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The Racial Profiling Settlement


More than four years after Amadou Diallo was gunned down by police, a wrongful death lawsuit filed by Diallo's parents seeking millions in damages nears trial, sure to re-ignite some public opinion against the department if it goes before a jury.

In contrast, few headlines were made last month when city officials settled a federal class-action suit accusing the police department of illegal racial profiling when stopping suspects. But the settlement, while downplayed by the department as merely formalizing changes that have already been made, requires department records to be turned over for outside review through 2007. This ensures that racial profiling - which is what police critics say killed Diallo -- will remain the subject of intense legal and judicial scrutiny for years to come. And, with data on race often subject to more than one interpretation, the settlement could wind up sparking future debates.

The Settlement

The police department will not admit any wrongdoing as part of the settlement with the Center for Constitutional Rights, the non-profit group that filed the federal lawsuit one month after the Diallo shooting, naming as plaintiffs 10 black men who said they had unfairly been stopped by police because of their race. As part of the settlement, these men will receive a total payout of $167,500 from the city.

The settlement also includes a court order prohibiting the department from racial profiling (it is already against department policy). Once the agreement becomes final (which will likely happen during a November 25 “fairness hearing,” a standard practice in class-action suits that gives plaintiffs a chance to object to the settlement), police will also be obliged to begin conducting racial-bias "audits." The results of these "audits" must be turned over quarterly to the Center for review.

Along with these internal audits, the department must turn over every so-called "stop-and-frisk" report. Each time a New York police officer stops a potential suspect and pats them down, the officer must fill out a form, essentially answering why they stopped the person in the first place. To try and ensure fairness, another outside law firm will also review the reports. U. S. District Judge Shira Scheindlein would review anything found by the center to be questionable.

The police department and the plaintiffs have also agreed to conduct outreach programs in schools and elsewhere to inform citizens why the police make stops, how to respond when stopped, and the rights people have if they believe they have been unfairly stopped . Between 40 and 50 such programs will be held at various city high schools each year..

Path to Compromise

Much has changed since the lawsuit was filed. Lawyers targeted the police department's Street Crime Unit, citing a 1999 report (in pdf format) by the New York State Attorney General's Office that reviewed 175,000 stop-and-frisk forms and found that the unit stopped about 16 black potential suspects for every stop that resulted in an arrest. Diallo was shot by four officers from the unit who were patrolling for a suspected serial rapist. The Attorney General's report and a report by the U.S. Commission for Civil Rights in 2000 both found that the police department stopped a disproportionately large number of blacks and Hispanics.

But police brass disbanded the unit in April (it had already been de-emphasized much earlier), citing decreased numbers on the police force and a need to deploy officers elsewhere. And a month before that, Commissioner Ray Kelly issued an order against racial profiling, putting in writing that the department prohibited "the use of race, color, ethnicity or national origin as the determinative factor for initiating police action" Of course, Kelly was sure to emphasize that this had been policy all along, just unwritten.

The true reasons behind these changes may be more closely tied to the lawsuit than city officials will ever admit, but it was certainly logical for the police to downplay the settlement, especially considering the avalanche of civil claims that inundate the city every year. Many of these claims involve allegations of improper behavior by the police department. There were 1,796 new police action claims filed in fiscal year 2002, while $21.9 million was paid out by the city for such claims in the same year, according to the New York City Comptroller's Office.

Yet in fiscal year 2003, there were only 41 police action verdicts, according to the New York City Law Department (12 of which were for the plaintiffs). The Diallo lawsuit seeks $81 million in damages and pain and suffering (although numbers named in pending civil lawsuits can be substantially inflated; Abner Louima sued the city for $155 million after he was tortured by police at a stationhouse, and he wound up settling for $8.75 million in 2001).

Reactions and Repercussions

It certainly wasn't the money, then, that led the New York Post to label the settlement as an "obscene sellout" in a September 20th editorial. Rather, the paper was dubious of how the settlement will play out. Bill Goodman, lead counsel for the plaintiffs, said that the Center for Constitutional Rights will be on alert for patterns of racial bias, rather than scrutinizing individual incidents.

But Goodman hesitated when asked whether data gathered from the police department will be released to the public. "We haven't decided that," Goodman finally said; as far as he knows, he added, nothing in the settlement would prohibit the center from doing so. While the Post is concerned that the center will somehow "come up with wholly different stats," data released by the New York City Council this summer already demonstrate how easily statistics can make the department look bad.

"Blacks Are Searched by Police At a Higher Rate, Data Show," read The New York Times headline from the summer. The data showed that 50.9 percent of. persons stopped and searched by police in the first six months of 2002 were black, about double the percentage of the black population of the city (24.5 percent, according to the 2000 Census). Police quickly defended the numbers, pointing out that 59 percent of suspects in violent crimes were black, as identified by victims.

One wonders if the stop-and-frisk forms will point to a true cause-and-effect relationship between those two numbers for the average cop out on the beat when scrutinized. In any case, the numbers, unless they change dramatically, will do little to calm those who already feel that something is systematically not right with the police department.

Regardless of how the settlement plays out, it seems unlikely to be the last word on race and the Diallo shooting. The New York Daily News, citing a law enforcement source, reported that Manhattan U.S. Attorney Jim Comey was continuing to investigate police stop-and-frisks for signs of racial bias.

Then, of course, there remains the wrongful death lawsuit filed by Diallo's parents. The four plainclothes police officers who shot their unarmed son outside of his Bronx apartment building were cleared of all criminal charges. The civil suit would appear to be their last legal recourse. Anthony Gair, lawyer for the Diallo family, offered no hints of an imminent settlement, saying he thinks the case will make it to trial in January or February. And while Gair said he plans to attack the police department for failing to adequately train the men who shot Diallo, he also said, "It's my position…that the only reason Amadou Diallo was confronted at all was because he was black."

Jaime Adame has written for Newsday, the San Jose Mercury News, and the Austin American-Statesman.

 

The Case Of The 17-Year-Old Anti-War Protester


"Dismissed in the interest of justice," are words rarely uttered in our legal system. But in the case of People v. Gragert, New York City Criminal Court Judge Matthew Cooper ordered exactly that.

Alisa Gragert, a 17-year old senior at Friends Seminary was arrested during an April 7, 2003 demonstration against the war in Iraq. She was accused of blocking the "normal flow of pedestrian traffic," by laying down in front of 712 Fifth Avenue in Manhattan. The building houses the offices of the Carlyle Group, a major international investment firm, which antiwar protesters contended would profit from the war. According to the police, Gragert ignored an order to stand up when informed she was under arrest. She was charged with obstructing government administration, a class A misdemeanor, punishable by up to a year in jail and two counts of disorderly conduct, each punishable by a maximum of fifteen days. About a dozen other protestors were arrested for the same conduct, but the prosecutions were separated and Judge Cooper's decision deals only with Gragert.

Following her arraignment, the defendant was released on her own recognizance and ordered to return to court on June 11. When she appeared on that day with counsel she was told to return a month later, on July 25. The court entry, however, mistakenly read July 23, and when Gragert failed to appear on the 23rd, a warrant was issued for her arrest. When she and her mother walked into Criminal Court at 100 Centre Street on the correct day, she was considered a fugitive, taken into custody handcuffed and chained to a bench in open court. Once the error in the date was acknowledged Gragert was again released.

Prior to preparing for trial, Gragert's pro bono attorney, David M. Stern, of the firm of Rothman, Schneider, Soloway & Stern, submitted a 31 page motion asking Judge Cooper to dismiss the charges in the interest of justice without reaching the question of whether she was guilty or not. This procedure known as a Clayton motion based on a 30-year old New York case, People v. Clayton, is infrequently submitted to courts and even less often granted. However, according to the Criminal Procedure Law, a court may consider terminating a criminal case if the prosecution and possible conviction of the accused would "result in injustice."

Judge Cooper would have to consider the offense, the seriousness and circumstances, the extent of harm, evidence of guilt, the defendant's background, any police or prosecutorial misconduct, the purpose of punishing the defendant, how society would be affected by a dismissal and how dismissal would affect public confidence in the criminal justice system, input of any victim and "any other relevant fact indicating that...conviction would have no useful purpose."

He also had to distinguish Alisa Gragert's case from a 1996 case involving the arrest of 90 members of Irish Lesbian and Gay Organization (ILGO) protesting the annual St. Patrick's Day parade. In that case, a criminal court judge had dismissed disorderly conduct charges in the interests of justice but was reversed by the Appellate Term which hears appeals from Criminal Court and which ordered the charges reinstated. " Sincere beliefs are not an excuse for lawless conduct," the appellate court said. expressing concern that the conduct was "likely to keep recurring."

Still, Judge Cooper found that Gragert's case was one of those "rare" and "unusual" cases that "cries out for fundamental justice beyond the confines of conventional considerations." The judge cited the defendant's age, her lack of a criminal record and the fact that she was bound for college. (She now attends Oberlin College in Ohio.) Letters supporting dismissal were submitted by her high school principal and teachers, the coordinator of her volunteer work at the American Museum of Natural History, friends and neighbors. A United Nations advisor wrote "We have the deepest respect and admiration for the gifted students who exhibit a caring attitude toward their community and dare to dissent from its mainstream views when their concern for common good compels them to do so. Alisa is such a student and we need to encourage her to follow the dictates of her conscience." While the decision did not address the large number of teenagers in the criminal justice system in general, in pointing out Gragert's age, the judge emphasized that, "She is too young to vote in an election, drink alcoholic beverages, enlist in the armed forces, buy a laser pointer or a can of spray paint, marry without both parental and judicial consent, or enter into a legally binding contract."

Although according to Judge Cooper, Gragert's actions did constitute disorderly conduct, he found the harm of causing pedestrians to walk around her "decidedly minor," in contrast to the ILGO demonstration at Fifth Avenue and 42nd Street "which snarled traffic for an hour and a half."

"It is difficult to envision New Yorkers, renown for their ability to cope in the face of adversity, being particularly disturbed by encountering the defendant lying on the sidewalk and having to sidestep her," he wrote. "Impediments to the free flow of pedestrian traffic are a hallmark of city life. What with street vendors, people distributing leaflets, newspaper vending machines, food carts, coffee wagons, sidewalk eating, scaffolding, construction barriers, pavement excavations and groups of smokers in front of smoke-free buildings, one hardly expects to walk along a busy midtown street with an uninterrupted stride. In this instance, people may very well have been inconvenienced by the defendant's actions, but it could not have been that much more than the routine inconvenience we endure in this city on a regular basis."

In granting the motion, the judge concluded, "Unlike many nations, we pride ourselves on our willingness to hear the voices of dissent. Protest, in its many forms, has a hallowed place in our democracy and is very much a part of our American spirit. It is one of the great strengths of our society. And certainly our society is strong enough to recognize the mitigating circumstances present here and forego the prosecution of this young woman."

According to Barbara A. Thompson, spokeswoman for the Manhattan District Attorney, there will be no appeal.

Emily Jane Goodman is a New York State Supreme Court Justice.

 

Fear of Terrorism


 
Leaving New York
While some New Yorkers are leaving the city, citing bad schools, high housing costs or the daily stresses of urban life, analysts debate whether the exodus is anything alarming or unusual, and what to do about it.

Why New Yorkers Are Leaving:

The City Is Too Expensive
by E.J. McMahon

City Schools and Housing Are Inadequate
by David Kallick

New Yorkers Who Left:

Rondrae Hunter
A Frustrating Apartment Search

Allison Woods
Struggling with Strollers and Schools

Stefan Kochi
Bad for Business


About a month after 9/11, I decided that, after having lived in New York for 12 years, I wanted to move. Even though my wife recognized that my fear was somewhat legitimate, she thought we ought to just stick it out for a while and see what happened. And she was very attached to Park Slope, where we lived, and to our friends in the neighborhood. I was attached too, but more than that I was frightened by the risk to our children.

With two kids, I just did not want to be in New York. We were in the middle of the anthrax scare, and I was opening my mail with gloves and a mask on. I was nervous about taking my kids on the subway. I didn't want to put them at risk. Then we had the scare about a dirty bomb and radioactive material in Manhattan. My wife started coming over to my side.

To decide where we would move, we drew a circle with the radius of a one and a half hour drive from Manhattan. Anywhere within the circle was a prospect. Then we visited a friend in Connecticut. I took a drive to the Long Island Sound and fell in love with the shore. It was a beautiful place. We moved to Milford in July 2002.

Though 9/11 was the main reason we moved, it wasn't the only one. Another reason was the financial situation; the rent in our apartment had just increased 15 percent. In the nine years we had lived there, the rent had climbed a total of 70 percent. It was just too expensive.

Our nine-year-old sons were soon going to leave their elementary school, PS 321, and would have to enroll in a middle school. I wasn't worried that they wouldn't get into a good school, but I was worried about how far away it would be. They were going to have to take subways and buses to get to school rather than walk down the street as they used to. I didn't like the idea of them doing that, and we couldn't afford to send them to a private school.

It took my sons awhile -- six months or eight months -- to adjust to the move. My wife had trouble as well. We came back to Brooklyn occasionally, and walked around, and the kids hung out with their old friends. It helped them with the separation. My wife still visits women friends down there, and she's in a book club that meets once a month.

I try to stay away from the city. I am a painter and so I go down and met with my artist friends sometimes. We visit museums and galleries. But I am a little scared. I really don't want to be in the city at all.

I see myself being comfortable again in New York only if we solve the terrorist threat. If Al-Qaeda, and Saddam Hussein were brought to justice and there were no attacks for a year or two, then I would feel much better. But I will never move back to New York. For me, the move is irreversible.

David Bassine, a painter, left New York and moved to Connecticut.



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