The Lawyers Protecting the N.Y.P.D. Play Hardball. Judges Are Calling Them Out.

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excessive-force complaint against the police and then neglected 14 orders to produce discovery evidence. A judge called their behavior “egregious.” & lawyers for the City of New York missed several filing deadlines and disobeyed court orders.

The Lawyers Protecting the N.Y.P.D. Play Hardball. Judges Are Calling Them Out.

In one case, lawyers for the City of New York missed several filing deadlines and disobeyed court orders. An angry federal judge said they had “blown off” instructions, which he said was “outrageous.”

In another case, lawyers from the same legal unit never fully investigated an excessive-force complaint against the police and then neglected 14 orders to produce discovery evidence. A judge called their behavior “egregious.”

In a third case, the city lawyers took more than a year to give a man who had sued the police a recording of his questioning from the day of his arrest. The prolonged delay, a judge remarked, was “negligent, if not grossly negligent.”

All of the lawyers worked for what is known as the Special Federal Litigation Division, an elite team in the city’s Law Department that deals with some of the most important and politically sensitive cases the city has to fight: allegations of police misconduct.

Special Fed, as the team is often called, has great success in defeating suits against the police and corrections officers. But it has also been repeatedly accused by civil-rights lawyers — and at least six federal judges — of engaging in a pattern of obstructionist behavior.

City officials note that Special Fed has received judicial censure in only a fraction of the 1,400 cases the unit is currently handling. Each of those cases is complex, they say, often including dozens of requests for discovery materials that can tax the roughly 100 lawyers on the team.

“The feedback this office has received from the federal judiciary has been overwhelmingly positive,” said Nicholas Paolucci, a Law Department spokesman. “While we work diligently to meet our discovery obligations, the sheer volume of cases can lead to occasional unintended delays in production. The city has no interest in prolonging litigation unnecessarily.”

Patricia Miller, who has run Special Fed since 2015, said in an interview that the unit had succeeded in its central mission of defending the police by fighting lawsuits more aggressively in recent years.

“For years, there was this idea that you could hang up a shingle, file a lawsuit and get a few bucks,” Ms. Miller told The Chief, a municipal union publication. “Sue the Police Department, or sue the city in general, and we’ll go from there. Those days are done.”

This aggressive stance has led to courtroom victories and also warded off frivolous lawsuits, Ms. Miller said. Even at a moment of cultural and media scrutiny of the police, new misconduct suits have dropped by almost half in recent years, she noted, and her team won 88 percent of the 44 cases it took to trial last year.

Still, the unit’s tactics have drawn the ire of several federal judges.

Take the case of Karen Brown, who sued a group of officers three years ago after her son, Barrington Williams, died in police custody in 2013.

Mr. Williams, 25, had been selling MetroCard swipes inside the Yankee Stadium subway station. When he fled the police, an officer gave chase and tackled him to the ground.

A lifelong asthma patient, Mr. Williams suddenly stopped breathing. He was dead 10 minutes later when an ambulance arrived.

Ms. Brown claimed in her suit that the officers involved in the arrest should have saved her son with CPR and used a defibrillator to restart his heart. One was stored at a stadium police post less than a minute away.

The suit was the sort of litigation the city might have settled in the past. But today, Ms. Brown is still engaged in a protracted legal fight with Special Fed.

First, court papers say, lawyers from the unit took their time providing discovery on the basic facts of the case, and also dragged their feet in making two firefighters who treated Mr. Williams available for depositions. There were further delays producing documents about the CPR training the officers had received.

This spring, when Ms. Brown’s lawyers asked Special Fed if any of the officers had violated Police Department policies by not providing medical attention, lawyers from the unit first claimed the request wasn’t “relevant.” Then they filed an incomplete answer to the question, asked for more time to respond and eventually missed their own extended deadline. When they finally submitted a response — the officers hadn’t violated any policy or procedure — they broke court procedure. The document was never formally signed by the defendants.

Last month, losing patience, a Manhattan judge ordered the lawyers to explain the delays in a formal memorandum, adding that they needed to get it personally signed by Ms. Miller to ensure “she has approved.”

“There have been fights about the most unnecessary things,” Joshua Moskovitz, one of Ms. Brown’s lawyers, said. “There have been fights about things they know they can’t win and fights where it seems like they’re just fighting. It actually feels tactical at times. It happens too often to be coincidental.”

Similar problems have plagued other cases. In July, for instance, a Brooklyn magistrate judge said he was considering referring a Special Fed lawyer to the court’s grievance committee for a “very troubling” violation of professional rules. The lawyer had refused to let the plaintiff’s lawyer in a police-misconduct lawsuit use the Law Department’s phones to call the judge to question a line of inquiry during a deposition.

Last November, another Brooklyn judge excoriated Special Fed lawyers for ignoring their ethical obligations after it emerged that they knew a plaintiff had accidentally sued the wrong detective for malicious prosecution and moved to dismiss the case — instead of promptly telling the man of his mistake.

A few months earlier, a different Brooklyn judge sanctioned the city after one of the unit’s lawyers “acted improperly” at an officer’s deposition, objecting nearly 600 times to questions, even though many were deemed to be “relevant to the case.”

Special Fed itself was born in 1998, when federal civil-rights lawsuits against the police were rising dramatically, spurred in part by Mayor Rudolph W. Giuliani’s new zero-tolerance law-enforcement strategy. The suits had been traditionally handled by the Law Department’s general litigation division.

More than a decade later, with no sign of police-related lawsuits slowing down, Police Department executives complained that the city was settling too many cases and did not have their officers’ backs, plaintiffs’ lawyers and city officials said.

“The Police Department was angry at the time,” said Richard D. Emery, a veteran civil-rights lawyer who also once ran the city’s Civilian Complaint Review Board. “They didn’t feel represented by their own attorneys.”

And so in 2011, the Law Department, under Mayor Michael R. Bloomberg, created what it called the Trial Initiative, a program in which Special Fed took more cases to trial and assumed a more aggressive posture in settlement negotiations. Ms. Miller was promoted to lead the effort, and the number of cases the city took to trial grew from about a dozen a year to sometimes more than triple that.

Four years later, in consultation with police officials and unions, Mayor Bill de Blasio bolstered the work of Special Fed by establishing a 40-person legal team inside the Police Department to help defend against civil-rights lawsuits. The new team, Mr. de Blasio noted at the time, was “a practical response” to the “cynical reality of lawyers trying to scam the system.”

Ms. Miller said the two efforts had not only protected officers against so-called nuisance lawsuits, but also made the police more accountable. “Putting cases in front of a jury is how we hear from the public — it’s like a focus group,” she said.

But several plaintiff’s attorneys said that after the city altered its approach, Special Fed lawyers stepped up delay and obstructionist tactics to make it harder for plaintiffs to prevail.

“They will use every trick in the book to prolong a case and wear down the plaintiff and the plaintiff’s lawyers, delaying discovery and basically making fights over nothing,” said Joel B. Rudin, a lawyer who has fought against the unit numerous times in his career.

Mr. Rudin said the unit’s hardball tactics have continued under Mayor de Blasio, even though the mayor has a record of settling high-profile suits against the police. Mr. de Blasio agreed to pay up to $75 million to end litigation over the Police Department’s stop-and-frisk strategy. He also settled the case of the Central Park Five, a suit brought by men wrongfully convicted of the 1989 rape of a jogger.

Eric Phillips, a spokesman for the mayor, said that Mr. de Blasio “demands city litigators be as principled and aggressive on high-profile cases as they are in the hundreds of more mundane cases they handle every day.”

On Aug. 20, Special Fed filed its memo to Chief Magistrate Judge Gabriel W. Gorenstein, explaining what went wrong in the case of Karen Brown.

The city lawyers “sincerely” apologized for what they called a “failure to comply with the applicable court orders” but said the mistakes didn’t ultimately affect the case. After receiving the memo, Judge Gorenstein acknowledged that their “delay and inaction” was “indicative of negligence, not willfulness.”

Either way, Ms. Brown has been waiting years for her suit to be resolved.

“There’s just no words,” she said. “My heart can’t take any more.”

 

nytimes.com