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Column: Justice Department and New York Civil Rights Cases (New York Law Journal)

by Christopher Dunn

Last Thursday, a front page story in The New York Times announced that the U.S. Department of Justice would be filing papers in a class action civil suit — brought by the New York Civil Liberties Union and Schulte Roth & Zabel — in New York state court challenging the constitutional adequacy of the state’s system for providing defense services to indigent criminal defendants. Later that day, news emerged that Attorney General Eric Holder would be resigning once a successor was in place.

The disclosure of Holder’s planned departure spawned broad discussion about his legacy, and as explored in the lead story in last Friday’s Law Journal, that legacy includes litigation and controversies in New York. For the most part, however, the Justice Department’s involvement here has come in the form of prosecuting terrorism cases and in defending federal agencies against national security challenges. Far less frequent has been the department’s participation in civil rights litigation brought by New York advocates.

Infrequent as it may be, that type of Justice Department participation, which can come in a variety of forms, can have a major impact on civil rights litigation, for better or for worse. I have observed this first-hand in three controversies in which I have been involved.

Stop and Frisk

Prior to last week’s filing in the indigent defense case, the Justice Department’s most recent entry into a major civil rights case in New York came in June 2013 when it filed a “Statement of Interest” in a class-action challenge to stop-and-frisk practices of the New York City Police Department. In Floyd v. City of New York, advocates challenged the NYPD over what they alleged was a broad pattern and practice of stopping and frisking civilians on city streets without adequate justification in violation of the Fourth Amendment and on the basis of race in violation of the Fourteenth Amendment.

The Floyd case dates back to 2008 and itself was a successor to a case challenging NYPD stop-and-frisk practices in the aftermath of the 1999 shooting of Amadou Diallo by four white members of the police department’s Street Crime Unit. Shortly after Diallo’s killing, the Justice Department was considering opening a formal investigation into the NYPD, and high-level officials from the administration of then mayor Rudolph Giuliani were working furiously to prevent that from happening. They were able to forestall Justice Department action until the fall of 2000, and the entire effort ended when George W. Bush prevailed in the presidential election and took office in January 2001.

Shortly after Barack Obama’s election in 2009, advocates resumed their attempt to have the Justice Department involve itself in the NYPD stop-and-frisk controversy, all for naught. Finally, after Obama’s re-election, that changed.

By June of last year, Southern District Judge Shira Scheindlin had completed a lengthy trial in Floyd that encompassed liability and remedy. On the deadline for the filing of post-trial submissions, the Justice Department, without advance notice, filed with the court a “Statement of Interest of the United States.” Unlike when it sues as a party or files an amicus brief, in a statement of interest the Justice Department does not purport to take a position on litigation but typically lays out relevant legal or factual information for the court to consider in deciding the case before it. Consistent with the general approach, the Justice Department in the Floyd statement took no position on liability and instead informed Scheindlin that it was filing “only in order to assist the Court on the issue of remedy, and only should it find that NYPD’s stop-and-frisk practices are unlawful.”

Though it passed on the hotly contested issue of liability, the Justice Department’s statement of interest focused on something perhaps even more controversial: the appointment of a federal court monitor. On this issue, the department provided Scheindlin with a national overview drawing on “decades of police reform efforts across the country.” After reviewing in some detail the success of a monitor in Pittsburgh, the Statement of Interest explained,

The experience in Pittsburgh is consistent with the experience of the Civil Rights Division in other large systemic reform cases, including police matters. Just last month, a federal court closed a case involving a consent decree regarding the police department of the City of Los Angeles that was entered in 2000. The injunction required widespread reforms, including increased accountability of search and arrest practices in a department of more than 12,000 employees. Throughout the litigation, the monitor played a critical role, issuing 30 reports to the Court, helping to establish internal mechanisms of accountability, including helping to strengthen the independence of the Office of Inspector General, and ending the case with a 150-page report finding substantial compliance and recommending that the injunction be lifted. The monitor’s reports provided transparency and critical assessments of the department’s progress. While there were many factors that contributed to the success of the reform efforts in Los Angeles, the independent monitor was a central figure.

Monitors continue to provide courts with invaluable service in other Civil Rights Division police reform injunctive cases in cities large and small across the Nation, including: Seattle, Washington; Detroit, Michigan; East Haven, Connecticut; and the Territory of the Virgin Islands. In each of these cases, in our experience, the independent monitor improves efficiency in implementation, decreases collateral litigation, and provides great assistance to the court.

The routine use of monitors is not confined to cases filed in court. Monitors provided critical assistance to the parties in an out-of-court settlement with the Metropolitan Police Department in Washington, D.C., that focused on use of force, and in another, broader non-court agreement with the City of Cincinnati, Ohio. The United States recently agreed to out-of-court settlements with the City of Missoula, Montana, and the University of Montana concerning reforms solely to their police practices related to handling allegations of sexual assault and rape. Both agreements will be independently monitored. Similarly, the United States entered into a comprehensive out-of-court settlement with the Juvenile Court in Shelby County, Tennessee. The agreement requires reforms to address equal protection and due process violations. Again, the agreement will be subject to independent monitoring.

Not surprisingly, Scheindlin appointed a monitor in Floyd after finding that the NYPD’s stop-and-frisk practices were unconstitutional. In doing so, she expressly relied on the Department of Justice’s filing: “The DOJ recommended the appointment of a monitor in this case, in the event that the Court found the City liable. Based on ‘decades of police reform efforts across the country,’ the DOJ concluded that ‘the appointment of a monitor to guide implementation of…injunctive relief may provide substantial assistance to the Court and the parties and can reduce unnecessary delays and litigation over disputes regarding compliance.'”

Subway Bag Searches

A second major New York case that the Justice Department entered was the challenge the NYCLU brought in 2005 to the NYPD program of suspicionless searches of the bags of selected persons seeking to enter the subway system. Under the program, a tiny number of the 1,000 entrances to the subway system would see checkpoints of a few hours each day, and anyone entering the system selected for search was given the option of walking away so long as the person left the system. The NYPD initiated the program in July 2005 in the aftermath of the bombing of the London subway system.

The NYCLU filed MacWade v. Kelly in the Southern District, alleging that the program violated the Fourth Amendment because it was so ineffective that it could not justify suspicionless searches of people using public transportation. Following expedited discovery, Judge Richard Berman presided over a trial and upheld the program. Throughout the proceedings, the city defended the program without any outside involvement or amicus support.

The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit, and the federal government suddenly entered the case, this time on the side of the city. In MacWade the Justice Department did not submit a Statement of Interest but instead filed a conventional amicus brief. What was notable about the brief was not the law it discussed but instead its casting of the case as having national implications, something that stood in sharp contrast to the almost parochial approach the city had taken:

The Federal Government has a significant interest in protecting the nation’s mass transit systems. There are almost 6000 public transportation agencies in the United States, with more than 14 million people using public transportation on a typical weekday. Because of the large numbers of passengers and the open nature of these systems, they are appealing to terrorists. Public surface transportation systems have been the target of terrorist attacks throughout the world, including in Tokyo, Moscow, London, and Madrid. An attack on any mass transit system would have an impact felt throughout the nation.

With or without the federal government’s entry into the case, we had an uphill fight in MacWade, but the Justice Department’s filing certainly raised the stakes in the controversy. And not surprisingly, the Second Circuit ruled emphatically against us and affirmed Judge Berman.

Religious Practices in Prisons

A third New York case in which the Justice Department entered was a challenge the NYCLU brought in 2006 against the New York State Department of Correctional Services over its refusal to make “any accommodations to security staff employees which alter the uniform grooming regulations for reasons of religious practice.” Our client, Abdus Haqq, was a Muslim correctional officer whom DOCS refused to allow to wear a kufi while on duty, even though it was undisputed the kufi presented no security concerns.

We filed suit in the Southern District in October 2006, and the case was assigned to the late Harold Baer. The state opposed the plaintiffs every step of the way when the Justice Department informed us that it had an interest in the matter. The department did not, however, file a Statement of Interest, nor did it file an amicus brief. Instead, it filed its own lawsuit in January 2007.

Shortly thereafter, New York State reversed field and agreed to settle our case for Mr. Haqq, though it refused to change its general policies. The federal government continued with its case, ultimately forcing the state to change its policy in a January 2008 settlement.

Undeniable Impact

As exemplified by these three cases, Justice Department entry into a controversy — whether in the form of a Statement of Interest, an amicus brief, or the filing of a separate case — can have a dramatic impact. Most notably, the department’s entry into stop and frisk not only presented the district court with substantial support for appointment of a monitor, but it also changed that litigation from a dispute between the NYPD and civil rights advocates into one between the NYPD and the federal government. That type of shift can fundamentally alter judicial and public perception of the matter to the enormous benefit of civil rights plaintiffs.

But as the subway search case shows, there is no guarantee that the Justice Department will enter a case in ways that benefit the plaintiffs. On balance, however, I believe that advocates would benefit from greater participation by the Justice Department in New York civil-rights cases.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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