July 1, 2016
By MARK TOOR
The Patrolmen’s Benevolent Association lost an appellate-court bid to overturn a 2013 anti-profiling law that expanded the prohibition on discrimination by police officers from race and ethnicity to include religion, age, citizenship status, gender, sexual orientation, disability and homelessness or residency in public housing.
The PBA contended that the law should be pre-empted by the state Criminal Procedure Law. A four-judge panel of the Appellate Division of State Supreme Court ruled unanimously that it should not.
Find No Conflict
First, the judges said, the city law was an anti-discrimination law, not a criminal-procedure law. Second, they stated, the two laws do not come into conflict. The judges said the Criminal Procedure Law does not address discrimination by police officers.
“We have great respect and appreciation for the important contributions of police officers who enforce our laws and protect us all daily at risk to their own personal safety,” the judges wrote in an opinion dated June 23. “However, we also recognize the city’s legitimate interest in protecting New Yorkers from discriminatory law enforcement.”
PBA President Patrick J. Lynch said, “We continue to believe that this law creates a confusing patchwork of regulations governing police-officer conduct, instead of a uniform standard across the entire state.
“If this decision stands, it would leave New York City police officers subject to two conflicting sets of rules. It also opens the door for other cities to create similarly conflicting rules. The resulting confusion will only make police officers’ jobs more difficult and more dangerous.”
Uncertain on Appeal
A PBA spokesman said last week that the union was still deciding whether to appeal to the state’s highest judicial body, the Court of Appeals.
A spokesman for the city Department of Law said, “We are pleased that the court has upheld the Council’s authority to pass this important anti-discrimination law.”
The City Council passed the anti-profiling law along with another one creating the post of NYPD Inspector General under the Department of Investigation in response to repeated refusals by then-Mayor Michael Bloomberg to meet with lawmakers who felt the city had gone overboard with aggressive stop-and-frisk tactics.
Mayor’s Veto Overridden
Mr. Bloomberg and his Police Commissioner, Raymond W. Kelly, ratcheted up the number of stops from 97,000 in 2002 to nearly 685,000 in 2011. Legislators and community leaders complained that too many stops were made without legal justification and that officers were sometimes roughing up the people they stopped.
“Profiling” means a demographic characteristic of a suspect that drives police action against him or her.
The PBA and other police unions generally opposed both bills, as did Mr. Bloomberg, who vetoed them before the Council overrode his veto. But the PBA was particularly incensed by the anti-profiling bill, which contained a provision allowing a State Supreme Court Justice to hold individual police officers responsible for violations.
The law does not provide for monetary damages, but it does allow legal fees to be awarded, and the unions expressed concern that an officer might lose his or her house over a well-intentioned stop that was later found to violate the profiling law. Mr. Lynch said at the time it was passed that it would be the death of proactive policing.
Shortly before the Council overrode Mr. Bloomberg’s vetoes, U.S. District Judge Shira A. Scheindlin found the city was implementing stop-and-frisk in a racially-discriminatory and unconstitutional fashion.
She ruled that thousands of people were stopped even though they did not meet the requirements set by the U.S. Supreme Court that police must have some indication that the people they stop were immediately involved, were about to be involved or had just been involved in a crime. Instead, she said, many officers were stopping people because they were the same race or ethnicity as the majority of violent-crime suspects in a particular precinct.
Mayor’s Unfounded Fears
In vetoing the bills, Mr. Bloomberg said they would jeopardize the sharp declines in crime experienced by the city during his 12 years in office. He said that the anti-profiling law would bring a flood of nuisance suits and that the Inspector General law would create a parallel command structure that would confuse officers in the street.
He also warned that murders would rise because young men were no longer afraid to carry a gun lest police officers stop them and find the weapons.
None of those predictions has come to pass. The Law Department said recently that no actions had been filed under the anti-profiling law. And even as the number of stops has dropped to fewer than 30,000, major crime has continued to decline. The NYPD is in the midst of revising its stop-and-frisk guidelines under the supervision of a Federal monitor appointed by Judge Scheindlin.