813 F. Supp. 2d 417 (S.D.N.Y. 2011)
Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht bring this putative class action against the City of New York, Police Commissioner Raymond Kelly, Mayor Michael Bloomberg, and named and unnamed New York City Police Officers, alleging that defendants have implemented and sanctioned a policy, practice, and custom of unconstitutional stops and frisks by the NYPD on the basis of race and national origin.1
The named plaintiffs seek compensatory and punitive damages for themselves while all plaintiffs seek declaratory and injunctive relief on behalf of a class.2 The litigation occurs against a backdrop of increased NYPD stop and frisk activity since the mid-1990s, reaching almost 600,000 stops per year, with documented racial disparities in who is stopped, and follows a prior lawsuit, Daniels v. City of New York, that settled in 2003 and required the NYPD to adopt a Racial Profiling Policy, revise the UF250 form, and conduct regular audits.3
Plaintiffs contend that these measures have been inadequate and that the City has constructively acquiesced in widespread constitutional violations through insufficient training, supervision, monitoring, and discipline, including the imposition of quotas.4 On February 27, 2008, plaintiff David Floyd was walking near his Bronx home at 1359 Beach Avenue when he and a basement tenant were stopped by Officers Joyce, Hernandez, and Sergeant Kelly, who suspected the men of burglary based on a midday pattern in the neighborhood, observations of them manipulating a lock, and one man holding a large key ring.5
Floyd was frisked and his pockets were searched while Officer Joyce completed a UF250 form indicating furtive movements and time of day corresponding to criminal activity but recording no search. On either June 6 or June 9, 2008, plaintiff David Ourlicht was sitting on a bench outside a Harlem housing complex with other African-American men when uniformed officers arrived in a marked police van, drew their weapons, ordered everyone to the ground, patted them down, searched their pockets, and requested identification, claiming reports of a gun in the area, though no evidence of such a gun report was produced in the litigation.
Ourlicht participated in photo array procedures but could not conclusively identify the specific officers involved, though he identified the van number assigned to the local precinct command. The parties have submitted extensive evidence regarding NYPD training at the Police Academy and post-Academy, QAD audits using Worksheets 802, 802A, and 803, command self-inspections, and CompStat reviews, with plaintiffs pointing to officer testimony denying receipt of training on reasonable suspicion, racial profiling, or SQF procedures, audio recordings of roll calls directing quota numbers, a 2006 labor arbitration finding quotas in one precinct, and the Fagan Report's statistical analysis showing racial disparities and a percentage of stops lacking legal justification.6
Defendants rely on the RAND Report's findings of smaller disparities after benchmarking and evidence of written policies and procedures.7 Defendants moved for summary judgment on Floyd's and Ourlicht's claims arising from the specific incidents as well as on the Monell claims against the City, Mayor Bloomberg, and Commissioner Kelly.8 The motion was decided by District Judge Shira A. Scheindlin on August 31, 2011.9
Whether defendants are entitled to summary judgment on Floyd's Fourth Amendment claim arising from the February 2008 incident?10
Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.11 A Terry stop requires reasonable suspicion supported by articulable facts that criminal activity may be afoot, evaluated under the totality of the circumstances.12
Yes. The officers were aware of a midday burglary pattern in the neighborhood of the February 2008 incident.13 Floyd and the tenant were manipulating the lock on the door of the basement apartment.14 Two officers observed one man holding a large key ring.15
These facts from the February 2008 incident provided reasonable suspicion for the stop and frisk under the totality of the circumstances.16 The officers were therefore justified in briefly detaining the men for an investigatory stop and in frisking them for officer safety.17
Defendants are entitled to summary judgment on Floyd's Fourth Amendment claim arising from the February 2008 incident except as to the pocket search.18
Whether defendants are entitled to summary judgment on Floyd's Equal Protection claim arising from the February 2008 incident?19
Because I have found that the officers had reasonable suspicion to stop Floyd, I do not find that the officers impermissibly used race as the determinative factor in deciding to stop him.20
Yes. The officers had reasonable suspicion to stop Floyd based on the burglary pattern and furtive movements observed in the February 2008 incident.21 Because reasonable suspicion existed independent of race, the stop did not impermissibly use race as the determinative factor.22 Floyd's race was not shown to be the basis for the officers' decision to detain him.23
Defendants are entitled to summary judgment on Floyd's Equal Protection claim arising from the February 2008 incident.24
Whether defendants are entitled to summary judgment on Ourlicht's Fourth Amendment claim arising from the June 2008 incident?25
Summary judgment is denied when there are material facts in dispute that affect the assessment of reasonableness under the Fourth Amendment, including whether NYPD officers conducted the stop and whether individualized reasonable suspicion existed.26
No. Ourlicht identified the van number assigned to the local precinct command and officers whose whereabouts were ambiguous in the record of the June 2008 incident.27 No evidence supported a gun report, and a general report would not justify individualized suspicion for the stop and frisk.28 A reasonable jury could therefore find that the officers lacked reasonable suspicion and that the stop was conducted by NYPD personnel.29
Defendants are not entitled to summary judgment on Ourlicht's Fourth Amendment claim arising from the June 2008 incident.30
Whether defendants are entitled to summary judgment on Ourlicht's Equal Protection claim arising from the June 2008 incident?31
Because a reasonable jury could find that Ourlicht's stop was unconstitutional, and that the stop occurred in the context of citywide racial disparities in stop-and-frisk patterns unexplainable by chance, crime patterns, or officer deployment patterns, there is a triable issue of fact as to whether Ourlicht's stop was racially motivated.32
No. A reasonable jury could find Ourlicht's June 2008 stop unconstitutional because no verified gun report supported individualized suspicion.33 The jury could also connect the stop to citywide racial disparities in stop-and-frisk patterns shown by the statistical evidence.34 Those disparities are unexplainable by chance, crime patterns, or officer deployment alone.35
Defendants are not entitled to summary judgment on Ourlicht's Equal Protection claim arising from the June 2008 incident.36
Whether there are disputed issues of fact regarding the existence of a widespread custom or practice of suspicionless stops and frisks by the NYPD?37
A municipality may be liable under section 1983 when a widespread custom or practice of subordinate employees is so manifest as to imply the constructive acquiescence of senior policy-making officials.38
No. The Fagan Report shows that 6.71 percent of discretionary stops lack legal justification and 24.37 percent lack sufficient documentation to assess legality.39 Audio recordings and officer testimony establish pressure to meet quotas for stops and summonses.40 This evidence creates a triable issue as to whether the practice was so manifest as to imply acquiescence by NYPD leadership.41
There are disputed issues of fact regarding the existence of a widespread custom or practice of suspicionless stops and frisks by the NYPD.42
Whether there are disputed issues of fact regarding the existence of a widespread pattern and practice of race-based stops by the NYPD?43
The results show consistently, across the most policy-relevant and frequent crime categories, that racial composition predicts stop patterns after controlling for the influences of crime, social conditions, and the allocation of police resources.44
No. The Fagan Report demonstrates that racial composition predicts stop patterns over and above predictions based on crime or other factors.45 Blacks and Latinos are stopped at higher rates than Whites even in low-crime or racially heterogeneous areas.46 This statistical evidence gives rise to a disputed material fact on the Equal Protection claim.47
There are disputed issues of fact regarding the existence of a widespread pattern and practice of race-based stops by the NYPD.48
Whether there are disputed issues of fact as to whether the City was deliberately indifferent to the need for adequate training, supervision, monitoring, and discipline of NYPD officers?49
The Second Circuit has set forth three requirements that must be met before a municipality's failure to train or supervise constitutes deliberate indifference to the constitutional rights of citizens. First, the plaintiff must allege that a policy-maker knows to a moral certainty that her employees will confront a given situation. Second, the situation must either present the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation. Third, mishandling of the situation must frequently cause the deprivation of a citizen's constitutional rights.50
No. Officer testimony shows many did not receive or recall training on reasonable suspicion, racial profiling, or SQF procedures.51 QAD audits focused only on form completeness rather than constitutional sufficiency.52 Senior officials were unaware of the Racial Profiling Policy.53 These shortcomings create a triable issue of deliberate indifference.54
There are disputed issues of fact as to whether the City was deliberately indifferent to the need for adequate training, supervision, monitoring, and discipline of NYPD officers.55
Whether summary judgment is appropriate on plaintiffs' claims against Mayor Bloomberg and Commissioner Kelly?56
Because vicarious liability is inapplicable to section 1983 suits, a plaintiff must prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution.57
Yes. Plaintiffs did not oppose the motion for summary judgment on claims against Mayor Bloomberg and Commissioner Kelly.58 They therefore presented no evidence of the officials' direct involvement in any constitutional violation.59 Summary judgment is appropriate on those claims because the record contains no facts showing that either official personally participated in or directed the alleged misconduct.60
Summary judgment is appropriate on plaintiffs' claims against Mayor Bloomberg and Commissioner Kelly.61