June 20, 2014

PBA's Challenge to New York City's Anti-Profiling Law Denied

A Manhattan judge has ruled that New York City's anti-profiling law -- passed in 2013 by the City Council following the determination in the federal Stop and Frisk litigation that the NYPD's police employed racial profiling -- has a valid civil rights objective that is not preempted by the Criminal Procedure Law. The decision by Justice Anil Singh is a clear win for the Council and a hard slap in the face for the police unions who sought to have the statute invalidated. The decision may well be appealed to the Appellate Division, with leave eventually being sought to take the matter to New York's Court of Appeals. The same police unions are currently seeking to force their way into the federal litigation (see here), so this appeal may be a bargaining chip in the larger three-way battle being waged between the City, civil rights organizations (and the individual plaintiffs), and the police unions.

Following Judge Shira Scheindlin's Stop and Frisk decision last summer, the City Council pretended to be indignant over the long-running NYPD practice of race-based stops that it had known about and ignored for years and exercised it's limited power to legislate, and passed the Community Safety Act (Local Law 71 of 2013). The law prohibits the police from profiling based on membership in various classes, such as race, national origin, etc., where such membership is the "determinative factor" for the police action. Most simply, if the overarching reason for the officers' decision to stop and frisk you is because of your race, skin color, or any other itemized characteristic, the action is unlawful under the local law.

The law also provides a limited private right of action. Victims can complain to the NYC's Human Rights Commission or pursue a state court action, but can seek only injunctive relief. While plaintiffs can recover legal fees and costs, compensatory damages are not permitted. Not to sound cynical, but it is a law that offers little relief for individuals (because nobody wants or has the time to pursue a state court lawsuit for years on end when the only thing you can win is the court's agreement that the police shouldn't have done what they did), but provides good ammunition for a class action.

In any event, Singh rejected the union's arguments that the law was preempted by state statutes and was unconstitutionally vague. The decision, which follows below, is long and detailed. But Judge Singh got it right when he held, "A stop where the determinative factor is race is not a valid Terry stop as there is no reasonable suspicionn. Nor would it meet DeBour's requirement of founded suspicion. Rather, the only articulated basis for the stop would be race, which is not permitted under state and federal law."

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