October 21, 2013


PBA, SBA Sue to Annul New Anti-Profiling Law

A Hedge Against de Blasio



PATRICK J. LYNCH: Questions Council’s authority


The Patrolmen’s Benevolent Association and the Sergeants’ Benevolent Association have filed lawsuits seeking to block a new law, passed over Mayor Bloomberg’s veto, that would allow people who feel they have been wrongly profiled by police to sue for relief in state courts.

Though the lawsuits, filed Oct. 15, are independent of each other, the goal is the same: to allow the unions to keep fighting the law if the next Mayor drops the suit the Bloomberg administration filed against it. Democrat Bill de Blasio, who is leading Republican nominee Joseph J. Lhota by a huge margin in the polls, has promised to do just that.

“The lawsuit will allow the appeal to continue even if de Blasio pulls it,” SBA President Ed Mullins said in an interview.

‘Overstepped Bounds’

“We believe that the City Council overstepped the bounds of its authority with the passage of what is now known as Local Law 71,” PBA President Patrick J. Lynch said in a statement. 

The suits pivot on the same argument. As Mr. Lynch’s statement explained it, “The New York State Criminal Procedure Law is clear and unambiguous in establishing itself as the sole and exclusive source for procedure for criminal actions, proceedings and matters in the State of New York. The CPL was established to ensure that people throughout New York State are subject to the same laws and standards to avoid confusion and unequal treatment in different jurisdictions. The City Council does not have the authority to supersede the state’s CPL.”

In a raucous City Council hearing on the bill in 2012, Counsel to the Mayor Michael Best said the state law meant the Council had no authority to pass bills governing policing. If that was the case, Speaker Christine Quinn and other members asked him, why did Mr. Bloomberg sign an anti-profiling bill in 2004?

Other jurisdictions in the state, including Westchester County and the City of Buffalo, have outlawed racial profiling, said Councilwoman Helen D. Foster. “How is it that they can pass laws and the City Council can’t?” she asked.

Reply Not Persuasive

Mr. Best said that because he was unfamiliar with the laws in other jurisdictions, he could not explain why they would be allowable. As far as the law signed by Mr. Bloomberg in 2004, he said, it merely codified existing state and Federal law on profiling. The Council was not sympathetic to the arguments.

“Profiling” refers to a police officer’s decision to take action because of someone’s race or ethnicity. The new law broadens that prohibition to bar profiling based on a wide variety of demographic factors including gender, sexual identity, disability, and perceptions about citizenship or domicile.

People who feel they were profiled may sue in state courts seeking a judge’s order modifying the police policy that led to the profiling. They may not seek financial damages under the law, but they may ask for payment for attorneys’ and expert-witnesses’ fees.

Police unions say the bill presumes officers are guilty until they prove themselves innocent, by showing that they had a reason other than discrimination for the action they took. They also worry that officers will be held personally liable for legal fees.

Chilling Effect on Cops?

The PBA, SBA and Lieutenants' Benevolent Association have advised members that in light of the new law they need to be careful about getting involved in situations that could be interpreted as profiling. The unions and other critics of the law, including Mr. Bloomberg and Mr. Lhota, say it will mark the end of aggressive policing in the city. That, they say, will result in rising crime.

“The language of so-called ‘biased-policing law’ is unconstitutionally vague and will only serve to confuse police officers regarding its racial-profiling provisions while hampering their ability to enforce the existing state laws that keep our city safe,” Mr. Lynch said.

Councilman Jumaane Williams, co-sponsor of the profiling bill, expressed opposition to the PBA suit, saying, “I strongly encourage PBA’s leadership to stop fanning the flames of division in pursuit of membership votes, and instead work with us to implement reforms that will rebuild trust between police and our communities. Only then will this city become safer for all of us.”

Joo-Hyun Kang of Communities United for Police Reform said, “It would be more productive for NYPD unions to join the City Council and New Yorkers in working towards positive solutions and police-community relationships, rather than continuing to fight a losing battle against ensuring all New Yorkers are afforded equal civil rights.”