By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
In the files of the federal court in Manhattan, a battle is being waged over a little known set of special court rules aimed at dealing with the massive number of civil rights lawsuits against the NYPD currently choking the system.
The controversy has come up in a range of cases involving New Yorkers who claim they were roughed up, stopped illegally, or falsely arrested. It came up in the case of Lynda Hinton, who suffered tendon damage during a trespassing arrest for walking across the street to visit her mother in a city housing project. It came up in the case of Marie Rahman, who was arrested outside a methadone clinic by cops allegedly looking to make their arrest quota; in the case of Frank Reyes, who was stopped by police on an East Harlem sidewalk and ended up with a broken nose and stitches; and in the case of Rosa Chiclana, a 27-year-old single mom arrested on a disorderly conduct charge that was dismissed seven months later.
It has been coming up a lot.
This week marks the beginning of Floyd v. City of New York, the big civil rights class action lawsuit challenging the NYPD's stop and frisk campaign. A highlight of the trial is expected to be an airing of the recordings that whistleblower cop Adrian Schoolcraft made in Brooklyn's 81st Precinct. The tapes—first made public by the Voice in 2010—reveal police bosses ordering cops to stop citizens in order to make quotas, which are illegal under state law. The plaintiffs want the judge to appoint a monitor to oversee the NYPD, a radical shift in the power structure of New York City.
Police Commissioner Ray Kelly and Mayor Bloomberg insist that stop and frisk and quality of life arrests are critical to keeping crime down and they have largely ignored the civil liberties advocates who abhor the policy. But they are having a harder time ignoring one clear consequence of stop and frisk: New Yorkers are running to the courthouse in record numbers. Over the past five years, the number of lawsuits and claims filed against the NYPD have skyrocketed by 40 percent. Total NYPD settlements have risen from $92.3 million in 2007 to $185.6 million in 2011 for a total over the period of an astounding $654 million in payouts. Civil rights claims alone have cost the city $300 million, and the annual payout amount in those cases has risen in every year since 2008. The number of claims against the NYPD has also spiked--by a fairly unbelievable 55 percent, from 5,707 in 2007 to 8,882 in 2011. Last year, the Voice estimated that the city was being sued over stop and frisk at the rate of 40 cases per month.
“The vast increase in civil rights cases against the NYPD is hardly driven by greedy attorneys bringing frivolous lawsuits,” Chiclana's lawyer Joel Berger wrote last month in a letter to the judge on the case. “Rather it is primarily the result of the NYPD's stop and frisk policies, marijuana arrest policies, and trespass arrest policies in the housing projects. The victims of these policies have been filing a huge number of individual damage claims and lawsuits."
Even billionaire Bloomberg must feel the loss of $654 million. The city announced recently that it will start fighting these suits more aggressively rather than settling them, which the NYPD has always hated. At the same time, though—and there was no announcement accompanying this move—the city has implemented a backdoor strategy to strip away as much leverage as possible from the complainants. Rather than seeing the payouts as a sign of a flawed policy, the mayor has apparently opted to rig the game.
Lawsuits are typically filed and then they go to a magistrate—or junior level—judge for initial hearings and settlement discussions. But in August, 2011, in an effort to address the swelling number of civil rights lawsuits, the judges in the Southern District in Manhattan came out with a special set of rules reserved only for civil rights cases.
This is where Bloomberg’s new strategy kicked in. Known benignly as "The Plan for Certain 1983 Case Against the City of New York," these rules were pitched as a way to "streamline and speed up the judicial process" in NYPD lawsuits. (1983 refers to the statute number for the federal law governing violations of civil rights)
Under the normal rules, the magistrate judge orders broad “discovery”—the evidence on which legal cases are built, which both parties to a suit are obligated to share. Under 1983, as the regime is called, the parties exchange only limited discovery. The city is then given 80 days to file an answer to the complaint. The plaintiff, meanwhile, is obligated to turn over medical and prior arrest records. The parties then appear before a mediator, who is usually a corporate lawyer volunteering his time. If no settlement can be reached, the case essentially reverts to the normal rules, with an initial conference before a judge.
Muriel Goode-Trufant, the chief of the Special Federal Litigation Division for the city Law Department, says the program allows for a quick and efficient exchange of documents and reduces unnecessary proceedings. "It also encourages mediation and early settlement where appropriate," she says. "Nothing in the plan deprives a plaintiff of his or her ability to fully litigate a case if desired." She also contends the program came about as a result of "extensive, collaborative discussions among the Court, representatives of the plaintiffs' bar, and the Law Department."