February 23, 2014

The NYC Comptroller Asserts His Authority

Newly elected NYC Comptroller Scott Stringer has just settled the false arrest and wrongful prosecution claims of David Ranta for $6.4 million. The number is not shocking, given that Ranta was incarcerated for 23 years as a result of the deliberate fabrication of evidence by NYPD Det. Louis Scarcella. What is surprising is that Stringer agreed to pay Ranta prior to the filing of a lawsuit and without the involvement of the Law Department. This is a seismic break with City policy and has triggered conflicting responses. But from a civil rights litigator's perspective, this was a sound decision and I hope to see more independence from the Comptroller.

In New York City, the Law Department, headed by a mayoral appointee, handles all litigation against the City, once the action is filed. While the Comptroller -- an independently elected official -- has the final say over settlement amounts, negotiations are conducted through Law Department attorneys and plaintiffs' lawyers only speak with the Comptrollers' Office when we are trying to figure out why a check is being delayed. There is one exception, which is the period of time between the service of a notice of claim and the filing of the complaint. During that period, the Comptroller's Office is responsible for setting up examinations of the claimants and, if they choose, working out a pre-action settlement. This was the posture of David Ranta's claim when the Comptroller's Office agreed to pay him $6.4 million.

This is the first time that I can think of where the Comptroller's Office has short circuited a substantial claim by paying it off without first letting the Law Department slug it out with the plaintiff. To be sure, the Comptroller's Office readily settles pre-action cases, but these are uniformly small claims; civil rights claims with very short periods of detention or slip and fall cases with limited injuries. The kind of cases where both sides benefit by avoiding litigation.

February 22, 2014

How Much Lying Is Too Much Lying? The Court of Appeals Speaks

In mid-January I wrote here about a pair of cases that were being argued before New York's Court of Appeal (the state's high court) that tackled the question: when does lying to suspects during police questioning cross the line from clever interrogation to coercing involuntary confessions.  I wrote at that time:
New York's highest court, the Court of Appeals, heard arguments yesterday in appeals from two different murder cases that concern the same fundamental question: how much deception can the police engage in when questioning a suspect. It is a question of particular interest in view of high profile cases like the Central Park Five, which concern false confessions. The general rule is that the police can lie to suspects, but not to such an extent that the officers' deception will cause the suspect to falsely admit guilt or give a confession that is not voluntary. The difficulties in determining where the line lies are obvious. The lack of guidance creates obvious difficulties for the police in knowing how far they can push to coerce an admission, and for the courts in evaluating the reliability of the confessions after the fact.
In the first of the two cases, Adrian Thomas was interrogated at length by police in Troy, New York, after his infant son was taken to a hospital, where doctors found he was suffering from severe head trauma and called the police.  Thomas was questioned for two days, during which the officers used various approaches to obtain a confession. For instance, they repeatedly said they considered the boy's condition to be an accident and assured Thomas he would not be arrested if he just acknowledged what had happened. They also threatened to arrest his wife if he did not come clean, and told him that his son (whom doctors had already declared to be brain dead) could die if Thomas did not describe how he caused the injuries. Eventually, Thomas admitted he had thrown the infant onto a bed several times and struck the baby’s head accidentally against his crib. The confession was used against Thomas to convict him of murder by depraved indifference. Thomas was sentenced to 25 years to life in prison. The conviction and sentence were upheld on appeal, with the court ruling that the tactics used by the police “were not of the character as to induce a false confession.”
The New York Court of Appeals has just ruled on Thomas, reversing the conviction and remanding the case to the trial court for retrial or dismissal.

Stop and Frisk Litigation Heading Towards Settlement

The long-running saga of the NYC Stop and Frisk litigation lurched closer to resolution yesterday, when the Second Circuit Court of Appeals granted the City's request to remand the case to the district court for settlement discussions. The appellate court also resolved the pending motions to intervene in the appeal by various police unions by remanding the issue to the district court as well.

Quite a lot has changed since Mayor de Blasio's election four months ago. Until that point, the City and the NYPD had fiercely defended its application of the controversial program, leading to lengthy hearings, and resulting in a detailed and damning ruling by the Hon. Shira Scheindlin, that included the imposition of a federal monitor Recognizing that the incoming administration had already conceded that the racial profiling aspects of Stop and Frisk were unacceptable and that the new mayor was willing to accept Scheindlin's ruling, outgoing Mayor Bloomberg launched a frenzied attack on all fronts, resulting in a flurry of activity, all of which I commented on here, here, here, and here on my firm's blog/news page at Lumer & Neville.

The Law Department moved to stay and vacate Scheindlin's order and sought an expedited appeal so the matter could be heard before de Blasio pulled the plug. Meanwhile, the Court of Appeals, in an unusual attack on a district judge, and without any such request from the defendants, reassigned the case away from Scheindlin. The judge, understandably upset with this development and the appellate court's criticism of her handling of the case, sought leave to intervene and defend herself by filing a stirring defense of her conduct. As it became more apparent that the Second Circuit was going to let time run out -- so de Blasio could take office and withdraw the appeal -- the various police unions filed papers seeking to take over the appeal. As discussed here, this was an aggressive and confrontational move that sets up a very early, and potentially nasty, public fight between the NYPD and its unions.

In other words, it is a messy, complicated bit of litigation, which the Court of Appeals is hoping the district court can resolve through settlement. What the settlement will look like, how it will be received and enforced, and what this all means for the NYPD and the citizens of New York City, is still uncertain.

February 21, 2014

Is It Time To Do Away With Prosecutorial Immunity?

That prosecutors are immune from civil lawsuits, even when they deliberately engage in indefensible misconduct, has always struck me as a seriously misguided policy. Police officers who lie to prosecutors or withhold evidence to push a bad prosecution along can be personally sued, and rightfully so. But when prosecutors encourage witnesses to lie, withhold evidence they are constitutionally obligated to turn over, deceive judges and juries, and fabricate evidence, their victims ordinarily cannot recover a dime. Given the tremendous authority and responsibility bestowed on prosecutors as state actors, it is absurd that this class of civil servants who willfully and intentionally abuse their positions cannot be held accountable to the people they have harmed, while their colleagues in law enforcement are given no such shelter.

Chief Judge Alex Kozinksi
The reality of our criminal justice system is that many line prosecutors are under political or office pressure to obtain convictions. The focus on winning the case may cause people to lose sight of their duty to do justice, and the temptations that appear along way can be tough to turn down.  

A prime problem area involves Brady material. I have discussed this at length in posts on the blog page at Lumer & Neville (here, for example), but it is a critical area in terms of both criminal defense and civil rights, and worth revisiting. In sum, the term refers to the Supreme Court ruling in Brady v. Maryland that prosecutors were constitutionally required to promptly turn over any evidence in its possession that was favorable to the accused.  This rule was predicated on the importance of due process and the notion that the fairness of the criminal proceedings is more important than whether a conviction is obtained. Promptly turning over Brady material promptly is important because it provides some assurance that the guilty party had a full and fair opportunity to defend himself (and was found guilty because he was guilty).

February 19, 2014

The Blue Wall of Silence in South Florida

That cops let other cops (and their families, friends, and anyone else lucky enough to have scored a PBA card or, better yet, a relative's badge) skate on various traffic infractions, is reasonably well known, at least in the circles that I travel. In fact, for us non-officers, the only reason to have a police union card is so you can try to get out of tickets. It is called "professional courtesy."

Surely, you say, there must be limits to what an officer will ignore. Unfortunately, station house culture being what it is, many police officers are far less forgiving of police officers who enforce the law against fellow officers, than they are of officers who break the law in the first place. In police culture, reflexive support for a brother in blue is the norm, while upholding the law is tantamount to snitching, which is frowned upon by police officers and criminals alike.

In 2011, Florida Highway Patrol Trooper Donna Watts watched in amazement as Fausto Lopez, a fellow law enforcement officer flew by her while she was patrolling a local highway. As she pursued him, he reached speeds in excess of 120 mph. After chasing him for more than seven minutes, Watts finally pulled over Lopez, an off-duty Miami Police Department officer, who explained he was late to an off-duty job. Much to Lopez's surprise, Watts didn't let him off the hook; she arrested him. Eventually Lopez was fired.

Despite the unambiguous evidence supporting the arrest, the Florida Highway Patrol investigated Watts for her handling of the incident. It is unlikely, to put it mildly, that the arrest would be questioned if Lopez wasn't an officer.

But that was only the beginning. Watts soon found herself the target of a relentless campaign of harassment. She has received hundreds of threatening calls and been the butt of various pranks and instances of stalking. As the Associated Press reports, Watts discovered that “over a three-month period, at least 88 law enforcement officers from 25 different agencies accessed Watts’ driver’s license information more than 200 times.”  The 1994 Driver Privacy Protection Act provides that government officials who improperly access DMV databases are subject to a $2,500 fine for each offense and Watts is suing for the maximum allowed under law.

Apparently, local and national police organizations have determined that the villain here is Watts, whose sole offense was to arrest Lopez for a crime he plainly committed, and they are lobbying for changes to the law that would protect officers such as those who abused their authority to access Watts's DMV information. In Florida, the blue wall of silence is still a formidable force.

The national police organizations' emphasis on fraternity ├╝ber alles is depressingly predictable, and all too common.  As set out in a nice piece by Radley Balko, there is an abundance of similar stories concerning the intersection between courtesy, criminality, and police culture across the country. (Washington Post)

February 16, 2014

Lumer & Neville Reposts

Rather than import my firm Lumer & Neville's posts, I am attaching some links below with a quick description. I urge anybody who is interested in what we have posted to go to www.LumerNeville.com.
While some of these of topics will undoubtedly be discussed here, you ought to keep an eye on my firm's website if you're interested in the subject matter. And while you're there, check out our Areas of Practice pages. 

Is Accountability Coming to the NYPD?

As a plaintiff's lawyer, I have become accustomed to being blamed for the abundance of lawsuits against the City of New York and it's police officers. Newspaper articles seemingly point their fingers at attorneys, as though we are somehow to blame for those cops who deliberately arrest people without probable cause, fabricate evidence, or beat up people without any justification. 

This is not to say that there aren't silly or frivolous civil rights lawsuits. There are abusive claims filed in virtually every field of law subject to litigation. But this "kill all the lawyers" approach ignores the wide range of serious, deliberate, abusive conduct that does real and meaningful harm to individuals, groups, and our criminal justice system as a whole. Much of this misconduct is carried out by a relatively small handful of officers who act with impunity, primarily because they know full well that they will never be disciplined in any way, and that the City will carry all the freight. Try this as a lawyer, doctor, or fry cook at McDonald's, and see what happens.

Indeed, the NYPD seems to be one of the few places where an employee can be sued repeatedly for the same misconduct, cost his employer hundreds of thousands of dollars in damages, and untold hundreds of thousands more to pay for the City's lawyers to defend them, without suffering a single adverse consequence. These officers are not fired or even suspended. The allegations in the lawsuits are almost never even investigated or reviewed, and the officers' supervisors often don't know or don't care about the lawsuits against their subordinates. It has historically been viewed as a cost of doing business, and nothing more.

How many times are we talking about? Well, according to an article in today's New York Daily News, the officers atop the current leaderboard are Peter Valentin, Vincent Orsini, and Fritz Glemaud (shown above with Det. Warren Rohan), who collectively have been sued at least 70 times, while 52 other officers have each been sued 10 or more times.

An Epidemic of Misconduct, continued

It is impossible to talk about civil rights and police misconduct, without also talking about prosecutorial misconduct and the chronic violations of Brady v. Maryland. This is really just a brief primer on the issue, which is complex and requires substantial time and space to properly discuss. In sum, our constitution mandates that police inform prosecutors with Brady material, meaning evidence that may impeach the prosecution's witnesses or otherwise support a criminal defendant's claim of innocence. It is also incumbent on prosecutors to immediately disclose that evidence, or any other exculpatory evidence they are aware of. Far too often, however, these rules are ignored, often without consequence.  

Striking Out and Sallying Forth

Just what the world wasn't waiting for: a new blog. So why do it? After all, I was posting semi-regularly my firm's website (here, if you're interested), and my partner gave me pretty much free rein to write what I wanted. We linked the posts to our Facebook page and received a pretty favorable response. But the more I wrote, the clearer it became that there was a fundamental difference between writing about our firm, and events that directly related to our clients and our business, and talking generally about my opinions on the law, courts, politics, and society. It was perfectly reasonable to talk about the former on our site, but less so the latter. So we will continue to blog on our website about firm matters, and often link those posts to stuff I write here (and that my partner may choose to write about as well).  But my personal thoughts, ideas, etc., on more tangential, or completely irrelevant, issues will appear here. To allow room for responses and discussion, to spare my partner the embarrassment of seeing the posts under his name, and to give me a little more latitude. I hope some of you find it useful, interesting, or worth reading.

February 15, 2014

Like a Bad Penny

On Tuesday, United States District Judge Roslynn Mauskopf issued a ruling that sharply criticized NYPD officers Javier Velez and Konrad Zadiewicz for fabricating evidence and lying to the Court, and suppressed the seizure of a gun from one Martese Price. This case will likely now be dismissed for lack of evidence. If the name Javier Velez seems remotely familiar to visitors to this site, it is because he is one of the officers Lumer & Neville received a $560,000 verdict against in Davis v. City of New York. In that case, Velez also lied about seizing of a gun and was soundly spanked by a civil jury. While Judge Mauskopf does not referennce the Davis case, she cited to a prior criminal case in which Velez's credibility was questioned by Senior District Judge Raymond Dearie, as well as a CCRB ruling against Velez that rejected his testimony as "weak."

February 8, 2014

The Unions Enter NYC's Stop and Frisk Litigation

In a not entirely unexpected move, a coalition of unions representing the vast majority of the NYPD's membership, just filed papers in the United States Court of Appeals for the Second Circuit to set aside the settlement of the Stop and Frisk litigation. The unions are asking the Court to allow them to continue the appeal of District Judge Shira Scheindlin's rulings and imposition of a federal monitor, now that Mayor de Blasio and NYPD Commissioner William Bratton have announced that the City will drop its appeal and accept the court's determinations. It is an interesting move, and one that pits the officers against their newly appointed Commissioner, William Bratton, and the new mayor.

Click here for the full post at LumerNeville.com.

February 1, 2014

Operation Impact Comes to an End

According to a report in today's New York Times, newly appointed NYPD Commissioner Bill Bratton is ending the NYPD's Impact patrols. And not a moment too soon. Operation Impact was one of Commissioner Ray Kelly's signature policies in which rookie officers, fresh out of the academy, were put on foot patrols in the highest crime neighborhoods in NYC, often alone, and with little to no immediate supervision. The idea was to flood the streets with uniformed officers, increasing police presence and visibility, and giving the officers important experience in policing. Kelly publicly lauded the policy for it's role in reducing crime. But the program had plenty of potential pitfalls, many of which occurred far too frequently.