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."
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.
“The NYPD is one department that has been extremely resistant to even collecting information,” says Joanna Schwartz, a law professor at UCLA who has been studying how cities handle these types of lawsuits. “The Bloomberg administration has said that the mere fact of a settlement is not an admission of wrongdoing, but if the city is paying out $300 million, it seems cost effective to try to identify what the reasons are. If Bloomberg News was paying out that much, you bet they would look at it."
Schwartz found that departments that analyze legal claims were better able to identify problem officers and troubling trends and address them. “Lo and behold when they do look at trends in claims, they learn new thing about their departments,” she says.
But for the city to undertake an effort like that would be tantamount to admitting defeat, to acknowledging that in fact there are profound problems with the stop and frisk campaign, with the program of low level arrests, and with the level of accountability in the NYPD. It would take Bloomberg admitting that he was wrong.