By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
While the rules may seem reasonable on paper, in practice they are designed to tilt the balance toward the city, plaintiff's lawyers say. The limit on discovery—especially on the complete files of any prior complaints about or misconduct by an officer—means plaintiffs have to go into settlement negotiations half-blind. They are negotiating without a clear sense of their own position or even of what happened, and thus are making monetary demands without knowing all the facts.
What’s more, even as police are allowed to withhold information about prior disciplinary action, lawyers say the 1983 requirement that complainants turn over prior arrest records is not only irrelevant to the incident that led to the lawsuit, but also serves to taint the plaintiff before mediation even begins.
Plaintiffs’ lawyers aren’t happy. In letters to judges, a range of them raised their objections to the special rules. In May, civil rights lawyer Rose Weber described how a city attorney used the rules to refuse to provide key documents in one of her cases. The plan “does not facilitate settlements,” she wrote. “It simply aids and abets the city."
At around the same time, lawyer Gabriel Harvis wrote, “The city has used the plan for the opposite of the plan's intended purpose: to delay cases and avoid discovery.”
Steven Banks, the head of the Legal Aid Society, which has no stake in legal settlements, also objected to the 1983 rules last July. The plan “places pressure on plaintiffs counsel to make a settlement demand without having a realistic assessment of the case,” he wrote.
Another civil rights lawyer, James Meyerson, wrote in October, that he wasn't aware of the new rules until after they were already in effect. "I do not see the program as being beneficial to anyone other than the city,” he wrote.
During the summer of last year, a committee of lawyers in the Eastern District, which covers Brooklyn, Queens and Staten Island, voted against allowing the special rules into those courts. The only member of the panel to vote in favor was the city's representative.
A spokeswoman for the district court declined to comment on these complaints.
In a series of moves that has accelerated in recent months, lawyers have been trying to get cases removed from the plan. The city, meanwhile, has aggressively opposed those moves. In the Reyes case, for example, attorney Harvis complained that the city stubbornly refused to deviate from the plan in any way even though settlement mediation “would very likely be a waste of time.”
In Hinton, Reyes, and Rahman, judges refused to remove the cases from the plan. In Rahman, Judge Denise Cote called the rules, “an effort to assist plaintiffs … and the city to expend its resources appropriately,” and seemed exasperated by the plaintiff's request to remove it.
But the Chiclana case had a different outcome. The young mother of two children had endured a roughing up, 9 hours in handcuffs, and a seven-month wait for her case to be dismissed after officers didn't bother to show up for a hearing. On Feb. 12, Berger sued, calling the arrest, “a simple case of a woman, never convicted of any offense, who was arrested and imprisoned in handcuffs for nine hours on a fabricated charge of disorderly conduct.”
On Feb. 22, in his letter asking Judge Katherine Forrest to remove the Chiclana lawsuit from the 1983 plan, Berger outlined his objections: “The plan was adopted with very limited outreach, is extremely one-sided in favor of the city and has the effect of delaying cases until plaintiffs can be pressured into accepting extremely small settlements,” Berger writes. “It harms plaintiffs who are among the least powerful and most vulnerable."
Within a day of receiving the letter, Judge Forrest signed a terse one-sentence order removing the case from the program.
On the very same day, Asst. Corporation Counsel Kate McMahon wrote to Forrest "vigorously" opposing the decision, and begging Forrest to reconsider. McMahon disputed Berger's contention that the program was created without consultation. "It was precisely these types of straightforward cases which the Southern District contemplated when it developed the 1983 plan," McMahon wrote. She went on to basically accuse Berger of being just another money grubbing lawyer: "A real possibility is that Mr. Berger objects to the plan insofar as it limits plaintiffs' attorneys' ability to generate additional fees through needless discovery and applications which can be later used to justify larger settlements."
In his response, Berger suggested that "Lawyers take discovery to assess the strengths and weaknesses of their cases, not merely to enhance attorneys' fees.”
Forrest sided with Berger. But the fact that McMahon's aggressive response came within hours starkly illustrates just how important the special rules are to the city.
And here, there's a major contradiction in the Bloomberg message. Even as the city spends an extraordinary amount of effort fighting these cases, it does almost nothing to learn from them. The NYPD doesn't keep track of officers who have cost the city money. Lawsuit records are not noted in officers' personnel files. Neither Internal Affairs nor the Civilian Complaint Review Board investigate claims in lawsuits. Police officials only look at the handful of cases that result in settlements of $250,000 of more.