New York Post
October 14, 2013

PBA suit over stop-and-frisk law

By Phil Messing

Photo: Paul Martinka
PBA President Patrick Lynch says City Council "overstepped its authority" with the new law.

The Patrolmen’s Benevolent Association is planning to file a lawsuit tomorrow in Manhattan Supreme Court challenging the legality of a new City Council law that could make it easier to sue cops for racial profiling during stop-and-frisk encounters.

The planned lawsuit echoes a similar one filed by the Bloomberg Administration in September that challenged the constitutionality of the new law on the very same grounds – that it is pre-empted by the State Criminal Procedure Law, which already makes police racial profiling illegal.

In announcing the planned lawsuit, PBA President Patrick Lynch used similar language cited by the city to argue that new law is legally baseless.

“We believe that the City Council overstepped the bounds of its authority with the passage of what is now known as Local Law 71,” said PBA President Patrick J. Lynch. “The New York State Criminal Procedure Law (CPL) is clear and unambiguous in establishing itself as the sole and exclusive source for procedure from criminal actions, proceedings and and matters in the State of New York.

“The CPL was established to ensure that the people throughout New York State are subject to the same standards to avoid confusion and unequal treatment in different jurisdictions. The City Council does not have the ability to supersede the state’s CPL,” Lynch insisted.

A key rationale for the PBA lawsuit – which relies on the same legal rationales offered up in the lawsuit filed by Bloomberg — is to make sure the challenge is heard, no matter who is elected mayor next month.

Leading Democratic candidate Bill de Blasio has been a vocal opponent of existing NYPD stop-and-frisk policies — and police union officials fear he will likely drop the existing lawsuit if he’s elected mayor.
“Lynch wants to assure that the challenge goes forth,” explained one PBA official.

The PBA lawsuit, a copy of which has been obtained by The Post, asserts that the City Council law is “unconstitutionally vague,” as it basically forces the cop on the beat to have even more legal training than a sophisticated constitutional lawyer.

The law “necessarily leaves police officers to guess, on pain of civil and potential contempt liability, as to the meaning of several provisions” of the legislation, the lawsuit states.

Such provisions include “. . . whether they have engaged in prohibited ‘bias-based profiling,’ whether they have ‘initiated[ed] law enforcement action against an individual,’ whether such action ‘was justified by a factor[s] unrelated to unlawful discrimination,’ and how ‘the determinative factor is initiating law enforcement action’ is to be assessed.

The City Council passed its racial profiling bill June 26, broadening the categories of those protected from profiling — from race, ethnicity,religion and nation of origin — to include age, gender, sexual orientation, homelessness and disabilities, too.

Under the new bill, those who assert they’ve been subjected to biased-based profiling can sue, although there’s no stated provison to allow monetary awards.

Bloomberg vetoed the same bill in July, claiming state law already banned racial profiling.

He also charged that the bill would chill proactive policing and “imperil the hard-earned gains” the city has made in slashing crime.

The City Council overrode Bloomberg’s veto on Aug. 22, passing the racial-profiling bill and establishing an inspector general to monitor the NYPD.

The inspector-general law – an out-growth of the city losing a recent federal law suit that challenged the legality of how the NYPD conducts stop-and-frisks – remains on the books.