Patrolmen's Benevolent Ass'n of N.Y., Inc. v. City of N.Y.

2014 NY Slip Op 31570(U)

THE PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITYOF NEW YORK, INC. and THE SERGEANTS BENEVOLENT ASSOCIATION, Plaintiffs, v. THE CITY OF NEW YORK and THE COUNCIL OF THE CITY OF NEW YORK Defendants.

Index No. 653550/13

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 61

June 18, 2014

HON. ANIL C. SINGH, J.:

The law enforcement procedure known as "stop, question and frisk" brings into tension the right of minorities in New York to travel and associate freely, the obligation of New York City police officers to protect the public, and the ability of police officers to perform their duty safely.

In 2013 the City Council stepped squarely into this debate when it enacted Local Law 71. (New York City, N.Y., Local Law No. 71 Int. No. 1080 [2013] ("Local Law 71")). The legislation prohibits police officers from engaging in "bias-based profiling." Local Law 71 provides the following definition:

"Bias-based profiling" means an act of a member of the force of the police department or other law enforcement officer that relies on actual or perceived race, national origin, color, creed, age, alienage or citizenship status, gender, sexual orientation, disability, or housing status as the determinative factor in initiating law enforcement actionagainst an individual, rather than an individual's behavior or other information or circumstances that links a person or persons to suspected unlawful activity.

[Such "bias-based profiling" is established where:] one or more law enforcement officers have intentionally engaged in bias-based profiling of one or more individuals; and the law enforcement officer(s) against whom such action is brought fail(s) to prove that the law enforcement action at issue was justified by a factor(s) unrelated to unlawful discrimination.

An individual may file either an administrative complaint with the New York City Commission on Human Rights or a civil action in court. (Id.). In regards to damages, a plaintiff may receive injunctive and declaratory relief (id. § (d)(2)), and the court also "may allow a prevailing plaintiff reasonable attorney's fees as part of the costs, .and may include expert fees as part of the attorney's fees." Id. § (d)(3). The law does not provide for a civil recovery of monetary damages.

Local Law 71 is not the City Council's first attempt to legislate in the arena of alleged bias-based police profiling practices. In 2004 the City Council passed the "Racial or Ethnic Profiling Prohibition Law" (New York City, N.Y., Local Law Report No. 30 Int. 142-B (2004) ("Local Law 30") with the support of Mayor Bloomberg and the New York City Police Department ("NYPD"). Local Law 30 prohibits law enforcement officers from engaging in profiling "that relies on race, ethnicity, religion or national origin as the determinative factor in initiating law enforcement action against an individual. . . ." (Id.).

The City Council had the same concerns in enacting Local Law 30 that it had when it enacted the law at issue here: namely, to prevent officers from targeting individuals based on their race and national origin in violation of the Equal Protection Clause of the Fourteenth Amendment. (See Tr. of the Minutes of the Comm. on Public Safety (Feb. 23, 2004) ("Hearing Tr. 2/23/04").

During the drafting of Local Law 30, the NYPD requested that the anti-profiling law utilize the phrase "the determinative factor" in the final legislation, in order to mirror the language used in the NYPD's existing internal anti-profiling policy.¹ (Hearing Tr. 2/23/04 at 10:6-8; 12:4-11; 27:12-16; Operations Order No. 11 [Mar. 2002]). The City Council adopted "the determinative factor" language whereby Mayor Bloomberg and the NYPD recommended approval of the bill. (Compare Intro. 0142-2004 Version (Feb. 4. 2004), with Intro. 0142-2004 Version B [Feb. 4, 2004]; Hearing Tr. 2/23/04 at 7:5-8:3; Tr. of the Minutes of the Comm.on Public Safety [June 22, 2004] at 19:22-24). On July 12, 2004, Mayor Bloomberg signed the Profiling Ban, Local Law 30 into law without any objection to its legality.

However, the Local Law 30 ban on profiling was apparently not sufficient to deter the practice. The City Council cited the sharp rise in stops by the police since the Local Law 30 ban was in effect, "[i]n 2002, the NYPD made approximately 97,000 stops. By 2010, the number of stops had increased to more than 601,000. Black and Latino New Yorkers face the brunt of this practice and consistently represent more than 80 percent of people stopped despite representing just over 50 percent of the city's population." (Local Law 71 §1). As a result, the City Council renewed its interest in legislating against racial and ethnic profiling.

The City Council searched for a method in which "the city's existing prohibition on racial profiling [could] be enforced. The bill [preceding Local Law 71 was] designed by the sponsors to respond to these concerns." (Comm. Report [Aug. 22, 2013]). The NYCLU, a community-based group which participated in the legislative hearings, stated in a press release, "while racial profiling is currently banned, [in Local Law 30] it is a law with no teeth.... This law [Local Law 71] will actually hold the NYPD accountable when acts of discrimination happen." (See NYCLU Press Release [Apr. 24, 2013]). Moreover, the Council's statedintent of Local Law 71 was "to ensure protection of the civil rights of all persons covered by the law." (Local Law 71 §1).

Local Law 71 thus amends the "Racial or Ethnic Profiling Prohibition Law," Local Law 30, to provide a private cause of action to persons subjected to either intentional bias-based profiling or policies, or practices that have a disparate impact on covered populations. (Id. at §2).

During the legislative process of Local Law 71, the Bloomberg Administration acknowledged that it did not object to Local Law 30 - which contained similar profiling restrictions as Local Law 71 - on preemption grounds. Nonetheless, the Counselor to Mayor Bloomberg argued that the New York City Criminal Procedure Law would preempt Intro 800 (the bill predecessor of Local Law 71). In addition, he posited that Local Law 30 may have been enacted by the City Council without valid authority, despite the Bloomberg Administration's approval for its legislation.

The Bloomberg Administration further argued that conflict preemption existed in Intro 800 through various clauses that were ultimately removed in the final version of Local Law 71. The clauses that were not enacted in the final rendition of the law included language prohibiting law enforcement from relying on any of the protected categories to any degree and language granting standing toorganizations to initiate a private cause of action. (See Hearing Tr. 10/10/12 at 79:9-19, 80:8-22, 119:5-9).

Taking into consideration the concerns of the Bloomberg Administration and various community-based groups, Intro. 800 was re-drafted and introduced as Intro. 1080, and passed by the City Council on June 26, 2013. In response, the Mayor vetoed Local Law 71 on July 23, 2013. However, on August 22, 2013, the Council overrode the Mayor's veto. Thus, by its terms, Local Law 71 became effective on November 20, 2013. (See Local Law 71 § 5).

After Local Law 71 went into effect, the NYPD on November 22, 2013, issued its "Finest Message" which was distributed to all police commands. (Finest Message Nov. 22, 2013 [hereinafter Finest Message]). The NYPD characterized the newly enacted Local Law 71 as "consistent with current department policy and training." (Id. at 1). The NYPD went on to state:

It is important to note that Local Law 71 does not prohibit an officer from considering these demographic factors in deciding whether to initiate law enforcement action. The law prohibits their use as the 'determinative factor.' For example, if a radio run from a verified complainant describes a crime suspect by race, sex, clothing description and direction of travel, a person who has those physical characteristics and is traveling in the direction described may be the subject of law enforcement action. There is no violation of Local Law 71 in this circumstance because the suspect's race is not the determinative factor for the law enforcement action. It would be unlawful to stop or otherwise engage that individual if the deciding factor for doing so was that he/she matched only the race of the person described in the radio run.

(Id. at 1-2).

The NYPD also reassured its officers that those acting within the scope of their employment would be represented by the NYPD in actions stemming from Local Law 71. (Id. at 2).

Local Law 71 spawned a series of lawsuits. The Bloomberg Administration commenced legal action against City Council on September 3, 2013, seeking a declaratory judgment that Local Law 71 is invalid, without force and effect; and a permanent injunction enjoining the operation and implementation of Local Law 71.

On October 15, 2013, the Patrolmen's Benevolent Association of the City of New York ("PBA") brought the instant action against the City Council asserting three causes of action. The first cause of action asserts that Local Law 71 is illegal and invalid because it is preempted by the State Criminal Procedure Law.

The second cause of action asserts that Local Law 71 is void for vagueness under the Due Process Clause of the Fifth Amendment of the United States Constitution under the following grounds: (a) fails to provide police officers with objective or verifiable standards adequate to give them fair warning of the conduct it prohibits, (b) fails to provide courts and the Commission on Human Rights with the objective or verifiable standards for violation, and (c) fails to condition police ' officer liability with a culpable mental state. The third cause of action asserts thatLocal Law 71 is also void for vagueness but under the Due Process Clause of the New York State Constitution, Article 1, §6.

By stipulation dated November 12, 2013...