Patrolmen's Benevolent Ass'n of N.Y., Inc. v. City of N.Y.

Decision Date23 June 2016
Citation35 N.Y.S.3d 314,2016 N.Y. Slip Op. 05057,142 A.D.3d 53
PartiesPATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK, INC., et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
CourtNew York Supreme Court — Appellate Division

Dechert LLP, New York (James M. McGuire and Paul C. Kingsbery of counsel), and Nancy Picknally, New York (Michael T. Murray of counsel), for Patrolmen's Benevolent Association of the City of New York, Inc., appellant.

DLA Piper LLP (U.S.), New York (Anthony P. Coles, Courtney G. Saleski and Adam D. Brown of counsel), for Sergeants Benevolent Association, appellant.

Zachary W. Carter, Corporation Counsel, New York (Jeremy W. Shweder, Richard Dearing and Cecelia Chang of counsel), for respondents.



, J.

The question presented is whether Local Law No. 71 (2013) of City of N.Y. § 1 (Local Law 71), which prohibits discriminatory policing in New York City, is preempted by the Criminal Procedure Law (CPL). We hold that the CPL does not preempt the local law for two main reasons: first, the two laws occupy different legislative fields (criminal procedure and antidiscrimination); and second, there is no direct conflict between them. We have great respect and appreciation for the important contributions of police officers who enforce our laws and protect us all daily at risk to their own personal safety. However, we also recognize the City's legitimate interest in protecting New Yorkers from discriminatory law enforcement. As the Court of Appeals has declared, “Discriminatory law enforcement has no place in our law” (People v. Robinson, 97 N.Y.2d 341, 352, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001]

). Local Law 71 is a step toward making that promise ring true.

Facts and Background

In 2004, defendant Council of the City of New York (the City Council) passed Local Law No. 30 (2004) § 1 (enacting Administrative Code of City of N.Y. § 14–151). The law prohibited New York City-employed law enforcement officers from engaging in [r]acial or ethnic profiling,” which was defined as an act “that relies on race, ethnicity, religion or national origin as the determinative factor in initiating law enforcement action against an individual, rather than an individual's behavior or other information or circumstances that links a person or persons of a particular race, ethnicity, religion or national origin to suspected unlawful activity.” Local Law 30 did not provide for a cause of action against individual officers or for any other enforcement mechanism.

By 2013, the City Council had become concerned that Local Law 30 was ineffective in deterring racial and ethnic profiling by law enforcement, so it amended Administrative Code § 14–151 by enacting Local Law No. 71 (2013) § 1. In its Declaration of Legislative Intent and Findings, the City Council emphasized its “concern about the NYPD's growing reliance on stop-and-frisk tactics and the impact of this practice on communities of color.” It noted that the number of stops by the NYPD had increased from approximately 97,000 in 2002 to more than 601,000 in 2010, and that “Black and Latino New Yorkers face the brunt of this practice and consistently represent more than 80 percent of people stopped despite representing just over 50 percent of the city's population.” The City Council also stated that discriminatory policing “alienates communities from law enforcement, violates New Yorkers' rights and freedoms, and is a danger to public safety,” and that Local Law 71 was intended to be “construed broadly, consistent with the Local Civil Rights Restoration Act of 2005.”

Local Law 71 (“Bias-based Profiling Prohibited”) expanded the list of protected characteristics to include “actual or perceived race, national origin, color, creed, age, alienage or citizenship status, gender, sexual orientation, disability, [and] housing status.”

In addition, Local Law 71 added “teeth” to the law by creating a private right of action; an individual subject to bias-based profiling may file an administrative complaint with the New York City Commission on Human Rights or may commence a civil action against individual officers or governmental bodies that employ such officers. A claim of bias-based profiling is “established,” inter alia, when a claimant demonstrates that a law enforcement officer has intentionally engaged in bias-based profiling, and the officer fails to prove that the law enforcement action “was justified by [ ] factor(s) unrelated to unlawful discrimination” (Administrative Code 14–151 [c][1][ii], as amended by Local Law No. 71 [2013] of City of N.Y.). The remedy in any such administrative proceeding or civil action is limited to injunctive and declaratory relief, and the courts may award attorneys' fees and expert fees to prevailing plaintiffs (id. [d][2], [3] ).

Local Law 71 became effective on November 20, 2013. Shortly thereafter, the NYPD issued an internal memorandum (the 2013 Finest Message) characterizing Local Law 71 as “consistent with current department policy and training,” which already prohibited reliance on any of the characteristics listed in Local Law 71 as the “determinative factor” in initiating law enforcement action.1

The instant challenge to Local Law 71 was brought by Patrolmen's Benevolent Association of the City of New York, Inc., an independent union representing more than 22,000 NYPD officers, and Sergeant's Benevolent Association, an independent union representing approximately 13,000 active and retired NYPD sergeants. They argue that Local Law 71 is invalid because it is preempted by the CPL.

Supreme Court rejected that argument and adjudged and declared that Local Law 71 is not preempted by the CPL. We now affirm.

II. Discussion

A. Standing

Initially, the motion court correctly determined that plaintiffs have standing to bring this action seeking declaratory and injunctive relief. Local Law 71 specifically targets and regulates the conduct of plaintiffs' members, who have been subject to its provisions since it went into effect in 2013. In fact, plaintiffs have submitted, on a motion to expand the record, a statement by the Commission on Human Rights that a complaint pursuant to Local Law 71 has been filed against two police officers. Moreover, there is a likelihood that plaintiffs and their members will suffer reputational harm whenever an officer is charged with bias-based profiling under Local Law 71, and they risk the prospect of having to pay attorneys' fees if they are denied defense and indemnification by the City. Plaintiffs have demonstrated an ‘injury in fact—an actual legal stake in the matter being adjudicated’ (Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 279, 820 N.Y.S.2d 2 [1st Dept.2006]

,appeal dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007], quoting Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ).

B. Preemption

Under New York's constitutional “home rule” provision, municipalities are accorded “broad police powers ... relating to the welfare of [their] citizens,” provided local governments refrain from adopting laws that are inconsistent with the Constitution or state statutes (Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 96, 524 N.Y.S.2d 8, 518 N.E.2d 903 [1987]

; N.Y. Const., art. IX, § 2 [c] ). The Court of Appeals has recognized two ways in which state law may preempt local law: through the doctrine of (1) field preemption, “when a local government legislates in a field for which the State Legislature has assumed full regulatory responsibility,” or (2) conflict preemption, “when a local government adopts a law that directly conflicts with a State statute (DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 95, 725 N.Y.S.2d 622, 749 N.E.2d 186 [2001] ).

1. Field Preemption

With respect to field preemption, [t]he State Legislature may expressly articulate its intent to occupy a field ... [but] it may also do so by implication” (id. ). Intent to preempt local law may be inferred “from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” (id. [internal quotation marks omitted] ). However, the local law will not be preempted under implied field preemption unless the state has “clearly evinced a desire to preempt an entire field thereby precluding any further local regulation” (Jancyn Mfg. Corp., 71 N.Y.2d at 97, 524 N.Y.S.2d 8, 518 N.E.2d 903

). Moreover, [s]tate statutes do not necessarily preempt local laws having only tangential impact on the State's interests. Local laws of general application—which are aimed at legitimate concerns of a local government—will not be preempted if their enforcement only incidentally infringes on a preempted field” (DJL Rest. Corp.,

96 N.Y.2d at 97, 725 N.Y.S.2d 622, 749 N.E.2d 186 [citations and internal quotation marks omitted] ).

Plaintiffs' contention that the CPL expressly and impliedly evinces the State Legislature's intent to occupy the field of criminal procedure misses the mark. We do not doubt that the Legislature intended that the CPL would exclusively govern criminal procedure throughout the State (including investigative stops by police), but that is of no consequence here, where the local law at issue is not a criminal procedure law but a law concerning civil rights and preventing discrimination on the part of law enforcement. In arguing express field preemption, plaintiffs rely primarily on CPL 1.10(1)

, which provides that the CPL applies “exclusively to ... [a]ll criminal actions and proceedings ... and ... [a]ll matters of criminal procedure” in the State of New York, including those that “do not constitute a part of any particular action or case” (subd. [a], [b] ). They further argue that the Legislature impliedly preempted the field of criminal procedure by enacting the CPL as a...

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