NYC's New Top Atty Faces NYPD Civil Payout Headache

Nestor Davidson in Law360, January 06, 2014

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Law360, New York (January 06, 2014, 6:37 PM ET) -- Dorsey & Whitney LLP's Zachary Carter brings a wealth of experience to his new role as New York City's top lawyer, experts say, and with payouts from suits targeting cops rising he will need it if the city is to trim liability while crafting new, potentially plaintiff-friendly, stop-and-frisk rules.

Carter, a former city criminal judge and federal magistrate judge as well as a former top federal prosecutor and most recently one of the city's go-to defense attorneys, will leave his private post in February to take over for Michael Cardozo, who acted as the city's corporation counsel under former Mayor Michael Bloomberg for 12 years.

"It's one of the most important jobs in the city,” said Buchanan Ingersoll Rooney PC litigator Stuart P. Slotnick. "Zachary Carter is tremendously qualified. He has experience in many areas of the law."

While experts agree that Cardozo left the 690-lawyer agency in solid shape, they note that one of new Mayor Bill de Blasio's core policy beliefs — bringing an end to what critics call rampant, unconstitutional searches by police of minorities — will call for a deft legal hand right from the get-go.

Changes to stop-and-frisk rules could embolden plaintiffs, according to John Jay College of Criminal Justice professor Eugene O'Donnell, a former city police officer, who noted that city payouts from civil cases against the NYPD have trended up sharply, from $34.6 million in 2008 to $64.4 million in 2012.

Those payouts — which rose in recent years even as payouts in other legal sectors fell — have already triggered calls from many quarters for review.

In a June 2013 report, for example, former city Comptroller John Liu called for police, prosecutors, the city corporation counsel and community leaders to "identify areas that are high risk in terms of claim activity and create an action plan to better control those risks" to the city from policing work.

"It would be really helpful if the city systematically figured out how to reduce the number of lawsuits against police officers," O'Donnell said. "What can the department do to protect itself, its officers and the taxpayers from being civil defendants? Are there patterns and practices that can be identified and steps taken to mitigate or remove openings for individuals to sue the city."

Officers themselves are typically indemnified from personal liability in such cases, but O’Donnell said force morale and city coffers desperately need an advocate who can reduce the number of suits cops face.

The payments in the stop-and-frisk class actions alone could prove to be very expensive for the city, especially if de Blasio drops the appeals.

The class actions — Floyd et al. v. City of New York and and Ligon et al. v. City of New York — demand damages as well as attorneys' fees. They were not filed only as high-minded attacks on police policy, said Pace Law School professor Randolph M. McLaughlin, who also co-chairs Newman Ferrara LLP's civil rights practice.

"The plaintiffs' lawyers are unlikely to say 'scratch my tummy and take the money,'" even if the city fully relents on the policy front, McLaughlin said.

Payouts aside, the final lesson for the city from the cases should be that cops need direction and a good lawyer, according to O'Donnell.

"One thing that was abundantly clear about stop and frisk is that there was a crying need to provide high-quality, useful training for officers on how to apply the complex rules about street encounters enunciated by the courts to real life police interactions," he said.

Any new stop-and-frisk policies that leave police confused about what they can and can't do in their daily rounds could present problems for the new mayor and his top lawyer, Slotnick said.

“He could end up handling more lawsuits alleging violations of NYPD policy,” Slotnick said. “There could be the potential for friction.”

O'Donnell also said the new administration will have to move quickly if it wants to change stop and frisk.

"There is a short period when robust reforms can be explored. After any administration is in office for a while it is consumed by crises and — usually sooner rather than later — becomes more defensive than introspective," he said.

Stop and frisk, of course is just one part of Carter's new job, albeit a particularly high-profile part.

From terrorist attacks to market crashes to hurricanes, New York City is a magnet for major events, meaning Carter likely will also be well-served by expecting the unexpected, according to Fordham University Law professor Nestor M. Davidson, who directs the university's Urban Law Center.

“We don't know what's coming down the pike,” Davidson said. "Who knows what the next term will bring?"

--Editing by John Quinn and Chris Yates.
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