and irresponsible, all the while treating her disdainfully and ignoring her legitimate medical complaints."
Noting that Edelman was following orders, Marrero wrote: "Edelman . . . acted under orders to return Gonzalez promptly to work even when she complained of illness she felt rendered her unprepared to perform her police duties." He added, "Such conduct . . . can impact an individual with particular emotional severity. If, as the jury may have believed, Edelman, whether on his own or influenced by higher commands, returned Gonzalez to work when she may not have been medically fit, his conduct could have placed Gonzalez's health or safety at greater risk. On this record, it is conceivable that a reasonable jury could have understood that such intimidating and negative treatment from Gonzalez's assigned medical officer at the NYPD would be intended to cause Gonzalez severe emotional distress. . . . "
The judge also buttressed Gonzalez's claim that Captain Witkowich was "aware of who Gonzalez was when she was brought to his precinct, and motivated by specific retaliatory animus toward Gonzalez, detained her unreasonably; prolonged her detention by forcing her to undergo unnecessary and humiliating examinations; and caused unwarranted criminal charges to be brought against her."
Gloria Gonzalez no longer wears a mask. She lifts her head high and looks toward a brighter future with Nikki and Papillon. Soon she will get her private investigator's license and start lecturing on sexual harassment, retaliation, testilying, and the use of the Nuremberg defense within the NYPD. "The department was hoping that I'd kill myself like so many other cops had done," she says, blowing kisses to the bulldog. "I don't see my grave anymore. I came out of the ditch, didn't I?"
Additional reporting: Skye McFarlane
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