In 2011, the Legal Aid Society and two private law firms filed Nuñez v. City of New York. This lawsuit on behalf of eleven young adult inmates alleges both individual acts of brutality by Department of Correction officers and supervisors and across the board violations of federal constitutional guarantees regarding use of force by the Department.

While Nuñez was pending, the United States Attorney in the Southern District of New York conducted its own investigation into the treatment of and uses of force against adolescent inmates under the Civil Rights of Incarcerated Persons Act (“CRIPA”). On August 4, 2014, the US Attorney issued a highly critical report including sharp condemnation of the use of force against adolescent inmates. On December 18, 2014, the US Attorney filed a motion to intervene in the Nuñez lawsuit. That motion was granted and, with the US Attorney as a party, the case was settled in principle during June 2015 with the settlement being memorialized as a Consent Judgment and finalized by court
order on October 21, 2015.

However the Consent Decree went far beyond how adolescents are treated. It encompasses all of the facilities in the DOC and categories of inmate in the  system. Indeed the Consent Decree went far beyond any remedy that the Court could have granted and impacts the entire Department and its so-called “culture of violence.” It impacts those currently tenured in the Department, on eligible lists for Correction Officer, those seeking promotion to Captain and those uniformed ranks above that of Captain.

This sprawling decree runs contrary to the efforts of Congress under a law passed in the 1990s called the Prison Litigation Reform Act (PLRA), which directed that court orders in prison reform cases be narrowly drawn and be no broader than necessary to correct the violation. Federal judges may not issue orders in prison reform cases that are unnecessary to stop violations even if the state or local government have consented. In other words Mayor de Blasio– in giving away the farm – has gone too far under the intent of prison reform measures as envisioned by Congress.

Needless to say the Nuñez Consent Decree is hardly narrowly drawn. It is so wide reaching that it even violates the obligation of the City to bargain work rules with the unions. Also- dangerously – it sets up one set of rules for possible discipline of staff that does not track with either the current state of the law on how to evaluate whether a use of force is unnecessary/ excessive, and trips all uniformed members of service the protections afforded to them when doing their jobs in the jails, as peace officers, under New York State Law.

The requirements are so intensely rule specific,so encrusted with detailed directives and written procedures, that the DOC risks never escaping from judicial control. By means of comparison a consent decree entered by Mayor Koch almost 40 years ago – Benjamin – has not had its terms satisfied. Technically the DOC is still under judicial supervision in that case.

Attorneys for the City and inmates wrote the Consent Decree with little or no input from those familiar with the way Correction practices work at the DOC. In fact the Deputy Monitor who is charged with enforcing the Consent Decree is a former inmate attorney from a large private law firm who litigated the case for 3 years. And yet, no conflict of interest has barred her from the post. The Consent Decree imposes 15  broad categories where changes are going to occur and 318 separate provisions that go far beyond the Constitutional standards for use of force in a jail setting. Moreover, the DOC has gone even further than the Consent Decree in the rules and Directives being brought online to implement the Consent Decree. On a final note, none of the unions representing the Uniformed Members of Service were brought into the lawsuit. Nor have any of the unions been at the table and involved in the drafting of the complex and convoluted rules implementing the Decree.

Some of the categorical changes in Nuñez include:

• The type of force which may be used, and a “zero tolerance” policy on previously
acceptable types of force that now will subject UMOS to discipline including
termination;

• The circumstances under which force may be used, both in anticipated and
spontaneous use of force scenarios;

• So-called practical techniques to first employ in an attempt to avoid having to
even use any force;

• New Rules regarding the reporting of use of force;

• Mandatory disciplinary penalties for excessive use of force;

• Mandatory disciplinary penalties for false statements in use of force reports;

• Monitoring each uniformed employee’s uses of force and use of such monitoring
to trigger mandatory counseling and retraining;

• New screening of UMOS for posting for assignments, evaluation for promotion
and assignment to special units which take into account mere allegations that
are unfounded;

• Adoption of an anonymous reporting system for reporting uses of force;

• Modifications in the respective roles of commands and the Investigation Division
in evaluating uses of force;

• Modifications in training in use of force including mandatory training on Crisis
Intervention and Conflict Resolution, defensive tactics, cell extraction, investigator
training and young inmate management;

• Restrictions on re-arresting inmates and on inmate discipline;

• Restrictions on supervision and housing of adolescent inmates;

Steven J. Martin, who has extensive experience in Corrections and in being a Monitor of Consent Decrees, oversees the Consent Decree —at least on paper. He resides in the mid-west. The monitor has a local staff headed by an assistant monitor, who happens to have been one of the attorneys for plaintiffs in the Nunez litigation. The City is paying for this staff for as long as the consent decree is maintained (i.e. at minimum through 2018). The Monitor has thus far issued two reports that are not informed fully by the experience of those of us on the front lines. Rather, what information is imparted is done through the distorted view of the monitor’s interactions with the DOC.

The COBA pointed out three particular problematic areas to the Monitor at a meeting in November 2015 – the deficiencies in training and trainers, in the infrastructure of the Correction Academy, and in the unrealistic deadlines in the Decree – which were taken up and echoed by the Monitor in the Reports and in getting the  Court to push back deadlines. However, the Monitor has in large measure found  the DOC in compliance. The problem is that the reports paid lip service to meetings with all stakeholders, but neither he nor his team met with the UMOS unions to hear reactions from the rank and file who might disagree with some of the points in those Reports. The fact is that the training being given to new recruits is not sufficient, and it is  not being given to tenured members of service, and yet the management DOC is being held to no scrutiny while our members risk discipline, discharge and even prosecution.

The Consent Judgment also requires the adoption of many new rules and directives.  The first of these promulgated in 2015 by the DOC was a new Use of Force Directive  to replace Directive 5006R-C. It goes far beyond the mere use of force. It gets into tactics, hierarchies of preventable incidents, a check list “to do” before using force, circumstances when force may be used, the level of force that may be used, forms of force that are barred categorically, the use of equipment during a use of force, use of force reporting, the prohibition of using certain language with inmates (i.e. taunting or humiliating), as well as other requirements. Directive 5006R-D was issued with  an effective date of November 20, 2015. From mid and late 2015 the DOC repeatedly failed and refused to meet to bargain on the mandatory subjects touched upon by this greatly expanded Directive.

On December 15, 2015, COBA filed an improper practice charge with the New York City Office of Collective Bargaining requesting the Board of Collective Bargaining seek injunctive relief preventing the imposition of the Directive and certain provisions on the grounds that the City failed to bargain prior to imposing these new terms and conditions of employment on COBA members. The Board summarily (without any reasons)  refused to seek injunctive relief and the parties exchanged voluminous pleadings  in early 2016. Hearings have begun in what will no doubt be a long trial on the ways Nuñez adversely impacts the rights of union members.

On Monday, January 23, 2016, the unions for the Correction Captains and the Assistant Deputy Wardens/Deputy Wardens notified the Office of Collective Bargaining of their intent to move to intervene.

Collectively the COBA, CCA, and the ADW/DWA have joined forces to prevent the Department from imposing and infringing on matters that are mandatory subjects of bargaining.  The unilateral imposition of these actions by the Department will not go unchallenged.