Bronx Local News: Old Police Shooting at Center of Whether Tisch Will Stay on as NYPD Commissioner
NYPD Commissioner to Decide on Review Board Jurisdiction in Case of Cop Involved in Fatal Shooting
As Mayor-elect Zohran Mamdani aims to expand the power of the Civilian Complaint Review Board, Commissioner Jessica Tisch has to determine whether to support a judge’s ruling in a fatal shooting case.
This article originally appeared in The City.
NYC LOCAL NEWS - The NYPD’s top administrative judge has recommended dismissing the disciplinary case of a police officer who fatally shot a 37-year-old man while off-duty, ruling that the Civilian Complaint Review Board lacks jurisdiction over misconduct that occurs off the clock.
The decision on whether the case should proceed now goes to NYPD Commissioner Jessica Tisch, at a sensitive time when she and mayor-elect Zohran Mamdani are poised to discuss her future at the helm of the department.
Should Tisch reject NYPD Deputy Commissioner of Trials Rosemarie Maldonado’s dismissal recommendation, the case against the officer, Wayne Isaacs, could move forward later this month.
Isaacs faces three charges of improper use of force for shooting Delrawn Small three times at a Brooklyn intersection in July 2016 during what’s been described as a road rage incident. Penalties in his case range from a loss of vacation to termination.
Mamdani, who has said he’d like to retain Tisch, has called for expanding the CCRB’s authority over the disciplining of officers, though such an expansion would require state legislation.
Since being appointed commissioner by Mayor Eric Adams last November, Tisch has spoken out publicly about the need for stricter discipline in certain cases of misconduct, including for violations of the tactic known as stop and frisk. But she’s also upset advocates seeking greater accountability at the department by overruling an administrative judge’s recommendation to terminate an officer, Lt. Jonathan Rivera, who fatally shot a driver in 2019.
There is no statutorial deadline by which Tisch has to render a decision about the fate of Isaacs’ trial, meaning it could come after Mamdani makes his appointment for police commissioner.
Should her decision extend into next year, the delay would be nothing new for the Isaacs case, which has already spanned more than nine years and featured an acquittal in a murder trial, multiple investigations and lawsuits and, more recently, a debate over the definition of “off duty.”
Attorneys for Isaacs, from the firm Worth, London & Martinez, have argued in recent weeks that the CCRB has no jurisdiction in the case because the shooting occurred when he was acting as a private citizen.
But CCRB officials last week uncovered a motion from a 2017 civil claim in which attorneys at the firm (under a prior name) argued that the city should be liable for any payouts to Small’s family stemming from Isaacs’ actions because the shooting occurred “within the scope of his employment as [a] New York City Police Officer.”
Maldonado has declined to reconsider her recommendation, according to a person with knowledge of the police department’s disciplinary process, and both sides of the case have until Friday to submit their arguments to Tisch.
Small’s brother, Victor Dempsey, said he was both “baffled” and “infuriated” by the latest turn of events, noting that two mayoral administrations and seven police commissioners have been in power since his brother was killed.
He said the city government wouldn’t have paid a settlement to his family if officials believed Isaacs had been acting solely as a private citizen.
“We’re going through hurdles every time we’re ready to move forward with a disciplinary trial,” said Dempsey, 39. “He was an officer, period. They can play word games around on duty and off duty, but the fact is there was a settlement for an officer.”
Dempsey recalled that Isaacs’ attorneys also emphasized during the criminal trial that Isaacs was a member of service who took an oath to uphold the law 24/7.
“We’re fighting to get this officer fired because he made a bad decision: He stole someone’s life,” said Dempsey. “I can’t get my brother back, so I’m doing this so all New Yorkers are safe.”
Isaacs’ attorneys didn’t respond to a request for comment.
But the president of the police officers union, Patrick Hendry, hailed Maldonado’s ruling, which he said “struck down yet another attempt by CCRB to bend the law and increase its own power.”
The board’s spokesperson, Dakota Gardner, confirmed Maldonado’s decision, and said the board is preparing its letter calling on Tisch to let the trial proceed.
“Deputy Commissioner Maldonado is recommending the case be dismissed because PO Isaacs allegedly didn’t invoke his authority as a police officer, despite having claimed that he acted as a police officer when sued by Mr. Small’s family,” he said.
‘Police Misconduct’
Isaacs had only recently come off duty from a late shift at the 79th Precinct when he shot Small at an intersection in East New York on July 4, 2016.
Both men’s vehicles were stopped at a red light when, after some sort of driving incident, Small got out of his car and approached Isaacs’ vehicle. Small’s partner, her older child and the couple’s months-old baby were in the vehicle at the time.
Isaacs has maintained that Small threatened to kill him and assaulted him, and that he shot Small out of his open window in self-defense. Video of the incident shows Isaacs shot Small within a second or two of Small’s arrival at his vehicle door.
Isaacs was indicted by a Brooklyn grand jury for murder and manslaughter, charges that were prosecuted by the state Attorney General’s office shortly after it gained jurisdiction in cases of fatal police actions against civilians. He was acquitted in November 2017.
About a year later, Isaacs was restored to full duty after the police department’s Force Investigation Division determined he had not violated department procedures.
In October 2020, the Civilian Complaint Review Board substantiated three instances of improper use of force by Isaacs, one for each shot.
His disciplinary trial, which was scheduled to begin Nov. 20, had been delayed for several years by the board’s unsuccessful lawsuit seeking to unseal records from the criminal case.
The records reviewed by THE CITY show that three police commissioners, who have final say over discipline, have ignored or declined prior requests from Isaacs’ attorneys to halt the CCRB’s administrative prosecution: Dermot Shea in 2021, Keechant Sewell in 2022, and in September, Tisch.
Days before filing their request to Tisch, the attorneys filed a pre-trial motion with Maldonado arguing, among other things, that the CCRB lacks jurisdiction over the case because Isaacs shot Small “while off police duty, from his personal car, with a personal gun and without identifying himself as a police officer,” according to the documents.
They argued that such cases fall under the purview of the NYPD, which had already ruled that the shooting was justified.
In response, CCRB officials argued that while Isaacs had used his personal gun, it had been authorized by the NYPD only because of his employment with the department, so that when he used it he invoked his power as a police officer.
In a ruling on October 30, which was reviewed by THE CITY, Maldonado agreed with Isaacs’ attorneys.
She found that while the charter doesn’t specify whether the CCRB’s jurisdiction over use of force incidents depends on an officer’s duty status, it does define the board’s jurisdiction as being over actions that constitute “police misconduct.”
Maldonado pointed out that federal precedent has described off duty actions as falling under the color of law only in cases where officers identified themselves as law enforcement, flashed a badge or took other similar actions — none of which Isaacs had done.
She also reviewed all the cases brought by the CCRB since 2012, when the board was first granted prosecutorial powers in police discipline cases and found only two proceedings that involved off-duty incidents — both of which she said met the standard set by federal precedent.
“Even when reviewed in the light most favorable to CCRB, the totality of the circumstances in this case fall short of what is required to establish that this off-duty firearm discharge constituted ‘police misconduct’ over which it has jurisdiction,” Maldonado wrote in her recommendation.
It was only after, her recommendation was issued that CCRB officials discovered the civil lawsuit papers that they argue reveal the contradictory arguments made by Isaacs’ lawyers.
In the 2017 federal case, which was brought by Small’s partner, Zaquanna Albert, Isaacs’ attorneys argued that he shouldn’t be held personally liable for any civil payouts that resulted from the case because the shooting occurred "within the performance of his duties and within the scope of his employment” as a police officer.
In a letter to Maldonado obtained by THE CITY, CCRB officials told Maldonado that the city eventually agreed to indemnify Isaacs — records show the city paid out $125,000 in a settlement — and asked her to reconsider her recommendation to nix the trial based on the 2017 case.
“Counsel alleged that Police Officer Isaacs' use of force was compelled by his obligations as a police officer, and that he shot Small in order to prevent Small from committing a serious crime and to protect himself from imminent and probable harm — both of which fall within his duties as an employee of the City,” the officials wrote in the letter.
Isaacs’ attorneys in turn argued that there’s a distinction between the terms used in the civil case and the administrative one, writing that the fact Isaacs “was furthering the NYPD's interest or business does not mean that he was engaged in "police conduct.”
On Friday, Maldonado denied the CCRB’s request to reconsider.
Prior Rulings
A Deputy Commissioner at the NYPD for 11 years, Maldonado has made tough and sometimes controversial rulings in a number of cases, most notably recommending the termination of officer Daniel Pantaleo for his role in the chokehold death of Eric Garner in 2014.
Then-Police Commissioner James O’Neill agreed with her recommendation and terminated Pantaleo in 2019.
Maldonado is also the administrative judge who recommended the termination of Rivera, for the fatal shooting of Allan Feliz — the recommendation Tisch overruled in August.
Last year, Maldonado made another high-profile decision on the question of the CCRB’s jurisdiction, finding that the board couldn’t lawfully prosecute then-Chief of Department Jeffrey Maddrey on a charge of abuse of authority.
Maddrey was facing a disciplinary trial for voiding the arrest of a former police officer he used to work with who was arrested in Brooklyn for allegedly menacing three young kids with a gun.
A video investigation produced by THE CITY showed that the ex-officer was sprung from a precinct holding cell in Brownsville about an hour after Maddrey arrived there, and that the two greeted each other with a hearty handshake in the precinct lobby.
Maldonado ruled in that case, also in response to a pre-trial motion, that the CCRB has jurisdiction only in cases involving police misconduct toward civilians, and that Maddrey’s alleged misconduct hadn’t been directed toward a civilian.
Then-NYPD Commissioner Edward Caban agreed and dismissed the case.
Caban resigned from the NYPD last fall after the FBI confiscated his and his twin brother’s phones. This past December, Maddrey resigned from the force after a subordinate accused him of coercing sexual favors from her in exchange for overtime. He was suspended by Tisch in January after the FBI raided his home.
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