The ball is in the city of Rochester’s court, says Josh Moskovitz.
One of a covey of high-profile civil rights attorneys representing plaintiffs in a sweeping and possibly unique class action seeking to hold the city, Monroe County and others responsible for decades of alleged police brutality and misconduct, Moskovitz awaits a formal response to the complaint.
The lawsuit in part seeks financial compensation for an undetermined number of individuals who allegedly suffered harm at the hands of Rochester Police Department officers. It also lays out demands for reforming the RPD and seeks appointment of a federal monitor to ensure that the department complies with those demands.
The complaint’s starting point is the March 2020 death of Daniel Prude, “an unarmed Black man in obvious need of help,” and the police response to demonstrations that followed the Prude family’s revelation of his death.
Ruled a homicide by the Monroe County medical examiner, Prude’s death and a heavy-handed police response to demonstrations protesting it are but the most recent examples of a decades-long and steady history of “racialized violent policing in Rochester,” the legal brief contends.
Stretching to nearly 100 pages, the court complaint copiously cites examples of RPD brutality dating to 1975 and continuing to the present day. It describes, for example, actions of an anti-drug Highway Interdiction Team in the late 1980s and early 1990s known as the HIT Squad.
Once headed by former Rochester police chief Gordon Urlacher, the HIT Squad targeted illegal drug activity and operated largely in the city’s minority neighborhoods. After Urlacher and five members of the team were indicted for brutal treatment of suspects, the former chief pleaded guilty to one count of conspiracy to violate civil rights. He also was convicted of embezzlement and served a prison term. These included allowing the HIT Squad’s brutal treatment of suspects and shielding officers, who rotated through the unit, from accountability.
The class-action strategy
Class actions combine groups of plaintiffs pressing identical or similar claims against the same defendants into a single class or several related classes as opposed to scores of plaintiffs separately mounting their own cases. Such suits let courts more efficiently handle claims and allow plaintiffs who otherwise might not have the resources to mount a court case combine forces.
Such cases also give plaintiffs the ability to commandeer far vaster troves of evidence from defendants than they could extract as isolated individuals, Rochester attorney Nelson Thomas says. A partner with Thomas & Solomon LLP, Thomas has mounted scores of class actions, mostly targeting large employers for labor law violations.
If it follows a course typical to many class actions, the RPD case could play out over many months or even years, involving reams of filings by dozens of lawyers and piling up millions of dollars in hourly billings for the city, the county and targeted police agencies. The defendants would almost certainly have to hire outside counsel with class action, civil rights and even personal injury expertise.
Before defendants’ liability can be argued or money damages or other remedies plaintiffs seek can be discussed, a judge has to certify plaintiffs as a class, an often-lengthy process that can involve significant legal wrangling.
A federal judge this month certified a class action alleging systemic racial discrimination against Hispanics by the Suffolk County Police Department on Long Island. Inked April 5, the certification order came six years after the case’s April 2015 filing. Moskovitz and other attorneys won a civil rights class action seeking to rein in the New York Police Department’s aggressive stop-and-frisk practices, but it took five years to obtain the favorable ruling in 2013.
Whether the Rochester case drags out that long is up to the city, county and other defendants, Moskovitz maintains.
“We don’t think that it would be necessary to engage in years of litigation. We hope the city and the county would come to the table and talk with us about how we can have change start sooner than later,” he says.
The plaintiffs’ legal team
The attorneys representing plaintiffs in the Rochester civil rights case form a high-powered team. Joshua Moskovitz, a New York City sole practitioner, represented the estate of Eric Garner in a civil claim against New York City over Garner’s 2014 death. He also pressed a class action that led to the New York Police Department abandoning a controversial stop-and-frisk policy. In addition, the team includes attorneys with Neufeld, Scheck & Brustin LLP of New York City. Two name partners with the firm, Barry Scheck and Peter Neufeld, co-founded the Innocence Project at the Benjamin Cardozo School of Law. And Rochester attorney Donald Thompson, of Easton Thompson Kaspereck Schiffrin LLP, has long worked with the Innocence Project.
Defendants in the action include Rochester Mayor Lovely Warren, Monroe County Executive Adam Bello, the city and county governments, former RPD Police Chief La’Ron Singletary and the Monroe County Sheriff’s Department and New York State Police, which assisted RPD in responding to widespread demonstrations last fall protesting Prude’s death. None have so far formally answered the complaint.
Asked to outline what plans the city has to respond to the class action, Warren administration spokesman Justin Roj wrote in an April 7 email that the city at that time had “nothing to share on the legal strategy.” Bello administration spokespersons did not respond to the Rochester Beacon’s request for comment.
Warren publicly reacted quickly to the suit’s April 5 filing, issuing a statement on the same day, saying that she would welcome a federal review of RPD policing and had called for one herself.
The mayor’s statement also pointed to steps toward police reform the city is taking in response to Executive Order 203, an order issued last June by Gov. Andrew Cuomo that calls for New York municipalities to draft police-reform plans.
Many of the steps Warren outlined in her April 5 statement had already been judged by the plaintiffs as falling short of meeting their demands before she made them, the court complaint shows.
“Statements made to date by the Mayor and the (police) department about ‘changing the culture’ of the RPD do not include any discussion about implementing an internal disciplinary mechanism that imposes meaningful disciplinary and remedial actions on officers who engage in excessive force. The City’s proposed response to Governor Cuomo’s Executive Order 203 on Police Reform also omits any commitment to such a mechanism,” the lawsuit complains, dismissing reform plans the city and RPD outlined as “aspirational or already-required goals.”
Examples of “aspirational” steps the court complaint cites include “exploring a pilot program for providing mindfulness-based de-escalation, anti-racism training, advocating for New York State to institute a statewide police officer licensing or decertification program, or releasing comprehensive statistics on the RPD’s internal investigations, as required by law.”
Also troublesome to the class-action plaintiffs is that “the mayor’s proposed plan refused the call from community members and the Police Accountability Board to terminate police officers with ties to white supremacist groups.”
Among reform measures the lawsuit seeks are federally enforced orders requiring the RPD to stop “engaging in racially-biased policing in violation of the Fourteenth Amendment” and to stop “suppressing the First Amendment rights of peaceful protesters.”
An unusual approach
Under the federal statute of limitations, only individuals alleging harm by racially tinged violence during the past three years can join the suit. Examination of RPD records will turn up “hundreds, if not thousands” of potential plaintiffs, the court brief predicts.
“We think we have a unique situation here in Rochester,” Moskovitz says. “We don’t know of any other case where there has been a certified damages class on behalf of such a large number of people who have been injured by an excessive force policy or practice.
“We think we have a unique situation due to body-worn camera,” he adds. “The RPD outfits every officer with a body-worn camera. Every civilian interaction is supposed to be recorded and their preservation policy requires preserving those videos for 10 years.”
The court complaint seeks to establish two classes of plaintiffs, one consisting of people who suffered physical or other tangible harm as a result of RPD officers’ alleged racism, and a second class of those whose constitutional rights are being violated.
The latter group would fall under an injunctive class whose complaints would lay grounds for putting the city under the eye of a court-appointed monitor.
“For injunctive purposes, the courts have said it’s not necessary to identify everyone in the class as long as you can establish that the class is large enough,” Moskovitz notes. “The purpose of certifying an injunctive class is to address a matter that affects everyone in that class.”
In seeking to establish an injunctive class whose goals would include appointment of a federal monitor, Moskovitz says, “our point is these constitutional rights are federal; they need to be protected and the city’s not doing its job to protect them. We’re asking the federal court to force it to protect them.
“Everything that we’ve seen in the past has been something that the RPD or the city have undertaken in some sort of voluntary sense,” he says. “There’s been pressure that has caused them to say they’re making changes, but ultimately, it’s up to their own good will to actually follow through on those changes. I think as the lawsuit makes clear and from what anyone can see (with) these situations continuing, those changes haven’t been meaningful.”
It is unclear how easily change that satisfies the class-action plaintiffs’ demands might be achieved.
New York’s Executive Order 203 is one of many such actions that have come across the country as responses to protests of police actions that resulted in the death of minorities. Over the last year, more than 30 states have passed some 140 new laws calling for oversight and reform of police, the New York Times found in a recent analysis of National Conference of State Legislatures data base.
The union’s point of view
Activists have cheered such laws, while police unions have resisted them. And in some areas, reforms have stalled or been weakened after meeting such challenges. In other areas, legislatures have gone in an opposite direction, passing new measures to bolster protections for police.
Michael Mazzeo is president of the Rochester Police Locust Club, the union representing RPD officers. He sees the class action as misguided, is dubious of any federally appointed monitor’s ability to effect change, and has virtually nothing positive to say about the Warren administration’s relations with the RPD.
In Mazzeo’s view, the class action cherry picks interactions between RPD officers and Rochester residents to paint a falsely negative picture of RPD officers’ relations with the community.
While Mazzeo claims there are inaccuracies in the filing “that I’m not going to get into now,” he doesn’t deny that the incidents detailed in the filing took place. He takes issue with how accurately they portray the RPD.
The lawsuit’s narrative of a hopelessly corrupt, racist police department fails to acknowledge “the millions of positive interactions between police officers and Rochester residents” or recognize “the sacrifices of officers who have been injured or killed in the line of duty,” Mazzeo contends.
Many of the officers making up the department’s roughly 700-person rank and file “weren’t even on the job when they took place,” says Mazzeo of the incidents highlighted by the class action.
Federal monitors appointed to oversee police-reform efforts in other jurisdictions are for the most part ex-police chiefs “who never accomplished anything when they ran a police department” and bring about little meaningful as federally appointed monitors other than prolonging their monitoring assignments to fatten their wallets, the union chief maintains.
Moskovitz disagrees. As an attorney representing David Floyd, the lead plaintiff in the 2008 NYPD stop-and-frisk class action, he contends that the federal monitor named to oversee the policy’s unwinding has achieved meaningful change.
Begun in the 1990s under Mayor Rudy Giuliani and continued by his successor, Michael Bloomberg, in the 2000s, New York City’s stop-and-frisk program involved frequent stops by officers of individuals they regarded as suspicious. Minority residents had long complained that the policy was racist in that police routinely stopped young Black men they had no other reason to suspect other than their race.
Plaintiffs won the case in 2013 when a federal judge appointed a former federal and New York City prosecutor as a monitor to oversee reform of the program.
“We had in New York City a tremendously powerful police union, who fought and, in fact, attempted to intervene in the litigation to fight the changes that were being ordered there,” Moskovitz says. “Eventually, there was a trial and the judge concluded that the city’s policies violated the federal constitution, and that court ordered them to make those changes and those changes have been substantial. We’ve had years of trainings that have been developed, disciplinary processes, metrics for identifying officers who were not following their training. These are real reforms.”
In February, Warren proposed scrapping the city’s existing contract with the Locust Club and negotiating a new pact from scratch. The police union’s contract expired in 2019. The contract’s terms remain in place until a new pact is inked, a provision that can give union negotiators an edge in hammering out a new agreement. Mazzeo dismisses the idea of hammering out a new pact from scratch as a complete non-starter.
A vehicle for change
How the RPD and officers involved should be held accountable for Prude’s death, meanwhile, continues to be a flash point in any discussion of Rochester police reform. Resolving those issues could prove to be central to the court dispute’s progress.
Prude died in Strong Memorial Hospital a week after losing consciousness while an RPD officer was holding his head to the pavement and other officers restrained him. During the encounter, Prude was naked and high on PCP, a powerful hallucinogen. Police had encased his head in a mesh bag called a spit hood after Prude told them he had COVID and planned to spit on them.
The incident came to light last September only after Prude’s relatives obtained body worn camera footage of the incident. After viewing that footage of Prude’s arrest last August, Warren was highly critical of officers’ conduct at the scene. She had denied knowing details of the incident prior to August. But an independent investigator hired by City Council who exhaustively questioned city officials, including the mayor, concluded that Warren likely knew details sooner.
Council member Malik Evans, who is challenging Warren for the Democratic Party’s nod in a June primary, was one of three Council members to vote against the police reform package Warren notes in the April 5 statement. Evans and other objectors cited changes Warren had made to Council’s draft of the plan as their reason voting no.
Questions of the Warren administration’s transparency in the Prude affair have yet to be answered, Evans says.
Officers involved in the incident responded “exactly the way they were trained,” Mazzeo told the Rochester Beacon in January. Warren should resign for mishandling the crisis, but RPD officers should not be punished, the union president maintained then. He still holds those views.
Controversy over Prude’s death centers more on the Warren administration’s lack of transparency than on RPD officers’ conduct, Mazzeo contends.
A grand jury convened by New York Attorney General Letitia James failed to hand up an indictment of any officer involved in Prude’s death, an outcome James called disappointing.
Along with RPD investigations that cleared officers of wrongdoing, Mazzeo cites the grand jury no bill as proof that none of the officers involved in Prude’s arrest and death were guilty of wrongdoing. (See related article: Attorney General Letitia James owes us an explanation.)
Responding to a Rochester Council demand for officers involved in the Prude matter to face greater consequences, RPD Police Chief Cynthia Herriott-Sullivan agreed to reopen an RPD investigation of officers’ involvement in the Prude incident.
Herriot-Sullivan noted that officers would be entitled to mount challenges called for by their union contract that would take several months to resolve.
Systemic racism exists in the RPD, but no more than it does in any other aspect of society, Mazzeo says.
If relations are sour between the RPD and the city’s Black and Brown residents, the fault lies less with the RPD rank and file than with a series of city administrations that have mismanaged the police, making it harder for frontline officers to do their job effectively, Mazzeo argues.
As he sees it, Rochester policing began to deteriorate in the 1980s, when former police chief Robert Duffy split the city into sections, closing down neighborhood police stations and thus making it harder for officers to meet residents in routine, non-confrontational situations. The picture did not improve after Duffy became mayor or under successive administrations. The union chief maintains it has worsened substantially under Warren, whom he sees as too ready to inject politics into what should be policy-guided decisions.
If a federal monitor were to lay out terms that conflict with Locust Club contract provisions, the monitor would trump the contract, believes Thomas, an expert in labor-contract law who typically represents workers like rank-and-file RPD officers.
How RPD officer might greet such an outcome remains to be seen. In the meantime, Moskovitz remains hopeful that difficulties can somehow be worked out in talks.
“I took her response as a positive,” he says of Warren’s April 5 statement. “I think that it reflects that the top leadership in the city wants to see change. We hope that as soon as possible they will engage in discussions with us about what the right way forward is and leads to the change that the mayor, the city, everyone wants to see. If that’s what happens, were ready to talk to them.”
Will Astor is Rochester Beacon senior writer.