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Southern District U.S. Attorney Mary Jo White will have to sue if she wants to force New York City to release confidential data on the police department’s Street Crimes Unit. Judge Shira A. Scheindlin on Thursday denied a motion by White to intervene in a class action in the Southern District that charges the New York Police Department’s Street Crimes Unit (SCU) engaged in racial profiling in the city’s high-crime areas. Scheindlin said White’s two-year investigation, prompted by the shooting death of Amadou Diallo by four officers in the unit, could not rely on discovery produced in the civil case. And in a second ruling Thursday, Scheindlin ordered the city to release without delay to the plaintiffs in the class action materials from the police department’s UF-250 database, which contains demographic information, data on the disciplining of officers within the unit, SCU Tactical Deployment reports and other internal memoranda. Lawyers for the city had wanted the judge to stay the release of the data until the 2nd U.S. Circuit Court of Appeals rules on the city’s challenge to Scheindlin’s decision to certify the class in Daniels v. City of New York, 99 Civ. 1695. “To now postpone production of key discovery in the hope of obtaining an unlikely reversal would only serve to further delay the progress of this lawsuit,” Scheindlin said. “Public interest also cuts against a stay. Plaintiffs are litigating a controversial matter of serious public concern, namely racial profiling.” Scheindlin’s decision on the government’s bid to intervene comes just over six months after White found the SCU had engaged in racial profiling by stopping and frisking people without reason to believe they were involved in criminal activity. Up until that point, the city had cooperated with White’s investigation by providing data on the SCU, collected between 1994 through the first four months of 1999. But when New York Mayor Rudolph Giuliani denounced the finding as politically motivated, the city stopped releasing information from the database and has since refused to turn over materials covering the period from April 1999 through the end of 2000. Despite White’s finding, she has yet to file a lawsuit in the investigation, which is proceeding under the nondiscrimination provision of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. Section 3789d(c) and Section 14141 of the Law Enforcement Act of 1994. Under the latter statute, if White is seeking changes in police department practices, she must first attempt to negotiate with the city as a prerequisite to filing suit. White, who has no statutory right to force the city to release the materials, sought to intervene in the class action to modify a protective order issued by Scheindlin blocking information in the database from being disclosed publicly. Scheindlin said the city’s decision to stop cooperating with federal prosecutors seemed “odd if not reckless.” “While acknowledging the serious repercussions of a lawsuit by the government, the city nonetheless prefers to risk a suit rather than voluntarily provide further documentation,” Scheindlin said. In addition to Giuliani’s statement, New York City lawyers told Scheindlin at a hearing that White’s investigation may not have been conducted in good faith. The city also expressed concerns that the information might be misused. “The city recognizes that by terminating its voluntary cooperation and opposing modification of the protective order it is forcing the government’s hand,” she said. “Either the government will sue — and thereby obtain all discovery to which a party is entitled — or it will not.” “The city has opted to take this risk and that is its choice,” she said. “Absent compelling need or extraordinary circumstance the government is not entitled to the protected materials.” Moreover, the judge said the city “has shown good cause for keeping the materials confidential.” “Undoubtedly, the dynamics of the discovery process would have been different if the government was present from the start,” she said. “To now permit the government access to confidential discovery would unduly interfere with the parties’ legitimate expectations of confidentiality.” Moreover, she said, “such access could pave the way for criminal prosecutions and give the government an undue advantage in framing its complaint.” The plaintiffs are represented by the following attorneys: Adam D. Gale and Jennifer R. Cowan of Debevoise & Plimpton; Nancy Chang and William H. Goodman of the Center for Constitutional Rights; Jonathan C. Moore; Robert F. Van Lierop, of Van Lierop, Burns & Bassett. Peter Blessinger of Cerrone & Geoghan represents two police department employees, Sergeant Peter Mante and Police Officer Walter Doyle. Special Counsel Daniel S. Connolly and Assistant Corporation Counsels Ingrid Box and Heidi Grossman represented the city. Assistant U.S. Attorneys Neil M. Corwin and Sara L. Shudofsky represented the government.

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