More than racial profiling

It’s been called the most dangerous and irresponsible bills to ever come before the New York City Council. It has also been called a landmark in the fight to end discriminatory policing.

And now the so-called bias-based profiling measure is law, passed by the New York City Council last week over Mayor Michael Bloomberg’s veto.

For all the rhetoric surrounding Intro 1080 — which allows those who believe they have been unfairly targeted by New York Police Department officers to seek redress in state courtneither critics nor supporters will know for sure just how the new law affects the way the NYPD interacts with minority groups until it goes into effect in November.

One thing they can agree on, however, is that the law is poised to create sweeping changes in the way the police force deals with New Yorkers — not just racial minorities, but also the homeless, public housing dwellers and other tenants, undocumented immigrants and gay, lesbian, bisexual or transgender individuals.

NYPD officers on patrol in Brownsville, Brooklyn. A new law will allow public housing residents, among others, to file discrimination complaints against the police in state court. AP Photo/Seth Wenig

NYPD officers on patrol in Brownsville, Brooklyn. A new law will allow public housing residents, among others, to file discrimination complaints against the police in state court. AP Photo/Seth Wenig

Under the new law, members of each of those groups can sue the NYPD if they were targeted solely for that reason, or if a department policy disproportionately and adversely affects a protected group when compared to the general population. That means the homeless can now sue the police if they feel unfairly targeted, as can public housing residents, even if an NYPD policy doesn’t explicitly mention them. While mayoral candidate Bill de Blasio is among those who took to calling Intro 1080 a “ban on racial profiling,” advocates for LGBT and homeless New Yorkers became some of the bill’s staunchest supporters during its turbulent journey through the council.

The City Council overrode the mayor’s veto on Intro 1080 by a slim 34-15 margin, with a single council member the deciding factor in a vote requiring a two-thirds-majority of the 51-member City Council. During a public hearing in October 2012, Public Safety Committee chair Peter Vallone called the profiling measure “the most irresponsible and dangerous bill ever to be considered by the City Council.” Council speaker Christine Quinn cast one of the 15 no votes.

Vallone and other opponents claimed the law could open up the city to hundreds of thousands of lawsuits from each and every stop-and-frisk encounter from a protected group outlined in the new law. Aggrieved residents can only sue to change department policy — not for monetary damages — but critics contend the law could shift important NYPD policing decisions from department brass to state Supreme Court judges.

The new law makes several significant changes to the way New York City residents challenge discriminatory policing practices:

  • It expands an existing city law prohibiting racial or ethnic profiling by the police to also prohibit law enforcement officers from relying on “actual or perceived race,” “color, creed, age, alienage or citizenship status, gender, sexual orientation, disability, or housing status.” That means residents who feel they’ve been profiled for being homeless, undocumented, gay or transgender can now sue the police department for bias-based profiling.
  • It allows people to sue individual or groups of police officers in state court over a single interaction if they can demonstrate the officers intentionally targeted them based on the categories listed above without any other factors, such as a connection to a specific crime or suspect description. It also allows residents to file complaints about discriminatory policing to the New York City Commission on Human Rights.
  • It allows victims to file lawsuits in state court when an NYPD policy or group of policies creates a “disparate impact” on one of the protected demographic groups — that is, a specific policy disproportionately affects one group, even unintentionally, compared to how it affects the general population. In these cases, the profiling victim must identify a specific NYPD policy and also prove a statistical imbalance between the subjects of the police policy and the general population.

Darius Charney, a senior staff attorney with the Center for Constitutional Rights who helped lead the successful stop-and-frisk legal challenge against the city in federal court, said the new law is not likely to provoke what Mayor Bloomberg warned would be an “avalanche of lawsuits” against individual police officers. Since plaintiffs can only sue to effect change in NYPD policies, Charney said, he sees most of the future lawsuits coming from activists and community groups rather than people looking for easy paydays.

“This bill is not designed to compensate individual people who suffer at the hands of the police,” Charney said.

James Jacobs, a criminal law professor at New York University’s School of Law, shares the view of Mayor Bloomberg — the new laws will incentivize lawyers to add to the growing glut of lawsuits against the New York City Police Department, which paid out $152 million in connection with lawsuits during the fiscal year that ended in June.

“A lot of it will depend on how it’s interpreted, but it sounds like everyone who is stopped-and-frisked who doesn’t have any contraband will be able to sue and say they were racially profiled,” Jacobs said. “It would open up the possibility of endless lawsuits against the city. That seems so dysfunctional that there has to be some way that liability would be limited.”

The law allows attorneys to recoup legal costs and expert witness fees, which the City Council estimated will cost $3.3 million over fiscal years 2015 and 2016. The Law Department, which appears in court on behalf of the city, has not provided its own estimate of the cost or responded for a request for comment on the new law.

Jacobs said the estimates seemed low, given that that lawyers have a financial incentive to pursue cases even without the prospect of cash settlements with the city.

“It doesn’t sound accurate to me at all,” Jacobs said. “They’re just guessing and I’m just guessing. I hope that they’re right and it will be smaller than that. I don’t see why everyone wouldn’t sue if they were stopped-and-frisked and nothing was found. The lawyers could drum up business.”

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