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Why Do Police Unions in New York Want to Repeal the End Discriminatory Profiling Act?

Unknown to many, the NYPD was already “banned” from racial profiling by an obscure municipal provision called Introductory Number 142-B.

NYPD officers in Time Square, Manhattan. (Photo: Nikita Gavrilovs / Flickr)

New York City’s End Racial Profiling Act, or Local Law 71, is being contested by the New York City Patrolmen’s Benevolent Association and the Sergeant’s Benevolent Association, which claim a law “with teeth” will injure their members.

On April 29, in a cramped courtroom on the third floor of 80 Centre St. in New York City, an all-white group of legal professionals met to determine whether a new municipal law banning racial profiling by the NYPD would stay on the books.

Justice Anil Singh heard arguments from attorneys representing the New York City Council on why he should dismiss both a lawsuit and a preliminary injunction filed by two police unions opposing the profiling provisions. The unions believe that if the law is used to take an NYPD officer to court for profiling, the officer could be saddled with a significant amount of court costs not covered by the department.

Here’s the backstory: In June 2013, the City Council voted on two of four separate bills bundled together under the Community Safety Act, a piece of legislation addressing endemic racial profiling by the NYPD. Two of them passed, including the measure that became Local Law 71, and a bill establishing independent oversight of the NYPD passed. Former Mayor Michael Bloomberg attempted to veto the two bills, but his vetoes were overridden in August, and the two surviving bills went into effect in November.

On that late April day, the bill in question was the End Racial Profiling Act, or Local Law 71, which “establishes a strong and enforceable ban on profiling and discrimination,” and expands the definition of discrimination beyond race to include “age, gender, gender identity or expression, sexual orientation, immigration status, disability, and housing status.” Critically, the bill also provides a legal channel through which individuals, believing that profiling was a “determinative” factor in their apprehension, could bring intentional discrimination claims in a civil court.

Both the Bloomberg administration and the two police unions – the Patrolmen’s Benevolent Association and the Sergeants Benevolent Association – filed legal challenges to the law shortly after its passage. New Mayor Bill de Blasio dropped the city’s lawsuit this past March, but the unions did not, and on April 29, their attorneys went to court to argue that Local Law 71 impinged on officers’ ability to confront crime.

The lead attorney representing Patrolmen’s Benevolent Association, James McGuire, opened by presenting his clients’ rationale for suing the City Council: that the mere speculative possibility of an officer being sued was an injurious enough prospect for the law to be thrown out.

“Is it speculative that an officer will be sued? There is a high likelihood the answer is yes,” McGuire said. He noted the unlikelihood that not one of 22,000 would ever be sued.

“So the injury is the threat of a lawsuit?” Justice Singh asked.

“Yes,” McGuire said. “We had a prohibition [on racial profiling] before with no teeth. Now it has teeth . . . [And] as a result of the teeth they put in the statute, someone will get bit.” McGuire then asserted that because it is so likely that officers will be sued by those profiled, those officers will challenge Local Law 71 in court, where (in his view) the court would strike down the law if it hadn’t already been thrown out. Basically, he argued that the law would inevitably be struck down in the future if Justice Singh didn’t do it now.

In response, the lead attorney representing the City Council, Andrew Celli, noted that not a single officer had been sued under the law by anybody since it took effect in November.

“Yes, but isn’t that the purpose [of the law]?” Justice Singh pressed.

“Yes, but there’s no guarantee of it,” responded Celli. “This is an academic exercise because they can’t point to a single example of someone getting hurt [as a result of Local Law 71].”

The trial then moved to arguments over the injunction against Local Law 71. McGuire argued that the city was overstepping its authority in trying to regulate law enforcement duties, because anything related to criminal matters was supposed to be regulated by the New York State Criminal Procedure Law. Celli argued that New York City had the right to control public entities in the absence of regulation from a higher law. McGuire then wondered if Local Law 71 opened the door for the City Council to pass whatever measures it wanted under the guise of “civil rights,” a point that interested Justice Singh. Celli said in theory, yes, the City Council could pass civil and criminal legislation as part of a civil rights package, but insisted that Local Law 71 was “an extremely narrow statute.”

Later, the two counsels verbally sparred over what would happen if a person was lawfully apprehended under criminal law, but then the arrestee later alleged discrimination had been used in their apprehension. McGuire argued that the law raises a conflict of interest in officers’ determination of whom to apprehend, and may therefore interfere with enforcement duties. Celli responded that cops who followed the law would have nothing to fear.

Al O’Leary, a spokesman for the Patrolmen’s Benevolent Association, insists that the City Council is overstepping its authority with Local Law 71, and that it is a financial threat to officers.

“[The law] allows people to sue police officers and it puts our members at financial risk . . . [if the] court can turn around and find an officer guilty, and [the officer] has to pay court costs and other expenses, and that could be a heavy bill,” O’Leary told Truthout over the phone.

Commenting on the oral arguments after the trial, Steve Kohut, an organizer with the Latin-led Justice Committee, said there would be no reason for officers to worry about the prospect of a lawsuit if the NYPD didn’t actively profile people.

“If we say don’t profile, and you continue to profile, of course you’re going to get sued if you continue to violate our rights,” he told Truthout over the phone.

He didn’t buy the argument that there would be a barrage of lawsuits against the police for racial profiling, considering that no such suits have been brought to court since Local Law 71 took effect last November.

“We want the profiling to stop,” he said. “It’s not that we want people to go out and get targeted by [the NYPD] – we don’t want people to be targeted in the first place.”

Steve Kohut was part of an effort by Communities United for Police Reform (CPR), a loose collection of grassroots organizations in the city, to pack the courtroom with activists from across the city. CPR was also behind the push to end stop-and-frisk, as it became a centerpiece of the NYPD’s approach to crime in the last decade. In 2012, police stopped about 685,724 people, over 700 percent more than were stopped in 2002. An estimated 53 percent of those stopped were black and 34 percent Latino.

Local law 71 is meant to impose penalties on law enforcement that engages in stop-and-frisk-style profiling, but it can also be invoked in other instances where discrimination appears to be the “determinative” factor in an apprehension, such as being pulled over in one’s car. Aggrieved citizens can file a complaint with the New York City Commission on Human Rights or outright sue the agency employing the culpable officer, the precinct at which the officer is placed, or the officer his or herself. Relief for the citizen is limited to the “injunctive and declaratory” kind, meaning a court or third party would mandate that an officer, precinct or department cease engaging in discriminatory action. Relief would not include monetary compensation.

Because those who say they’ve been profiled cannot always afford their own attorney, it’s likely that the majority of grievances would be filed through the Commission on Human Rights, which already handles allegations of discrimination in housing and other public arenas. When a complaint of profiling is filed through the commission, it launches an investigation into the claim. After the investigation ends, the commission presents the precinct or department with what they found. If evidence of discriminatory profiling is found, then the offending entity is presented with remedies and ideas on how to correct the problem.

There are various ways an accusation of police profiling can be addressed. For example, the offending officer can be mandated by his precinct to undertake certain changes – perhaps he/she will be reassigned to a different area, or be made to attend a certain number of professional development seminars. Another possibility is if an officer(s)’ discriminatory policing is found to be part of a broader policy within a precinct, the precinct can be pushed to “dismantle the policy and come up with another solution without resorting to discriminatory practices,” said Candis Tolliver of the New York Civil Liberties Union in a phone conversation with Truthout.

Part of what sets Local Law 71 apart from similar measures across the country is that it is meant to address unintentional as well as intentional discrimination: If a law enforcement policy is found to overwhelmingly, but inexplicitly, target a specific class of people, like stop and frisk, it can be legally dismembered under the law.

Unknown to many, the NYPD was already “banned” from racial profiling by an obscure municipal provision called Introductory Number 142-B.

“Intro. Number 142-B codifies the NYPD’s existing Operations Order 11, which prohibits the use of racial profiling defined as ‘the use of race, color, ethnicity, religion or national origin as the determinative factor for initiating police action'” Mayor Bloomberg said in a written statement from July 12, 2004. “Codifying the order into law demonstrates our administration’s unwavering commitment to routing out acts of racial profiling.”

That year, police stopped and frisked New Yorkers 313,523 times. An estimated 87 percent of those stops were of black and Latino people, while whites represented 10 percent of stops. That ratio basically stayed the same as the number of stops doubled by 2012.

Under Local Law 71, the channel for grievances is fitted with a force of law that didn’t exist under previous ordinances. That’s what the PBA’s attorney, James McGuire, meant when he said the new law has “teeth,” whereas the former provision was “toothless.”

Since the law went into effect last November, no lawsuits have officially been launched against the NYPD or any individual officers, and few complaints have been filed with the Commission on Human Rights. Activists from Communities United for Police Reform say this is probably because those most affected by the new measure are unaware of its existence, so the organization is undertaking a grassroots effort to inform citizens of their new rights and legal options when racially profiled by the NYPD.

Until more people are made aware of their rights under the law, and until Justice Singh reaches a verdict on the lawsuit and injunction, little will remain known about just how hard Local Law 71’s bite can be.

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