Legal Aid's Chief Attorney Tells New York Times That Role Of Monitor In "Stop And Frisk" Case Is To Bring About Reform
TUESDAY, AUGUST 13, 2013

In a landmark ruling, Federal District Court Judge Shira Sheindlin found that the New York Police Department's "stop and frisk" practices are unconsitutional and racially discriminatory and appointed a monitor to help bring the NYPD's practices into compliance with legal requirements. Based on The Legal Aid Society's expertise and extensive experience in litigating complex cases to enforce basic constitutional and statutory rights that often involve the appointment of monitors, Steven Banks, Attorney-in-Chief of The Legal Aid Society, told The New York Times in an interview that “In those other cases, monitors are put in place as part of settlement agreements to solve a problem, where here there is great resistance to the notion there is actually a problem.”

“When you have a bureaucracy, such as this Police Department, which operates with a we-never-make-mistakes perspective, the role of the monitor is to actively bring about reform and assist the court in creating a framework for bringing the agency into compliance,” Mr. Banks added.

The Legal Aid Society is the oldest and largest legal services organization in the United States and, along with others, is counsel in federal class action litigation to end the City's unlawful stop, question, frisk and arrest policies and practices that affect residents and their guests in New York City Housing Authority developments as well as in State court litigation to stop unlawful marijuana arrests.

In a recent comment at a City Hall press conference with New York City Councilmembers concerning the City's unlawful "stop and frisk" practices, Banks said that "[b]ased on our experience in handling more than 300,000 individual legal matters in all five boroughs each year for low-income New Yorkers with civil, criminal and juvenile rights legal problems in addition to law reform litigation benefiting all two million low-income children and adults in the City, The Legal Aid Society and our front-line staff see every day the urgent need to prevent continued harm resulting from improper and unlawful policing."




August 12, 2013
For Police, Court Oversight Isn’t New
By JOSEPH GOLDSTEIN

There was no ambiguity about where Mayor Michael R. Bloomberg stood on having a federal monitor oversee any portion of the New York Police Department.

“This makes no sense whatsoever when lives are on the line to try to change the rules and hamper the police,” Mr. Bloomberg said in June. “You have to have clear responsibility, clear chains of command.”

Yet dealing with federal oversight is not a novel experience for the city or the department.

In 1985, the department submitted to a court settlement giving a federal judge authority to oversee its investigations of political activity. The strictures of that oversight have changed over time, and were loosened substantially after the Sept. 11 attacks, but remain in place.

The Fire Department, called a “stubborn bastion of white male privilege” by a federal judge, has for the last three years been under the supervision of either a court-appointed monitor or a special master, charged with helping to carry out a plan to hire more minority firefighters.

That is just a small fraction of the time that the city’s Department of Correction has been under court supervision: a judge in the early 1970s ordered that the Tombs, the complex near Manhattan Criminal Court where inmates were held, be shut down because of abysmal conditions. When inmates were sent to Rikers Island, they sued over the conditions there. The resulting settlement led to a consent decree in the late 1970s that has kept Rikers Island under court supervision ever since.

Even mundane procedures often are vetted by the courts. For example, a federal judge’s order late last year dealt with how frequently light bulbs had to be changed at Rikers, to ensure inmates had enough light to read by.

Elsewhere across the country, a number of police departments have found themselves under federal court oversight, often in response to a broader range of alleged police misconduct than the New York case. In Seattle, for instance, a monitor was brought in to address the incidence of discriminatory and baseless street stops of the public — the core complaint in the New York City case — as well as widespread problems with excessive force, particularly the use of batons and flashlights, often against people with mental illness.

The particular changes Judge Shira A. Scheindlin intends for the New York Police Department remain unclear. She may, in court hearings to come, allow the department to propose new policies or remedies, or she may simply dictate what changes are to be made. One factor in her decision in how to proceed may be the fact that the department chose to defend its stop-and-frisk practices at trial, rather than agree to change them.

“Because the New York Police Department is taking the position that it is doing nothing wrong, one might think the judge would have more trepidation about leaving this to the department to fix,” said Joanna C. Schwartz, a law professor at the University of California, Los Angeles, who has studied what effects lawsuits have on police departments.

Typically, judges rely on monitors or other court-appointed officials to ensure that the police are actually following the court-ordered changes.

Judge Nicholas G. Garaufis, for instance, described the monitor he put in place for the New York Fire Department as his “eyes and ears.”

“As someone with approximately 500 cases on his docket and a demanding trial schedule,” Judge Garaufis said in an interview, “it’s more efficient to utilize a monitor to hold follow-up teleconferences and meetings with attorneys for the city and the U.S. Justice Department concerning implementation of my remedial order.”

In cases elsewhere with monitors for the police, the roles have varied.

“In some cases, the monitors will write the policies; in other cases they say to the police department, ‘You write the policies and I’ll review it,'” said Jeffrey Fagan, an expert witness for the plaintiffs in the current New York case.

No matter how much authority the monitor for the New York police is given, it is most likely that far more information will be filed publicly about street stops. While the Police Department already releases detailed reports about the stops in each precinct, it has disclosed little about the stop patterns of individual officers. That will probably change, with a monitor expected to audit stop data for any troubling patterns and report back to Judge Scheindlin with findings.

Merrick Bobb, the monitor in place for the Seattle Police Department, said in an interview, “As a monitor, I’m very curious as to the pattern that can be discerned by looking at individual officer performance.”

“The idea,” he added, “is to look at patterns to try to determine whether there are certain officers who engage in stop-and-frisk more than their peers and, if so, is there a reason for it.” In rare circumstances, judges have permitted monitors or other officials they put in place to take a larger degree of operational control over a police department. In Oakland, Calif., for instance, where the Police Department submitted to federal court oversight about a decade ago, a federal judge has been dissatisfied with the department’s progress. Last year, the judge named a compliance director, in addition to a monitor, and granted him broad authority to, in effect, run the department.

Thomas Frazier, the compliance director, is a former Baltimore police chief. He has the power to impose policies as well as to promote and demote officers.

But legal experts say the Oakland case, which began with a lawsuit over the behavior of a group of rogue officers known as the Riders, is unusual. They also say that the ways courts have used monitors to oversee the police elsewhere may hold few lessons for Judge Scheindlin, because in nearly every instance, the department agreed to have a monitor as a condition for settling a lawsuit or an investigation by the Justice Department.

In New York, however, lawyers for the city have resisted the imposition of a monitor, arguing it would undermine not only the morale of the police but also their crime-fighting mission. Steven Banks, the attorney in chief for the Legal Aid Society in New York, said in an interview, “In those other cases, monitors are put in place as part of settlement agreements to solve a problem, where here there is great resistance to the notion there is actually a problem.” Legal Aid is also suing the Police Department over the stop-and-frisk tactics in a separate case before Judge Scheindlin.

“When you have a bureaucracy, such as this Police Department, which operates with a we-never-make-mistakes perspective, the role of the monitor is to actively bring about reform and assist the court in creating a framework for bringing the agency into compliance,” Mr. Banks added.