A little-known provision obligates taxpayers to fund officers’ legal bills in lawsuits city lawyers won’t defend
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Series: The NYPD Files
Investigating America's Largest Police Force
Even among the hundreds of videos capturing the violent police response to Black Lives Matter protests last year, this one stood out.
A muscular male officer, in a navy blue shirt with “NYPD" across the back, lunged at a young demonstrator, shoving her several feet and sending her crashing to the ground on a street in Brooklyn.
In a video shot by a reporter and shared widely on social media, the woman, Dounya Zayer, can be seen clutching her head and writhing in pain after she tumbles to the asphalt.
The mayor called the officer's actions “absolutely unacceptable," the police commissioner said internal affairs was investigating and, 11 days after the incident, the district attorney announced criminal charges against the officer, Vincent D'Andraia.
Zayer, 21, went on to file a lawsuit alleging that D'Andraia had violated her right to free speech, and last month, the city's Law Department, which almost always represents officers sued for on-the-job actions, told D'Andraia it wouldn't defend him in court.
It looked like the city was cutting the cop loose, a step rarely taken in the hundreds of lawsuits filed every year against NYPD officers. But while a city lawyer won't be representing D'Andraia in court, it turns out New Yorkers are still paying the law firm that is representing him in the case.
That's because every year, the city treasury effectively bankrolls a union-controlled legal defense fund for officers. The little-known fund is financed in part by a direct city contribution of nearly $2 million a year that is expressly intended to pay for lawyers in civil cases like D'Andraia's, where the Law Department has decided an officer's conduct is essentially indefensible. Or, as the police union's legal plan puts it, “when the City of New York fails or otherwise refuses to provide a legal defense."
The money isn't supposed to be used by the union, the Police Benevolent Association, “in any action directly or indirectly adverse to the interests of the City," according to a 1985 letter memorializing the deal that established the annual taxpayer contribution. But the agreement doesn't define those “interests," and the city is typically a co-defendant in such cases, as it is in the lawsuit by Zayer. So even as the city might distance itself from an officer, it could still argue that the government's legal interests are best served by its employee having robust legal representation.
“It's not bad public policy to invest and make sure that all sides have adequate representation," said Zachary Carter, who ran the Law Department from 2014 to 2019.
But critics say that subsidizing such defenses could undercut police accountability by sending a message to officers that the city will back them no matter what.
“The bottom line is this is scandalous," said Joel Berger, a lawyer who specializes in police abuse cases and who, in the 1990s, served as a senior official in the Law Department who decided when the city should withdraw representation of officers. “It was a sweetheart deal with the union and it should never have been agreed to."
Neither the mayor's office nor the Law Department would address detailed questions from ProPublica about the fund, including how the city squares paying for the defense of officers it won't represent with the provision stipulating that the money not be used for any purpose “adverse to the interests of the City."
The Legal Services Fund of the Police Benevolent Association has in recent years paid for the representation of an NYPD officer accused in a lawsuit of slamming a 75-year-old man with Parkinson's disease against the hood of a car after the man talked back to the cop, and has paid to defend another officer who court papers charge tackled an unarmed, chronically ill, 4-foot-8-inch, 85-pound man and shocked him with a stun gun.
The message to officers, said Zayer's lawyer, Tahanie Aboushi, is that the city will help shield them from some of the consequences of even their most egregious conduct.
“Maybe you're going to be disciplined," said Aboushi, who is a candidate in the race to be the next Manhattan district attorney, “but getting a lawyer, paying for a lawyer, understanding the accountability that comes from a lawsuit — they're completely insulated from that."
It is the sort of protection that, in the last few decades, has proliferated in police labor agreements across the country, often negotiated behind closed doors, with little attention paid to the public policy implications.
But in the reckoning that has followed George Floyd's killing, many Americans are rethinking how the country is policed and unions are facing particularly pointed questions, not just in Minnesota or in New York, but also in city halls, in state legislatures and at negotiating tables across the country.
“There is a whole set of what I've labeled 'special privileges' that employees in other contexts don't enjoy," said Samuel Walker, an emeritus professor of criminal justice at the University of Nebraska at Omaha and a national expert on police accountability. “It's been a very secretive development, and the lack of any organized opposition until just recently has kept it secret."
The violent police response to many Black Lives Matter demonstrations across the country in the weeks after Floyd's death only intensified calls for sweeping changes in American policing.
In New York, the furor after Floyd's death pushed through the long-sought repeal of a state law that made police disciplinary records secret. And last month, the city beat back a legal challenge by the PBA and other unions that had sought to block the release of those records.
But Mayor Bill de Blasio, who campaigned as a champion of police reform, has been criticized for his embrace of the NYPD, particularly during the Black Lives Matter demonstrations. As he prepares to leave office at the end of the year, many of the leading candidates to succeed him have promised a new approach to policing.
Still, it's a long way from the campaign stump to the negotiating table, and even after the events of the last year, the police unions — and the power and protections entrenched in their contracts — will pose a formidable test for the next mayor. The PBA's contract expired in 2017 and will remain in force until a new one is approved, so it will almost certainly fall to the new administration to negotiate the next labor deal and to decide whether to take on sacred cows like the legal defense fund.
ProPublica pieced together the origins of the defense fund by reviewing tax records, studying labor agreements and examining other city documents obtained through the Freedom of Information Law.
Like anyone charged with a serious crime, an officer facing criminal prosecution has a right to a defense lawyer. But the deal establishing the city's contribution to the fund was specifically designed to pay for defending officers in civil litigation, where an officer could face a substantial monetary judgment.
The deal, struck by the then-police union head and the city's top labor negotiator, created what has become an annual taxpayer contribution that amounts to $75 per officer. The legal services fund takes in another $3.7 million every year from the union's health and welfare fund, a city-funded entity that provides health insurance and other employee benefits. That portion of the defense fund can be used for legal representation, too, though not in those lawsuits where the city has said it will not represent the officers.
All told, the defense fund takes in about $5.5 million a year, which the PBA pays to the Manhattan law firm of Worth, Longworth & London to represent officers, tax filings show.
A spokesman for the PBA, which represents about 25,000 rank-and-file officers, didn't respond to detailed questions about the fund.
While the PBA was the first to secure the city contribution, the annual $75-per-member taxpayer funding for civil defense has been replicated in the contracts that cover thousands of NYPD sergeants, lieutenants and captains.
The union representing the 9,000 jail guards who run the violence-plagued Rikers Island complex and other city jails secured a $75-per-member city contribution to their defense fund as well. Correction officers are frequently sued over allegations of prisoner abuse and neglect in New York City, suits that have led to multimillion-dollar settlements and, in recent years, a federal investigation and monitoring agreement. And the union representing jail wardens, deputy wardens and assistant deputy wardens gets a $189-per-member contribution for civil defense, according to their contract.
New York City's mayoral primaries are on June 22, and de Blasio's staunch support for the NYPD has made police accountability a key issue in the race to succeed him, especially among candidates with their own ties to oversight and reform of the department.
Candidate Maya Wiley, once a close adviser to de Blasio and later the chair of the city's police oversight board, said she would renegotiate the police union contract to ensure better accountability. A Wiley spokesperson said the taxpayer money going to officers' civil defense should go to gun violence prevention or “a dozen other, better ways to ensure public safety."
Another mayoral candidate, Comptroller Scott Stringer, plays a key role in police accountability, reviewing and approving every settlement reached in civil cases brought against police officers. But a campaign spokesman said Stringer wasn't familiar with the defense fund provision of the PBA's contract and that his policy staff was now looking into it. Mayoral hopeful Eric Adams was for many years a prominent reform voice within the NYPD, rising to the rank of captain and co-founding the group 100 Blacks in Law Enforcement Who Care. But Adams, now the Brooklyn borough president, didn't respond to questions.
In New York, the rare rollback of police union protections has typically come only when a case of police brutality seized the public conscience and compelled political leaders to act. Even then it can take years.
For decades, NYPD officers involved in shootings or other incidents of potential wrongdoing had two full days to consult with lawyers before being questioned by internal affairs investigators. But after officers sodomized a Haitain immigrant with a stick in the bathroom of a Brooklyn police station in 1997, the so-called 48-hour rule emerged as a key obstacle in the investigation.
In negotiations to settle his lawsuit against the city and the police union, the man, Abner Louima, and his lawyers called for the rule to be scrapped. It wasn't until 2002, during labor negotiations with the police union, that city officials moved to extract the provision from the agreement, asserting that the police commissioner had broad authority to oversee disciplinary matters. That prompted a yearslong legal battle, which the union ultimately lost in 2006.
Removing a union benefit that has been renewed for decades is possible, but it's hard to do, said Victor Kovner, who served as the city's chief lawyer under Mayor David Dinkins in the early 1990s. “And hard doesn't begin to suggest how challenging it would be," he said.
Stephen Rushin, a professor at Loyola University School of Law in Chicago and an expert on police contracts, said that the key question is whether the legal costs of officer misconduct, however cities choose to cover them, lead police departments and their officers to change the way they operate.
“How do we make cities internalize the costs that their officers are generating through their misconduct with the public?" Rushin said.
The NYPD has about 35,000 officers and the Law Department usually represents them when they're sued in civil court in connection with on-the-job conduct and takes responsibility for paying out settlements or any punitive damages a jury might award. In fiscal year 2019, the city paid $220.1 million in settlements and judgments for police-related cases, city comptroller data shows.
But when the Law Department concludes that an officer likely acted outside “the scope of his public employment and in the discharge of his duties" and violated internal disciplinary rules, city lawyers can withhold representation, according to a 1979 state law. Of 562 cases naming police officers as defendants in 2019, the Law Department declined to represent the officers in just 48, according to the Law Department.
That's where the PBA's defense fund steps in.
The law firm it contracts with, Worth, Longworth & London, has handled legal matters for the PBA since 1998, including high-profile criminal and internal disciplinary cases. One partner, Stuart London, represented the police officer who in 2014 put Eric Garner in a deadly chokehold when the officer faced both a grand jury and an NYPD disciplinary hearing. Another firm partner represented the officer who was brought up on departmental charges after tackling former tennis pro James Blake in a 2015 encounter that turned out to be a case of mistaken identity.
Though the defense fund has existed for decades, there has been little scrutiny of it. Many lawyers who represent New Yorkers in police brutality cases said they didn't know of the fund's existence until asked about it by ProPublica. The office of the city comptroller, which can audit union accounts that receive taxpayer dollars, last examined the PBA defense fund in 1994.
London and two attorneys from his firm who handle civil defense cases didn't respond to questions about the fund or Officer D'Andraia. A person who answered a cellphone number listed for D'Andraia hung up when ProPublica called and inquired about the officer's defense. In court papers, the lawyers said D'Andraia was acting in his official capacity as a police officer at the time of the incident but otherwise denied Zayer's allegations. D'Andraia is due back in court in the criminal case in October. He's represented by Stephen Worth, a partner at the same firm representing him in the civil case. Worth hasn't responded to a message seeking comment.
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