THE COUNCIL OF THE CITY OF NEW YORK

MEMORANDUM TO: FROM: RE: DATE: Parties interested in Intro. 1080 (to strengthen NYCs ban on bias-based profiling) NYC Council Members Brad Lander and Jumaane Williams Individual officer liability under Intro. 1080 August 6, 2013

Intro. 1080-2013 strengthens New York Citys existing prohibition on bias-based profiling by the NYPD (originally passed as Local Law 30 in 2004, sponsored by Councilmembers Reed, Vallone, and others and signed into law by Mayor Bloomberg). Intro. 1080 makes three significant changes to the existing law: 1. Establishes a private right of action for individuals who believe that they have been profiled to seek redress through the courts. Also provides an option of seeking redress through a claim with the New York City Human Rights Commission. 2. Expands the protected categories, from race, ethnicity, religion, or national origin to race, national origin, color, creed, age, alienage or citizenship status, gender, sexual orientation, disability, or housing status. 3. Makes it possible for plaintiffs to bring disparate impact suits, where a particular policy or program is alleged to have a discriminatory impact. These suits can only be brought against the Department, not against individual officers (this is one of the most significant changes from the earlier Intro. 800 to Intro. 1080). Most of Intro. 1080 addresses claims that can only be made against the Department. However, concerns have been raised that plaintiffs may utilize the private right of action to bring a very large number of lawsuits against individual members of the NYPD, alleging racial or other biasbased profiling. We believe that this concern has been greatly exaggerated, for the reasons enumerated below. The definition of profiling is unchanged (though categories are added): As established by Local Law 30-2004, Section 14-151 of the Administrative Code of the City of New York already prohibits individual officers from engaging in racial or ethnic profiling. While Intro. 1080 expands the protected categories, it does not change the definition of profiling, which continues to be: an act of a member of the force of the police department or other law enforcement officer that relies on [protected categories] as the determinative factor in initiating law enforcement action against an individual, rather than an individuals behavior or other information that links a

person or persons to suspected unlawful activity. NYPD officers are therefore already familiar with this legal standard. Intro. 1080 would not affect suspect descriptions. Race, gender, age, and other descriptive information are, and will remain appropriate information for use in suspect descriptions. There is nothing in Intro. 1080 that will change how descriptions are used. As noted above, Intro. 1080 does not change the existing legal standard (signed into law by Mayor Bloomberg) that race or other categories cannot be the determinative factor for initiating police activity and therefore would not change how suspect descriptions are used. They have been permissible under Local Law 30-2004, and they would remain permissible. Intro. 1080 has a high standard of proof for claims against individuals officers: Plaintiffs bringing a claim against an individual officer (or group of officers) would first have to state a proper claim that those officers had engaged in intentional bias-based profiling, as defined, in the law: that the officer had intent to discriminate, and relie[d] on [the protected categories] as the determinative factor in initiating law enforcement action against an individual, rather than an individuals behavior or other information that links a person or persons to suspected unlawful activity. Case law demonstrates that this is an extremely burdensome legal standard for a plaintiff to meet. Before an attorney would bring a defense, they would often be likely bring a motion-to-dismiss arguing that the plaintiff had failed to state a proper claim. As noted below, under a similar law in Illinois, of the cases that reached the appellate division, 18 out of 26 were dismissed, based on a motion-to-dismiss, for reasons including failure to state a proper claim. Then, if the judge finds that the plaintiff has stated a proper claim, an officer could still disprove the charge simply by proving that the law enforcement action at issue was justified by a factor(s) unrelated to unlawful discrimination (2(c)(1)(ii)). Individual officers will not be liable for monetary damages or subject to punishment by judges: Intro. 1080-2013 2(d)(2) states: The remedy in any civil action or administrative proceeding undertaken pursuant to this section shall be limited to injunctive and declaratory relief (changes to policy, training, or supervision to reduce discriminatory impact). This means that officers cannot be sued for monetary damages. In addition, under City Law, only the police commissioner has the power to fine, reprimand, remove, suspend or dismiss officers for misconduct. A judge can order the officer to cease the bias-based profiling, and could order the NYPD to take steps to end the bias-based profiling. But employment sanctions or punishment against the officer would remain as it is now with the police commissioner. As a result, in the absence of monetary damages or officer discipline, we think it is likely that only the strongest cases will be brought under this law. This argument is strengthened by looking at the CCRB (where officer sanction is possible), Federal lawsuits (where monetary damages are possible), and at a comparable jurisdiction: Only a small number of individual complaints of racial profiling are brought to the NYPD or CCRB each year: In recent years, New Yorkers have made approximately 10,000 complaints to the Civilian Complaint Review Board, of which an average of approximately 6,000 have been determined by the CCRB to be within their jurisdiction. Currently, racial profiling is not a category tracked by the CCRB. However, the NYPD (Chief of Department's office) testified in the Floyd trial that CCRB refers allegations of racial profiling to the Chief of Department. They

testified that there were only 30 allegations of racial profiling in 2012. Individuals might view going to court differently from bringing a complaint to the CCRB. However, since a CCRB complaint can result in sanctions for the officer, and a lawsuit under Intro. 1080 could not, it is difficult to see why there would be a larger number of lawsuits. Individuals can already bring intentional racial profiling claims in Federal court, seeking monetary damages, but relatively few do so: Under federal law 42 USC 1983, individuals can already bring claims of intentional racial profiling against individual officers. In these cases, individuals can receive monetary damages presumably making it significantly more appealing for individuals to bring claims pursuant to Section 1983 than it will be under Intro. 1080. Best Comparison: Illinois: The State of Illinois (as well as Rhode Island & Kansas) has had a comparable law in place for 10 years, the Illinois Civil Rights Act of 2003. Their law is actually broader (beyond policing), allows more claims, and covers both the State and localities (including Chicago). It also allows monetary damages. Illinois has 13 million people, more than New York Citys 8 million. In 10 years, they have had approximately 500 claims, for an average of 50 per year. Of the 26 cases that NYCLU was able to identify in Westlaw (this includes state cases that made it up the appellate division, as well as federal court cases): 18 out of the 26 were dismissed at the very first stage, motion-to-dismiss, for failure to state a proper claim, lack of jurisdiction, etc (these 26 included 2 class action lawsuits, one of which was dismissed for failure to state a claim). *** In summary, while Intro. 1080 will allow for strong allegations of bias-based profiling to be addressed in State Courts or by the NYC Human Rights Commission, the evidence suggests strongly that there will not be a large number of cases brought, and that police officers who follow existing rules for policing based on reasonable suspicion need not fear frivolous claims under the new law.