June 12, 2013 —  New York is America’s cutting-edge city. For centuries, it’s drawn and nurtured the boldest, hardest working, most visionary and most innovative people from around the country and across the globe. And other cities have consistently turned to New York for leadership and inspiration.

Our laws are no different. Over the years, our city has produced policies that set the bar for fairness and equity. But this has only happened when City leaders have worked on behalf of all New Yorkers—not just a select few. We all live here, work here, pay taxes here and raise families here. New York City has to work for all of us.

When it comes to policing, New York should be leading the way with the smartest and most effective strategies. More than a decade into the 21st century, America’s leading city shouldn’t be relying on discriminatory tactics like bias-based policing, or be wasting time, energy and resources on strategies, like Stop and Frisk, with a 99% failure rate. If the NYPD is truly the nation’s most sophisticated law enforcement agency, then it’s time for the Department to start demonstrating the leadership this city is known for.

The Community Safety Act is cutting edge legislation that represents the best thinking of elected and community leaders from across New York City. Intro 800A, the Ending Discriminatory Policing Act, would protect New Yorkers from police profiling, helping to guarantee safety and respect for residents across the five boroughs in two ways: (1) by broadening the list of communities protected against discrimination by the NYPD and (2) by allowing New Yorkers to hold the NYPD accountable, not just for intentional discrimination, but also for practices that have a disparate impact on communities.

Intro 881, meanwhile, will bring needed transparency to the NYPD by creating an office within the Department of Investigation charged with investigating police policies and their impact, and making recommendations to the Police Commissioner. The goals of both bills are to begin to restore the public’s eroding trust in the NYPD and allow the Department to do its most difficult job: keeping New Yorkers safe while also protecting their essential freedoms.

I. Expanding Communities Protected Against Discrimination
Intro 800A will protect the rights of all New Yorkers who have been profiled by the police, due not just to their actual or perceived race, but also due to color, ethnicity, religion, gender, gender identity or expression, sexual orientation, alienage or citizenship status, disability, or housing status. In doing so, Intro 800A greatly expands upon New York City‘s current definition of police profiling, bringing New York City in step with numerous other states and cities that have similarly taken a strong stand against bias-based policing practices. For example, California law prohibits law enforcement discrimination against individuals on the basis of “race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.” Similarly, officers in New Mexico are not permitted to rely on a person‘s “race, ethnicity, color, national origin, language, gender, gender identity, sexual orientation, political affiliation, religion, physical or mental disability or serious medical condition” in making law enforcement decisions.

Intro 800A’s inclusion of previously unprotected categories reflects the real experiences of community members throughout the city, and concerns voiced by various service providers and organizations. For example, the NYPD’s own data indicates that young people, and specifically young men of color, face the brunt of stop-and-frisk abuses: although they account for only 4.7 percent of the city’s population, Black and Latino males between the ages of 14 and 24 accounted for 40.6 percent of stops in 2012. Indeed, that same year, the number of stops of young black men neared the entire city population for that demographic group (133,119 as compared to 158,406). The previous year, the number of stops of young black men actually exceeded their entire New York City population. However, neither age nor gender are protected categories under New York City‘s current profiling ban.

Similarly, “housing status” has been added as a protected category because over the last decade, research, litigation, media reports and community-based documentation efforts have confirmed NYPD targeting of homeless New Yorkers and people who are perceived as homeless for selective enforcement of laws. At one shelter, for example, residents received 228 summonses in a 28-day blitz by two precincts. In a survey of residents at that shelter, 7 in 10 reported police harassment and unlawful orders by NYPD officers to leave the area. Another survey of 500 homeless people in Manhattan revealed that more than 8 in 10 respondents had been harassed by the police and/or subjected to discriminatory enforcement of laws or regulations because they were homeless. More than 6 in 10 reported being subjected to baseless stops and frisks by NYPD officers.

Profiling based on sexual orientation is a reality in neighborhoods across New York. Lesbian, gay, bisexual, and queer nightlife establishments, including bars, clubs and lounges, have long been targeted for police raids resulting in the arrests of LGBTQ and allied patrons. As recently as this summer, a 26-year-old gay man was allegedly beaten outside Brooklyn's 79th Police Precinct by police officers who made homosexual slurs, after mistakenly accusing him of urinating on the side of the stationhouse.

Meanwhile, transgender women and gender non-conforming people are rampantly profiled for solicitation or loitering for the intent of solicitation, a profiling pattern so common it has earned the name “walking while trans.” In a report by Amnesty International, researchers documented an NYPD officer stating 100% of people arrested for prostitution in Manhattan’s 6th Precinct were transgender. According to the National Coalition of Anti-Violence Programs, transgender people were 3.3 times as likely as other LGBTQ people to experience police violence.

Finally, protections for immigrant New Yorkers are incomplete. In September 2003, Mayor Bloomberg reinforced a welcoming tradition towards immigrants when he signed Executive Order No. 41, which has been described as establishing a “don’t ask, don’t tell” mandate on city employees who come in contact with undocumented New Yorkers. Unfortunately, however, Executive Order 41 carves out an exception for collaboration between law enforcement officers and federal immigration authorities. That exception makes undocumented immigrants in New York City vulnerable to profiling on the basis of alienage or citizenship, as police officers can engage in pretextual arrests of “foreign-seeming” individuals, in order to book them and transmit them to immigration authorities. The profiling problem has become an even greater risk in New York City since the beginning of the State’s participation in the Secure Communities Program, which relies on local arrest data for deportations, even for those immigrants who are not ultimately convicted of a crime. Under Secure Communities, police are incentivized to arrest suspected undocumented individuals purely to book them and transmit their fingerprints to immigration authorities. Intro 800A will ensure that New York remains a true “sanctuary city.”

II. Providing a Private Right of Action
In addition to broadening the categories of people legally protected from profiling by the police, Intro 800A allows any person who has been subjected to bias-based policing to seek injunctive and declaratory relief in court. This includes allowing New Yorkers to bring legal actions against individual officers and the NYPD for intentional bias-based policing, when one of the protected classes is shown to be the determinative factor in initiating law enforcement action.

Under current Supreme Court law, the government has to meet the highest burden of scrutiny when it intentionally discriminates against a group on the basis of race, even if race is only one of many factors leading to the discriminatory treatment. Intro 800A creates a similar claim for people who are the subjects of intentional discrimination when race is used as the determinative factor in law enforcement action. As a result, certain Constitutional claims may be triggered by more subtle discrimination than is covered by Intro 800A. The NYCLU emphasizes that the constitutional standard, which is more protective against race discrimination, is not modified by Intro 800A.

At the same time, the Court’s current Equal Protection jurisprudence does not include age, gender, sexual orientation, disability, or housing status in the suspect classes that receive its highest level of scrutiny under the Fourteenth and Fifth Amendments to the Constitution. The inclusion of these groups in Intro 800A, therefore, represents significant progress in the rights afforded groups of New Yorkers that experience unequal treatment under the law, and goes beyond the protections offered by the Federal Constitution. The NYCLU is committed to ensuring that individuals subject to discrimination on the basis of race as one of many factors are entitled to the full protections of constitutional law, and that the protections offered by Intro 800A that exceed current Supreme Court requirements are extended to all New Yorkers who are victims of police profiling.

Even more significantly, Intro 800A permits an individual or organization to bring a legal action to demonstrate that law enforcement activities without discriminatory intent have had a disparate impact on certain groups of people. This is an important component of the bill because it allows communities to hold the NYPD accountable for practices that have a disproportionate impact with no legitimate justification, even when those practices are not intentionally discriminatory.

This legislation is in line with the Civil Rights Act of 1964, which was enacted to address pervasive discrimination based on race, ethnicity, national origin and religion. The Civil Rights Act had an enormous impact, effectively outlawing the unequal application of voter registration requirements and racial segregation in schools, in the workplace, and in public accommodations. Intro 800A would allow New York City to fill in a significant gap in this law – something that was foreclosed as recently as 2001, after the U.S. Supreme Court in Alexander v. Sandoval found that a regulation enacted under Title VI of the Civil Rights Act did not include a private right of action based on evidence of disparate impact.

Many scholars have criticized the Supreme Court’s decision, written by Justice Scalia, as it severely restricted individuals’ rights to challenge unconstitutional government discrimination. Currently, only the Justice Department has the authority to bring disparate impact claims. Intro 800A restores this right to New Yorkers, allowing them to hold the NYPD accountable for practices that have a discriminatory impact. It is worth noting that the state of Illinois did exactly this when in 2003 it restored the right of the people to bring disparate impact claims against law enforcement practices.

Disparate impact theories of liability are already available in numerous federal and city laws. For example, plaintiffs are able to bring disparate impact claims to enforce the Fair Housing Act (42 USC § 3613), Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352), the Americans with Disabilities Act, (42 USC § 12112), and the Equal Credit Opportunity Act (15 U.S.C. § 1691). Moreover, New York City‘s Human Rights Law broadly provides New Yorkers an opportunity to bring disparate impact claims in the context of employment, public accommodations, housing, licensing and other areas. Disparate impact claims of discrimination are not novel.

Intro 800A mirrors the language of the End Racial Profiling Act (“ERPA”), which is currently co-sponsored by Senator Kirsten Gillibrand in the United States Senate and by a majority of New York City’s congressional delegation in the House of Representatives. The federal legislation includes an almost identical definition of profiling to the one included in Intro 800A and it also creates a private right of action based on disparate impact claims. The End Racial Profiling Act would address many of the concerns that the Community Safety Act is aimed to address, but, in the absence of movement in Congress, New York has the unique opportunity to implement similarly groundbreaking legislation in New York.

V. Intro 881: Establishing an Inspector General to Monitor the NYPD
In addition to the equal protection of the law, oversight and transparency are also hallmarks of American democracy, and this is particularly true for law enforcement agencies, who we entrust with extraordinary powers. Yet in New York City, there is no office charged with the sole responsibility of proactively monitoring the NYPD—for waste, inefficiencies, improper policies, or to ensure that its policies do not violate New Yorkers’ constitutional rights. Intro 881 would create an Inspector General’s office, within the Department of Investigation , to monitor police practices and policies, conduct various investigations into police department practices, and make recommendations to the Police Commissioner. While the CCRB and Internal Affairs Bureau investigate individual complaints of police misconduct, they are not charged with the mission of monitoring policing patterns and practices, and making recommendations for systemic changes. Intro 881 will fix this problem.

This Commissioner of the Department of Investigation will be required to keep the Mayor, the Police Commissioner, and the City Council fully informed about any problems or deficiencies in the department‘s policies that it discovers and any corrective actions it recommends. The office will also create a mechanism for the public to submit requests for reviews on matters within its jurisdiction. This way, individual New Yorkers who have observed problematic NYPD patterns or practices can submit requests for the office to use its powers to begin investigating the issue. The City Council also has the power to direct investigations into issues it becomes concerned about.

Finally, the office will be able to receive and investigate complaints from any employee of the NYPD concerning the possible existence of problems with the department’s programs, including any complaints of retaliation against officers or other individuals in the department.

By creating this office, Intro 881 establishes a proactive, systemwide NYPD watchdog. It will be equipped to keep private information private, to subpoena key information from the NYPD, and to recommend corrective actions when it encounters problematic policies. Systematic review will allow the NYPD to better perform its job and will help to reinstate the public’s faith in the NYPD.

VI. Conclusion
The NYCLU is proud to support Intros 800A and 881. These bills will bring much-needed accountability to a police department that too often operates with impunity. New Yorkers deserve a strong, enforceable prohibition of police profiling, and they deserve to know that the police department’s activities are subject to review and investigation, just like every other city agency. The Community Safety Act is groundbreaking civil rights legislation that will put New York at the forefront of fair policing.

For more information please contact:
Johanna E. Miller
Acting Advocacy Director
(212) 607-3352
jmiller@nyclu.org

Rebecca Engel
Public Policy Counsel
(212) 607-3376
rengel@nyclu.org

 

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