Ligon v. City of New York

Case information

• Court: United States District Court for the Southern District of New York
• Docket No.: 12 Civ. 2274
• Judges: Shira A. Scheindlin, U.S.D.J. (inferred from opinion voice and related proceedings)

Majority opinion

Brought by plaintiffs in the Floyd action, where I have already certified a city-wide class of plaintiffs alleging that they have or will be victims of unconstitutional stops. Floyd is scheduled for trial on March 11, 2013. As part of the proof in that case, plaintiffs intend to present evidence regarding the remedies they seek.

Because of the rapidly approaching trial date in Floyd and the inefficiency of hearing separate arguments regarding the closely related remedies at issue in Ligon and Floyd, I am ordering the consolidation of the remedies hearing in the instant case with the remedies portion of the Floyd trial. Thus, the relief proposed under the subheadings below will not take effect until the parties in this case have had the opportunity to participate in a hearing at which they may present evidence or argument as to whether the proposed relief is insufficient or too burdensome or otherwise inappropriate, as well as regarding the appropriate timeline for relief. This remedy hearing will be held in conjunction with the Floyd trial, following the phase of the trial dealing with proof of liability. Plaintiffs' counsel in Ligon and Floyd must coordinate their presentations with respect to appropriate remedies. Submissions by counsel in Ligon related solely to remedies must be filed no later than February 22, 2013, and may not exceed twenty-five pages per side.

a. Policies and Procedures

The NYPD is ordered to develop and adopt a formal written policy specifying the limited circumstances in which it is legally permissible to stop a person outside a TAP building on a suspicion of trespass. The policy must reflect the fact that trespass stops outside TAP buildings are governed not only by New York state law, but by the Fourth Amendment. Guidance in drafting this policy should be drawn from the legal discussion found in this Opinion.

A draft of the written policy governing trespass stops outside TAP buildings shall be provided to the Court (or a monitor appointed by the Court) for approval prior to distribution, with a copy to plaintiffs' counsel.

b. Supervision

First, the City is ordered to take all necessary steps to ensure that UF-250s are completed for every trespass stop outside a TAP building in the Bronx. Again, a "stop" in the relevant sense is defined as any police encounter in which a reasonable person would not feel free to terminate the encounter.

Second, the City is ordered to implement a system of review modeled on the one ordered by Chief Hall in paragraph 3 of Exhibit E. Supervisory personnel in each Bronx precinct must review, on a quarterly basis, each UF-250 completed for a trespass stop outside a TAP building in the Bronx. To the extent that such review reveals nonconformity with the formal written policy described above, the City will take specific steps to retrain the officer. The results of these reviews and any retraining will be periodically reported to the relevant precinct commander, a designated member of the Bronx Borough Command, a designated member of the Chief of Patrol's Office, and plaintiffs' counsel. Copies of all reviewed UF-250s shall be provided to plaintiffs' counsel.

c. Training

The City is ordered to revise the NYPD's training materials and training programs to conform with the law as set forth in this Opinion. The instruction must be sufficient to uproot the longstanding misconceptions that have afflicted TAP in the Bronx. It must include, but need not be limited to, the following reforms: (1) The formal written policy governing trespass stops outside TAP buildings, described above, must be distributed to each Bronx NYPD member, and then redistributed two additional times at six-month intervals. (2) The stop and frisk refresher course at Rodman's Neck must be altered to incorporate instruction specifically targeting the problem of unconstitutional trespass stops outside TAP buildings. Whether the instruction includes additional slides, role-playing, or exams, it must be sufficient to convey to all officers who attend the course that reasonable suspicion of trespass is required before making a trespass stop outside a TAP building. Training regarding these stops must also be provided to new recruits and to officers who have already attended the Rodman's Neck refresher course and are not scheduled to do so again. (3) Chapter 16 of the Chief of Patrol Field Training Guide must be revised to reflect the formal written policy governing trespass stops outside TAP buildings described above. (4) SQF Training Video No. 5 must be revised to conform with the law as set forth in this Opinion. I recognize that this step, like some of the others above, will involve alterations to training materials used outside the Bronx and outside the context of TAP. But such steps are necessary to correct the longstanding misconceptions that led to the violations of plaintiffs' constitutional rights described in this Opinion.

Drafts of the written or scripted training materials described above shall be provided to the Court (or a monitor appointed by the Court) for approval prior to use, with a copy to plaintiffs' counsel.

d. Attorneys' Fees

Reasonable attorneys' fees and costs will be rewarded as appropriate, on application.

In closing, I stress that my conclusions in this Opinion are based on the limited evidence presented at the preliminary injunction hearing. It could be the case that the development and implementation of IOs 22 and 23 of 2012, as well as the changes to NYPD training in 2012, have resolved the problem of unconstitutional trespass stops outside TAP buildings in the Bronx. Because these changes were so recent, however, and so late in the two-decade history of TAP, they were insufficient to rebut plaintiffs' evidence at the hearing of defendants' deliberate indifference to a practice of unconstitutional stops. At any time that defendants develop persuasive evidence, supported by reliable statistics, that unconstitutional trespass stops are no longer taking place outside TAP buildings in the Bronx, defendants may move for the dissolution of this preliminary injunction and the proposed relief.

VI. CONCLUSION

For the reasons explained above, plaintiffs' motion is granted, although the full extent of the relief has not yet been determined. No action is required by the Clerk of the Court, because plaintiffs' motion has already been closed.

SO ORDERED.

Appendix

APPENDIX A

Excerpts from Decline to Prosecute Affidavits:

1. The Arresting Officer observed the defendant exit the lobby of ... a Clean Halls Apartment Building, and asked defendant, why were you in the building? Defendant stated in sum and substance: VISITING A FRIEND. The Arresting Officer then observed defendant to have a white powdery substance on his nose ... however, the amount was too small to field test or recover.

The Arresting Officer arrested Defendant and charged him with violating New York State Penal Law section 140.15 (Criminal Trespass). However, the Arresting Officer failed to ask defendant [redacted] you know anyone in the building; if so, what is the person's name and apartment number.

1. [T]he defendants were observed exiting a clean halls building. The defendants stated that they were there to visit a tenant.... After being arrested a tenant from the building did corroborate the defendant's statements and the tenant stated that both defendants were in the building as his guests.

2. The Arresting Officer ... observed defendant exiting the lobby of ... a Clean Halls Apartment Building. The Arresting Officer ... approached the defendant and asked the defendant do you live in the building and defendant stated in sum and substance: NO. The Arresting Officer further asked the defendant what apartment did you come from and defendant stated in sum and substance: I MET WITH [redacted] IN THE LOBBY. The Arresting Officer further asked defendant what apartment does [redacted] live in and defendant stated in sum and substance: I DON'T KNOW THE APARTMENT NUMBER. [Another officer then went inside the building and asked two people exiting if they knew anyone by the name of the defendant's host. When they said no, the defendant was arrested for trespass.]

3. ... Arresting Officer observed defendant enter and exit a Clean Halls Building. Arresting Officer approached the defendant and asked her where she was coming [from], what was she doing in the building and what apartment number was she visiting. Defendant responded in sum and substance: I WAS VISITING A FRIEND. I AM NOT TELLING YOU THE APARTMENT NUMBER OR THE NAME. [The defendant was then arrested for trespass.]

4. Defendants entered ... a clean halls building, and exited. Defendant was stopped outside of the location. When the arresting officer questioned the defendant, defendant stated, in sum and substance, I'M JUST CHILLING. Defendant did not admit that he was in the location. [The defendant was then arrested for trespass.]

5. [A]rresting officer ... observed the defendant enter and exit the lobby of ... a Clean Halls Apartment Building, asked defendant does he live there and defendant did not respond. The arresting officer then asked the defendant if he knows anyone in the apartment and defendant did not respond. Arresting officer then asked defendant what was he doing in the building and defendant stated in sum and substance I WASN'T THERE TO BUY DRUGS. [The defendant was then arrested for trespass.]

6. Arresting Officer observed the defendant enter and exit the lobby of ... a Clean Halls Apartment building, and asked defendant do you live in the building, do you know anyone in the building, what are you doing in the building, to which defendant stated in sum and substance: NO, NO, I WAS INSIDE FOR A COUPLE OF MINUTES MAKING A PHONE CALL. [The defendant was then arrested for trespass.]

7. Arresting Officer ... observed both defendants exit the lobby of ... a Clean Halls Apartment Building and asked defendants what was their purpose inside of said building and defendant [redacted] stated in sum and substance: I WAS VISITING MY COUSIN [redacted] IN [redacted] but defendant [redacted] remained silent. [Another officer] entered the building to investigate further, however, the arresting officer was unable to articulate how [the other officer] disproved [the speaking defendant's] claim. [Both defendants were arrested for trespass.]

8. Police Officer ... observed the defendant exiting the lobby of ... a Clean Halls Apartment Building and asked defendant whether he lived in the building and defendant stated in sum and substance: NO. [The officer] then asked the defendant, were you visiting anyone in the building, and defendant stated in sum and substance: YES. [The officer] then asked the defendant for the name of the person he was visiting and the apartment number and defendant stated in sum and substance: I DON'T KNOW. [The defendant was then arrested for trespass.]

9. Arresting Officer observed the defendant enter and exit the lobby of ... a Clean Halls Building, and radioed defendant's description. Arresting Officer's partner asked defendant why did you go into the building, do you know anyone in the building, to which defendant stated in sum and substance: I CAME OUT OF A FRIEND[']S APARTMENT. I WAS INSIDE FOR ABOUT AN HOUR. [The defendant was then arrested for trespass.]

10. [T]he arresting officer observed the defendant enter into [a Clean Halls building] and exit after approximately five (5) minutes....

... The defendant was not observed in an area of the building that is not open to the public such as the hallways, lobby and stairwells. [The defendant was arrested for trespass.]

1. [A police officer] observed the defendant enter a Clean Halls Building and exit moments later.... [W]hen the defendant exited the building, [the officer] asked the defendant if he lived in the building, to which the defendant stated in sum and substance, NO.... [The officer] did not ask the defendant if he was a guest of a tenant in the building.... [T]he defendant attempted to walk away at which time [the officer] grabbed the defendant[']s arms, and the defendant pulled away. [A struggle ensued, and the defendant was then arrested in part for trespass.]

2. [T]he defendants entered a Clean Halls building, stayed there approximately five minutes, and then left. The arresting officer stopped the defendants and asked them where they were coming from. The defendants replied, in sum and substance, WE'RE COMING FROM ... WE'RE COMING FROM ..., and could not provide a name or apartment number. The officer placed both defendants under arrest and searched them.

3. The Arresting Officer observed the defendant exit the lobby of ... a Clean Halls Apartment Building, approached defendant and asked, Do you live in the building?, defendant stated in sum and substance: NO. The Arresting Officer then asked the defendant, Do you know anyone in the building?, defendant stated in sum and substance: YES, A FRIEND. The Arresting Officer then asked the defendant, What's your friend's name? What apartment does your friend live in?, defendant stated in sum and substance: I DON'T KNOW HIS NAME. HE'S IN [redacted]. The Arresting Officer went to [redacted] however, the apartment was unoccupied, and as a result, the Arresting Officer was unable to locate anyone who could verify defendant's claim. [The defendant was then arrested for trespass.]

4. The Arresting Officer observed the defendant exit the lobby of ... a Clean Halls Apartment Building and [another officer] approached defendant on the sidewalk and asked defendant, Do you live in the building?, and defendant stated in sum and substance: NO. [The officer] asked defendant, What was your reason for being in the building?, and defendant stated in sum and substance: LOOKING FOR A GIRL. [The officer] then asked the defendant, What's the name of the girl?, and defendant refused to provide an answer to the aforementioned question. [The defendant was then arrested for trespass.]

5. Arresting Officer observed the defendant enter and exit the lobby of ... a clean halls Building. [The defendant was then arrested for trespass.] However, arresting Officer could not obtain a clean halls affidavit.

6. [I]n front of ... a Clean Halls building, [the arresting officer] observed defendant and several unapprehended individuals exit the lobby.... [The officer] approached defendant and asked defendant if he knew anyone in above-mentioned location and defendant stated in sum and substance: NO. I'M JUST LOOKING FOR MY FRIEND [redacted]. NO [redacted] DOESN'T LIVE HERE. [The defendant was then arrested for trespass.]

7. [D]efendant was observed entering and exiting the lobby of [a Clean Halls building].

Arresting officer asked defendant what he was doing in the building and defendant stated in sum and substance I WAS IN THE BUILDING LOOKING FOR WORK. Arresting officer asked defendant what kind of work he was looking for and defendant stated in sum and substance I WAS LOOKING FOR MY FRIEND [redacted]. Arresting officer asked defendant where his friend lived and defendant stated in sum and substance I DON'T KNOW WHERE HE LIVES. [The defendant was then arrested for trespass.]

1. Arresting officer observed defendant enter ... a clean halls building and observed defendant exit said building. Arresting officer approached and asked defendant, what were you doing in the building and defendant stated in sum and substance: I WAS THERE TO VISIT A FRIEND. I DON'T KNOW WHAT APARTMENT THEY LIVE IN. [The officer then searched the defendant, found crack-cocaine and a pipe, and arrested defendant in part for trespass.]

2. The arresting officer ... observed defendant exiting the lobby of ... a Clean Halls Apartment Building. The arresting officer stopped defendant and defendant clenched his fists on his sides and spread his feet apart and ... stated in sum and substance YOU'RE NOT GOING TO TOUCH ME. YOU'RE NOT GOING TO TOUCH ME. YOU'RE NOT PUTTING YOUR HANDS ON ME. [The arresting officer then handcuffed defendant and placed him in the patrol vehicle.]

3. [D]efendant was observed entering the above location, a Clean Halls Apartment building, and was also observed exiting said location minutes later. Arresting police officer ... asked defendant if he lived in the building and defendant stated in sum and substance, I'M NOT THERE, I'M IN [redacted]. [The defendant was then arrested for trespass.]

4. Arresting Officer observed the defendant exit the lobby of ... a Clean Halls Apartment Building. Arresting officer approached defendant and asked him, do you live in the building, do you know anyone in the building, what apartment does your friend live [in], what is his name[,] to which defendant stated in sum and substance:... NO I DON'T, YES I'M VISITING MY FRIEND ON THE [redacted] FLOOR, NO I'M NOT GOING TO GIVE YOU MY FRIEND'S NAME. [The officer then patted down the defendant and arrested him in part for trespass.]

5. Arresting officer observed defendant enter ... a clean halls building and observed defendant exit said building. Arresting officer approached and asked defendant, what were you doing in the building and do you know anyone in the building and defendant stated in sum and substance: NO, I DON'T KNOW ANY-ONE AND I WENT TO BUY DRUGS. [The defendant was then arrested in part for trespass.]

6. The Arresting Officer states that ... he observed defendant exiting ... a Clean Halls Apartment Building. The Arresting Officer approached defendant and asked defendant if he lives in the building and defendant stated in sum and substance: NO. The Arresting Officer further asked the defendant where are you coming from and defendant stated in sum and substance: I'M COMING FROM THE [redacted] FLOOR. The Arresting Officer asked the defendant what apartment are you coming from and defendant stated in sum and substance: I DON'T KNOW THE APARTMENT NUMBER BUT I'LL SHOW IT TO YOU. [The officer went with the defendant to the apartment. No one answered the door. The defendant was arrested for trespass.]

7. Arresting Officer observed the defendant enter and exit the lobby of ... a Clean Halls Building. Arresting Officer told defendant that he observed him enter said building along with separately apprehended [redacted] ... and separately apprehended stated in sum and substance WE WERE IN THE BUILDING. Arresting Officer then asked separately apprehended and defendant what apartment they were visiting, and neither defendant nor separately apprehended provided a response. [The defendant was then arrested for trespass.]

... [T]he Arresting Officer did not observe defendant to go beyond the public vestibule of said building, nor did defendant admit to being inside of said building, beyond the public vestibule.

1. The arresting officer states that ... inside of ... a Clean Halls Building, she observed defendant and separately apprehended [redacted] enter the lobby of said location and exit shortly thereafter. Arresting officer stopped defendant and asked him if he lived in the building and defendant stated in sum and substance I DON'T LIVE IN THE BUILDING. Arresting officer asked defendant what he was doing in the building and defendant stated in sum and substance I WAS WAITING FOR A FRIEND. Arresting officer asked defendant for the name of the person he was waiting for and defendant did not reply. Arresting officer asked defendant for his identification and defendant was unable to produce one at which time arresting officer attempted to handcuff defendant and defendant ran.

APPENDIX B

Blank UF-250 Form

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

a sufficiently widespread practice among police officers of abuse of the rights of black people to support reasonably the conclusion that such abuse was the custom of the officers of the Department and that supervisory personnel must have been aware of it but took no adequate corrective or preventive measures (or some combination of the two).

Jones, 691 F.3d at 82 . The Second Circuit thus continues to hold that if a practice of misconduct is sufficiently widespread, the municipality may be assumed to have acquiesced in it, even in the absence of direct evidence of such acquiescence.

(1) policymaker knows "to a moral certainty" that its employees will confront a given situation; (2) either situation presents employees with difficult choice that will be made less so by training or supervision, or there is a record of employees mishandling situation; and (3) wrong choice by employees will frequently cause deprivation of constitutional rights.

Cash, 654 F.3d at 334 . "Where the plaintiff establishes all three elements, then ... the policymaker should have known that inadequate training or supervision was `so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.'" Walker, 974 F.2d at 298 (quoting City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ).

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous; ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Terry, 392 U.S. at 30, 88 S.Ct. 1868 (emphasis added). If the officer who searched Bradley had no reason to conclude that Bradley posed a danger, the officer's frisk violated Bradley's rights under the Fourth Amendment. See also People v. Driscoll, 101 A.D.3d 1466, 1467, 957 N.Y.S.2d 476 (3d Dep't 2012) ("To conduct a protective pat frisk, an officer must have knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety[.]" (quotation marks and citation omitted)).

It's like when you're a kid, when someone is bothering you or someone is like threatening you, you run to your parents for protection, and when you're an adult, you're supposed to run to the police. But who are you supposed to run to when like the police are harassing you or like threatening you ..., who are you supposed to run to then?

Id. at 486:3-8.

1. 1.Floyd v. City of New York, filed in 2008, challenges the NYPD's stop and frisk practices in general, arguing among other things that the NYPD is systematically violating the rights of New York City's residents and visitors under the Fourth Amendment to be free from unreasonable searches, and under the Fourteenth Amendment to be free from discrimination on the basis of race. See Floyd v. City of New York, 283 F.R.D. 153, 159 (S.D.N.Y.2012) (granting class certification). Davis v. City of New York , filed in 2010, focuses on stop and frisk practices at public housing properties run by the New York City Housing Authority ("NYCHA"). Plaintiffs in Davis argue that the NYPD uses unlawful stops, searches, and arrests to enforce the prohibitions against trespassing on public housing property. See Davis v. City of New York, 902 F.Supp.2d 405, 408, 2012 WL 4813837, at *1 (S.D.N.Y. Oct. 9, 2012) (granting in part and denying in part defendants' motions for summary judgment regarding individual plaintiffs' arrests and tenancies).
2. 2.See generally New York Criminal Procedure Law ("CPL") § 140.50.
3. 3.See generally Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (reversing conviction for failure to suppress evidence seized in an unlawful stop, and affirming conviction in a related appeal, finding that the seizure in latter case was reasonable under the Fourth Amendment).
4. 4.Id. at 61, 88 S.Ct. 1889.
5. 5.Id. (quoting Cooper v. State of California, 386 U.S. 58, 61, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) ).
6. 6.See id. ("Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.").
7. 7.Id. The Court continued: "Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so." Id.
8. 8.See Complaint ¶¶ 11-23.
9. 9.See Ligon v. City of New York, No. 12 Civ. 2274, 910 F.Supp.2d 517, 518-19, 2012 WL 3597066, at *1 (S.D.N.Y. Aug. 21, 2012) (allowing preliminary injunction hearing to proceed). For the history of TAP, see infra Part IV.B. Plaintiffs' Complaint concerns stops in and around TAP buildings throughout New York City, but plaintiffs' motion for preliminary injunction focuses solely on outside stops in the Bronx. See Ligon, 910 F.Supp.2d at 521-23, 2012 WL 3597066, at *3-4 ; Memorandum of Law in Support of Plaintiffs' Motion for Class Certification ("Class Mem.") at 1 n.1.
10. 10.See Ligon, 910 F.Supp.2d at 518-19, 2012 WL 3597066, at *1 .
11. 11.See Plaintiffs' Revised Proposed Findings of Fact and Conclusions of Law ("Pl. Findings") ¶¶ 64-67, 69-70.
12. 12.Transcript of Preliminary Injunction Hearing ("Tr.") 10/16 at 275:8.
13. 13.Id. at 349:1.
14. 14.Tr. 10/17 at 444:2.
15. 15.Id. at 486:1.
16. 16.392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
17. 17.See Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction at 21; Pl. Findings ¶¶ 72-75.
18. 18.See Tr. 10/15 at 1; Tr. 11/7 at 1282.
19. 19.To echo language quoted by Justice Thurgood Marshall, the evidence in this case "has evoked images of other days, under other flags, when no man traveled ... without fear of unwarranted interruption." Florida v. Bostick, 501 U.S. 429, 443, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (Marshall, J., dissenting) (quotation marks and citation omitted).
20. 20.UBS Fin. Servs., Inc. v. West Virginia Univ. Hosps., Inc., 660 F.3d 643, 648 (2d Cir.2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ).
21. 21.Winter, 555 U.S. at 20, 129 S.Ct. 365 (citing Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) ; Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) ; Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) ). See also Fed.R.Civ.P. 65(a) (preliminary injunctions).
22. 22.Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir.2011) (quoting Metropolitan Taxicab Bd. of Trade v. City of New York, 615 F.3d 152, 156 (2d Cir.2010) ). Accord Pamlab, L.L.C. v. Macoven Pharm., L.L.C., 881 F.Supp.2d 470, 474-75 (S.D.N.Y.2012) (recognizing that the Supreme Court in Winter "cast some doubt on the continuing viability" of the Second Circuit's "serious questions" prong, but noting that "the Second Circuit has since held that `our venerable standard for assessing a movant's probability of success on the merits remains valid'" (quoting Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir.2010) )).
23. 23.Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir.1999) (quoting Jolly v. Coughlin, 76 F.3d 468, 473-74 (2d Cir.1996) ). The Second Circuit has recognized that "[t]he distinction between mandatory and prohibitory injunctions is not without ambiguities or critics, and that in a close case an injunction can be framed in mandatory or prohibitory terms." Jolly, 76 F.3d at 474 (quotation marks and citations omitted).
24. 24.See Pl. Findings ¶¶ 72-75.
25. 25.See Compl. ¶¶ 1, 203. 42 U.S.C. § 1983 provides:
26. 26.436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Interpreting the language of section 1983 and the legislative history surrounding its passage in the Civil Rights Act of 1871, the Court in Monell held that local governing bodies could be held liable either on the basis of formally approved policy or on the basis of "customs'" or "usages.'" Id. at 690-91, 98 S.Ct. 2018 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ). Later cases have "considerably broadened the concept of official municipal action." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir.2004) .
27. 27.Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir.2011) (quoting Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011), in turn quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018 ).
28. 28.Connick, 131 S.Ct. at 1359 (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018 ; Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ; Adickes, 398 U.S. at 167-68, 90 S.Ct. 1598 ).
29. 29.Cash, 654 F.3d at 334 (quoting Amnesty, 361 F.3d at 126 ).
30. 30.Connick, 131 S.Ct. at 1359 (quoting Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ).
31. 31.Cash, 654 F.3d at 334 (quoting Connick, 131 S.Ct at 1360 ; Amnesty, 361 F.3d at 128 ).
32. 32.Sorlucco v. City of New York, 971 F.2d 864, 871 (2d Cir.1992) (emphasis added), quoted with approval by Amnesty, 361 F.3d at 126 ; Okin v. Village of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 440 (2d Cir.2009) . Though the Second Circuit has not explicitly reaffirmed the "constructive acquiescence" theory of Monell liability articulated in Sorlucco since the Supreme Court decided Connick, the Second Circuit noted in Jones v. Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012), that the plaintiff there could have established municipal liability by showing:
33. 33.Connick, 131 S.Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion) ).
34. 34.Id. (citing Bryan Cty., 520 U.S. at 407, 117 S.Ct. 1382 ).
35. 35.Cash, 654 F.3d at 334 (quoting Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.2007) ; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995) ). Cash reaffirmed the validity of the three-part framing of the failure-to-train inquiry in Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992), summarized as:
36. 36.See Maryland v. Pringle, 540 U.S. 366, 369, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ).
37. 37.U.S. CONST. amend. IV.
38. 38.United States v. Swindle, 407 F.3d 562, 566 (2d Cir.2005) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ). Under New York law, the justifications required for different levels of police intrusion were established in People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976) . See infra Part III.D. States may impose greater restrictions on police conduct than those established by the Fourth Amendment, but "may not ... authorize police conduct which trenches upon Fourth Amendment rights." Sibron, 392 U.S. at 61, 88 S.Ct. 1889 .
39. 39.Davis, 902 F.Supp.2d at 410-11, 2012 WL 4813837, at *2 (citing Terry, 392 U.S. at 22, 88 S.Ct. 1868).
40. 40.Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) .
41. 41.Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 ) (certain quotation marks omitted). Courts are divided over whether reasonable suspicion must be of a particular crime, or may be of criminality in general. See 4 WAYNE R. LAFAVE, SEARCH & SEIZURE § 9.5(c) (5th ed. 2012).
42. 42.United States v. Bayless, 201 F.3d 116, 133 (2d Cir.2000) .
43. 43.Terry, 392 U.S. at 22, 88 S.Ct. 1868.
44. 44.Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) ).
45. 45.Id. (quoting Adams v. Williams, 407 U.S. 143, 144, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ).
46. 46.United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ).
47. 47.United States v. Lee, 916 F.2d 814, 819 (2d Cir.1990) .
48. 48.Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ). Accord United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ("[A] person has been seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."). In an enclosed space, such as a bus, this test may be rephrased as "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.'" United States v. Drayton, 536 U.S. 194, 202, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (quoting Bostick, 501 U.S. at 436, 111 S.Ct. 2382 . Bostick also notes that "the `reasonable person' test presupposes an innocent person." Bostick, 501 U.S. at 438, 111 S.Ct. 2382 . For a comprehensive summary of the "free to leave" test as it has been interpreted and applied, see LAFAVE, SEARCH & SEIZURE § 9.4(a).
49. 49.Brown, 443 U.S. at 50, 99 S.Ct. 2637 (quoting Terry, 392 U.S. at 16, 88 S.Ct. 1868).
50. 50.INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) .
51. 51.United States v. Simmons, 560 F.3d 98, 105 (2d Cir.2009) (citing Swindle, 407 F.3d at 572 ).
52. 52.See Terry, 392 U.S. at 16-20, 88 S.Ct. 1868.
53. 53.In re Lonique M., 93 A.D.3d 203, 939 N.Y.S.2d 341, 343 (1st Dep't 2012) .
54. 54.N.Y. Penal Law § 140.00.
55. 55.People v. Hollman, 79 N.Y.2d 181, 184, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992) (reaffirming De Bour despite case law suggesting that the Fourth Amendment does not protect against police-initiated encounters falling short of seizures).
56. 56.Id. at 184-85, 581 N.Y.S.2d 619, 590 N.E.2d 204 (emphasis added).
57. 57.Id. at 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 (emphasis added).
58. 58.See, e.g., People v. Reyes, 234 A.D.2d 63, 651 N.Y.S.2d 431, 432-33 (1st Dep't 1996) ; People v. Francis, 17 Misc.3d 870, 847 N.Y.S.2d 398, 401 (Sup.Ct. Bronx Co.2007) .
59. 59.Hollman, 79 N.Y.2d at 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 .
60. 60.See, e.g., People v. Hendricks, 43 A.D.3d 361, 841 N.Y.S.2d 94, 94 (1st Dep't 2007) (holding that NYCHA building's "history of drug activity and trespassing" provided "objective, credible reason" for Level 1 inquiry "to determine if defendant was legitimately in the building"); People v. Anderson, 306 A.D.2d 54, 759 N.Y.S.2d 676, 676 (1st Dep't 2003) (holding that group of nine or ten people descending staircase in drug-prone TAP building provided objective credible reason to ask defendant whether he lived there, "`which constituted a level one request for information and not a common-law inquiry'" (quoting People v. Tinort, 272 A.D.2d 206, 709 N.Y.S.2d 511, 511 (1st Dep't 2000) )).
61. 61.See Hendricks, 841 N.Y.S.2d at 94 . Level 1 questioning of a person in a NYCHA building requires "[a]t a minimum, ... evidence of prior criminality" in the building. People v. Ventura, 30 Misc.3d 587, 913 N.Y.S.2d 543, 546-47 (Sup.Ct.N.Y.Co.2010) . "To the extent that ... in public housing the police routinely engage in random, unjustified questioning — and there is evidence that they do — the practice would amount to a systematic violation of De Bour. " Id. at 547 (citing Adam Carlis, The Illegality of Vertical Patrols, 109 COLUM. L. REV. 2002 (2009)).
62. 62.See, e.g., People v. Kojac, 176 Misc.2d 187, 671 N.Y.S.2d 949, 953-54 (Sup.Ct.N.Y.Co. 1998) ("The police are not justified in approaching an individual merely because he exits [a TAP building] known for its high incidence of drug activity."). See also People v. Almonte, No. 0209/2009, 30 Misc.3d 1234(A), 2011 WL 864940, at *2 (Sup.Ct. Bronx Co. Mar. 8, 2011) (suggesting that decisions upholding Level 1 questioning of individuals exiting TAP buildings have "noted some additional factor" other than location, such as defendant's conduct not being innocuous).
63. 63.Plaintiffs introduced testimony regarding eleven stops. See infra Part IV.A.2. All of the stops were of named plaintiffs except the July 2011 stop of non party witness Jerome Grant, a relative of two named plaintiffs. See infra Part IV.A.2.d. For convenience, when making general statements about the personal testimony of stops offered at the hearing, I will often refer to named plaintiffs and non-party witness Jerome Grant collectively as "plaintiffs."
64. 64.See Tr. 10/15 at 168-75.
65. 65.See id. at 175:20-22. The Bronx Defenders are co-counsel for plaintiffs in this case.
66. 66.See id. at 175:21-25, 176:2-8.
67. 67.See id. at 176:9-23.
68. 68.See id. at 176:14-177:22, 180:19-181:21; 7/7/11 Letter from ADA Rucker to Deputy Inspector William McSorley ("7/7/11 Rucker Letter"), Plaintiffs' Exhibit ("Pl. Ex.") 6. See also Tr. 10/15 at 184:7-185:17; 7/13/11 Memo from ADA Rucker to ADAs, Pl. Ex. 7 at 2 (explaining that Bronx DA would decline to prosecute trespass cases where stop was based on nothing more than entry and exit from Clean Halls building).
69. 69.See Tr. 10/15 at 182:11-183:8.
70. 70.See id. at 170:12-173:17. Throughout this opinion, for convenience, I will refer to NYPD trainees as "officers," though in some cases the training involves "recruits." See Tr. 10/19 at 839:18-24.
71. 71.See Defendants' Proposed Findings of Fact and Conclusions of Law ("Def. Findings") ¶¶ 11-14. One case involved an anonymous letter whose author claimed to have been arrested for trespass while leaving a friend's building with the friend. See Tr. 10/15 at 190:17-20; Tr. 10/16 at 239:1-240:22; 3/13/12 Anonymous Letter to ADA Rucker, Pl. Ex. 11. The other involved a stop inside a Clean Halls building, and was brought to ADA Rucker's attention by the Bronx Defenders. See Tr. 10/15 at 196:13-198:15; Tr. 10/16 at 241:5-243:2. In the latter case, according to ADA David Grigoryan, who performed an investigation at ADA Rucker's request, the defendant was stopped and questioned for no specified reason at his sister's building, where he was apparently staying, and then the defendant was arrested because he failed to provide his sister's name or apartment number. See Tr. 10/18 at 609:7-614:19, 617:25-619:9. ADA Grigoryan testified that in his opinion this arrest was "absolutely valid." Id. at 611:14.
72. 72.Tr. 10/15 at 176:7-8.
73. 73.Id. at 176:10-11.
74. 74.Tr. 10/16 at 234:9.
75. 75.See id. at 237:13-238:8, 239:11-24, 240:6-7, 243:13-18, 244:6-12. Further support for ADA Rucker's criticisms can be found in the opinions of New York state courts. See, e.g., Almonte, 2011 WL 864940, at *1 (criticizing police officer who was apparently "operating under the assumption that he had the authority to identify anyone leaving a trespass affidavit building"). Other cases describe problems with stops and arrests inside TAP buildings. See, e.g., People v. Ruiz, No. 056832C-2006, 15 Misc.3d 1135(A), 2007 WL 1428689, at *3-4 (Sup.Ct.Bronx Co. May 15, 2007) (chastising NYPD after apparently unlawful trespass arrest inside Clean Halls building, and concluding: "One hopes the New York City Police Department will better train its officers in the realm of Criminal Trespass so that only true trespassers will be arrested, and innocents will be spared.").
76. 76.See Tr. 10/16 at 237:13-16. Accord Tr. 10/15 at 202:22-203:20 (ADA Rucker rejecting mischaracterization of her views in 9/6/12 Letter from Police Commissioner Raymond W. Kelly to Bronx County District Attorney Robert Johnson, PL. Ex. 12); Tr. 10/16 at 235:3-7 (ADA Rucker explaining that she had orally conveyed details of other cases to the NYPD).
77. 77.See Tr. 10/16 at 246:8-248:14.
78. 78.See id. at 222:9-224:2.
79. 79.See id. at 213:5-7.
80. 80.See Pl. Findings ¶ 16 n. 1; Tr. 10/16 at 210:17-220:25; Tr. 10/17 at 508:11-509:20; Bronx DA Decline to Prosecute Affidavits ("Decline Prosecute Affs."), Pl. Ex. 74. Plaintiffs' Exhibit 74 contains thirty-one forms, but plaintiffs later conceded that only twenty-eight forms expressly identify the building outside of which the stop took place as a TAP building. See Pl. Findings ¶ 16 n. 2 (referring to Decline Prosecute Affs. at 4425, 5001, 5055). In addition, two of the forms are revisions of other forms. Compare Decline Prosecute Affs. at 2996, 3088, with id. at 3174, 3086.
81. 81.ADA Rucker confirmed that the types of cases described in the decline to prosecute forms were, in part, what motivated the Bronx DA's office to adopt a policy in July 2011 of declining to prosecute cases where the arresting officer had only observed someone exiting or entering and exiting a Clean Halls building. See Tr. 10/16 at 218:16-219:8. Accord Tr. 10/15 at 180:13-182:18; 7/7/11 Rucker Letter.
82. 82.Def. Findings ¶ 13.
83. 83.Neither party attempted to determine whether the stops described in the decline to prosecute forms were recorded in UF-250s.
84. 84.See infra Appendix A ("App. A").
85. 85.Decline Prosecute Affs. at 4407, excerpted at App. A ¶ 2.
86. 86.Some of the forms describe stops in which an officer eventually obtained probable cause for an arrest. See, e.g., App. A ¶ 23. But the instant case concerns the legal basis for stops, not arrests.
87. 87.See infra Part V.B.1.a.
88. 88.See Tr. 11/7 at 1298:19-22 (defendants' summation).
89. 89.Def. Findings ¶ 15.
90. 90.Id. (emphasis added). See also Tr. 10/23 at 1113:24-1114:19.
91. 91.Tr. 10/23 at 1115:16.
92. 92.See Chart by Sgt. Musick ("Musick Chart"), Defendants' Exhibit ("Def. Ex.") UU; Tr. 10/23 at 1123:23-1128:11. Officers are required to complete a UF-250 form, also known as a "Stop, Question and Frisk Report Worksheet," after each stop. See Tr. 10/15 at 67:4-21, 69:24-70:6; Tr. 10/23 at 1110:9-11; UF-250 Form, App. B to 7/27/12 Report of Plaintiffs' Expert Dr. Jeffrey Fagan ("Fagan Report"), PL Ex. 4. UF-250s are discussed at greater length below. See infra Part V.B.1.a. I have attached a copy of a blank UF-250 form as Appendix B to this Opinion.
93. 93.Tr. 10/23 at 1145:1, 1158:19-25.
94. 94.See id. at 1153:4-1154:8.
95. 95.See id. at 1125-1143.
96. 96.See Tr. 10/16 at 257:17-258:22, 259:10-19, 261:1-24, 272:6.
97. 97.See id. at 258:23-24, 259:23.
98. 98.See Tr. 10/15 at 258:23-260:21.
99. 99.See Tr. 10/16 at 260:3-7.
100. 100.See id. at 262:4-264:12.
101. 101.See id. at 264:14-265:9; Tr. 10/22 at 1079:18-19.
102. 102.Tr. 10/16 at 266:3.
103. 103.Id. at 266:8.
104. 104.Though plaintiffs have not focused their arguments on the legal standard for frisks, I note that a frisk requires an additional justification beyond the reasonable suspicion for the stop. The Supreme Court held in Terry :
105. 105.Tr. 10/16 at 265:20-22, 266:1-267:17.
106. 106.See id. at 267:16-268:1.
107. 107.Id. at 268:5-6. Bradley later stated that his experiences on May 3 made him feel "extremely violated, to say the least." Id. at 275:8.
108. 108.See id. at 268:9-25, 269:1, 12-13, 272:3-273:7; 7/7/11 Notarized Letter from Rappa ("Rappa Letter"), PL Ex. 17.
109. 109.Tr. 10/16 at 269:2-270:4.
110. 110.See Tr. 10/22 at 1076:8-10, 1077:3-11, 1078:16-18, 1079:5-7.
111. 111.Id. at 1081:5-6, 1082:24-25.
112. 112.Id. at 1082:24.
113. 113.Id. at 1086:21-1087:1; Tr. 10/23 at 1097:8-9, 1101:13-15.
114. 114.See Tr. 10/22 at 1087:2-11; Tr. 10/23 at 1101:20-25.
115. 115.Tr. 10/22 at 1088:15-16.
116. 116.See id. at 1088:11-1089:1; Tr. 10/23 at 1097:1-9.
117. 117.See Tr. 10/23 at 1098:11-1099:1.
118. 118.See Tr. 10/22 at 1080:23-25; Tr. 10/23 at 1098:19-1099:1.
119. 119.See Tr. 10/23 at 1098:11-1099:1.
120. 120.Officer Santiago admitted that by the time he completed the paperwork, he had worked fourteen or fifteen hours straight and was "a little tired." Id. at 1099:11-12. See also id. at 1105:8-16.
121. 121.See 5/3/11 Clean Halls Fact Sheet for Charles Bradley Arrest ("Bradley Fact Sheet"), Pl. Ex. 39.
122. 122.See Tr. 10/23 at 1099:17-1100:2. Officer Santiago testified that he was trying to help a landlord friend who was having problems with a tenant, "so I issued two improper summons, one in the bus stop and one in the fire hydrant, and the car was never there." Id. at 1099:24-1100:2.
123. 123.See id. at 1110:9-11.
124. 124.See Tr. 10/17 at 472:14-15, 473:9-474:9.
125. 125.See id. at 475:8-15; Tr. 10/18 at 622:25-623:4.
126. 126.See Tr. 10/17 at 474:13-475:7, 481:23-25.
127. 127.See id. at 475:21-476:25.
128. 128.Id. at 495:5-18 (Turner's testimony). Defendants suggest that it is implausible that Turner did not go inside the building, because he knew that the door was unlocked. See Def. Findings ¶ 23 & n. 11; Tr. 10/17 at 476:7-10. But Turner testified that he liked the cold and did not need a coat. See Tr. 10/17 at 477:2-4. Accord id. at 487:20-21, 502:5-19. While Turner's winter-weather clothing choices and apparent tolerance for the cold may be idiosyncratic, they do not undermine his credibility. There is also a facial inconsistency in defendants' apparent attempt to suggest both that any reasonable person in Turner's circumstances would have entered the building to warm up, and that if Turner did so, he would have provided legal grounds for a Terry stop. A reasonable person would presumably want to avoid being stopped and frisked, and thus would prefer standing in the cold to going inside, if doing so would create a reasonable suspicion of criminal trespass.
129. 129.Tr. 10/17 at 477:8. I note that a reasonable person would not feel free to leave when his personal property has been seized by the police.
130. 130.Id. at 477:19-23.
131. 131.See Tr. 10/22 at 1008:20, 1012:5-25.
132. 132.See id. at 1059:11-1061:6; Page from Memobook of Officer Michael Pomerantz, Def. Ex. HHHH.
133. 133.See Tr. 10/17 at 478:13-22, 479:8-11.
134. 134.Id. at 479:11-12.
135. 135.See id. at 479:12-13.
136. 136.See id. at 479:13-24, 480:12-24.
137. 137.Id. at 481:1-3.
138. 138.See id. at 481:7-25, 482:1-8.
139. 139.See id. at 482:21-483:10, 483:14-21.
140. 140.Id. at 486:1. Turner continued:
141. 141.See Tr. 10/18 at 619:23-628:6.
142. 142.See Tr. 10/22 at 1016:17-1017:14, 1020:11-1021:25.
143. 143.Id. at 1021:21-24.
144. 144.Officer Ramdeen's arrest report only states that Turner was inside a Clean Halls building without permission or authority to be there. See id. at 1038:19-1041:24; 3/26/11 Arrest Report of Plaintiff Abdullah Turner ("Turner Arrest Report"), Def. Ex. ZZ. The confession does appear in Officer Ramdeen's supporting deposition, signed on the following day. See 3/27/11 Officer Ramdeen Supporting Deposition in State v. Turner, Def. Ex. CCC. Like Officer Santiago after Bradley's stop, Officer Ramdeen also failed to complete the required UF-250 form for his stop of Turner. See Tr. 10/22 at 1024:2-7. In fact, Officer Ramdeen marked "NO" next to the field "Stop And Frisk" on Turner's arrest report. See Turner Arrest Report at 1.
145. 145.Tr. 10/22 at 1022:20-22. See also id. at 1025:14-1026:4.
146. 146.See id. at 1026:21-22, 1064:13-1065:12.
147. 147.See Tr. 10/17 at 500:12-23.
148. 148.I note, however, that even if Turner entered the building, paced in the lobby, looked up the stairs, and then exited the building to make his call, a stop would still have been unjustified. This behavior is innocuous and would not, without something more, provide reasonable suspicion of criminal trespass, or of any other crime. As in Bradley's and Roshea Johnson's cases, entering and exiting a Clean Halls building under ordinary circumstances does not establish reasonable suspicion. See infra Part V.B.1.a.
149. 149.See Tr. 10/17 at 486:9-490:25.
150. 150.Id. at 491:4-5.
151. 151.Id. at 491:6-8, 22-23.
152. 152.Defendants' post-hearing brief does not challenge whether Turner's second stop was based on suspicion of trespass, but does challenge whether five of the other unrecorded stops described by plaintiffs were for trespass. See Def. Findings ¶¶ 17 (Kieron Johnson), 19 (Jerome Grant), 20 (both of Letitia Ledan's stops), 21 (Roshea Johnson). I address each of defendants' challenges below.
153. 153.See Tr. 10/17 at 438:4-25.
154. 154.As I noted above, plaintiffs have not focused on the issue of frisks in the instant litigation. Nevertheless, it is worth emphasizing that the officer's placement of his hand in J.G.'s pocket goes beyond "a carefully limited search of the outer clothing ... in an attempt to discover weapons which might be used to assault him." Terry, 392 U.S. at 30, 88 S.Ct. 1868. If the officer had no reasonable basis for believing J.G.'s pocket contained a dangerous weapon that J.G. might use to harm the officer, the officer's search of J.G.'s pocket violated J.G.'s rights under the Fourth Amendment. See Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (reaffirming that Terry frisk "must be strictly `limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby'" (quoting Terry, 392 U.S. at 26, 88 S.Ct. 1868)).
155. 155.See Tr. 10/17 at 437:17, 439:4-443:2.
156. 156.See id. at 429:7-430:4.
157. 157.Id. at 430:4-14.
158. 158.See id. at 430:16-433:1.
159. 159.See id. at 452:13-25.
160. 160.See Photo of 274 Bonner Place, Pl. Ex. 37.
161. 161.See Tr. 10/17 at 451:21, 453:6-19, 454:17-455:17, 464:19-466:5.
162. 162.Id. at 464:11.
163. 163.See id. at 455:19-20, 456:8-12.
164. 164.Id. at 456:13.
165. 165.Id. at 456:18-19.
166. 166.See id. at 456:21-457:5.
167. 167.Id. at 457:15. I know of no law stating that failure to carry an ID, standing alone, provides probable cause for an arrest.
168. 168.See id. at 457:18-21.
169. 169.Again, as in the cases of Bradley and J.G., the officer's conduct clearly exceeded the constitutional bounds of a frisk.
170. 170.See id. at 458:3-459:21, 461:4-24, 462:3-5.
171. 171.For example, Grant stated at the deposition that the Asian officer frisked all three members of the group. See id. at 467:8-9.
172. 172.See Def. Findings ¶ 19.
173. 173.See Tr. 10/17 at 461:4-19.
174. 174.See Tr. 10/16 at 394:2-395:2. Roshea Johnson is unrelated to plaintiff Kieron Johnson. See id. at 393:20-22.
175. 175.See id. at 298:11-19, 394:2-395:2.
176. 176.See id. at 394:3-399:7.
177. 177.See id. at 399:21-400:13. Defendants have not located a UF-250 connected to Roshea Johnson's stop, or identified the officers involved in the stop, despite Roshea Johnson's precise identification of the time and place of his stop and his detailed physical descriptions of the officers. See Musick Chart (incident 11); Tr. 10/16 at 401:20-402:3.
178. 178.See Tr. 10/16 at 400:14-15.
179. 179.Id. at 400:17.
180. 180.See id. at 400:17-401:18.
181. 181.See id. at 402:4-22.
182. 182.Id. at 402:19-20.
183. 183.Id. at 402:21-22.
184. 184.See id. at 402:23-403:8.
185. 185.Id. at 403:11-13.
186. 186.See id. at 403:15-20, 403:25-404:3.
187. 187.Id. at 403:18-20.
188. 188.Tr. 10/17 at 417:21-23.
189. 189.See Tr. 10/16 at 297:2-298:19.
190. 190.See id. at 300:22-24, 301:1-14, 302:5-25, 317:18-25.
191. 191.See id. at 306:16-308:8.
192. 192.Id. at 308:8-10.
193. 193.See id. at 308:10-19.
194. 194.Id. at 308:19-309:4.
195. 195.See id. 328:22-330:4.
196. 196.Bostick, 501 U.S. at 434-35, 111 S.Ct. 2382 (collecting cases) (citations omitted). Accord Delgado, 466 U.S. at 216, 104 S.Ct. 1758 ("[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation... [u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded.").
197. 197.Even when the Supreme Court has found consent for a search, it has held that the "terminate the encounter" standard defines a Terry stop. See, e.g., Drayton, 536 U.S. at 200-01, 122 S.Ct. 2105 ("The proper inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.'" (quoting Bostick, 501 U.S. at 436, 111 S.Ct. 2382 )). See also LAFAVE, SEARCH & SEIZURE § 9.4(a) ("[I]t does not appear ... that the Mendenhall-Royer [free to leave'] test is intended to divide police-citizen encounters into their seizure and nonseizure categories by reliance upon the amorphous concept of consent.").
198. 198.Drayton, 536 U.S. at 200, 122 S.Ct. 2105 (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) ).
199. 199.See id. at 340:24-341:4, 342:1-343:13, 343:14-344; Pl. Findings ¶ 43 ("Eladio").
200. 200.Once again, as in the searches of Bradley, J.G., and Grant, the officer violated the Fourth Amendment by exceeding the constitutionally permissible scope of a frisk.
201. 201.See Tr. 10/16 at 344:24-346:11.
202. 202.Id. at 346:14-18.
203. 203.Id. at 346:19-347:4.
204. 204.Id. at 347:6-9.
205. 205.See id. at 346:12-349:1. Moronta's initial inability to remember whether the stop occurred in the winter of 2007 or of 2008 does not significantly undermine his credibility. See id. at 350:12-24. Defendants also note that plaintiffs' Complaint alleges that Moronta's stop occurred in 2010. See Def. Findings ¶ 22 n. 10; Compl. ¶ 129. But Moronta testified that he had not looked at the Complaint closely enough to notice the error until three days before his hearing testimony, and that plaintiffs' counsel may have confused the stop to which he testified with an arrest for trespass in 2010. See Tr. 10/16 at 350:22-352:18.
206. 206.See Tr. 10/16 at 377:11-379:22.
207. 207.See id. at 380:1-381:11.
208. 208.Id. at 381:12-23.
209. 209.Yet again, as in the cases of Bradley, J.G., Grant, and Moronta, the officer who searched Johnson violated Johnson's Fourth Amendment rights by reaching into his pockets during a frisk without a reasonable basis in self-protection.
210. 210.See id. at 382:6-383:5. Johnson stated that after the incident, he felt "[e]mbarrassed and worried," because "there's usually people outside and I don't like when they see me being stopped by officers." See id. at 384:7-10.
211. 211.See id. at 385:4-13; Pl. Findings ¶ 17.
212. 212.See Tr. 10/16 at 385:4-387:19, 389:8-391:5, 392:3-10.
213. 213.Cf. id. at 387:21-23.
214. 214.See id. at 382:6-10.
215. 215.See id. at 359:17-361:14.
216. 216.See id. at 361:15-362:16.
217. 217.Id. at 362:18-363:15; Compl. ¶ 83. Officer Luis Rodriguez testified to being a truancy officer who patrolled Selwyn Avenue between April and June 2012. See Tr. 10/22 at 1067:1-18. Rodriguez testified that he recognized Jefferson but did not remember stopping him between April and June 2012. See id. at 1068:8-1069:5.
218. 218.See Tr. 10/16 at 363:14-364:8.
219. 219.See id. at 364:22-365:17.
220. 220.Id. at 365:7-13.
221. 221.See id. at 366:13-15. He also stated that the stop made him feel the officers were biased "because I am being stopped all the time just because of the kind of neighborhood that I live in." Id. at 366:16-22.
222. 222.See id. at 370:11-372:3.
223. 223.See Floyd v. City of New York, 861 F.Supp.2d 274, 279-80 (S.D.N.Y.2012) (describing Dr. Fagan's qualifications).
224. 224.See Fagan Report at 2. Dr. Fagan extracted the data from the City of New York's Stop, Question, and Frisk Database. See id.
225. 225.See id. at 3; Tr. 10/15 at 69:24-70:1. See also infra Part V.B.1.a (more detailed discussion of UF-250 forms).
226. 226.See infra Appendix B ("App. B.").
227. 227.See Fagan Report at 2-6 & nn. 2-8 (analysis leading to original count of 1,857 stops); Apps. C-E to Fagan Report (exclusion of stops where indoor behavior was observed); Tr. 10/15 at 73:5-77:7 (general search method), 114:23-115:2 (exclusion of alleged NYCHA stops), 117:20-119:20 (recapitulation of general search method); Table 14: Period of Observation of Proximity Stops, Bronx Trespass Stops, 2011 ("Period of Observation Table"), Pl. Ex. 98 (stop totals at various stages of analysis).
228. 228.See Fagan Report at 15 tbl. 8; App. L to Fagan Report; Tr. 10/15 at 114:4-115:2.
229. 229.See Tr. 10/15 at 115:1-2.
230. 230.Def. Findings ¶ 3 n.1. In Arvizu, the Supreme Court rejected the Ninth Circuit's attempt to clarify the reasonable suspicion standard by analyzing various stop factors in isolation as part of what the Supreme Court described as a "reasonable-suspicion calculus." 534 U.S. at 272, 122 S.Ct. 744 . The Supreme Court emphasized the importance of looking to the "`totality of the circumstances'" in reasonable suspicion analyses. See id. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 417-18, 101 S.Ct. 690 ). Dr. Fagan's report, though quantitative, attempts no such mechanistic analysis, because it does not claim to be the final word on whether reasonable suspicion existed for any individual stop in the UF-250 database. See Fagan Report at 15 (identifying stops "where there does not appear " to be any combination of factors justifying a trespass stop (emphasis added)). Accord Floyd, 861 F.Supp.2d at 293 (noting that "(il)legality of a stop" cannot be "conclusively determined on the basis of paperwork alone," and clarifying that the UF-250 database "is necessarily an incomplete reflection of the totality of the circumstances leading to each stop"). Unlike a hearing on a single motion to suppress, this hearing aims to determine, based on necessarily limited data, whether the City and NYPD engaged in a widespread practice of constitutional violations.
231. 231.Def. Findings ¶ 7.
232. 232.See id. ¶ 4.
233. 233.Similarly, defendants speculate that some of the buildings Dr. Fagan identified as Clean Halls buildings might not have been enrolled in Clean Halls on the date of the stop. See id. ¶ 10. Yet defendants fail to identify a single stop for which this was actually the case.
234. 234.See Floyd, 861 F.Supp.2d at 290-91 . Defendants' expert misquotes this earlier opinion as flatly holding that "it would be improper to declare certain stops unjustified' and others justified' on the basis of paperwork alone." Report of Defendant[s'] Expert Dr. Dennis Smith in Response to Plaintiffs' Expert Dr. Jeffrey Fagan ("Smith Report"), Def. Ex. JJJJ, at 3 n. 3 (quoting Floyd, 861 F.Supp.2d at 291 ). In fact, the quoted sentence continues: " without offering any qualifications: a perfectly lawful stop cannot be made unlawful because the arresting officer has done a poor job filling out the post-arrest paperwork; nor can an egregiously unlawful stop be cured by fabrication of the paperwork." Floyd, 861 F.Supp.2d at 291 (emphasis added). Plaintiffs have presented Dr. Fagan's conclusions in the instant case with the appropriate qualifications.
235. 235.See Def. Findings ¶ 4 ("NYPD training evidence ... clearly identifies that its officers are instructed to include all circumstances leading to the stop on the worksheet[.]" (citing Tr. 10/15 at 86:12-87:2)); Tr. 10/19 at 849:13-19 (testimony of NYPD Chief James Shea).
236. 236.See App. B.
237. 237.Floyd, 861 F.Supp.2d at 292 .
238. 238.This conclusion receives anecdotal support from Officer Santiago's erroneous paperwork regarding Bradley's arrest, which tended to overstate rather than understate the justifications for the arrest. See Bradley Fact Sheet.
239. 239.See Tr. 10/23 at 1125-1143.
240. 240.See Tr. 10/22 at 1024:2-7 (Officer Ramdeen's failure to complete UF-250 for Turner's stop); Tr. 10/23 at 1110:3-18 (Officer Santiago's failure to complete UF-250 for Bradley's stop).
241. 241.See CCRB 2010 Annual Report, Pl. Ex. 78, at 13 (2010 report describing failure to fill out UF-250s as "major failure[]"); CCRB 2011 Annual Report, Pl. Ex. 79, at 14 (2011 Report describing same as "major categor[y] of failure"). I note that the NYPD Legal Bureau's PowerPoint presentation at Rodman's Neck may be read as suggesting, erroneously, that UF-250s need not be prepared when a stop results in arrest: "If the investigation does not lead to an arrest the individual must be released immediately, and a UF-250 must be prepared." NYPD Legal Bureau, Street Encounters PowerPoint Presentation ("Street Encounters Presentation"), Def. Ex. J, at 27. But see id. at 33 (stating that a UF-250 must be prepared for every stop that is based on reasonable suspicion).
242. 242.See Def. Findings ¶ 6; App. B.
243. 243.See Tr. 10/15 at 45:14-47:4.
244. 244.See Def. Findings ¶¶ 6, 10; Tr. 11/7 at 1309:9-1310:22.
245. 245.Tr. 10/15 at 47:1-4. Accord Fagan Report at 5-6 (noting underinclusive results of Dr. Fagan's "exact match" method).
246. 246.I address below defendants' argument that the period of observation field could contribute to reasonable suspicion.
247. 247.See Def. Findings ¶ 10.
248. 248.According to plaintiffs, the UF-250 database fields that could contain text suggesting an observation of indoor behavior included the field called "premname," as summarized in App. D to the Fagan Report, and the field called "detailSA," as summarized in App. E to the Fagan Report.
249. 249.See Fagan Report at 3-4; Tr. 10/15 at 73:8-77:7, 128:1-130:16.
250. 250.See Pl. Findings ¶ 69 (stating plaintiffs' claim as follows: "[T]he defendants have a pattern and practice of unlawful stops on suspicion of trespassing outside TAP buildings in the Bronx."). Some of the text strings in Fagan Report Appendices D and E that indicate indoor behavior also indicate reasonable suspicion for a trespass stop, such as "DRINKING IN REAR OF BUILDING," and "STAIRWELL DRINKING." App. E to Fagan Report. Many others, however, do not. See App. D to Fagan Report (excluding stops with text strings such as "LOBBY," and "VESTIBULE"); App. E to Fagan Report (same with text strings such as "INSIDE CLEAN HALLS," and "SUSPECT OBSERVED INSIDE CLEAN HALL BUILDING").
251. 251.Dr. Fagan's testimony suggested that he attempted to exclude any stop that was "not purely an outdoor stop." See Tr. 10/15 at 74:3-5 (emphasis added).
252. 252.A similar argument applies to defendants' assertion that Dr. Fagan's method failed to exclude some stops that took place outside a Clean Halls building but within the legal limits of the property on which the building sits. See Def. Findings ¶ 10; Tr. 10/15 at 128:1-9. An unconstitutional stop outside a Clean Halls building but within the property line can support the existence of a pattern of unconstitutional stops outside Clean Halls buildings just as well as an unconstitutional stop a few steps outside the lot boundary.
253. 253.See Def. Findings ¶ 4 (citing generally Dr. Fagan's analyses in Floyd and Davis ).
254. 254.For example, Dr. Fagan assumed in Floyd and Davis, which also dealt with a far larger universe of stops, that Furtive Movements in combination with High Crime Area should be coded as constituting reasonable suspicion. See Tr. 10/15 at 151:2-5.
255. 255.Compare Floyd, 861 F.Supp.2d at 278, with Period of Observation Table.
256. 256.In addition, I note that the method in Floyd aims to identify stops for which no reasonable suspicion of any crime exists, whereas the method in the instant case aims to identify stops for which no reasonable suspicion of trespass exists. Given a universe of forms recording stops based only on suspicion of trespass, there may be some forms containing data that could arguably constitute reasonable suspicion of some crime, but not of trespass. The Floyd method will identify these stops as arguably lawful, while Dr. Fagan's method in the instant case will identify them as apparently unlawful. As a result, Dr. Fagan's method in the instant case will result in a higher count of unlawful stops than his method in Floyd. This does not imply bad faith or a contradiction in Dr. Fagan's methods, much less prove the invalidity of Dr. Fagan's method in the instant case. Floyd and Ligon simply aim to assess different sets of stops.
257. 257.See Def. Findings ¶ 3 (citing Tr. 10/23 at 1172-77; Smith Report at 7-29).
258. 258.Smith Report at 8 (emphasis added).
259. 259.See Fagan Report at 8 tbl. 1; Tr. 10/15 at 83:15-85:7, 124:25-126:17 (excluding stops at NYCHA addresses).
260. 260.Plaintiffs imply in their Reply Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction ("Reply Mem.") that it is not necessary for plaintiffs to prove "that officers are stopping people because the building is enrolled in the Clean Halls program." Reply Mem. at 3. But as the analogy to the odd-numbered building hypothetical suggests, this cannot be correct. Plaintiffs' request for preliminary relief depends on there being a specific problem involving stops outside Clean Halls buildings, a problem that can only be partially solved by improving the general training regarding the law of stop and frisk.
261. 261.See supra Part IV.A.1.
262. 262.See Tr. 10/17 at 481:7-482:8 (Hispanic officer in Turner stop). I also note — though the evidence does not relate directly to the outdoor stops at issue in this case — that Officer Santiago testified that even after receiving the NYPD's stop and frisk training at Rodman's Neck, he still believed there was legal justification to ask anyone in the lobby or hallways of a Clean Halls building for an ID, even in the absence of any suspicion, reasonable or otherwise. See Tr. 10/23 at 1111:2-1113:10. Officer Santiago attempted to qualify this rule by stating that the building needed to be in a high crime area in order to justify a request for ID. See id. at 1111:9-22. He then undermined this qualification by stating, categorically, that all Clean Halls buildings are in high crime areas. See id. at 1111:24-1112:1.
263. 263.See Tr. 10/18 at 648:18-649:16.
264. 264.See Tr. 10/15 at 124:18-24.
265. 265.See id. at 123:17-20.
266. 266.See id. at 124:14-17; Tr. 10/22 at 1058:24-1059:2, 1072:9-19; Tr. 10/23 at 1110:23-1111:1; App. B.
267. 267.See Def. Findings ¶¶ 3, 6, 8-10.
268. 268.See infra Part V.B.1.a.
269. 269.See Tr. 10/17 at 519:8-520:16; Smith Report at 10-11; NYPD Legal Bureau, Trespass Affidavit Program: Legal Guidelines for Citizen Encounters in Trespass Affidavit Buildings ("1999 TAP Legal Guidelines"), Def. Ex. O, at 1. When TAP expanded to the Bronx, it was called "Clean Halls," though as of May 2012 the NYPD has begun referring uniformly to the program as TAP. See Tr. 10/17 at 520:17-521:7. In Queens, TAP was referred to, inexplicably, as "FTAP." See id.
270. 270.See Tr. 10/17 at 519:23-520:16. For the historical background of the War on Drugs, see WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 23-26, 267-74 (2011); MICHELLE ALEXANDER, THE NEW JIM CROW 40-58 (2010).
271. 271.Tr. 10/17 at 519:14-16.
272. 272.See id. at 519:8-520:6.
273. 273.See id. at 519:23-520:6.
274. 274.See id. at 633:13-17. In 1999, the NYPD's Legal Bureau created its "Legal Guidelines for Citizen Encounters in Trespass Affidavit Buildings." See 1999 TAP Legal Guidelines. One passage of the fourteen-page document states: "IT SHOULD BE UNDERSTOOD THAT WHEN AN OFFICER IS NOT IN THE BUILDING (E.G., SITTING ACROSS THE STREET IN AN R.M.P.), MERELY OBSERVING AN INDIVIDUAL ENTERING AND EXITING THE BUILDING, OR SIMPLY EXITING THE BUILDING, IS NOT ENOUGH TO CONDUCT A STOP." Id. at 6; Tr. 10/18 at 684:2-4. But Inspector Sweet testified that he did not know of anyone to whom the document had been distributed. See Tr. 10/18 at 654:5-7. Defendants argue that a document from 2000 called Patrol Guide 212-59, "Vertical Patrol" (P.G. 212-59), Def. Ex. FFFF, governed TAP before the 2012 Interim Orders. See Def. Findings ¶ 26 & n. 15 (citing P.G. 212-59). But P.G. 212-59 provides general guidelines for conducting vertical patrols and makes no mention of TAP or Clean Halls. See Tr. 10/18 at 679:20-25.
275. 275.For the first TAP-specific training and the absence of prior training, see the numerous citations to the record at Pl. Findings ¶ 48 & n. 7.
276. 276.See Tr. 10/19 at 773:23-775:14. The survey revealed that there were over eight thousand buildings enrolled in TAP, including over three thousand in the Bronx. See id.
277. 277.See Tr. 10/17 at 511:10-514:17.
278. 278.See id. at 521:13-23.
279. 279.See id. at 523:13-524:5, 528:11-13, 531:6-533:1.
280. 280.Id. at 524:6-7.
281. 281.Tr. 10/18 at 648:18-649:16. I note that Inspector Sweet's testimony regarding what officers said at the focus groups appears to refer to the practice of stops without reasonable suspicion inside TAP buildings, and thus does not necessarily indicate that Inspector Sweet was aware of the problem of unlawful stops outside TAP buildings. At the hearing, Inspector Sweet also emphasized that his concern was with unlawful approaches, not unlawful stops. See id. at 649:20-650:7.
282. 282.See id. at 650:18-651:17.
283. 283.See Tr. 10/17 at 534:6-536:1; Interim Order 22 of 2012 ("IO 22 of 2012"), Def. Ex. A; Interim Order 23 of 2012 ("IO 23 of 2012"), Def. Ex. B. An "Interim Order" is a revision to a patrol guide procedure and becomes the policy of the NYPD upon publication. See Tr. 10/17 at 522:2-13.
284. 284.See IO 23 of 2012.
285. 285.See IO 22 of 2012 at 1 (¶ 1, "SCOPE," and "PROCEDURE").
286. 286.Id. at 2.
287. 287.Id. at 3.
288. 288.See id.
289. 289.See Pl. Findings ¶ 54.
290. 290.See IO 22 of 2012.
291. 291.I give little weight to an August 20, 2012 memo from Chief of Patrol James P. Hall to all commanding officers. See 8/20/12 Memo from Chief of Patrol to Commanding Officer, All Patrol Boroughs, Def. Ex. E. The letter, distributed as the preliminary injunction hearing approached, contains a number of ambitious orders, such as that platoon commanders must personally critique all interior or exterior "street encounters" involving TAP buildings, including all stops. See id. ¶ 3. At the hearing, the executive officer of the Patrol Services Bureau testified that he was unaware of any supervisors conducting critiques of stops inside or outside of TAP buildings. See Tr. 10/19 at 759:6-15.
292. 292.See Tr. 10/17 at 545:15-546:1, 559:24-560:7; Trespass Crimes — Fact Sheet, Def. Ex. H. While the use of this fact sheet may be a welcome development, it will do nothing to clarify officers' confusion regarding the standards for making a stop outside a Clean Halls building. There is also a new "Trespass Crimes-Owner's Affidavit" in support of the administrative goals of IO 23 of 2012. See Tr. 10/17 at 526:21-528:7; Trespass Crimes-Owner's Affidavit, Def. Ex. G.
293. 293.See 8/12/12 Memo from Chief of Patrol to Commanding Officers, All Patrol Boroughs, Def. Ex. C.
294. 294.See 6/18/12 Memo from Chief of Patrol to Chief of Department ("Trespass Law Plan"), Def. Ex. D, ¶ 2.
295. 295.See id. ¶ 3.
296. 296.Tr. 10/19 at 789:19-790:5.
297. 297.See Tr. 10/18 at 711:24-714:11.
298. 298.See, e.g., Tr. 10/22 at 996:2-4.
299. 299.See Trespass Law Plan ¶ 6; July 2012 Chief of Patrol Field Training Unit Program Guide ("Training Guide"), Def. Ex. N. The Police Student's Guide, which is hundreds of pages long, has also been revised to include several pages on IO 22 of 2012. See Police Student's Guide (excerpt) ("Police Student's Guide"), Def. Ex. RRR, at 30-34; Tr. 10/22 at 915:7-919:17.
300. 300.See Training Guide at 10-24; NYPD Stop Question & (Possibly) Frisk Video Series, "Frisk," ("SQF Training Video No. 5"), Def. Ex. T; Script of SQF Training Video No. 5, Def. Ex. U; Tr. 10/22 at 942:25-943:3 (nothing in film deals specifically with TAP). One page of the Training Guide, which was distributed only to the supervisors of IMPACT officers, reiterates IO 22 of 2012 by stating that reasonable suspicion is required for stops based on suspicion of trespass in a TAP building. See Training Guide at 65; Tr. 10/23 at 1252:1-3. The page makes no specific reference to stops outside TAP buildings, and could easily be read, in context, as a discussion of stops during vertical patrols. See Training Guide at 65.
301. 301.See infra Part V.B.1.b.
302. 302.See Def. Findings ¶¶ 35-36.
303. 303.See Tr. 10/17 at 571:25-572:23.
304. 304.See Tr. 10/19 at 888:1-2; Tr. 10/22 at 955:8-13.
305. 305.IO 22 of 2012, for example, defines the standard scenario for a vertical patrol in a TAP building, lays out various common problems that may arise during such a patrol, and prescribes what to do and what not to do in response to them, including specific questions to ask. See IO 22 of 2012 at 2. After receiving training on IO 22 of 2012, including role-play simulations, see Tr. 10/19 at 836:7-840:13, an officer will have less need to improvise under pressure or base his or her responses on inferences from general principles or analogies to other scenarios. In this sense, the NYPD's training follows the model of a traditional Western military academy, which aims "to reduce the conduct of war to a set of rules and a system of procedures — and thereby to make orderly and rational what is essentially chaotic and instinctive." JOHN KEEGAN, THE FACE OF BATTLE 18 (1976). On the functioning of standard operating procedures in bureaucracies generally, see GRAHAM ALLISON & PHILIP ZELIKOW, ESSENCE OF DECISION 143-96 (2d ed. 1999).
306. 306.As plaintiffs stated in their summation: "We have a 20-year program. There is a culture around these stops. So [corrective instruction] needs to happen periodically ... so that people get the message." Tr. 11/7 at 1373:2-6.
307. 307.See Street Encounters Presentation at 40; Tr. 10/17 at 572:24-573:6; Tr. 10/18 at 663:13-664:1. A former commanding officer of the New York City Police Academy testified that the role-playing at Rodman's Neck sometimes involves individuals standing outside of TAP buildings, but the individuals appear to play the role of civilian bystanders and witnesses, not suspects. See Tr. 10/19 at 815:11-14, 838:25-840:9. Chief Hall testified that "we have made [it] clear" to officers that "we do not want" them "stopping an individual outside of [a] Clean Halls building simply because they are exiting a building, without more." Tr. 11/23 at 1244: 6-12. Chief Hall did not provide specifics as to how this was made clear. See id.
308. 308.Street Encounters Presentation at 40.
309. 309.See Tr. 10/22 at 1043:17-1044:13.
310. 310.See id.; Tr. 10/23 at 1111:2-8.
311. 311.Defendants introduced evidence of a dramatic reduction in declines to prosecute for trespass arrests, in general, in the Bronx in 2012. See, e.g., Tr. 10/18 at 726:18-727:7; Tr. 10/23 at 1249:7-17. But this obviously does not provide a reliable basis for inferring that unlawful trespass stops outside TAP buildings have declined.
312. 312.See Def. Findings ¶ 47.
313. 313.See Davis, 902 F.Supp.2d at 443-45, 2012 WL 4813837, at *26 ; Floyd, 283 F.R.D. at 169 .
314. 314.Floyd, 283 F.R.D. at 169 (quoting Deshawn v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) ).
315. 315.Davis, 902 F.Supp.2d at 445 n. 225, 2012 WL 4813837, at *26 n. 225 (quoting Nicacio v. United States Immigration & Naturalization Serv., 768 F.5d 1133, 1136 (9th Cir.1985) ).
316. 316.Id. at 445, at *26 (quoting Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 53, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ).
317. 317.See supra Part IV.A.2.b, c, i. Jefferson testified to being stopped seven to eight times outside TAP buildings. See Tr. 10/16 at 361:12-14.
318. 318.See supra Part IV.A.2.b.
319. 319.See Tr. 10/17 at 471:11-472:19, 486:9-487:1.
320. 320.I also note, as I did in Floyd, that in light of the frequency of unlawful trespass stops outside TAP buildings in the Bronx, even those plaintiffs who have only been subjected to such a stop one time would likely have standing, provided that they continue to live in or visit TAP buildings. "`[T]here is no per se rule requiring more than one past act, or any prior act, for that matter, as a basis for finding a likelihood of future injury.'" Floyd, 283 F.R.D. at 170 n. 106 (quoting Roe v. City of New York, 151 F.Supp.2d 495, 503 (S.D.N.Y.2001) ). Accord Battle v. City of New-York, No. 11 Civ. 3599, 2012 WL 112242, at *3-4 (S.D.N.Y. Jan. 12, 2012) (concluding that plaintiffs, each of whom had only one alleged wrongful experience with NYPD officers under program involving searches of livery cars, had standing to pursue injunctive relief against NYPD, based on number of cars enrolled in the program and plaintiffs' reliance on such cars); National Cong. for Puerto Rican Rights v. City of New York, 75 F.Supp.2d 154, 161-62 (S.D.N.Y.1999) (concluding that frequency of NYPD stops and plaintiffs' belonging to groups distinctly affected by NYPD stop practices gave plaintiffs standing to seek injunctive relief).
321. 321.Of course, plaintiffs would not be likely to suffer injury in the future if the NYPD no longer had a custom of making unlawful trespass stops outside TAP buildings. But while defendants have introduced evidence of certain changes in the NYPD's policies and training in 2012, defendants have not proven that the NYPD's custom of making unlawful trespass stops outside TAP buildings has ended. See supra Part IV.B.3; infra Part V.B.l.b.
322. 322.See Pl. Findings ¶¶ 72-75. The remedies proposed in this Opinion, though not identical to those requested by plaintiffs, remain largely mandatory in nature. See infra Part V.C.
323. 323.See supra Part II.
324. 324.Pl. Findings ¶¶ 69-70. Plaintiffs present the former as a "constructive acquiescence" claim, and the latter as a deliberate indifference claim based on failure to train. See id. Because constructive acquiescence is merely a way of proving deliberate indifference, I analyze the claims together.
325. 325.See supra Part IV.A.1.
326. 326.See id.
327. 327.See Tr. 10/15 at 124:18-24; Fagan Report at 13.
328. 328.See infra Part V.B.1.a.iii.
329. 329.See supra Part IV.A.2.
330. 330.Tr. 10/16 at 266:3.
331. 331.Tr. 10/17 at 477:8.
332. 332.See id. at 478:13-22, 479:8-11.
333. 333.See id. at 486:9-490:25.
334. 334.See id. at 437:17, 439:4-443:2.
335. 335.Id. at 456:13.
336. 336.Id. at 456:18-19.
337. 337.See id. at 399:21-400:17.
338. 338.See id. at 400:17-401:18.
339. 339.App. A ¶ 12.
340. 340.See id.
341. 341.Id. ¶ 20.
342. 342.See id.
343. 343.See, e.g., id. ¶¶ 4, 15, 22, 25, 26. In Davis, I held that "the Fifth Amendment prohibits police from arresting an individual for refusing to provide `testimonial' evidence." Davis, 902 F.Supp.2d at 427, 2012 WL 4813837, at *14 . Whether refusal to provide testimonial evidence may contribute to reasonable suspicion of trespass is a distinct issue, and one not raised by the parties at this stage of the litigation.
344. 344.App. A ¶ 4.
345. 345.See id.
346. 346.In Grant's case, his cousin's or his friend's knocking loudly and perhaps angrily on the door of a Clean Halls building may have provided a minimal level of objective justification for suspecting that Grant and the others were attempting to enter unlawfully. See supra Part IV.A.2.d. As noted above, Ledan initiated her second encounter, which was most likely consensual and thus did not require reasonable suspicion. Even if the stop had been nonconsensual, under the circumstances her interest in the detention of her husband and friends may have provided adequate grounds for brief questioning. See supra Part IV.A.2.f.
347. 347.See Pl. Findings ¶ 17.
348. 348.See Smith Report at 6.
349. 349.See Pl. Findings ¶ 17.
350. 350.See supra Part IV.A.1. In the absence of more detailed evidence or testimony regarding the initial police encounters described in the decline to prosecute forms, I assume that the encounters were likely similar to those described by plaintiffs, and thus that the intrusiveness of the encounters likely rose to the level of a Terry stop at or shortly after the time that the officer or officers initiated questioning. See generally App. A. I also note that in many of the encounters described in the decline to prosecute forms, the defendant's behavior as described in the form never gave rise to reasonable suspicion, even after the stop began. See App. A ¶¶ 2, 3, 8, 11, 12, 16, 17, 21, 24.
351. 351.I have altered plaintiffs' calculations to account for the two decline to prosecute forms containing revisions of other forms. See supra Part IV.A.1.
352. 352.See Smith Report at 6. Dr. Fagan calculated arrest rates (or, as he called them, "hit rates") in Floyd, but does not appear to have done so in the instant case. Compare Floyd, 861 F.Supp.2d at 284-85, with Fagan Report.
353. 353.See Fagan Report at 15 & tbl. 8; App. L to Fagan Report ("Stop Factor List"), Pl. Ex. 64.
354. 354.See App. B.
355. 355.See Def. Findings ¶ 4 ("NYPD training evidence ... clearly identifies that its officers are instructed to include all circumstances leading to the stop on the worksheet[.]" (citing Tr. 10/15 at 86:12-87:2)); Tr. 10/19 at 849:13-19 (testimony of Chief Shea); Police Student's Guide at 20.
356. 356.See Def. Findings ¶ 29 n. 16 ("Defendants contend that any similarity in the interactions [between officers and plaintiffs] demonstrates that officers are being uniformly trained.").
357. 357.See supra Part IV.B.
358. 358.See Street Encounters Presentation at 40; Tr. 10/17 at 572:24-573:6; Tr. 10/18 at 663:13-664:1.
359. 359.See Tr. 10/19 at 900:21-904:20; Tr. 10/22 at 942:13-24; SQF Training Video No. 5; Script of SQF Training Video No. 5.
360. 360.See Tr. 10/22 at 22-24. Chief Shea also testified that the information in the video is "consistent with the training that recruit officers receive at the academy" regarding reasonable suspicion. See Tr. 10/19 at 904:16-20.
361. 361.Script of SQF Training Video No. 5 at 58-59 (formatting altered), beginning at roughly 6:35 in SQF Training Video No. 5.
362. 362.Perhaps the video reflects a misunderstanding of the Supreme Court's ruling in Hodari D., 499 U.S. at 626-28, 111 S.Ct. 1547. Cf. Def. Findings ¶ 42 n. 19 (citing Hodari D.). In Hodari D., the Court explained that the word "seizure" "does not remotely apply ... to the prospect of a policeman yelling `Stop, in the name of the law!' at a fleeing form that continues to flee. That is no seizure." Id. at 626, 111 S.Ct. 1547. The Court's point was that there is no seizure unless the individual is in fact seized, in the sense of being stopped, either by physical force, or by submission to the assertion of the officer's authority — not that a Terry stop requires a display of authority beyond shouted commands. See Swindle, 407 F.3d at 572 (interpreting Hodari D.).
363. 363.Bostick, 501 U.S. at 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (quoting Hodari D., 499 U.S. at 628, 111 S.Ct. 1547 ).
364. 364.See, e.g., Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (referring to Terry stop as "forcible stop").
365. 365.Bostick, 501 U.S. at 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (quoting Hodari D., 499 U.S. at 628, 111 S.Ct. 1547 ).
366. 366.Simmons, 560 F.3d at 101, 105-06.
367. 367.Brown v. City of Oneonta, N.Y., 221 F.3d 329, 340 (2d Cir.2000). On the other hand, the court held that where a person encountered two officers in his dorm lobby, and the officers asked him to show them his hands, he was not seized. See id. at 341.
368. 368.See Davis, 902 F.Supp.2d at 415-17, 2012 WL 4813837, at 5-6.
369. 369.Id. at 427-29, at *14.
370. 370.United States v. Glover, 957 F.2d 1004, 1008 (2d Cir.1992) (quoting Lee, 916 F.2d at 819 ).
371. 371.Script of SQF Training Video No. 5 at 58-59.
372. 372.See Def. Findings ¶ 42.
373. 373.See Tr. 10/19 at 744:2-6.
374. 374.Using the language of De Bour Level 2, not Level 3, the Training Guide requires a "founded suspicion that criminal activity is afoot" in order to approach and engage in an encounter of this kind. See Training Guide at 17.
375. 375.Id. (emphases omitted). The Guide clarifies that the officer "may not touch the person, display a weapon, or act in a threatening manner," but notes that "[i]f a confronted citizen walks away without answering, the officer may follow to continue questioning." See id. at 17-18.
376. 376.Delgado, 466 U.S. at 215, 104 S.Ct. 1758.
377. 377.Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (quoting Hodari D., 499 U.S. at 628, 111 S.Ct. 1547 ).
378. 378.Indeed, based on the accounts of stops in the decline to prosecute forms, this appears to be an accurate expectation. See App. A ¶¶ 12, 20, discussed below. Moreover, it would not be surprising to learn that based on the experiences of their families, friends, and neighbors, the residents of these buildings fully appreciate the consequences that will follow if they attempt to walk away from the police during questioning.
379. 379.Tr. 10/17 at 491:22-23.
380. 380.Drayton, 536 U.S. at 202, 122 S.Ct. 2105 (quoting Bostick, 501 U.S. at 436, 111 S.Ct. 2382 ).
381. 381.Training Guide at 65; Tr. 10/19 at 743:6-7. I recognize that many of the NYPD's training materials purport to derive from De Bour, as defendants have emphasized. See, e.g., Def. Findings ¶ 42 & n. 19. Because plaintiffs have brought their case under the Fourth Amendment, and not New York law, PL Findings ¶¶ 64-71, it would lie beyond the scope of this Opinion to make general statements regarding the precise relations between the law of De Bour and the case law interpreting the Fourth Amendment. I note, however, that in theory, De Bour should provide greater protection than the Fourth Amendment by restricting police action even in encounters whose level of invasiveness falls below the minimum threshold for Fourth Amendment scrutiny. See, e.g., De Bour, 40 N.Y.2d at 217-18, 386 N.Y.S.2d 375, 352 N.E.2d 562 (prohibiting any investigative encounter, even at Level 1, if it is based on "intent to harrass" or "mere whim, caprice, or idle curiosity").
382. 382.Street Encounters Presentation at 16, 19.
383. 383.I note that the NYPD's stop practices also appear to conflict with the considered judgment of the New York State Legislature, which enacted New York's stop and frisk law. This law states that without a warrant, "a police officer may stop a person ... when he reasonably suspects that such person is committing, has committed, or is about to commit" a crime, "and may demand of him his name, address and an explanation of his conduct." CPL § 140.50. In other words, the New York State Legislature envisioned reasonable suspicion preceding the request for a name, address, and purpose.
384. 384.Street Encounters Presentation at 37 (capitalization altered).
385. 385.Id. at 33 (emphasis altered).
386. 386.See Drayton, 536 U.S. at 202, 122 S.Ct. 2105.
387. 387.See, e.g., Def. Findings ¶ 42 & n. 19.
388. 388.Id.
389. 389.As I noted in the Introduction, the Supreme Court held in Sibron that "New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement.... It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct." 392 U.S. at 60-61, 88 S.Ct. 1889. Sibron makes clear that any conflict between the Fourth Amendment and New York state law must be resolved in favor of the Fourth Amendment.
390. 390.Winter, 555 U.S. at 20, 129 S.Ct. 365.
391. 391.Class Mem. at 1.
392. 392.Strouchler v. Shah, 891 F.Supp.2d 504, 516-17 (S.D.N.Y.2012) (quoting ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 9:45 (4th ed. 2002)).
393. 393.See id. at 515 ("In order to merit preliminary relief, the threat of irreparable harm must be imminent." (citing Rodriguez v. DeBuono, 175 F.3d 227, 235 (2d Cir.1999) ).
394. 394.Ligon, 910 F.Supp.2d at 520, 2012 WL 3597066, at *1 (citing Johnson v. Miles, 355 Fed.Appx. 444, 446 (2d Cir.2009) ).
395. 395.Winter, 555 U.S. at 20, 129 S.Ct. 365.
396. 396.UBS Fin. Servs., 660 F.3d at 648 (quoting Winter, 555 U.S. at 24, 129 S.Ct. 365 ).
397. 397.Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 747 (2d Cir.1994) (quoting Soltex Polymer Corp. v. Fortex Indus., Inc., 832 F.2d 1325, 1330 (2d Cir. 1987) ) (emphasis omitted).
398. 398.See Pl. Findings ¶¶ 73-75.
399. 399.Floyd, 283 F.R.D. at 158-59 (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891) ).
400. 400.Terry, 392 U.S. at 12, 14, 88 S.Ct. 1868.
401. 401.See Tr. 10/16 at 269:2-9; Rappa Letter.
402. 402.Though it is unnecessary to reach the issue in this Opinion, I note that the appropriate form of Fourth Amendment analysis may differ depending on the quantity and nature of stops being scrutinized, and the remedies available. Not only are the consequences of stops different today than they were in 1968, but the frequency of stops is far higher as well. See Floyd, 283 F.R.D. at 159 (over 2.8 million stops by NYPD between 2004 and 2009). As the stops have increased in frequency, they have also become more standardized and predictable. In Terry, the Supreme Court emphasized "the myriad daily situations in which policemen and citizens confront each other on the street." Terry, 392 U.S. at 12, 88 S.Ct. 1868. "No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us." Id. at 15, 88 S.Ct. 1868. In the instant case, by contrast, the contested police encounters are strikingly uniform. The stops in the decline to prosecute forms echo the stops of plaintiffs, which in turn echo aspects of the training materials introduced at the hearing. See, e.g., IO 22 of 2012 at 2 (¶ 11). Terry envisions street stops as uniquely tailored to unforeseen circumstances. The stops in the instant case are more like the products of fixed, repeatable processes. The NYPD training materials that teach these processes can be scrutinized in ways that an individual officer's discretionary act cannot. Because of this, a different constitutional analysis may be appropriate.
403. 403.Winter, 555 U.S. at 20, 129 S.Ct. 365.
404. 404.Terry, 392 U.S. at 10, 88 S.Ct. 1868.
405. 405.See Davis, 902 F.Supp.2d at 408-10, 2012 WL 4813837, at 1.
406. 406.Reynolds, 506 F.3d at 198 (quoting Rizzo v. Goode, 423 U.S. 362, 378, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) ).
407. 407.See, e.g., Tr. 10/18 at 593:15-594:3 (testimony of landlord to the advantages of enrollment in Operation Clean Halls).
408. 408.Patsy's Ital. Res., Inc. v. Banas, 658 F.3d 254, 272 (2d Cir.2011) (quoting Patsy's Brand, Inc. v. I.O.B. Realty, Inc., 317 F.3d 209, 220 (2d Cir.2003) ). Accord City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 143-44 (2d Cir.2011) (summarizing limitations on scope of injunctive relief).
409. 409.Reynolds, 506 F.3d at 198.
410. 410.Some recent scholarship has argued that the NYPD's stop and frisk program may be partly responsible for the decline in crime in New York City in recent decades. See FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE: NEW YORK'S LESSONS FOR URBAN CRIME AND ITS CONTROL (2011). The issue in this case, however, is not whether trespass stops outside TAP buildings in the Bronx are effective at reducing crime, but whether they are constitutional. No matter how effective a police practice may be, if it violates the Fourth Amendment, the Constitution requires the government to find other means of achieving its goals. For example, while preventive detention might be an effective law enforcement tool, police departments are not allowed to employ it, because doing so would violate the Constitution.
411. 411.Floyd, 283 F.R.D. at 159.
412. 412.Defendants appear to believe that an order prohibiting stops outside TAP buildings that lack reasonable suspicion is "a simple command that the defendant obey the law," and thus is not legally cognizable. See Def. Findings ¶ 54 n. 21 (quoting S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240 (2d Cir.2001) (interpreting Rule 65(d)). But as I stated prior to the preliminary injunction hearing, "the City misapprehends the purpose of Rule 65." Ligon, 910 F.Supp.2d at 521-23, 2012 WL 3597066, at 3-4. Cases like S.C. Johnson do not prohibit courts from ordering parties to obey the law, but rather require that such orders be specific and clear. See S.C. Johnson, 241 F.3d at 240. "[A]n injunction must `be specific and definite enough to apprise those within its scope of the conduct that is being proscribed.'" Id. at 240-41. The immediate relief ordered here is specific, clear, and necessary to correct the misconceptions of NYPD officers that led to the violations of constitutional rights at issue in this case.
413. 413.Drayton, 536 U.S. at 202, 122 S.Ct. 2105 (quoting Bostick, 501 U.S. at 436, 111 S.Ct. 2382 ).
414. 414.Wardlow, 528 U.S. at 123, 120 S.Ct. 673.
415. 415.White, 496 U.S. at 329, 110 S.Ct. 2412 (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 ) (certain quotation marks omitted).
416. 416.I emphasize that this ruling should in no way be taken to indicate that I have already concluded that plaintiffs will prevail in Floyd. The evidence presented by both sides in Floyd will be judged on its own merits. While the Applicable Law section of this Opinion — see supra Part III — certainly applies to issues raised in Floyd, the Findings of Fact section does not. As I have noted throughout this Opinion, this case relates solely to trespass stops outside of TAP buildings in the Bronx. It is only because of the unavoidable overlap between the steps that are necessary to address plaintiffs' harms in the instant case, and the steps that would be necessary to address plaintiffs' harms in Floyd if plaintiffs prevailed there, that I am ordering the consolidation of the remedies presentations.
417. 417.In the interests of efficiency, counsel in Floyd and Ligon are also permitted, but not required, to invite the participation of counsel in Davis in the presentation on appropriate remedies.
418. 418.Subsequent to the publication of the original version of this Opinion on January 8, 2013, I stayed the immediately ordered relief granted above. See Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 227654 (S.D.N.Y. Jan. 22, 2013). The publication of this Amended Opinion does not have the effect of lifting the stay.