COUNCIL MEMBER, 39TH DISTRICT DISTRICT OFFICE 456 5TH AVE, 3RD FLOOR BROOKLYN, NY 11215 (718) 499-1090

FAX: (718) 499-1997 CITY HALL OFFICE 250 BROADWAY, 17TH FLOOR NEW YORK, NY 10007 (212) 788-6969 FAX: (212) 788-8967 lander@council.nyc.gov

BRAD LANDER

COMMITTEES
LANDMARKS, PUBLIC SITING & MARITIME USES, CHAIR ECONOMIC DEVELOPMENT

THE COUNCIL OF THE CITY OF NEW YORK

ENVIRONMENTAL PROTECTION GENERAL WELFARE LAND USE HOUSING & BUILDINGS WATERFRONTS

__________________ ________________ ______________t _________________ RE: Community Safety Act Dear _____________,

July 12, 2013

As I believe you know, I deeply value our strong working relationship in pursuit of the shared goal of keeping our community safe. Even more, I value the hard work that you and your officers do, putting your safety on the line for ours on a daily basis. I have always tried to work hard to provide you support to build bonds of trust and to solve problems together. With that in mind, I wanted to write to provide you some information on two pieces of legislation passed by the City Council last week, Intro 1079 (to create an inspector general for the NYPD at the Department of Investigation), and Intro 1080 (to strengthen the Citys ban on bias-based profiling). I voted for these bills, which I believe will help to improve policing, target resources most effectively, and strengthen police-community relations. There has been a great deal of misinformation about the bills. While of course all NYPD employees work at the direction of the Commissioner, as a co-sponsor of these two bills, I want to make sure that you know what they do and perhaps even more importantly, what they do not do. 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. Intro 1080 does not change the existing legal standard1 that race or other categories cannot be the determinative factor for initiating police activity (which Mayor Bloomberg signed into law in 2004)2 and therefore should not change how suspect

descriptions are used. Individual officers will not be liable for monetary damages or subject to punishment by judges.3 Most of Intro 1080 addresses potential claims that can only be brought against the Department, for policies that discriminate against people based on race, religion, sexual orientation, or other categories.4 Judges cannot order monetary damages, but only injunctive and declaratory relief, that is, changes to policy, training, or supervision to reduce discriminatory impact.5 Relief can be sought against individual officers only on grounds that they have intentionally discriminated against an individual or a group of people based on their membership in a protected class.6 In most cases, similar relief can already be sought under Federal law,7 so Intro 1080 does not hold individual officers to an unfamiliar standard. However, even under Intro 1080, the judge can still only order injunctive and declaratory relief.8 There are no monetary damages and judges cannot order that individual officers be fired or disciplined by the department. Operation Crew Cut, the use of Argus cameras, and other NYPD policies that are targeted at high-crime locations are not prohibited by this law. Policies that target resources to areas of high crime and focus on criminal behaviors (e.g. gang activity) are exactly the type of constitutional policing that the bill protects. The practice of stopping, questioning, and even frisking people where there is reasonable suspicion to do so is not affected by Intro 1080, so long as it is not practiced on a discriminatory basis. The bill prohibits policies and practices that use race or other protected classes as the determinative factor for initiating police activity9 or that have an identifiable discriminatory impact.10 And even in these cases, the bar of proof is high,11 the mere existence of statistical differences from the general population is not alone enough to prove the case,12 and the NYPD can successfully defend by showing that there is no such impact, or that the policy is supported by a compelling law enforcement interest.13 Nothing will change in the chain-of-command. The NYPD Inspector General will conduct reviews of NYPD policy, and make recommendations to the Commissioner and Mayor14 but the NYPD IG will have no authority to order or implement any changes.15 The Commissioner will continue to have sole authority for setting policy and directing the activities, deployment, and conduct of NYPD employees.16 Judges are empowered by law to order narrow remedies that are closely tied to the specific complaint and only when the plaintiffs meet their burden of proof. In addition, as is always the case, decisions of judges can be appealed to a higher court. IAB will continue to investigate individual allegations of fraud, corruption, or wrongdoing. The Inspector General is charged with investigating NYPD policies and procedures17 and cannot order punishment of individual officers.18 Investigations the IG might conduct include such policy reviews as the use of stop, question and frisk; surveillance of Muslim communities; allegations of

crime statistics downgrading and quotas; leaving undercover officers in their posts too long; etc. The IGs investigations can result only in recommendations to the Police Commissioner, as required by the division of powers under the City Charter.19 In short, nothing will change about the way the police department is managed, or about good policing methods that are lawful under federal, state and local laws. Policing that complies with existing constitutional requirements is not impaired by this bill; in fact, it is exactly the type of policing the bills are designed to encourage. We believe that these new laws are necessary to make sure that NYPD policies do not improperly discriminateintentionally or unintentionally against groups of New Yorkers, and that appropriate independent oversight is in place to identify problems, offer recommendations, and provide transparency. We offer this letter to make clear the content of the law and look forward to our continued cooperation in serving our local communities. Sincerely,

Brad Lander New York City Council Member

References 1 Existing NYC Ad Code 14-151(a)(1): "Racial or ethnic profiling" means an act of a member of the force of the police department or other law enforcement officer that relies on race, ethnicity, religion or national origin as the determinative factor in initiating law enforcement action against an individual, rather than an individual's behavior or other information or circumstances that links a person or persons of a particular race, ethnicity, religion or national origin to suspected unlawful activity. 2 Intro 1080-2013 2 would amend NYC Ad Code 14-151(a)(1) to read : "[Racial or ethnic]Bias-based profiling" means an act of a member of the force of the police department or other law enforcement officer that relies on actual or perceived race, [ethnicity, religion or] national origin, color, creed, age, alienage or citizenship status, gender, sexual orientation, disability, or housing status as the determinative factor in initiating law enforcement action against an individual, rather than an individual's behavior or other information or circumstances that links a person or persons [of a particular race, ethnicity, religion national origin] to suspected unlawful activity. 3 Intro 1080-2013 2(d)(2): The remedy in any civil action or administrative proceeding undertaken pursuant to this section shall be limited to injunctive and declaratory relief. 4 Intro 1080-2013 2(c)(1)(i) describes a private right of action where the department has engaged in intentional bias-based profiling of one or more individuals and 2(c)(2) describes a private right of action against the department for a policy or practice within the police department or a group of policies or practices within the police department that has a disparate impact on classes protected under 2(a)(3) and 2(a)(4). 5 Ibid. 3 6 Intro 1080-2013 2(c)(1)(ii) 7 Improper discrimination is prohibited under the 4th and 14th Amendments to the U.S. Constitution and is actionable under federal law in 42 USC 1983. 8 Ibid. 3 9 Ibid. 1 10 Ibid. 4

Under Intro 1080-2013 2(c)(2)(ii) the Police Department must only show for disparate impact cases that the policy or practice in question causing a disparate impact upon a protected class bears a significant relationship to advancing a significant law enforcement objective. Once the Department proves that, the burden of proof shifts to the plaintiff who must show that an alternative policy or practice with less disparate impact is available that serves the law enforcement objective as well as the challenged policy or practice. Under Intro 1080 2(c)(1)(i), the Police Department must only show for intentional discrimination cases that the policing action in question (A) is necessary to achieve a compelling governmental interest and (B) was narrowly tailored to achieve that compelling governmental interest. 12 Intro 1080-2013 2(c)(2)(iii) states the mere existence of a statistical imbalance between the demographic composition of the subjects of the challenged law enforcement action and the general population is not alone sufficient to establish a prima facie case of disparate impact violation 13 Ibid. 11 14 Intro 1079-2013 1(c)(1), 1(d)(2), 1(d)(3) 15 NYC Charter 434(a) gives the Police Commissioner cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department. Intro 1079-2013 makes no changes to this section nor the jurisdiction of the Police Commissioner. 16 Ibid. 17 Ibid. 14 18 Ibid. 15 19 Ibid. 15
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