Mayor Bill de Blasio
Mayor Bill de Blasio (Kevin Case)

New York City’s police union will continue challenging a controversial anti-profiling law despite Mayor Bill de Blasio’s decision to drop the city’s claim, the organization said Thursday.

The Patrolmen’s Benevolent Association (PBA) lawsuit over the Community Safety Act (Local Law 71 of 2013) mirrors one the city lodged last year. De Blasio said in a statement Thursday he will abandon the suit brought by his predecessor, Michael Bloomberg, in the waning months of his administration (See Complaints filed by the Mayor and the PBA).

But the issue raised in the litigation—whether the City Council exceeded its authority and whether the local law is preempted by state statute—remains before the judiciary as the PBA vowed to fight.

“This union’s position … has not changed despite today’s announcement,” said PBA president Patrick J. Lynch in a statement. “Our opposition to this legislation has been and continues to be that it penalizes our members (NYC police officers) and the public rather than addressing bad policies. We will continue the litigation to protect our police officers and the City from the effects of this misguided law.”

The law, enacted over Bloomberg’s veto, barred law enforcement officials from profiling based on race, national origin, color, creed, age, citizenship status, gender, sexual orientation, disability or housing status.

It also afforded aggrieved individuals a private right of action to pursue injunctive relief through the city’s Human Rights Commission or a state court action. Although the law does not provide for monetary damages, it does allow plaintiffs bringing actions to recover legal expenses and witness fees.

Bloomberg vetoed the measure in July, claiming it would hinder effective policing by making officers too hesitant to act, and sued in October after the council overrode his veto. The suit alleged that only the state, not the City Council, could enact such legislation.

De Blasio’s decision to drop the city’s lawsuit fulfilled a campaign pledge to support the law which he, as the city’s public advocate, had vigorously supported.

“There is absolutely no contradiction in protecting the public safety of New Yorkers and respecting their civil liberties,” de Blasio said in a statement Thursday. “In fact, those two priorities must go hand-in-hand. No New Yorker should ever face discrimination based on the color of his or her skin.”

Corporation Counsel Zachary Carter said in a statement that the law “protects individuals in our communities against bias-based profiling.”

The administration’s decision to drop the case was promptly applauded by City Council Speaker Melissa Mark-Viverito, the New York Civil Liberties Union and state Sen. Bill Perkins, D-Manhattan, and the NAACP.

“A safe New York is a New York where everyone is able to trust and respect the Police Department,” NYCLU Executive Director Donna Lieberman said in a statement. “That can’t happen unless all New Yorkers are treated equally—with courtesy, professionalism and respect. The ban on racial profiling is an important step in that direction.”

Lieberman said the administration’s decision to back away from the lawsuit is a “step toward closing the book on the tale of two cities.”

Perkins said the “unhindered implementation of the law is an imperative necessity because it provides a legal form of redress to the unconstitutional police policy of stop and frisk which disparately and unjustly targets African Americans and Latinos.”

Mark-Viverito, in a statement issued jointly with council members Jumaane Williams, D-Brooklyn, and Brad Lander, D-Brooklyn, said the administration’s action “will continue the process of mending relations between the NYPD and communities.”

Hazel N. Dukes, president of the NAACP New York State Conference, said in a statement, “The lawsuit was an unnecessary obstacle seeking to preserve a broken system and we commend the Mayor for removing it from the city’s path to reform.”

But Patrolmen’s Benevolent Association of the City of New York v. The Council of the City of New York, 451543/2013, leaves the law in flux.

The lawsuit, filed on behalf of the PBA in October by James McGuire, a partner at Dechert and a former Appellate Division, First Department justice, is pending before Manhattan Supreme Court Justice Anil Singh. It alleges the law is preempted by New York State Criminal Procedure Law and unconstitutionally vague under both the state and federal constitutions.

“No provision of New York State grants any authority … to local governments to legislate on the subject of actions by police officers in conducting … stops and frisks of persons reasonably suspected of criminal conduct, or in otherwise initiating law enforcement action by approaching or asking questions of individuals in the performance of their official duties,” the complaint said.

The PBA complaint alleges that the Community Safety Act would actually “impair public safety” by taking police officers off the street and steering them “into courtrooms and the offices of their attorneys as they seek to defend themselves” against biased-based profiling claims. It says the law “directly threatens the lives and safety of police officers because it chills their willingness to undertake law enforcement action necessary to protect their safety, including lawful frisks of lawfully stopped individuals.”

Andrew Celli Jr. of Emery Celli Brinckerhoff & Abady, representing the City Council, has a motion pending to dismiss the PBA suit (See also memorandum in opposition of PBA’s motion for preliminary injunction).

“Today’s action shows that this mayor respects the democratic process and the New York City Charter,” Celli said in an email. “This legislation was duly enacted by a super-majority of the City Council, over Mayor Bloomberg’s veto. It’s a proper exercise of the City’s well-recognized authority to expand civil rights and manage its own police department. Having the mayor and the council together on this is a vindication of the charter and of the council’s role as the legislative branch.”

Celli argued in a motion to dismiss that the Criminal Procedure Law “governs the procedure that applies in criminal cases—i.e., what courts, police, and prosecutors must do to ensure that an arrest, prosecution, and sentencing of an individual for a crime in New York is proper and lawful.” He said in court papers that “in regulating the field of criminal procedure, the State Legislature did not intend to preempt the quite-different fields of civil rights and local law enforcement.”

Additionally, the council notes that New York City has frequently turned to the state constitutional home rule provision to enact groundbreaking civil rights measures.

“In a city that is comprised of approximately 65 percent racial and ethnic minorities, it should come as no surprise that City government has long been concerned with how the practices and crime prevention strategies of the NYPD impact members of such groups,” Celli wrote in his motion. “Because it seeks to protect minority groups from discriminatory practices, the profiling ban is the latest action in the City’s long history of legislating in the area of civil and human rights.”

Amicus briefs have been submitted by Christopher Dunn and Arthur Eisenberg of the New York Civil Liberties Union, on behalf of the law (See Brief), and former Mayor Rudolph Giuliani and former Southern District Chief Judge Michael Mukasey, in support of the PBA (See Brief).