Fordham Law

Law Professor: Council ‘Stop’ Bill Will Discourage Police From Acting

James Cohen in The Chief Leader, July 01, 2013

Media Source

As the bill prohibiting police profiling moved toward passage by the City Council last week, deep divisions remained about how it could affect day-to-day policing.

Mayor Bloomberg, who has promised to veto the bill, maintains that it would bar officers from using demographic descriptions such as race, ethnicity, age, gender and disability to describe suspects. Police unions say it would expose individual officers to lawsuits by people who believe they were stopped because of profiling rather than suspicion of criminal activity.

Proponents of the bill, including co-sponsors Jumaane Williams and Brad Lander, dismiss those criticisms, saying it makes clear that officers can use race or any other descriptive categories in describing suspects. They also say that in order to win a claim for legal fees, a plaintiff would have to prove an officer acted with discriminatory intent.
THE CHIEF-LEADER asked an attorney independent of the debate, James A.Cohen, an Associate Professor at Fordham University School of Law, to analyze the bill with those issues in mind.

"This legislation totally ties the police officer's hands," he said in an interview. "...It's absurd. What guidance does the officer have [besides demographic descriptions] when she decides to make some inquiries?"

"I am not a law-and-order guy," said Mr. Cohen, a former Federal public defender who is part of the clinical faculty that works with students on actual cases. "I do mostly criminal-defense work." Sometimes when his clients "get jammed up it's the result of the police overstepping," he said.

But, he added, "I don't know how this is workable at all."

He presented a hypothetical case of a black man in a red sweater who uses a cane. Say the man hit Mr. Cohen over the head with the cane and took his wallet. "What am I looking for?" he asked. "Can I even look for a cane?"

'Eliminates Discretion'

The nuances of the reality of street policing "are not captured at all in this bill," he said. It "eliminates the use of reasonable discretion in the exercise of the police function...It makes it very hard for the police officer to do the job."

Proponents of the bill argue that like the existing anti-profiling law, the bill says demographic criteria cannot be the sole factor for a police stop.

But Mr. Cohen agreed with the unions that the bill would discourage police officers from taking action. "It's not good for the Police Department or the community," he said.

The bill was part of a package introduced to curb what opponents see as the NYPD's overly aggressive use of its stop, question and frisk policy.

Stop-and-frisks rose steadily to 685,000 in 2011 before dropping back to
534,000 last year amid strong criticism of the program.

"Even given the controversy over the stop-and-frisk policy, the bill goes too far," Mr. Cohen said. "...The Police Department needs to do something to reduce the image that it targets young black men," but this bill is not the solution. "When you go overboard-as I think the Police Department does-that just makes the suspicion that it's race-based that much stronger."

Liable for Attorney Fees

On the issue of costs to police officers, he noted that the bill would not allow monetary damages to be assessed, but that courts could order defendants to pay attorney's fees if they lose the case. If the city declines to indemnify an officer, he or she is responsible for any damages and legal fees a case may incur. Recently, the city has declined to indemnify a handful of officers who officials believe broke department rules.

The bill's supporters have said they envision most of the cases being brought on behalf of a plaintiff by nonprofit groups such as the New York Civil Liberties Union and the Center for Constitutional Rights. "Nonprofit legal fees are bigger than those of lawyers in an office on the corner," he said.

The legal-fees provision "could be a big hit in incentivizing a group of lawyers who now have no monetary incentive to bring stop-and-frisk cases,"
he said.

The bill would require the city to prove that a policy or practice challenged by a defendant "bears a significant relationship to advancing a significant law-enforcement objective." Mr. Cohen said, "I would not like to have to bear that burden."

Ripe for Suits by Men

He agreed with Councilman Peter F. Vallone Jr., a staunch opponent of the bill, that men of any race could sue under the bill's theory of disparate impact-which would outlaw practices that disproportionately affect a segment of the population even if no discrimination is intended-because a far greater percentage of men is stopped than women.

The bill was introduced after Mr. Bloomberg refused for more than a year to meet with lawmakers and community leaders who objected to the way the NYPD was running its stop-and-frisk program. "If Mayor Bloomberg had been more communication-friendly, this whole thing wouldn't have happened," Mr. Cohen said.

Eugene O'Donnell, a former police officer and prosecutor who now teaches at John Jay College, said the debate is "unnecessarily divisive," especially with the end of Mr. Bloomberg's term only six months away. "The whole thing is ugly to behold," he said. "It has spun out of control...It's really harmful to the fabric of the city if you keep this conversation going."

The message at this point, he said, really should be, "The city can be safe and the cops can be decent."