Claims It Usurped State’s Powers
Mayor Sues Council on Anti-Profiling Law, Saying It Exceeded Authority
By MARK TOOR, The Chief, September 9, 2013 5:00 pm
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Mayor Bloomberg continued his battle last week to preserve what his opponents characterize as overly-aggressive policing by filing suit to block a new law that expands the definition of police profiling and the remedies people can seek to stop it.

City Council Overstepped

The city’s complaint, filed Sept. 3 in State Supreme Court in Manhattan, asks the court to declare the law, which the City Council passed over Mr. Bloomberg’s veto in hope that it would rein in the NYPD’s stop-and-frisk activities, invalid on the grounds that policing is governed by the State Criminal Procedure Law. This means localities have no authority to pass laws in the same area, according to the city Department of Law.

“The Mayor made clear in his veto message that this anti-profiling measure is illegal—and today we are taking action on his behalf to prevent the law from taking effect,” Corporation Counsel Michael A. Cardozo, who oversees the Department of Law, said in a statement the day the suit was filed. “This suit is necessary to prevent the City Council from enacting laws where the state’s exclusive authority has been established.”

Mr. Cardozo’s statement did not refer to an anti-profiling law Mr. Bloomberg signed in 2004. The Law Department did not respond to a query about why that law would not violate the state’s prerogatives if the new one does.

At a hearing nearly a year ago, several City Council Members told Mr. Bloomberg’s Counsel, Michael Best, that it was ridiculous to say the body did not have the authority to pass the bill.

“How could the Mayor sign a previous racial-profiling bill but not sign this one?” City Council Speaker Christine Quinn asked. Mr. Best responded that the 2004 bill was a different situation because it merely codified existing state and Federal law on profiling. Ms. Quinn said she didn’t see a difference between the measures.

Cited Westchester Ban

Other jurisdictions in the state, including Westchester County and the City of Buffalo, have outlawed racial profiling, said Councilwoman Helen Foster. “How is it that they can pass laws and the City Council can’t?” she asked. Mr. Best said he was unfamiliar with those laws so he could not explain why they would be allowable.

The front-runner in the polls for the Democratic mayoral primary joined with Ms. Quinn in criticizing Mr. Bloomberg’s action. “This lawsuit is an outrageous attempt by Mayor Bloomberg to block essential legislation to end the abuse of stop-and-frisk in communities throughout this city,” said Public Advocate Bill de Blasio. “We need a strong, enforceable ban on racial profiling and all forms of biased-based policing. As Mayor, I will withdraw this lawsuit and finally bring this stop-and-frisk era to an end.”

Quinn: Let Him Sue

“Mayor Bloomberg can sue all he wants,” said Ms. Quinn, “but at the end of the day, we will successfully beat back this ill-advised litigation and ensure the prerogative of the City Council to reform stop-and-frisk.”

“It’s unfortunate that instead of working to unite New Yorkers around solutions that advance both safety and rights, Mayor Bloomberg is continuing to disregard a Federal court, the City Council and New Yorkers, who have all conveyed that his stop-and-frisk policy violates constitutional and civil rights,” said Joo-Hyun Kang, a spokeswoman for Communities United for Police Reform.

The profiling bill was passed, vetoed and then passed again by a slightly better than two-thirds majority overriding the Mayor in tandem with another bill that creates an Inspector General to oversee the Police Department. That bill is not part of the Bloomberg administration’s suit. Ms. Quinn voted for that bill but against the profiling measure.

The profiling law prohibits officers from initiating police action on the basis of not only race and ethnicity but also for a range of demographic factors including gender, age, sexual identity, homelessness and disability. People who feel they were wrongly profiled can sue in the state courts.

Fear Officers Will Pay

They cannot seek financial damages, but can ask a judge to order the Police Department to discontinue the policy or practice that led to them being profiled. Plaintiffs can also request legal fees, which police unions say could lead to individual officers being assessed if they are unable to prove they acted without prejudice.

Beyond the financial question, the unions believe the law treats police officers as guilty of discrimination until proven innocent. Both the Patrolmen’s Benevolent Association and the Sergeants Benevolent Associations have advised their members to be extra-cautious about stop-and-frisks and other activities.

The law signed by Mr. Bloomberg in 2004 bars police from profiling people based on their race or religion. Critics say that it was drafted so loosely as to be unenforceable, and that it does not contain a penalty for profiling.
The Mayor has said his stop-and-frisk policy was an integral part of the tool-kit used by the NYPD to drive crime, especially homicides, down to levels not seen in at least 50 years. He maintains his policies have saved 7,300 lives over the past 12 years by discouraging people from carrying guns in the street, combined with arrests and weapons seizures.

Quotas Add to Complaints

Opponents of the way the city employs the policy say officers stop people illegally, not on evidence of criminality as required by the U.S. Supreme Court, but because of their minority status. This discourages communities from cooperating with the police, they say. The cops are driven not by concerns about crime but by quotas set by precinct and borough commanders, they continue.

Further, they say, the policy has no clear effect on crime, noting that the number of stop-and-frisks and felonies have significantly declined in tandem for more than a year.

The opponents were given a boost last month when U.S. District Judge Shira A. Scheindlin ruled in a class-action suit that the way the NYPD enforced stop-and-frisk had violated the rights of hundreds of thousands of New Yorkers. She ordered changes to the administration of the program and appointed a Federal monitor to see them through.
Mr. Bloomberg not only appealed her decision, he asked her to put it on hold while the appeal works its way through the court system. Her ruling on the request is pending.

Background and Current Data Collection Efforts History of Racial Profiling Analysis