I ~~O~I~~~z~n I SOUTHERN DISTRICT OF NEW YORK
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KELTON DAVIS, WILLIAM TURNER, 
 EDWIN LARREGUI, ANTHONY ANDERSON, SHAWNE JONES, HECTOR SUAREZ, ADAM COOPER, DAVID

,




'--;:-­ CHAI\IH::'U;;':' OF 

SHIRA A SCHEINDLIN 
 U,S.D.J. 


J

WILSON, GENEVA WILSON, ELEANOR

BRITT, ROMAN JACKSON, KRISTIN

JOHNSON, LASHAUN SMITH, ANDREW

WASHINGTON, PATRICK LITTLEJOHN,

AMENDED

RA YMOND OSORIO, VAUGHN

OPINION AND ORDER

FREDERICK, and R.E., by her parent D.E.,

individually and on behalf of a class of all

10 Civ. 0699 (SAS)

others similarly situated,

Plain tiffs,

- against ­

THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,

Defendants.
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SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

This putative class action challenges the policies and practices that the

New York City Police Department ("NYPD") and the New York City Housing

Authority ("NYCHA") use to enforce prohibitions against trespassing on public

housing property. The lawsuit alleges that defendants' actions have resulted in a

widespread pattern of unlawful stops, questioning, frisks, searches, and arrests of

1

NYCHA residents and their invited guests.1 This is the second of three lawsuits before this Court that challenge
the NYPD’s stop and frisk practices.2 Like the other two cases, and like many of its predecessors, this suit “thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity.”3 Nearly forty-five years ago, faced with a rising tide of urban violence and what Justice William O. Douglas called “powerful hydraulic pressures”4 to give police an upper hand, the Supreme Court first confronted “the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to ‘stop and frisk’ – as it is sometimes euphemistically termed – suspicious persons.”5
In Terry v. Ohio, the Supreme Court held that the Constitution permits stops when the police have a reasonable suspicion of criminal activity. But the precise contours of the Fourth Amendment right to be free from unreasonable stops remain fiercely debated in the courts, the newspapers, and the streets.

1 See Amended Complaint (“Am. Compl.”) ¶ 2.

2 See Floyd v. City of New York, No. 08 Civ. 1034; Ligon v. City of New York, No. 12 Civ. 2274.

3 Terry v. Ohio, 392 U.S. 1, 9 (1968).

4 Id. at 39 (dissenting).

5

Id. at 9-10.

2

Because they focus on people residing or present in public housing,
the practices at issue in this lawsuit are more narrow than those addressed in either
Terry or Floyd v. City of New York, both of which involved street stops. But they
are no less consequential. Indeed, for many residents, the tension at the heart of
this lawsuit is also a central part of their daily lives: what one scholar has called the
“decades-long battle by NYCHA tenants for a life both dignified and safe.”6
The perspective of plaintiff Eleanor Britt highlights this challenge.
Britt, a sixty-four year old African American woman, has lived in NYCHA
housing for more than thirty-five years.7 Like generations of NYCHA residents
before her, she is a member of an anti-crime tenant organization.8 She testified at
her deposition that she would like the police to conduct more vertical patrols
6 Fritz Umbach, The Last Neighborhood Cops: The Rise and Fall of Community Policing in New York Public Housing 5 (2010).
7 See Am. Compl. ¶ 103. 8 See Deposition of Eleanor Britt (“Britt Dep.”) at 42:8-10 (“The Tenant’s League, what we do, we have tenant patrol to try to monitor the people coming and going in and out of our building and to try to keep the building safe.”). See also Last Neighborhood Cops at 6 (“Anticrime organizing by public housing residents in New York City was in many ways representative of the kinds of unheralded grassroots activism that took place around the country after World War II . . . . The activists, most of whom were women, understood their efforts in terms of civil rights. They believed that securing their fair share of municipal services, including police protection, was a fundamental right and that working for safe buildings and courtyards was a chapter in the long history of working-class selfhelp movements.”).
3

through her building, because “it helps us keep the building safe . . . . [T]he more
their presence is seen, the less problems we would have.”9 But Britt has also
witnessed serious police misconduct:
I have seen the police approach young men in the building and I have seen them just grab them and thrown them up against the wall and frisk them . . . . [I]t seems like there is a disparity in the way they deal with Black as opposed to White . . . . [I]t is a little excessive when they are dealing with people of color.10
Ensuring both dignity and safety may be challenging but it is
absolutely necessary. The police officers who patrol NYCHA buildings must act
within the limits imposed by the federal and state constitutions. This lawsuit
presents difficult and close questions. The key one is this: are defendants acting
within constitutional limits in their presumably sincere efforts to provide a safe
environment for the residents of public housing? Or, in their zeal to provide that
9 Britt Dep. at 65:22-24. Britt’s sentiment, according to Umbach’s extensive history, is both emblematic and underappreciated: “If the role of conservative groups in promoting law-and-order politics is well documented, the efforts of non-elite groups like public housing activists to mobilize around crime in ways that also challenged some of urban liberalism’s ideals is often left unexamined.” Last Neighborhood Cops at 10.
10 Britt Dep. at 67:6-20. “[B]efore the merger [of the NYCHA Police and the NYPD], we had one officer that was stationed in our building. He knew all the residents. If there was a problem, and he would come to the parent and discuss whatever the problem was and he would talk to the young men in the building and there was a mutual respect we had for one another. We don’t have that anymore, it is so impersonal . . . .” Id. at 201:16-22.
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protection, are they violating the rights of the very residents (and guests) whom
they seek to protect?
Nine of the original eighteen plaintiffs settled their claims. Of the
remaining nine, eight have been arrested for trespass by the NYPD11 and five live
in NYCHA housing.12 They have brought twelve causes of action against the
NYPD and NYCHA under federal, state, and local laws and under the United
States and New York State constitutions. Defendants have moved for partial
summary judgment on most of these claims. The parties agreed to brief these
motions in two parts: the first part, adjudicated here, addresses the individual
circumstances of plaintiffs’ arrests and tenancies.13 The second part, which has yet
11 These plaintiffs, whom the parties call the “arrested plaintiffs,” are Roman Jackson, Kristin Johnson, Lashaun Smith, Andrew Washington, Patrick Littlejohn, Raymond Osorio, Vaughn Frederick, and Rikia Evans. Eleanor Britt is the only remaining plaintiff who was never arrested.
12 These “resident plaintiffs” are Eleanor Britt, Rikia Evans, Patrick Littlejohn, Andrew Washington, and Vaughn Frederick. Washington and Frederick are not authorized by NYCHA to be tenants.
13 The parties have made the following submissions: Defendant City of New York’s Memorandum of Law in Support of Its Motion for Summary Judgment Based on Plaintiffs’ Individual Circumstances (“City Mem.”), Memorandum of Law of Defendant New York City [Housing] Authority in Support of Its Motion for Summary Judgment on Plaintiff’s (sic) Individual Claims (“NYCHA Mem.”), Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions for Partial Summary Judgment (“Pl. Mem.”), Defendant City of New York’s Memorandum of Law in Further Support of Its Motion for Summary Judgment Based on Plaintiffs’ Individual Circumstances (“City Rep. Mem.”), and
5

to be briefed, will address defendants’ practices and policies. For the reasons explained below, defendants’ motions are granted in part and denied in part. II. LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Summary judgment in defendants’ favor is appropriate only if they show “that there is no genuine dispute as to any material fact and [that they are] entitled to judgment as a matter of law.”14 “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit.”15
Because they are moving for summary judgment, defendants “bear[] the burden of establishing the absence of any genuine issue of material fact.”16 To

Reply Memorandum of Law of Defendant New York City Housing Authority in Further Support of Its Motion for Summary Judgment on Plaintiffs’ Individual Claims (“NYCHA Rep. Mem.”). In addition, they have submitted Defendant City of New York’s Local Civil Rule 56.1 Statement of Undisputed Facts (“City 56.1”), Local Rule 56.1 Statement in Support of Defendant New York City Housing Authority’s Motion for Summary Judgment (“NYCHA 56.1”), and Plaintiffs’ Local Rule 56.1 Counterstatement of Additional Material Facts (“Pl. Counter 56.1”). Plaintiffs’ responses to defendants’ 56.1 statements are abbreviated as “Pl. City 56.1” and “Pl. NYCHA 56.1,” respectively.

14 Fed. R. Civ. P. 56(a).

15 Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010).

16
2010).

Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.

6

defeat defendants’ motions, plaintiffs “‘must do more than simply show that there is some metaphysical doubt as to the material facts,’”17 and “may not rely on conclusory allegations or unsubstantiated speculation.”18
In deciding these motions, I must “construe the facts in the light most favorable to the non-moving party,” that is, to plaintiffs, “and must resolve all ambiguities and draw all reasonable inferences against the movant[s],” that is, against defendants.19 However, “‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’”20 “The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.”21 III. APPLICABLE LAW
Plaintiffs have brought claims under the Fourth and Fourteenth Amendments to the United States Constitution; Title VI of the Civil Rights Act of

17 Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

18

Id.

19 Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011).

20 Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)) (emphasis removed).

21 Brod, 653 F.3d at 164.

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1964; Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act”); the Civil Rights Act of 1866 (42 U.S.C. § 1981); the United States Housing Act; Article I, Sections 11 and 12 of the New York State Constitution; the New York State Human Rights Law; and the New York City Human Rights Law. I address the legal standards applicable to each of these claims below. IV. DISCUSSION
A. The Arrested Plaintiffs’ Fourth Amendment Claims Against the City for Unlawful Terry Stops and False Arrest 1. Legal Standard for a Stop The Fourth Amendment guarantees that “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”22 “‘[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks
22 In one of his most popular songs, the rapper Jay-Z – who grew up in NYCHA’s Marcy Houses in the Bedford-Stuyvesant section of Brooklyn – showcased his knowledge of these Fourth Amendment rights. See 99 Problems, The Black Album (Roc-A-Fella Records 2003). See also Caleb Mason, Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps, 56 St. Louis L.J. 567 (2012).
8

probable cause.’”23 This form of investigative detention is now known as a Terry stop.24 “While ‘reasonable suspicion’ is a less demanding standard than probable
cause and requires a showing considerably less than preponderance of the
evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.”25 “‘The officer [making a Terry stop] . . . must
be able to articulate something more than an inchoate and unparticularized suspicion or hunch.’”26 “Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.”27
It is sometimes the case that a police officer may observe, “a series of
acts, each of them perhaps innocent in itself, but which taken together warrant[] further investigation.”28 “An individual’s presence in an area of expected criminal
activity, standing alone, is not enough to support a reasonable, particularized
23 United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Under New York law, the justifications required for different levels of police intrusion were established in People v. DeBour, 40 N.Y.2d 210 (1976).
24 See Terry, 392 U.S. 1. 25 Illinois v. Wardlow, 528 U.S. 119, 123 (2000). 26 Alabama v. White, 496 U.S. 325, 329 (1990) (quoting Sokolow, 490 U.S. at 7). 27 United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000). 28 Terry, 392 U.S. at 22.
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suspicion that the person is committing a crime.”29 However, “the fact that the stop occurred in a ‘high crime area’ [may be] among the relevant contextual considerations in a Terry analysis.”30 A court “must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.”31 “[T]he proper inquiry is not whether each fact considered in isolation denotes unlawful behavior, but whether all the facts taken together support a reasonable suspicion of wrongdoing.”32
2. Legal Standard for an Arrest The Fourth Amendment prohibits arrests in the absence of probable cause. Such cause exists “when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.”33 “While probable cause requires more than

29
(1979)).

Wardlow, 528 U.S. at 124 (citing Brown v. Texas, 443 U.S. 47

30 Id. (quoting Adams v. Williams, 407 U.S. 143, 144, 147-48 (1972)).

31 United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks and citation omitted).

32 United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990).

33 Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).

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‘mere suspicion’ of wrongdoing, its focus is on ‘probabilities,’ not ‘hard certainties.’”34 “[N]o probable cause exists to arrest where a suspect’s actions are too ambiguous to raise more than a generalized suspicion of involvement in criminal activity.”35 The lawfulness of an arrest does not require an ultimate finding of guilt.36 “The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers . . . or may require a trial if the facts are in dispute.”37
3. Raymond Osorio’s Stop and Arrest Plaintiff Raymond Osorio testified at his deposition that he left the NYCHA apartment of his friend, Andre Smith, in the late afternoon of November 18, 2010. When he was about six steps out of the building, three officers “charged” him, asked him what he was doing, and then grabbed him and brought him back into the lobby of the building.38 Although the City disputes these facts, it acknowledges that summary judgment regarding the stop is inappropriate because,

34 Selinger v. City of New York, 453 Fed. App’x 93, 94 (2d Cir. 2011) (quoting Mallory v. United States, 354 U.S. 449, 454 (1957); Illinois v. Gates, 462 U.S. 213, 231 (1983)).

35 United States v. Valentine, 539 F.3d 88, 94 (2d Cir. 2008).

36 See Weyant, 101 F.3d at 852.

37

Id.

38 Deposition of Raymond Osorio (“Osorio Dep.”) at 39-42, 83-86.

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if true, Osorio’s version of events describes an unlawful stop.39 Nevertheless, the
City argues that the following events, as described by Osorio, provide probable cause to justify an arrest.40
Osorio testified that once back in the lobby, he told the officers that he had been visiting Smith in apartment 5C and gave them his photo ID.41 Two
officers went upstairs to investigate while two others stayed with Osorio in the
lobby. When the officers returned, they informed Osorio that a woman in
apartment 5C said that she had not seen Osorio in an hour and that he had therefore
been trespassing. Osorio believed that the woman was Andre Smith’s sister,
Keisha Smith, and he explained to the officers that because Keisha had been in the
back room of the apartment, she had not seen him for an hour even though he had
39 See City Mem. at 8. 40 In criminal prosecutions, the “fruit of the poisonous tree” doctrine generally requires that evidence obtained through an unlawful stop be suppressed. But the Second Circuit has determined that the doctrine is not applicable in section 1983 lawsuits. That is, if police officers develop probable cause after having conducted an unlawful stop, they will be liable only for the unlawful stop, not any subsequent arrest or imprisonment. See Townes v. City of New York, 176 F.3d 138, 145 (2d Cir. 1999) (establishing this rule). Accord DiMascio v. City of Albany, 205 F.3d 1322 (2d Cir. 2000) (unpublished opinion). Therefore, I must determine whether the officers developed probable cause to arrest Osorio, notwithstanding the fact that material disputes of fact prevent summary judgment regarding the legality of his stop. 41 See Pl. Counter 56.1 ¶¶ 103-105 (citing Osorio Dep. at 92-96).
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just left the apartment a few minutes earlier. Despite this explanation, the officers arrested Osorio.
One of the two officers who went upstairs, Ruben Arroyo-Perez, testified at his deposition that he took Osorio’s ID and went to apartment 5C, showed the ID to Keisha Smith, and asked her if Osorio had been visiting with her or had been in her apartment.42 She told him no. He asked if Andre Smith was presently in the apartment because (as he explained later) he “wanted to speak to [Osorio’s] friend, if his friend was actually there.”43 Keisha said that Andre was not there.
Plaintiffs argue that there are disputes of fact regarding whether Arroyo-Perez actually asked Keisha Smith if Andre Smith was in the apartment. But the facts in the record establish no genuine dispute.44 After speaking with

42
89:9-11.

See Deposition of Ruben Arroyo-Perez (“Arroyo-Perez Dep.”) at

43 Id. at 89:25-90:3.

44 Plaintiffs attempt to create a material dispute of fact by highlighting Arroyo-Perez’s deposition statement that he was only “pretty sure” that he had asked Keisha Smith whether Andre Smith was in the apartment. See Pl. Mem. at n.9 (citing to Arroyo-Perez Dep. at 89:21). Immediately after using the phrase “pretty sure,” however, Arroyo-Perez used unequivocal language (“a hundred percent sure”), and then, upon being asked to clarify, he again answered in the affirmative. Arroyo-Perez Dep. at 89:21-90:7. Plaintiffs argue that “[n]either Keisha Smith nor Andre Smith provided testimony in this action, and Officer Arroyo-Perez’s account of the arrest lacks credibility.” Pl. Mem. at 12 n.9.

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Keisha Smith, Arroyo-Perez was aware of the following facts: (1) Osorio had been in the lobby of the building, (2) Osorio was not a resident of the building, (3) Osorio said he had been in apartment 5C, and (4) the current occupant of 5C said that Osorio had not been there and that the friend whom Osorio identified was not there either. These facts gave officer Arroyo-Perez probable cause to arrest Osorio for trespass.
Osorio’s Fourth Amendment claim for an unlawful seizure survives but summary judgment is granted to defendants on his Fourth Amendment claim for unlawful arrest.45
4. Patrick Littlejohn’s Stop and Arrest Patrick Littlejohn testified at his deposition that he and his friend David were waiting for the elevator in the lobby of the NYCHA building at 3020 Yates Avenue on January 14, 2009.46 David lived in the building and the two young men were going to his apartment. Police Officers Carmelo Quiles and

However, the absence of testimony from either Keisha or Andre does not establish a material dispute of fact and plaintiffs’ statement regarding the credibility of Arroyo-Perez’ testimony is conclusory and unsupported by any evidence. In any event, the Court may not assess credibility at the summary judgment stage.

45 See Townes, 176 F.3d at 145 (noting that an unlawful stop, even if followed by a lawful arrest, “might at most support slight or nominal damages”).

46
113:2.

See Deposition of Patrick Littlejohn (“Littlejohn Dep.”) at 110:22-

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Granit Selimaj entered the building and approached Littlejohn. According to
Littlejohn:
Quiles says “what are you doing here, where are you going?” I’m like “I’m going to go with him to his house.” He asked David “do you got ID?” David said “yeah.” He showed him his ID. “Is he with you?” He said “yeah.” Then he told David to go upstairs . . . . [H]is partner Selimaj was like “what you going to do with him?” He’s like “taking him in.” Selimaj was telling him “we not going to take him in.” He’s like “there’s nothing that we got on them.” Then he’s like, “no, I’m taking this one in, I’m taking this one.” Quiles tells me to turn around he put the cuffs on me.47
Although Quiles arrested Littlejohn for trespass,48 the City does not
argue that he had probable cause to do so. Instead, it argues that Quiles had
probable cause to arrest Littlejohn for truancy. The Supreme Court has made clear
that the inquiry into whether or not probable cause existed to make an arrest is an
objective one that does not turn on the state of mind of the arresting officer and
that if there was probable cause to arrest for any offense, then there is no viable
claim for false arrest.49 Thus, Littlejohn’s arrest was lawful if there was objective
47 Id. at 112:11-22 (quotation marks and question marks added for clarity). According to this testimony, Littlejohn was stopped and arrested at the same moment.
48 See City 56.1 ¶ 196. 49 Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Accord Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (“[A] claim for false arrest turns only on whether probable cause existed to arrest a defendant, and . . . it is not relevant whether probable cause existed with respect to each individual charge, or, indeed,
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probable cause to arrest him for any offense.50
If Littlejohn’s account of the interaction is true, however, there was no
such probable cause. The arrest took place between noon and 1:00 p.m. on a
school day, which in many schools is the standard lunch hour. As plaintiffs
persuasively argue:
[I]n their brief encounter with Mr. Littlejohn, neither officer asked Mr. Littlejohn his age to determine whether he was of mandatory school age, whether he was enrolled in school, was home for lunch, or had any of several other valid reasons to be away from school. There is simply no evidence that “school” was even mentioned in the encounter.51
any charge actually invoked by the arresting officer at the time of arrest.”).
50 The parties debate whether or not officers are empowered to make a “criminal” arrest for truancy under New York Education Law § 3213(2)(a) or merely to make a noncriminal seizure. In Matter of Shannon B., 70 N.Y.2d 458, 464 (1987), the New York Court of Appeals affirmed the power of police officers to enforce that truancy law. Plaintiffs point to Matter of Julio R., 492 N.Y.S.2d 912, 914 (Fam. Ct. Richmond Co. 1985) in which the court explained that the Education Law authorizes “a noncriminal detention, rather than an arrest in the classic, criminal law sense.” Both according to the case law that plaintiffs cite and the NYPD Patrol Guide, officers should take youths suspected of truancy to school or the Department of Education, not to jail. See Patrol Guide § 215-07, Ex. 36 to Declaration of Katharine Brooker, plaintiffs’ counsel (“Brooker Decl.”); In re D’Angelo H., 584 N.Y.S.2d 699, 700 (4th Dep’t 1992). Defendants argue that the appropriate post-arrest protocol is irrelevant to the Fourth Amendment question of whether Quiles had probable cause to arrest Littlejohn for truancy. Ultimately, this debate is immaterial to my holding.
51 Pl. Mem. at 15. Plaintiffs point out that in Shannon B., 70 N.Y.2d 458, the New York Court of Appeals found sufficient factual basis for a seizure based on truancy when the middle school-aged girl was standing less than a block
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As the Supreme Court explained in Devenpeck v. Alford, “[w]hether
probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”52 At the time of
his arrest, Littlejohn was sixteen years old (a fact that the officers do not claim they knew) and was over six feet tall.53 Although the officers knew that Littlejohn lived
in the area, defendants have not shown that either Quiles or Selimaj knew specific
facts that would lead to the reasonable conclusion that Littlejohn was truant from school.54 A reasonable juror could conclude that there was no probable cause for
this arrest. Summary judgment in defendants’ favor on Littlejohn’s Fourth
Amendment claim is denied.
5. Lashaun Smith’s Stop and Arrest
Plaintiff Lashaun Smith testified at his deposition that he spent the
from school at 10:15 a.m. and was unable to explain why she was not in school. 52 543 U.S. at 152. 53 See Pl. Mem. at n.14. In New York City, education is compulsory
“until the last day of session in the school year in which the student becomes seventeen years of age.” N.Y. Educ. L. § 3205; N.Y.C. Chancellor’s Regulation A-101.
54 The fact that the apartment building was “a known drug-prone location,” City Rep. Mem. at 7, and that Quiles had once seen Littlejohn hanging out with other youths who were smoking an unidentified substance, City Mem. at 12, cannot help establish probable cause for truancy at the time of Littlejohn’s arrest.
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night of May 10, 2009, at the NYCHA apartment of his friend Shawne Jones and
that Jones’ brother, Tarion Washington, also spent the night.55 Washington is blind
and knows Smith by Smith’s nickname, “Nap,” not by Smith’s legal name.56 At
about 10 a.m. on May 11, Smith woke up, left the apartment, and walked down the
stairwell to the lobby. As he reached the bottom of the stairs, a uniformed officer
came into the stairway and asked him if he lived in the building.57 According to
Smith:
I said no, I was visiting; he asked me do I have ID; I said yes; I show him my [current Virginia] ID, and then I showed him my other ID, my old [expired] New York ID, and that was it, and he asked me to step into the lobby, and I step into the lobby; that’s when I encountered there was two more officers, a lady and a male.58
a. Smith’s Terry Stop
Plaintiffs argue that Smith was seized in the stairway when the officer
encountered him and immediately questioned him.59 Defendants argue that Smith
55 See Deposition of Lashaun Smith (“Smith Dep.”) at 67-68. 56 See Pl. Counter 56.1 ¶¶ 119-129. 57 Smith Dep. at 80:10-81:5. 58 Id. at 80:14-19. The police officers recount a significantly different narrative, see City 56.1 ¶¶ 136-168 (recounting many facts on the basis of the officers’ testimony despite Smith’s contradictory testimony), but summary judgment is only appropriate on the basis of undisputed facts. 59 See Pl. Mem. at 7.
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was only seized after he provided the two ID cards and was told to step into the lobby.60 The Supreme Court has explained that
[e]ven when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage — provided they do not induce cooperation by coercive means. See Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (citations omitted). If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.61 Defendants argue that because the officer’s tone of voice was normal62
and because Smith testified that seeing the officer did not make him nervous or scared,63 the encounter was not coercive.64 Plaintiffs argue that a reasonable jury
could find that, in the confines of a stairwell, a reasonable person would not feel free to walk past the officer and terminate the encounter.65
I need not resolve this dispute because both parties agree Smith was
seized once the officer returned Smith’s expired New York ID, held on to Smith’s
60 See City Rep. Mem. at 2. 61 United States v. Drayton, 536 U.S. 194, 201 (2002). 62 See Smith Dep. at 84:13-18. 63 See id. at 81:6-12. 64 See City Rep. Mem. at 1 n.4. 65 See Pl. Mem. at 9.
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Virginia ID, and asked him to step into the lobby.66 He was not free to leave because the officer had taken his identification. Under Smith’s version of events, at the time of the seizure the officer knew that (1) the building was in a high crime area,67 (2) Smith said he was a visitor in the building, and (3) Smith produced two IDs (with matching names and photos of him), one of which was expired and one current. Defendants also argue that Smith’s “behavior and demeanor” was somehow suspicious, but they cite to no undisputed facts for that claim.68 The facts of the encounter, as described by Smith, are insufficient to establish reasonable

66
point).

See City Mem. at 10 (conceding that Smith was “stopped” at that

67 Plaintiffs acknowledge that the building was in an NYPD “Impact Zone” and Smith testified that he had lived in the area for a while and said “it’s a very bad neighborhood.” Pl. City 56.1 ¶¶ 139-140; Smith Dep. at 60:16-25. Plaintiffs argue that based on various findings of this court in Floyd v. City of New York, No. 08 Civ. 1034, I should not credit the officers’ statements regarding the area’s high crime. See Pl. Mem. at 10-11. Nonetheless, assuming, arguendo, that Smith’s account is true, there would still be no reasonable suspicion for this stop even if the area were “high crime.”

68 See City Mem. at 9. Defendants’ primary evidence supporting Smith’s nervousness, as detailed at page 9 of the City’s Memorandum of Law, is flatly contradicted by Smith’s version of events. But even if defendants could cite to undisputed actions that Smith took, courts should look skeptically on any claim that an individual appeared nervous or furtive. See United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.) (“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”).

20

suspicion for a stop. There is nothing suspicious about a person walking down the
stairs of a NYCHA building in a high crime area. There is nothing suspicious about
a person stating that he was visiting a friend in a NYCHA building. And there is
nothing suspicious about a person having two ID cards, one expired and one
current, from two different states. If a juror credited Smith’s testimony, she could
conclude that there was no reasonable suspicion to justify stopping him. Summary
judgment in defendants’ favor on Smith’s Fourth Amendment claim for an
unlawful stop is therefore denied.
b. Smith’s Arrest
According to Smith, there were two other officers waiting in the lobby
when he and the first officer emerged from the stairwell:
One of the officers asked Mr. Smith which apartment he had been visiting, and he responded Apartment 6D. Officer Mumper left the lobby to investigate. Officer Mumper returned several minutes later and reported that the person who answered the door [of Apartment 6D] could not identify Mr. Smith. Mr. Smith asked Officer Mumper if “[a] guy with dreads answered the door?” Officer Mumper [said yes]. Mr. Smith explained that Tarion Washington was blind and would not be able to identify him from a photo ID. Mr. Smith asked the officers to take him upstairs so that Tarion Washington could identify him by his voice. The officers handcuffed Mr. Smith and placed him under arrest for criminal trespass.69
69 Pl. Counter 56.1 ¶¶ 133-148 (accurately summarizing Smith Dep. at 84:24-88:23).
21

Neither party solicited the testimony of Tarion Washington, the blind
man with dreads who answered the door. The only admissible evidence regarding
that conversation comes from the following deposition testimony of Officer
Mumper:
Q: Is there anything about your interaction with the man who came to the door that led you to believe that he might be blind?
A: No, not that I can recall. Q: What did you say to this man when he opened the door? A: I introduced myself as Officer Mumper. I asked him if he
knew a Lashaun Smith and he said no. I asked him if maybe he knew him as Shaun Smith and he said no. And I asked him one more time . . . and he said no. . . . Q: Did you attempt to show Mr. Washington . . . Mr. Smith’s ID that you had brought? A: . . . I did hold it up to him for him to look at the picture. . . . Q: But you asked him to look at the picture? A: I think so, yes. Q: Did he appear to be looking at the picture? A: To the best of my recollection, yes. Q: Yes. Did he say anything about whether he recognized the person in the picture? A: No. Q: Did you ask Mr. Washington if he lived in the apartment? A: No.70
70 Deposition of James Mumper (“Mumper Dep.”) at 114:14-116:3. Plaintiffs cite to the testimony of Smith’s friend (and Washington’s sister) Shawne Jones to support the notion that Mumper failed to describe Smith to Washington with enough specificity “so that Tarion Washington could reasonably identify Mr. Smith.” Pl. City 56.1 ¶ 162. But Jones’ testimony regarding what Washington told her about the conversation he had with Mumper is hearsay and inadmissible
22

Defendants argue that Mumper had probable cause to arrest Smith because the person who answered the door of Apartment 6D did not know anybody who went by Smith’s name, which made it likely that Smith had not in fact been visiting that apartment, as he had claimed, and was trespassing. Plaintiffs respond with the following argument: “After Mr. Smith demonstrated his familiarity with the residents of apartment 6D by indicating that the person who answered the door would be blind and would be wearing dreadlocks, a reasonable jury could find that Officer Mumper lacked probable cause.”71 For support, plaintiffs cite to the Second Circuit’s statement in Panetta v. Crowley that “an officer may not disregard plainly exculpatory evidence.”72
As defendants note, the Second Circuit has simultaneously made clear that “‘[t]he fact that an innocent explanation may be consistent with the facts alleged . . . does not negate probable cause,’”73 and that
for the truth of the matter asserted (that is, the content of Washington’s conversation with Mumper).
71 Pl. Mem. at 11. 72 Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006). Accord Kerman v. City of New York, 261 F.3d 229, 241 (2d Cir. 2001); Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). 73 Panetta, 460 F.3d at 395 (quoting United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985)).
23

once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest. Although a better procedure may [be] for the officers to investigate plaintiff’s version of events more completely, the arresting officer does not have to prove plaintiff’s version wrong before arresting him.74
The inquiry is therefore highly fact specific. Although police officers need not
“believe with certainty that the arrestee will be successfully prosecuted,” they also may not ignore clearly exculpatory evidence.75
In this case, Mumper ignored two important pieces of evidence. The
fact that Smith knew that Washington would answer the door at apartment 6D
strongly corroborated his earlier statement that he had just been in the apartment.
And the fact that Smith told the officer that Washington was blind significantly
undercut the probative value of Mumper’s act of showing the ID to Washington.
Mumper’s investigation was also extremely cursory: according to his own
testimony, he failed to find out if Washington recognized the person in the ID,
failed to observe that Washington was blind, failed to determine whether
Washington was the tenant of the apartment, failed to ask Washington if anybody
had recently left the apartment, and refused Smith’s request to accompany the

74 Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001).

75

Id.

24

officer upstairs so that Washington could identify him by voice. If Mumper had conducted a more thorough investigation, he would surely have discovered that Smith had just left the apartment and was an invitee. “Probable cause requires an officer to have ‘knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.’”76 If a juror believes Smith’s version of events, she could reasonably conclude that Mumper ignored clearly exculpatory evidence and was insufficiently cautious when arresting Smith without conducting a thorough investigation. Summary judgment in the City’s favor on Smith’s Fourth Amendment claim based on his arrest is therefore denied.
6. Roman Jackson and Kristin Johnson’s Stop and Arrest a. Facts
The undisputed facts relating to the arrest of Roman Jackson and Kristin Johnson are as follows.77 On January 31, 2009, Jackson was a tenant at the NYCHA building at 131 St. Nicholas Avenue. Johnson came to visit him and he suggested that they sit in the stairwell. They took the elevator to the seventeenth floor (the highest floor of the building) and then sat on the platform at the top of
76 Panetta, 460 F.3d at 395 (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (emphasis added)).
77 See Pl. City 56.1 ¶¶ 6-38. 25

the stairwell that is connected to the roof through a door.78 Approximately twenty
minutes later, three police officers arrived. Jackson testified at his deposition that
one of the officers asked Jackson and Johnson what they were doing there; Jackson
politely greeted the officers and told them that he was a resident and was having a
conversation with his friend; the officer told Jackson and Johnson that they were
not supposed to be there; the officers ordered them against a wall and frisked them;
Jackson told the officers that they or he could retrieve his identification from his
grandmother, who was at home at the time, in order to verify his residence and said
that he did not understand how he could be trespassing in his own building; the officers told Jackson and Johnson that they were trespassing and arrested them.79
b. Legal Background
New York Penal Law section 140.10(e) reads as follows:
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property . . . (e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof. (Emphasis added.)
Thus, it is a crime, even for tenants, to knowingly remain unlawfully
78 The parties debate whether this location is properly described as a “roof landing,” although the City acknowledges that the question is ultimately immaterial. See City Rep. Mem. at 3 n.12. I refer to the location as the top of the stairwell.
79 See Deposition of Roman Jackson (“Jackson Dep.”) at 108-32. 26

in a NYCHA building in violation of conspicuously posted rules. There is no
dispute that on the day Jackson and Johnson were arrested, there was a sign posted
in the lobby of 131 St. Nicholas Avenue stating that “loitering and trespassing in lobby, roof, hallway and stairs is not permitted.”80 There is a dispute about
whether such a sign was posted in the location where Jackson and Johnson were sitting.81 In order to prevail on summary judgment, the City must show that there
were conspicuously posted rules that put Jackson on notice that he was prohibited from sitting at the top of the stairwell for twenty minutes.82
Although defendants provide evidence that the tops of stairwells are
80 Pl. Mem. at 23 (citing City Ex. H). 81 The City has produced a photograph of a sign that Police Officer Hector Jimenez states is posted on a door at the top of the B stairwell, where Jackson and Johnson were arrested. See Declaration of Hector Jimenez in Support of Def. Rep. Mem. ¶ 13. He does not state that he took the photograph, however, and three named plaintiffs (Jackson, Johnson, and Jackson’s grandmother Eleanor Britt) testified at their depositions that there was no such sign posted in the area where Jackson and Johnson were sitting, and that the photograph is of a sign in a different stairwell. See Pl. Counter 56.1 ¶ 12. Because there is a dispute of fact on this issue, I cannot accept defendants’ version as true for the purpose of summary judgment. 82 See People v. James, 902 N.Y.S.2d 293 (Crim. Ct. N.Y. Co. 2010) (noting that such signs must be “posted strategically or conspicuously enough to afford adequate notice of the prohibited conduct”).
27

dangerous locations,83 the NYCHA rule as posted cannot reasonably be read to
mean that residents are prohibited from ever being there. The signs prohibit
“trespassing and loitering” in “lobby, roof, hallway and stairs” and if those words
meant that merely being present in those locations was prohibited, residents would
have no way of getting to or from their apartments. Defendants’ only plausible
argument, therefore, is that the signs adequately put residents on notice that they
may not “loiter” in those locations.
Prohibitions on loitering have a long and ugly history in New York
City84 and across the United States.85 One of New York State’s prohibitions on
83 See City Mem. at 4; City 56.1 ¶¶ 19-21 (summarizing testimony of Police Chiefs Edward Delatorre and Joanne Jaffee).
84 See Casale v. Kelly, 710 F. Supp. 2d 347, 347 (S.D.N.Y. 2010) (“The City of New York, operating principally through the [NYPD], has continuously enforced three unconstitutional loitering statutes for decades following judicial invalidation of those laws and despite numerous court orders to the contrary . . . . The human toll, of course, has been borne by the tens of thousands of individuals who have, at once, had their constitutional rights violated and been swept into the penal system.”).
85 See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (recounting the history of vagrancy statutes, from early English law through the twentieth century, and striking down Jacksonville’s vagrancy ordinance with the explanation that “[o]f course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great
28

loitering was struck down in 1988 by the New York Court of Appeals, which held
that
this statute is unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions because it fails to give fair notice to the ordinary citizen that the prohibited conduct is illegal, it lacks minimal legislative guidelines, thereby permitting arbitrary enforcement and, finally, it requires that a citizen relinquish his constitutional right against compulsory self-incrimination in order to avoid arrest.86
In striking down the statute as unconstitutionally vague, the Court of
Appeals was vindicating the principle “‘that no man shall be held criminally
responsible for conduct which he could not reasonably understand to be
proscribed.’”87 That principle requires that criminal laws “give a person of
ordinary intelligence fair notice that [her] contemplated conduct is forbidden by the statute.”88 Beyond notice, the void-for-vagueness doctrine also “requires that a
penal law not permit arbitrary or discriminatory enforcement” because

mucilage that holds society together.”). See also Michelle Alexander, The New Jim Crow at 28-32 (2010).

86 People v. Bright, 71 N.Y.2d 376, 379 (1988) (striking down Penal Law § 240.35(7), which provided that “[a] person is guilty of loitering when he . . . [loiters] or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence.”).

87
(1954)).

Id. at 382 (quoting United States v. Harriss, 347 U.S. 612, 617

88 Harriss, 347 U.S. at 617.

29

[t]he absence of objective standards to guide those enforcing the laws permits the police to make arrests based upon their own personal, subjective idea of right and wrong. A vague statute “confers on police a virtually unrestrained power to arrest and charge persons with a violation” (Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) [Powell, J., concurring]), and “furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure’” (Papachristou, 405 U.S. at 170 (quoting Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940))).89
The criminal statute at issue in this case is not vague. It states that a
person present in a NYCHA building is guilty of trespass if he fails to comply with
“conspicuously posted rules or regulations governing entry and use thereof.”90 But
if NYCHA rules are to be incorporated into the State’s criminal laws then the
constitutional limits governing vagueness must apply to those rules as well. And
New York’s Court of Appeals has made clear that, in general, prohibitions on
“loitering” are unconstitutionally vague:
The term “loiter” or “loitering” has a commonly accepted meaning that has evolved over the years, and connotes the act of remaining about or hanging around a place without any apparent purpose . . . . However, a statute that merely prohibits loitering, without more, is unconstitutionally vague. Such a generalized law fails to distinguish between conduct calculated to cause harm and conduct that is essentially innocent, thereby failing to give adequate notice of what conduct is prohibited. Further, such a statute impermissibly places complete discretion in the hands of the
89 Bright, 71 N.Y.2d at 383. 90 N.Y. Pen. L. § 140.10(e).
30

police to determine whom they will arrest.91 The Court of Appeals has been more forgiving of loitering statutes that prohibit “loitering in a specific place of restricted public access,” such as schools or waterfronts, “since these locations were not open to the public, were places where illegal activity was notorious, and were normally frequented only by those who are affiliated with the activity being carried on there.”92
c. Analysis Prohibiting trespass and loitering on NYCHA property by uninvited strangers is understandably important to many residents: the buildings are their homes. The Legislature has reasonably determined that, for the safety and wellbeing of NYCHA residents, access to the buildings should be restricted to residents and their invited guests. But a prohibition on “loitering” by a resident is unconstitutionally vague.93 The sign relied upon by the City prohibits loitering “in lobby, roof, hallway, and stairs.” According to that sign, may two neighbors, meeting each
91 Bright, 71 N.Y.2d at 383-84. 92 Id. at 384. 93 I am not aware of any cases that address the arrest of a NYCHA resident for trespass in his or her own building pursuant to the building’s prohibition on loitering.
31

other in the hallway outside their apartments, talk for fifteen minutes about the
American League pennant race? Or would doing so subject them to lawful arrest?
If it is cold outside, may an elderly woman wait in the lobby of her building for ten
minutes while her son hails a cab? Or may she too be punished by up to three
months in prison?94 Because the sign prohibits a vast swath of “conduct that is
inherently innocent,” it fails to give NYCHA residents notice of what precise
conduct is prohibited and it “places complete discretion in the hands of the police
to determine whom they will arrest.”95
94 Trespass in the third degree is a Class B misdemeanor, N.Y. Pen. L. § 140.10, which is punishable by a definite sentence not to exceed three months, id. § 70.15(2). Roman Jackson and Kristin Johnson chose to sit on the top of the stairwell instead of on a bench outside because it was the middle of a cold winter. See Pl. Counter 56.1 ¶ 8.
95 Bright, 71 N.Y.2d at 383, 384. It is also worth noting that the sign uses confusing language: it prohibits “loitering and trespassing” not “loitering or trespassing” and says that “loitering and trespassing” “is” prohibited, not “are prohibited.” Both of these semantic choices suggest that the rules prohibit the single unified act of “loitering and trespassing,” not each of the separate acts of loitering and of trespassing, and therefore suggest that a resident like Jackson who is loitering but not trespassing will not have violated the rule. See Crooks v. Harrelson, 282 U.S. 55, 58 (1930) (“We find nothing in the context or in other provisions of the statute which warrants the conclusion that the word ‘and’ was used otherwise than in its ordinary [conjunctive] sense.”); Reese Bros., Inc. v. United States, 447 F.3d 229, 235-36 (3d Cir. 2006) (“The usual meaning of the word ‘and,’ however, is conjunctive, and unless the context dictates otherwise, the ‘and’ is presumed to be used in its ordinary sense” (quotation and citation omitted)). But no tenant should be expected to perform such a close reading in order to determine what behavior is and is not permitted in his own building; it is defendants’ obligation to put tenants on clear notice of what constitutes unlawful
32

Subsequent to the arrest of Jackson and Johnson, NYCHA issued a new document entitled “Highlights of House Rules, Lease Terms and Policy” that expressly prohibits residents’ presence on roof landings, that is, at the top of stairwells.96 The document also says that “the lobby or stairwell is meant for resident use to either go in or out of the building or to walk from floor to floor,” and says that “lingering” is prohibited in “the lobby, corridors, and stairwell.”97 I sympathize with the desire of NYCHA residents (including plaintiff Eleanor Britt, Jackson’s grandmother) to keep their homes safe.98 But, as written, the prohibitions do not clearly distinguish between harmful and innocuous activity – indeed, Britt’s act of sitting at the Tenant Patrol table in the lobby of buildings and requesting that all visitors sign a log book could itself fall under the criminal prohibition against “loitering” or “lingering” in the lobby because she is not using the lobby “to either go in or out of the building.” The vagueness of the terms (and the discretionary enforcement that accompanies it) may be acceptable in the

conduct.

96 See Highlights of House Rules, Lease Terms and Policy, Ex. 28 to Brooker Decl., at 2.

97

Id.

98 See Britt Dep. at 42:2-44:2, 59:24-66:2 (describing her efforts through the Tenant’s League to improve the quality of life in her building and her support for a higher police presence).

33

context of residential leases, where landlords and tenants need flexibility and are entitled to a measure of discretion. But it is unconstitutional when incorporated into the criminal statutes.
Because a reasonable jury could find that there was no probable cause to arrest Jackson or Johnson, defendants’ motion for summary judgment on their Fourth Amendment claim is denied.
7. Rikia Evans’ Stop and Arrest a. Facts
According to Rikia Evans, the facts of her arrest are as follows: she was standing in the doorway of the lobby of 175 Alexander Avenue at approximately 11:45 p.m. on October 16, 2010, looking to see if her friend was coming to the building to pick her up and walk her home as they had arranged.99 Officer Keith Devine, who was there conducting a patrol, exited the building and said to Evans “either in or out.” Evans complied with his directive by walking into the building and toward the elevator.100 Before she reached the elevator, Devine said “hey, come back, you heard me call you three times.”101 Evans then stopped
99 See Pl. Counter 56.1 ¶¶ 50, 52, 56 (citing to Deposition of Rikia Evans (“Evans Dep.”)).
100 See id. ¶¶ 57-58. 101 Id. ¶ 61.
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and told Devine that he had not called her three times.102 Devine asked whether
she lived in the building; she said that she lived on Jackson Avenue; Devine said
that she was trespassing; Evans said, “I’m not trespassing, my aunt lives here.”103
Evans told Devine that her aunt lived on the twelfth floor; he asked her what
apartment and she did not respond. In her deposition, she explained the interaction
as follows:
Q: What do you mean when you say you didn’t tell him? A: I didn’t answer. Q: Did you know the apartment number? A: Yes. Q: But you decided not to tell him? A: Yes. Q: Why did you make that decision? A: Because I didn’t want no trouble. Q: You didn’t want any trouble? A: Yes. Q: You thought that by not telling him your aunt’s apartment
number, then you would avoid having any trouble? A: Yes. Q: Why did you believe that? A: I just thought if I didn’t say anything that he would leave me
alone.104
At that point, according to Evans, Devine started screaming at her that
she was trespassing and asked for her aunt’s apartment number two or three times;
102 See Evans Dep. at 126:13-128:7. 103 Id. at 126:25-130:1. 104 Id. at 130:7-23.
35

she refused to provide it. He asked for identification and although she had it with her, she refused to provide it because “[she] didn’t think he needed to see it.”105 She then tried to walk away, but Devine’s supervisor, Lieutenant Christopher Allen, grabbed her by the jacket, pushed her against a wall, and asked Devine if they should “take her in.”106 Evans then told the officers that she “could call [her] aunt to come down” but the officers told her “No, to hang up the phone.”107 She then started crying and the officers told her she was under arrest.108
b. Legal Background Evans’ arrest squarely presents an important and discrete Fourth Amendment question: whether the police are permitted to rely on a visitor’s refusal to answer questions about her destination in order to establish probable cause for a trespass arrest. New York State courts appear to have reached conflicting answers about whether probable cause exists to arrest a person who acknowledges that he is not a tenant but does not identify whom he is visiting.109
105 Id. at 132:10. 106 Id. at 142:11-17. 107 Id. at 142:23-143:2. 108 See id. at 143:3-11. 109 In these cases, the courts generally have examined whether the prosecutor’s charging instrument provides “reasonable cause” to believe that the defendant committed a crime. As the Second Circuit has explained, “‘[r]easonable
36

cause’ under the Criminal Procedure Law is substantially the same as ‘probable cause’ within the meaning of the Fourth Amendment.” Williams v. Ward, 845 F.2d 374, 387 (2d Cir. 1988). Accord Stinson v. City of New York, No. 10 Civ. 4228, 2012 WL 1450553, at *16 (S.D.N.Y. April 23, 2012) (“the term ‘reasonable cause’ is synonymous with ‘probable cause’”).
Compare Matter of Daniel B., 768 N.Y.S.2d 230, 231 (2d Dep’t 2003) (“Although the appellant advised the officer that he did not live in the building and was just ‘hanging [out],’ and did not offer an explanation for his presence, it was not his obligation to do so. Rather, it was the [government’s] burden to prove unlawful entry or remaining, and it failed to do so.”); People v. Spann, 796 N.Y.S.2d 227, 229 (Crim. Ct. N.Y. Co. 2005) (no reasonable cause if a defendant was seen leaving a private apartment and was unable to give the full name of the apartment’s tenant because “[t]here are many instances where a person may be lawfully in an apartment, or an invitee of a resident, without knowing that resident’s full name. Deliverymen, repairmen, inspectors, and the like often do not know or cannot recall the names of the persons whose apartments they visit for legitimate reasons. That does not mean that these people do not have a proper reason to be there.”); People v. Ruiz, 841 N.Y.S.2d 822 (Sup. Ct. Bronx. Co. 2007) (no reasonable cause to prosecute defendant who was in a Clean Halls building in which he did not live, even though he did not give a reason for his presence); People v. Charles Lee, (no number in original), 1999 N.Y. Misc. Lexis 706 (Crim. Ct. Bronx Co. Sept. 20, 1999) (“allegation that the defendant ‘could not give an [apartment] number’ is . . . insufficient to establish reasonable cause to believe that he was not a legitimate invitee” because “such ignorance is hardly unusual and, by itself, simply does not [tend] to prove that one is a trespasser rather than an invitee”), with People v. Hendricks, 841 N.Y.S.2d 94, 96 (1st Dep’t 2007) (“Once the officer determined defendant was not a resident, he was justified in asking if defendant was visiting someone in the building and who that someone was. When defendant could not supply that information, even after taking the officer to two separate floors, the officer had probable cause to arrest him for trespass.” (emphasis added)) ; People v. Quinones, No. 01-371, 2002 N.Y. Misc. Lexis 139 (1st Dep’t Mar. 5, 2002) (same); People v. Taveras, 851 N.Y.S.2d 73 (Crim. Ct. N.Y. Co. 2007) (charging instrument was facially sufficient when it alleged that defendant was found in lobby and “was unable to name any tenant by whom he had been invited into the premises.” (emphasis added)). Cf. People v. Sanders, 568 N.Y.S.2d 77 (1st Dep’t 1991) (upon inquiry by police officer, defendants’ response that they were “just passing through” the lobby of a building did not give rise to
37

Judge Robert Mandelbaum of the New York Criminal Court has concluded that the relevant distinction is between individuals who are unable to identify the tenant whom they are visiting and those who remain silent or refuse to provide the information. If a woman is unable to identify the tenant or location that she is visiting, Judge Mandelbaum reasoned, then the police have probable cause to believe that she is trespassing. In contrast, “a failure to cooperate by identifying oneself or answering questions cannot ‘be the predicate for an arrest absent other circumstances constituting probable cause.’”110 Thus, “evidence that a defendant, when approached by police in the lobby of an apartment building, advised the officer that he did not live in the building and was just ‘hanging out,’ is legally insufficient to establish criminal trespass” because “although the accused ‘did not offer an explanation for his presence, it was not his obligation to do so.’”111
Last year, Judge Kevin McGrath of Brooklyn Criminal Court
probable cause for trespass arrest). 110 People v. Easton, 841 N.Y.S.2d 827, at *4 (Crim. Ct. N.Y. Co. 2007)
(quoting People v. Howard, 50 N.Y.2d 583, 586 (1980)). 111 Id. (quoting Matter of Daniel B., 768 N.Y.S.2d at 231). 38

addressed the same question in People v. Messina.112 Messina was standing in the
lobby of a NYCHA building when a police officer approached him and asked
whether he was a tenant; he responded that he was visiting a friend but did not provide an apartment number.113 Judge McGrath began by explaining that
it is beyond dispute that the defendant has a right not to answer questions posed to him by law enforcement personnel (see U.S. Const. Amend. V) and that the invocation of that right may not give rise to criminal consequences (see Brown v. Mississippi, 297 U.S. 278, 286 (1936)). It is equally clear to this court that no essential element of a prima facie case can be established, at the pleading stage, by an allegation that the defendant declined to respond to a police inquiry.114
However, Judge McGrath cited a recent New York Court of Appeals
case to support his holding that because the police knew Messina was not a tenant
in the building, it was his burden to establish that he was there by invitation. In
People v. Davis, the Court of Appeals considered a trespassing rule that prohibits
presence in a New York City park after its closing time, unless “‘upon order by a Police Officer or designated [Parks] Department employee.’”115 Davis sought to
112 919 N.Y.S.2d 814, 820 (Crim. Ct. Kings Co. 2011). 113 It is unclear whether the defendant was unable to or chose not to provide an apartment number. 114 Messina, 919 N.Y.S.2d at 818. 115 13 N.Y.3d 17 (2009) (quoting 56 R.C.N.Y. 1-03[c][2]).
39

dismiss the charge on the grounds that the state could not establish that he did not
have the permission of a police officer or parks department employee to be in the
park. The question, according to the Court of Appeals, was whether the law’s
reference to the “order by a Police Officer” was “a true ‘exception’ that must be
pleaded by the People or whether it operates as a ‘proviso’ that defendant was required to raise as a bar to prosecution.”116 According to the Court, the answer
depends on the legislative intent, and it concluded that
the City’s Parks Department [which promulgated the rule] did not intend that the People plead and prove that no police officer or Parks Department employee had authorized defendant to ignore a posted closing time. Such information is uniquely within a defendant’s knowledge, and to require the People to plead and negate the existence of the relevant permission would require them to go to “intolerable lengths,” including innumerable interviews of officers and employees in the area during the date in question.117
In Messina, Judge McGrath concluded that when charging trespass in
a NYCHA building under section 140.10(e), the prosecution has the burden of
establishing (or, in the case of an information, alleging) that an individual is not a
tenant in the building. However, relying on Davis, he held that a non-tenant has
the burden of establishing that he is an invited guest:
116 Id. at 31. 117 Id. at 31-32 (quotation omitted).
40

In order for the People to adequately allege facts that would establish that the defendant was not an invited guest inside the building, the police officer who observed the defendant would be forced to question each and every resident of that building in order to determine that the defendant had, in fact, not been invited into the building . . . . [M]uch like the knowledge that the defendant in Davis was authorized to ignore the posted park rules, information concerning whether the instant defendant was an invited guest of one of the building’s tenants was peculiarly within the defendant’s knowledge.118
Much of Judge McGrath’s reasoning is persuasive. He did not,
however, consider the two cases that I believe are most relevant to the analysis.
First, in People v. Brown, the New York Court of Appeals considered Brown’s
challenge of his conviction for criminal trespass. The court overturned the
conviction because the prosecution had failed in its “burden of proving each and
every element of [trespass] . . . specifically, the absence or loss of a statutory
privilege or license to enter and remain.”119 This determination applied specifically
118 Messina, 919 N.Y.S.2d at 820 (“[T]he existence of such an invitation can be raised as a defense at trial and must be proven by the defendant. To the extent that Daniel B. and James C. have held to the contrary, this court believes that the Court of Appeals’s holding in Davis overruled those holdings.”). See also People v. Richardson, No. 2011 NY 2298, 2012 WL 1939971 (Crim. Ct. N.Y. Co. Apr. 23, 2011) (following Messina where defendant’s identification card listed a different residence and he was unable to identify an apartment to which he was invited).
119 People v. Brown, 25 N.Y.2d 374, 377 (1969) (Fuld, C.J.). The statute defined criminal trespass as follows: “A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to
41

to the trespassing statute, which for these purposes has not changed since 1969.120
In its Davis decision addressing presence in the park, the Court of Appeals did not
mention Brown and I have no reason to believe that Brown is no longer good law.
The Court of Appeals’ interpretation of state law settles the question: it is the
state’s burden to prove that an invitee does not have privilege or license to remain
on the premises. Because it is an element of the crime, officers must have probable
cause to believe that a person does not have permission to be where she is before
they arrest her for trespass: “Probable cause must extend to every element of the crime for which a person is arrested.”121 And, of course, the state cannot rely on a
person’s exercise of her Fifth Amendment right to remain silent in order to satisfy that burden.122
exclude intruders.” N.Y. Pen. L. § 140.10. Further, “Section 140.00 (subd. 5) defines the phrase ‘enter or remain unlawfully’ as follows: ‘A person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so.’” Brown, 25 N.Y.2d at 377. That definition remains the same as it did in 1969.
120 The addition of subdivision (e), which criminalizes the failure to comply with NYCHA rules and regulations, does not affect the question of whether the prosecution bears the burden of proving that a person has “enter[ed] or remain[ed] unlawfully” in the building.
121 Alhovsky v. Paul, 406 Fed. App’x 535, 536 (2d Cir. 2011). 122 See People v. Howard, 50 N.Y.2d 583, 590-92 (1980) (“[W]hile the police had the right to make the [Terry] inquiry, defendant had a constitutional right not to respond . . . . Nor can the failure to stop or co-operate by identifying
42

The United States Supreme Court’s recent dicta in Hiibel v. Sixth
Judicial District Court supports this conclusion.123 In that case, the Supreme Court
considered the constitutionality of a Nevada statute that criminalized the refusal to
identify oneself when stopped by the police.124 Hiibel challenged his conviction,
arguing that the Fifth Amendment protected his right not to answer any questions
by police officers, including their demand that he identify himself. The Supreme
Court rejected Hiibel’s argument because it found that a disclosure of one’s name
would not tend to incriminate him:
While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.125
The Court’s determination turned on the limited nature of the statute:
oneself or answering questions be the predicate for an arrest absent other circumstances constituting probable cause.”). Accord Bright, 71 N.Y.2d at 385 (“Requiring a person suspected of violating the loitering statute [to] provide a ‘satisfactory explanation’ to avoid arrest is also violative of a citizen’s right not to answer questions posed by law enforcement officers.”).
123 542 U.S. 177 (2004). 124 Although New York permits police officers to “demand of [any person stopped on reasonable suspicion] his name, address and an explanation of his conduct,” unlike Nevada it does not criminalize the refusal to provide that information. See Howard, 50 N.Y.2d at 590-92. 125 Hiibel, 542 U.S. at 190-91 (emphasis added).
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The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.126
c. Analysis The present circumstances are different from those in Hiibel. Defendants argue that Evans could be arrested because she refused to identify her aunt’s apartment number. According to their argument (and Judge McGrath’s conclusion in Messina), a person has the obligation not only to disclose her name but also to disclose the name and apartment number of her host. This information, however, is often incriminating. Numerous cases, including the arrests of Osorio and Smith in this case, involve situations in which a person who was stopped by police officers is arrested because they do not believe that his or her answer to the question “where are you going?” was credible. Although police may obviously consider a person’s lies when assessing probable cause, the Supreme Court’s limiting language in Hiible strongly suggests that the Fifth Amendment prohibits police from arresting an individual for refusing to provide “testimonial” evidence. The New York Court of Appeals’ holding in Brown and the Supreme Court’s dicta in Hiibel support the conclusion that New York City police officers
126 Id. at 191. 44

may not arrest a person for trespass in a NYCHA building solely on the basis of her refusal to identify the resident who has given her permission to be in the building, even if they know that she herself is not a resident.127 With the preceding legal analysis in mind, I turn to its application in this case.
i. Evans’ Terry Stop Evans alleges that she was both stopped (that is, “seized”) and arrested unlawfully. Evans was seized, for the purpose of the Fourth Amendment, when she attempted to walk to the elevator, was told to “come back” by Officer Devine, and stopped walking. The Second Circuit has held that “[a] seizure occurs when [] a person obeys a police officer’s order to stop.”128 Devine’s order to “come back” was an order to stop and Evans obeyed the order. Rather than argue that Devine had reasonable suspicion to stop Evans at that time, the City describes Devine’s words as merely a “request” that Evans
127 I fully understand Judge McGrath’s concern that this determination makes enforcement of the trespass statute more difficult. But respect for the individual liberties protected by our Constitution often makes criminal law enforcement more difficult. Police officers and judges alike are required to ensure compliance with criminal and constitutional law. There are surely a number of ways in which the legislature and/or NYCHA might amend the law and regulations so as to facilitate constitutional enforcement of the trespass statute.
128 United States v. Simmons, 560 F.3d 98, 105 (2d Cir. 2009). 45

come back and argue that it did not constitute a seizure.129 The City cites to two state court decisions holding that police may instruct a person to “stop” without having seized them under the Fourth Amendment and Terry.130 These cases do support defendants’ position but they are squarely contradicted by the Second Circuit’s decision in United States v. Simmons. It is the Second Circuit, not the Appellate Division or the New York Court of Appeals, whose interpretations of the Fourth Amendment are binding on this Court. When told by a police officer to “come back” in the lobby of a building, a reasonable person would believe that he was not free to leave. According to the facts as she describes them, Evans was seized when she complied with the order.131
If a juror were to believe Evans’ version of events, she could reasonably conclude that at the time of the seizure Devine did not have reasonable suspicion to believe that Evans was committing a crime. The only information
129 City Rep. Mem. at 4. 130 See People v. Reyes, 199 A.D.2d 153 (1st Dep’t 1993), aff’d, 83 N.Y.2d 945 (1994); People v. Mitchell, 637 N.Y.S.2d 450 (2d Dep’t 1996). 131 See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“We conclude that 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.”).
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available to Devine was that, late at night in an allegedly high-crime area,132 Evans had been waiting in the doorway of the lobby for approximately three minutes and went inside the building after Devine told her “either in or out.” There is nothing suspicious about waiting in a lobby for three minutes (even in a high-crime area at night)133 and there is nothing suspicious about complying with an officer’s instruction to go “either in or out.” Because these facts, if true, may establish that Evans was stopped unlawfully, summary judgment on Evans’ claim for an unlawful stop is denied.
ii. Evans’ Arrest According to Evans’ testimony, at the time that Devine told her that she was under arrest, he knew the following facts: (1) Evans said she did not live in the building, (2) Evans said her aunt lived on the twelfth floor, (3) Evans repeatedly refused to tell him what apartment number her aunt lived in, and (4) Evans offered to call her aunt to come down to the lobby. For the reasons just discussed, if a jury were to believe this version of events, it could reasonably
132 See City Rep. Mem. at 4 (citing to Declaration of Erik Hernandez, NYPD Captain, regarding crime rates near the building where Evans was arrested).
133 See United States v. Bellamy, 592 F. Supp. 2d 308, 317 (E.D.N.Y. 2009) (“the fact that an individual appears to be waiting for someone [in the vestibule of a building] does not establish reasonable suspicion that an individual is engaged in criminal activity” even if the building is in a high-crime, drug-prone area and the person makes “furtive gestures”).
47

conclude that these facts did not establish probable cause to arrest Evans for trespass.
There is no probable cause to arrest a person if the only facts known to the police are that the person says she does not live in the building and refuses to say more about her license or privilege to be there. Even if the burden is on the visitor to identify the resident who has given her permission to be in the building, a jury crediting Evans’ testimony could reasonably find that there was no probable cause to arrest Evans. She identified her aunt’s floor and offered to call her aunt down to the lobby to verify her authorization to be there. This offer would have made it easy for the police officers to evaluate her claims, which fully addresses the pragmatic concerns raised by Judge McGrath in Messina. Instead, the officers improperly chose to “disregard plainly exculpatory evidence” and arrested Evans.134
Additionally, in Hiibel the Supreme Court addressed Hiibel’s concern that the Nevada statute “circumvents the probable-cause requirement, in effect allowing an officer to arrest a person for being suspicious” by pointing to “the requirement that a Terry stop must be justified at its inception” and that “an officer may not arrest a suspect for failure to identify himself if the request for
134 Panetta, 460 F.3d at 395. 48

identification is not reasonably related to the circumstances justifying the stop.”135
The officers in this case (allegedly) arrested Evans after making an unlawful stop
so their reliance on her silence is squarely foreclosed by Hiibel.
Evans’ testimony, if credited by the trier of fact, establishes that she
was arrested unlawfully. Accordingly, defendants’ motion for summary judgment
on this claim is denied.
B. The Arrested Plaintiffs’ Equal Protection Claims Against the City for Unlawful Terry Stops and False Arrest
The City seeks summary judgment on the arrested plaintiffs’ claim
that their stops and arrests were based on their race and therefore violated the
Fourteenth Amendment to the United States Constitution and Article 1 of the New
York Constitution.136 The City argues that “there is no evidence in the record that
135 542 U.S. at 188 (emphasis added). 136 See City Mem. at 13-14; Am. Compl. ¶¶ 245-250, 275-280. Plaintiffs argue that even plaintiff Eleanor Britt, who has never been stopped or arrested, is “subjected to Defendants’ racially discriminatory trespass enforcement policies on a daily basis” and thus has standing to bring equal protection claims against the City. See Pl. Mem. at 39. But plaintiffs put forward no evidence showing that Britt has been subject to discrimination or injured in a concrete way. See id. at 2425 (discussing only the arrested plaintiffs); Pl. City 56.1 ¶¶ 30-31 (acknowledging the undisputed fact that Britt has eight grandchildren who visit her regularly and that she “testified that her visitors have never mentioned that they do not want to visit her because they are intimidated by the police.”). She has not proffered any evidence that would permit a juror to find that the City has discriminated against her. Summary judgment is therefore granted to the City on Britt’s equal protection claims.
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the Arrested Plaintiffs’ stops and/or arrests were motivated by racial animus by the
individual officers.”137 The statement is incorrect,138 but even if it were true it
would be insufficient to establish the City’s entitlement to summary judgment.
The Fourteenth Amendment prohibits intentional discrimination on
the basis of race, not government action that has a disproportionate racial impact.139
Thus, in order to survive summary judgment, the arrested plaintiffs must proffer
evidence that would support a jury’s determination that the officers stopped and
arrested them “at least in part because of” their race.140 As the Second Circuit and
the Supreme Court have explained:
Because discriminatory intent is rarely susceptible to direct proof, litigants may make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action – whether it bears more heavily on one race than another – may provide an important starting point.” Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).141
137 City Mem. at 13. 138 As the City acknowledges, both Washington and Evans testified that the officers who arrested them referred to them as “nigger.” See City 56.1 ¶¶ 80, 219. Whether that testimony is credible or not – see City Rep. Mem. at 8 n.26 – is a question for the jury, not for a court at summary judgment. 139 See Washington v. Davis, 426 U.S. 229 (1976). 140 Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). 141 Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010). Accord Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 988 (D. Ariz. 2011) (denying
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The consequences of government action are sometimes evidence of the government’s intent: “proof of discriminatory intent must necessarily usually rely on objective factors . . . . The inquiry is practical. What a legislature or any official entity is ‘up to’ may be plain from the results its actions achieve, or the results they avoid.”142
Plaintiffs argue correctly that the existence (or absence) of a Citywide statistically significant racial disparity in stops and arrests on NYCHA property would constitute circumstantial evidence regarding the intent of the arresting officers. As the late Judge Robert Carter explained in 2006, a plaintiff can establish his equal protection claim if he can “show a causal connection between the unconstitutional policy and the violation of his rights.”143 If the plaintiff can raise an issue of fact regarding “the NYPD’s practice of wrongfully stopping and detaining African-Americans,” then evidence that the stop was
cross motions for summary judgment on the equal protection claims for race-based stops).
142 Arlington Heights, 429 U.S. at 279 n.24. “An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [practice] bears more heavily on one race than another.” Washington v. Davis, 426 U.S. 229, 242 (1976).
143 Taylor v. City of New York, No. 03 Civ. 6477, 2006 WL 1699606, at *7 (S.D.N.Y. June 21, 2006).
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unlawful and was “in line with” that policy will be enough to survive summary judgment.144
The parties chose to brief defendants’ motion for summary judgment in two parts. The first part, adjudicated here, involves only those questions pertaining to the plaintiffs’ individual circumstances. The second part will address defendants’ Monell liability. Plaintiffs state that they intend to present statistical evidence showing “substantial, statistically significant racial differences in terms of who is stopped and/or arrested on NYCHA property.”145 The City will surely dispute the probative value of this evidence. But because such evidence – if admissible – would provide important context to the jury, I cannot rule on the City’s motion for summary judgment regarding plaintiffs’ claims of racial discrimination without it. Thus, the City’s motion is denied without prejudice and with leave to renew subject to further briefing with respect to plaintiffs’ Monell claims.
C. The Arrested Plaintiffs’ Claims Against NYCHA for Violations of
144 Id. Accord Floyd v. City of New York, 813 F. Supp. 2d 417, 446 (S.D.N.Y. 2011) (“Because a reasonable jury could find that [plaintiff’s] stop was unconstitutional [under the Fourth Amendment], and that the stop occurred in the context of citywide racial disparities in stop-and-frisk patterns unexplainable by chance, crime patterns, or officer deployment patterns, there is a triable issue of fact as to whether [his] stop was racially motivated.”).
145 Pl. Mem. at 26 52

Equal Protection The arrested plaintiffs have brought their federal and state constitutional claims for false arrest against only the City, not NYCHA.146 But the claims under the Equal Protection clause of the Fourteenth Amendment and Article I, Section 11 of the New York Constitution were brought by “All Plaintiffs against All Defendants.”147 Plaintiffs’ argument on these claims focuses exclusively on the arrested plaintiffs (that is, every plaintiff but Britt) and does not explain how NYCHA could be liable for a false arrest based on racial discrimination if it had no liability for the arrest to begin with.148 NYCHA’s motion for summary judgment on plaintiffs’ second and eighth claims for relief is therefore granted. D. Resident Plaintiffs’ Contract-Based Claims Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Fair Housing Act, and the New York State and New York City Human Rights Laws The resident plaintiffs bring a host of claims alleging that defendants’ discriminatory policing practices have diminished their ability to enjoy the benefits of their homes. Although the claims are brought under an array of contract, housing, and civil/human rights laws, they are founded on the same basic
146 See Am. Compl. ¶¶ 237-244; 281-286. 147 Id. ¶¶ 245, 275. 148 See Pl. Mem. at 24-27.
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allegation, namely that the resident plaintiffs
have been denied the enjoyment of the benefits, privileges, terms, and conditions of their contractual relationship with NYCHA, because they are limited in their ability to enter and exit their own homes, and in their ability to receive guests, due to Defendants’ trespass enforcement policies and practices, which are conducted in a [racially] discriminatory and unlawful manner.149
Only the resident plaintiffs maintain these claims.150 Although their
brief displays some confusion about the matter, the only remaining plaintiffs who
are lawful tenants of NYCHA apartments are Britt, Littlejohn, and Evans.151 All of
149 Am. Compl. ¶ 267 (specifically addressing plaintiffs’ claim under 42 U.S.C. § 1981 for deprivation of the right to enjoy the benefits of contracts free from racial discrimination).
150 Although the Title VI claim was initially brought on behalf of all plaintiffs, it has only been pursued on behalf of the resident plaintiffs. See Pl. Mem. at 28 n.33.
151 According to plaintiffs, the “Resident Plaintiffs are Eleanor Britt, Patrick Littlejohn, Andrew Washington, Shawne Jones, Hector Suarez, and Vaughn Frederick.” Pl. Mem. at 28 n.32. Jones and Suarez settled their claims against the City on February 7, 2011. See Judgment Pursuant to Rule 68 [Docket No. 59]. It is undisputed that Washington and Frederick are not authorized NYCHA tenants. See Pl. City 56.1 ¶¶ 200, 217. Plaintiffs explicitly concede that this status precludes Washington and Frederick from asserting claims under the United States Housing Act, Pl. Mem. at 33 n.36, and they fail to make any argument regarding the ability of Washington and Frederick to bring other residency-based claims. Such arguments are therefore waived and defendants’ motion for summary judgment on Washington and Frederick’s residency-based claims is granted. Plaintiffs’ list of “resident plaintiffs” omits Rikia Evans, but the City acknowledges that she is an authorized NYCHA tenant and plaintiffs address her residency-based claims.
54

their residency claims appear to depend on the following limited set of facts:
Both Ms. Evans’s father and uncle have been stopped while visiting her. After he was stopped, Ms. Evans’s uncle’s visits declined from twice weekly to fewer than three times per month. Similarly, Ms. Evans’s father no longer visits Ms. Evans at her residence; instead, he meets her outside her apartment building. After Ms. Evans was arrested for trespass while visiting a close family friend, whom she considers an aunt, she stopped her daily visits. In addition, Ms. Evans has stopped visiting other friends who live in NYCHA developments and no longer has close friends who are NYCHA residents . . . .152
Mr. Washington and Mr. Littlejohn, both residents of NYCHA’s Eastchester Gardens development, have been close friends since childhood. While Mr. Washington previously visited Mr. Littlejohn “all the time,” after he was arrested while visiting Mr. Littlejohn, he now visits only “once in a while.” Because both Mr. Washington and Mr. Littlejohn live in NYCHA housing, Defendants’ practices completely inhibit them from visiting one another in the safe havens of their homes. Mr. Washington testified that his inability to visit a friend “next door” leaves him with “no freedom at all.”153
Plaintiffs point to no evidence regarding the impairment of Britt’s
residency-based rights beyond those under the United States Housing Act that
guarantee the provision of a reasonable residential lease. With these facts in mind,
I turn to the evaluation of each of the plaintiffs’ residency-based claims.
1. Title VI of the Civil Rights Act of 1964
152 Pl. Mem. at 31 (citations to 56.1 statements, Evans’ deposition, and 7/17/12 Declaration of Rikia Evans (“Evans Decl.”) omitted).
153 Id. at 32 (citations to Pl. Counter 56.1 omitted).
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Title VI of the Civil Rights Act of 1964 states that “[n]o person in the
United States shall, on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.”154 The
resident plaintiffs allege that they are “unable to use and enjoy their residences
because Defendants’ vertical patrol and trespass enforcement practices are
conducted in such a consistently unlawful and discriminatory manner that the
residents are not free to come and go as they wish.”155
The City argues that Title VI creates a cause of action only for
discrimination by grant recipients, not for discrimination by third parties.156
154 42 U.S.C. § 2000d. 155 Am. Compl. ¶ 252. This claim was brought on behalf of all plaintiffs but non-resident plaintiffs now acknowledge that it cannot be brought on their behalf. See Pl. Mem. at 28 n.33. Summary judgment for defendants is therefore granted on the Title VI claims of non-resident plaintiffs Jackson, Johnson, Smith, Osorio, Washington, and Frederick. 156 See City Mem. at 15 (citing Davis v. Monroe Cnty. Bd. of Educ. (“Monroe”), 526 U.S. 629, 640 (1999) (“a recipient of federal funds may be liable in damages under Title IX only for its own misconduct”); Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258 (2009) (“Congress modeled Title IX after Title VI of the Civil Rights Act of 1964 . . . and passed Title IX with the explicit understanding that it would be interpreted as Title VI was.”)). The City’s reliance on Monroe is misplaced: in that case, the Supreme Court held that a school could not be directly liable for one student’s sexual harassment of another student. But the offending student in Monroe was not acting as the school’s agent. Here, the
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Because NYCHA is the grant recipient and the City merely provides policing
services to NYCHA, the City argues that it cannot be held liable under Title VI.
The statutory language at issue is convoluted. Stripped of its subsections and
semicolons, the statue says that the non-discrimination provisions apply to “all of
the operations of [] a department . . . of a local government . . . any part of which is extended Federal financial assistance.”157 Both parties cite to Alfano v. Bridgeport
Airport Services, in which Judge Janet Arterton of Connecticut District Court
analyzed the claims of a disabled worker under a federal law prohibiting
discrimination “under any program or activity receiving Federal financial assistance.”158 After a thorough review of the caselaw, Judge Arterton explained
that
[w]hile an indirect recipient of federal aid is covered by [the anti-
City receives funding from NYCHA to help NYCHA fulfill its statutory duties and it is therefore NYCHA’s agent.
157 42 U.S.C. § 2000d-4a. 158 373 F. Supp. 2d 1, 3 (D. Conn. 2005) (quoting section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a)). Judge Arterton was interpreting the Rehabilitation Act, not Title VI. According to the Supreme Court, the same standard governs analysis of these laws’ nondiscrimination provisions: “Under the program-specific statutes, Title VI, Title IX, and § 504, Congress enters into an arrangement in the nature of a contract with the recipients of the funds: the recipient’s acceptance of the funds triggers coverage under the nondiscrimination provision.” United States Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605 (1986). Accord Monroe, 526 U.S. at 639-42.
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discrimination law] if it is Congress’s intended [financial] recipient, a program that merely benefits from the use of the [federal] aid is not covered . . . . Whether financial payment may be deemed a government subsidy or mere compensation for services, however, is a complex question that depends on the particular facts and circumstances of the contract and project at issue.159 Because this round of briefing dealt only with plaintiffs’ individual circumstances, the parties have not submitted evidence regarding the nature of NYCHA’s contract with the NYPD. I cannot at this point determine whether the City is “extended Federal financial assistance” pursuant to that contract and cannot determine whether it is amenable to suit under Title VI, let alone whether there is a material dispute of fact regarding its compliance with the nondiscrimination mandates of Title VI. Thus, defendants’ motion for summary judgment on this claim is denied without prejudice and with leave to renew at the second round of summary judgment briefing on plaintiffs’ Monell claims. 2. 42 U.S.C. § 1981 The Civil Rights Act of 1866, now codified at 42 U.S.C. § 1981, protects the rights of all persons “to make and enforce contracts” free from discrimination on the basis of race. After the Supreme Court reaffirmed a narrow
159 Alfano, 373 F. Supp. 2d at 6. 58

construction of that provision in 1989,160 Congress passed the Civil Rights Act of
1991, which, among other changes, added section 1981(b):
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (Emphasis added).
Section 1981 “offers relief when racial discrimination . . . impairs an
existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.”161 Evans, Littlejohn, and
Britt are authorized residents on a lease (that is, a contract) with NYCHA. There is
no doubt that the three resident plaintiffs have rights under the existing contractual
relationship. The question is whether that relationship has been impaired because
of racial discrimination.
The City and NYCHA argue that Evans, Littlejohn, and Britt cannot
make out a claim under section 1981: Any evidence that they are merely limited in
their ability to enter and exit their homes and to receive guests is insufficient
because “there is no record evidence to establish that any of the Resident Plaintiffs
160 See Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989) (section 1981 “does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations”).
161 Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). 59

have actually lost the ability to enter and exit their own homes and/or receive any guests.”162 As defendants point out correctly, the plaintiffs “continue to enter and exit their homes” and “continue to receive guests.”163
According to plaintiffs, “[d]efendants’ suggestion that Resident
Plaintiffs’ § 1981 claims must be dismissed because the Resident Plaintiffs do not live in complete seclusion is contrary to law.”164 Plaintiffs point out that Congress
intended the 1991 amendments “to bar all race discrimination in contractual relations,”165 not merely discrimination that impairs contracts completely. For
example, the law reaches discriminatory disparities in salaries, not only a discriminatory failure to pay any salary whatsoever.166 The City’s support for its
position that section 1981 prohibits only complete evisceration of a contract, and
not merely partial impairment of the terms or conditions of a contract, is
particularly weak: it cites to an unpublished Third Circuit decision that rejected a
162 City Mem. at 16; NYCHA Mem. at 20-21. 163 Id. at 17. 164 Pl. Mem. at 28. 165 Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998) (quoting H.R. Rep. No. 102-40, at 92 (1991)) (emphasis added). 166 See Kim v. Dial Serv. Int’l, No. 97 Civ. 9142, 1998 WL 514297 (2d Cir. June 11, 1998) (affirming applicability of section 1981 to claims for discriminatory pay scales); Longmire v. Wyser-Pratte, No. 05 Civ. 6725, 2007 WL 2584662 (S.D.N.Y. Sept. 6, 2007).
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plaintiff’s section 1981 claim because he had not “sought to enter into a contract for goods or services” with the defendants.167 That decision is not relevant to the
facts here, where the three resident plaintiffs clearly do have contractual rights.
Plaintiffs’ residential leases must entitle them to come and go as they
wish. Under federal regulations, NYCHA is required to include in its leases a provision for the “reasonable accommodation of guests.”168 The Second Circuit
has held that this right is constitutional, not merely statutory: the Constitution
protects public housing residents’ “freedom to have whomever they want[] visit
their homes,” subject only to narrowly tailored intrusions that advance the
government’s “legitimate interests in maintaining safe, decent housing and in keeping track of occupancy and eligibility in public housing.”169 Both the right to
come and go as they please and the right to accommodate guests are material to
167 Crane v. Cumberland County, 64 Fed. App’x 838, 841 (3d Cir. 2003). The City’s citation to Garrett v. Tandy Corp., 295 F.3d 94 (1st Cir. 2002) is similarly unavailing: in that case a plaintiff attempted to show the existence of an ongoing contract arising out of the purchase of electronics because he had the right to return the items. The court held that “a complaint must allege the actual loss of a contract interest, not simply the theoretical loss of a possible future opportunity to modify the contract.” Id. at 102. In neither of these cases did the plaintiff present evidence of impairment of an existing contract.
168 24 C.F.R. § 966.f(d)(1). 169 McKenna v. Peekskill Housing Authority, 647 F.2d 332, 335 (2d Cir. 1981).
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plaintiffs’ contracts; whether those contracts have been legally impaired is a factintensive inquiry.
Plaintiffs Evans and Littlejohn have proffered concrete evidence showing that since their arrests, they feel less free to come and go from their buildings and to have guests visit them. Evans has testified that police officers referred to her as “nigger” when she was arrested and Littlejohn testified that his friend Washington was also called a “nigger” in Littlejohn’s building while he was attempting to visit Littlejohn.170 If she believes plaintiffs’ testimony, a reasonable juror could find that the City has impaired Evans’ and Littlejohn’s residential leases in violation of section 1981. Summary judgment on this claim is therefore denied.
In contrast, plaintiffs have offered no evidence regarding the alleged impairment of Britt’s contract.171 Therefore, defendants’ motions for summary judgment on Britt’s section 1981 claim is granted.
3. Fair Housing Act Section 3604(b) of the Fair Housing Act (“FHA”) makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection
170 See Pl. Counter 56.1 ¶¶ 78, 185. 171 See Pl. Mem. at 28-29, 31-33 (failing even to mention Britt’s contract impairment claim); NYCHA Mem. at 20-21.
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therewith.”172 Plaintiffs rely on this provision to support their allegation against the
City for discrimination in the provision of police services. The City argues that this
claim fails because “section 3604 does not, in the absence of proof of constructive or
actual eviction, reach post-acquisition conduct” – that is, the provision prohibits only
discrimination prior to and at the time of the sale or initial rental of a dwelling, not
during the term of lease.173 The Second Circuit has not addressed this question, and
other circuits have reached differing conclusions.174
172 42 U.S.C. § 3604(b).
173 City Mem. at 22.
174 Compare Cox v. City of Dallas, 430 F.3d 734, 745 (5th Cir. 2005) (finding that the law does not prohibit post-acquisition discrimination unless there has been constructive eviction), with Committee Concerning Cmty. Improvement v. City of Modesto (“Modesto”), 583 F.3d 690, 711 (9th Cir. 2009) (holding that the law does apply to post-acquisition discrimination). See also Bloch v. Frischholz, 587 F.3d 771, 779 (7th Cir. 2009) (agreeing with Cox in dicta but holding that the law prohibits post-acquisition discriminatory practices if they are incorporated into the terms and conditions of the initial sale or lease). Defendants attempt to tip the scales in their favor by citing to Clifton Terrace Assoc. v. United Techs. Corp., 929 F.2d 714, 719 (D.C. Cir. 1991) and Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192 (4th Cir. 1999), but both of these cases support plaintiffs’ position. In Clifton Terrace, the D.C. Circuit determined that the owner of a low-income housing complex could not sue a company that had installed elevators in the complex for failure to provide elevator maintenance. The court determined that the FHA imposed no obligation on the elevator company to provide non-discriminatory elevator maintenance services. But it did not base its holding on the pre- versus post-acquisition question. Indeed, in dicta, the court very clearly explained that section 3604(b) does apply to post-acquisition conduct by landlords: it explained that the law is “directed at those who provide housing and then [that is, post-acquisition] discriminate in the provision of attendant
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For three reasons, I conclude that the law is best understood to
prohibit post- as well as pre-acquisition discrimination in the provision of housing-
related services. First, the statute prohibits discrimination “in the terms,
conditions, or privileges of sale or rental of a dwelling, or in provision of services
or facilities in connection therewith.” As Judge Louis Pollock (siting by
designation for the Ninth Circuit) explained,
the inclusion of the word ‘privileges’ implicates continuing rights, such as the privilege of quiet enjoyment of the dwelling . . . . [Furthermore, t]here are few ‘services or facilities’ provided at the moment of sale, but there are many ‘services or facilities’ provided to the dwelling associated with the occupancy of the dwelling.175
services or facilities, or those who otherwise control the provision of housing services and facilities. In the case of rental units, the provision of such services primarily falls under the control of the provider of housing – the owner or manager of the property.” Id. at 720 (emphasis added). Clifton Terrace may support the argument (which no party has raised) that NYCHA – and not the NYPD – is liable under the FHA, but it does not support the City’s post-acquisition argument.
In Jersey Heights, the Fourth Circuit rejected plaintiffs’ claim that Maryland’s decision to site a new highway near their homes violated section 3604(b) because the decision was “too remotely related to the housing interests that are protected by the Fair Housing Act.” 174 F.3d at 192. But, again, the court’s explanation strongly suggested that it would apply the law to post-acquisition housing services: “This provision by its terms extends only to housing and housing-related services. . . . [It] simply requires that such things as garbage collection and other services of the kind usually provided by municipalities not be denied on a discriminatory basis. It does not extend to every activity having any conceivable effect on neighborhood residents.” Id. at 193 (quotation and citation omitted).
175 Modesto, 583 F.3d at 713.
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Second, the Second Circuit has determined that in order to advance congressional intent, “‘the provisions of 42 U.S.C. § 3604 are to be given broad and liberal construction.’”176 Limiting section 3604(b) claims as advocated by defendants would insulate egregious post-acquisition actions from the law’s reach. It would not be a violation, for example, “to refuse to provide maintenance to [] Hispanic tenants . . . [or] to sexually harass a tenant or to raise the rent of only Jewish tenants.”177 Such a construction makes little sense.
Finally, this reading comports with the interpretation of the Department of Housing and Urban Development (“HUD”) and with the interpretation of the Department of Justice. 24 C.F.R. § 100.65, entitled “Discrimination in terms, conditions and privileges and in services and facilities,” says that “(b) Prohibited actions under this section include . . . failing or delaying maintenance or repairs [and] limiting the use of privileges, services or facilities associated with a dwelling.” Both of these phrases address post-acquisition activity178 and “the Supreme Court has . . . recognized that HUD’s views about the meaning of the FHA are entitled to ‘great
176 Cabrera v. Jakabovitz, 24 F.3d 372, 388 (2d Cir. 1994) (quoting Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982)).
177 Rigel Oliveri, Is Acquisition Everything? Protecting the Rights of Occupants Under the Fair Housing Act, 43 Harv. C.R.-C.L. L. Rev. 1, 32 (2008).
178 See Bloch, 587 F.3d at 781 (citing these regulations for support of the holding that some post-acquisition discrimination is covered by the law).
65

weight.’”179 Finally, in its recent amicus brief on the subject, the United States argued that “[n]othing in the statute indicates that it is limited to discrimination in the initial sale or rental transaction.”180
The FHA’s prohibition on discrimination is generally interpreted in accordance with Title VII’s prohibition on discrimination in employment – that is, it prohibits disparate impact, not only disparate treatment.181 Therefore, I cannot fully adjudicate defendants’ summary judgment motion without examining the admissible evidence regarding the City’s allegedly discriminatory provision of police services. I am therefore denying defendants’ motion at this time without prejudice and with leave to renew at the second stage of briefing.
4. New York State and New York City Human Rights Laws Plaintiffs’ eleventh claim is for violations of the New York State Human Rights Law (“NYSHRL”), which prohibits racial discrimination “in the terms, conditions or privileges of any publicly-assisted housing accommodations or in the furnishing of facilities or services in connection therewith” by any
179 Id. (citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210 (1972)).
180 Brief for the United States as Amicus Curiae at 15, Bloch v. Frischholz, No. 06-3376 (7th Cir. Jan. 16, 2009).
181 See, e.g., Cox, 430 F.3d at 746 (the FHA “does not require proof of both discriminatory impact and intent”).
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“person having the right of ownership or possession” to those accommodations.182 The City argues that because NYCHA – and not the City – is the owner of the public housing at issue in this lawsuit, the City is not susceptible to suit under the NYSHRL.183 Plaintiffs respond by arguing that because the NYPD controls certain portions of NYCHA developments – on which it operates its bases – it has the requisite “right of . . . possession” to be sued under the law.184 But, as the City properly notes, the police bases that the City controls do not fit the statute’s definition of “housing accommodations” because they are not “intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings.”185 Because plaintiffs have proffered no evidence that the City is in possession of housing accommodations, summary judgment is granted to the City on plaintiffs’ NYSHRL claim.
Plaintiffs’ twelfth claim is for violations of the New York City Human Rights law, which, like the FHA, prohibits discrimination “in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection
182 N.Y. Exec. L. § 296(2-a). 183 See City Mem. at 25. 184 See Pl. Mem. at 30. 185 N.Y. Exec. L. § 292(10).
67

therewith.”186 Plaintiffs acknowledge that this claim cannot be maintained against the City,187 and the City’s motion for summary judgment on this claim is therefore
granted.
NYCHA raises two general objections to plaintiffs’ State and City law
claims: First, NYCHA argues that plaintiffs have presented no evidence of racial
discrimination. As with the summary judgment motions on the other
discrimination claims, NYCHA’s motion is denied without prejudice and with
leave to renew. Second, NYCHA argues that the plaintiffs failed to file a notice of claim prior to bringing suit and that their claims are therefore barred.188 But the
New York Court of Appeals has determined that notice of claim requirements do
not apply to
actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group
186 N.Y.C. Admin. Code § 8-105(2). 187 See Pl. Mem. at 30 n.34. 188 See NYCHA Mem. at 24 (quoting N.Y. Pub. Housing L. § 157(1), which states: “In every action or special proceeding, for any cause whatsoever, prosecuted or maintained against an authority, other than a claim arising out of a condemnation proceeding, the complaint or necessary moving papers shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the authority for adjustment and that it has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.”).
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[because these actions] are deserving of special treatment. The interests in their resolution on the merits override the State’s interest in receiving timely notice before commencement of an action.189 The cases cited by NYCHA to support its argument that the notice of claim requirement nonetheless applies here were brought by individuals on their own behalf.190 This class action, involving matters of grave public concern, is entirely different. NYCHA’s motion for summary judgment based on plaintiffs’ failure to file a notice of claim is therefore denied. E. United States Housing Act Claim The Amended Complaint’s fifth claim, based on the resident plaintiffs’ rights under the United States Housing Act (“USHA”) and brought pursuant to section 1983, is maintained only against NYCHA.191 Plaintiffs allege that NYCHA contravenes the USHA’s prohibition on “unreasonable terms and conditions” in its leases by including the following two elements in the document
189 Mills v. County of Monroe, 59 N.Y.2d 307, 311 (1983). 190 See, e.g., 423 South Salina St., Inc. v. Syracuse, 68 N.Y.2d 474, 493 (1986) (distinguishing between the case at bar (involving a corporation’s lawsuit against Syracuse regarding back taxes), which required a notice of claim, and “class action type proceedings normally involving a private Attorney-General type of action,” which do not). 191 See Pl. Mem. at 33 n.36.
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that accompanies NYCHA’s leases192: First, the document mandates that all persons are “expected to cooperate with inquiries from . . . the police regarding their presence or conduct in any building,” which plaintiffs argue pressures tenants to interact with police officers without regard to the Fifth Amendment right to remain silent. Second, it prohibits “lingering” in common areas, as discussed earlier in this Opinion. Because their tenancies are subject to termination for the violation of these provisions, plaintiffs argue, they are unreasonable lease terms.
In addition to their allegation regarding unreasonable lease terms, plaintiffs argue that because their leases “do not contain the required provision for the reasonable accommodation of guests,” the leases violate HUD’s implementing regulations.193 NYCHA seeks summary judgment on these claims, arguing that because plaintiffs do not have a private right under 42 U.S.C. § 1437d(l), they may
192 The parties dispute whether NYCHA’s “Highlights of House Rules, Lease Terms and Policy,” Ex. 28 to Brooker Decl., is a lease addendum. The document says that it “is NOT a lease and NOT a lease addendum.” Id. at 1. But by its own terms, the document “is intended to remind NYCHA residents of these important requirements.” Id. The document notifies all tenants that “NYCHA may start a proceeding to terminate tenancy if a tenant . . . breaches NYCHA rules,” id. at 3, and NYCHA residents are required to sign the document to confirm that they have received and reviewed it, id. at 4.
193 Pl. Mem. at 37.
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not sue under section 1983, and that, even if they do have such a private right, it has not been infringed.194
Section 1983 creates a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” The Supreme Court has
traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 430 (1987). Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Id., at 431-432. Third, the statute must unambiguously impose a binding obligation. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.195 More recently, the Supreme Court has emphasized that the legislative inquiry must examine whether a law has “unambiguously conferred [a] right to support a cause of action brought under § 1983.”196 “The ultimate question, in respect to whether
194 See NYCHA Mem. at 15-17; NYCHA Rep. Mem. at 5-7. 195 Blessing v. Freestone, 520 U.S. 329, 341 (1997). 196 Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).
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private individuals may bring a lawsuit to enforce a federal statute, through 42
U.S.C. § 1983 or otherwise, is a question of congressional intent.”197
In Gonzaga University v. Doe, the Supreme Court considered a
lawsuit brought by a student against his university because it had disclosed
confidential information about him (namely, that he had been accused of sexual
misconduct) to a prospective employer. The Court determined that the Family
Educational Rights and Privacy Act (“FERPA”), which provides federal funding
for educational institutions contingent upon the institutions’ compliance with
federal mandates regarding student privacy, did not confer an individual right to
that privacy.198 The Court concluded that
the provisions entirely lack the sort of “rights-creating” language critical to showing the requisite congressional intent to create new rights. Alexander v. Sandoval, 532 U.S. 275, 288-89 (2001); Cannon v. University of Chicago, 441 U.S. 677, 690 n.13 (1979). Unlike the individually focused terminology of Titles VI and IX (“no person shall be subjected to discrimination”), FERPA’s provisions speak only to the Secretary of Education, directing that “no funds shall be made available” to any “educational agency or
197 Id. at 291 (Breyer, J. concurring).
198 The statute, in relevant part, read: “No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . ) of students without the written consent of their parents to any individual, agency, or organization.” 20 U.S.C. § 1232g(b)(1).
72

institution” which has a prohibited “policy or practice.” 20 U.S.C. § 1232g(b)(1). This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of “individual entitlement” that is enforceable under § 1983.199
With the Supreme Court’s guidance in mind, I now examine the
Housing Act’s relevant provision, section 1437d(l)(2), which reads:
§ 1437d. Contract provisions and requirements; loans and annual contributions . . . . . . (l) Leases; terms and conditions; maintenance; termination. Each public housing agency shall utilize leases which – . . . (2) do not contain unreasonable terms and conditions.
This statutory language satisfies the first and third prongs of the
Blessing test: it benefits a specific group of individuals (NYCHA residents) and it
is phrased in mandatory rather than precatory terms. The application of Blessing’s
second prong is less clear. The statute’s requirement that leases not contain
unreasonable terms is not so “so ‘vague and amorphous’ that its enforcement would strain judicial competence.”200 But it is not especially concrete either.
In its 1987 decision Wright v. Roanoke Redevelopment & Housing
Authority, the Supreme Court determined that 42 U.S.C. § 1437a, which sets
199 Gonzaga, 536 U.S. at 287. 200 Blessing, 520 U.S. at 341.
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ceilings on the percentage of a family’s income that it must pay in monthly rent for a public housing dwelling unit, does create an individual right enforceable under section 1983.201 As the Court later summarized in the Gonzaga decision, “[t]he key to our inquiry [in Wright] was that Congress spoke in terms that ‘could not be clearer,’ and conferred entitlements ‘sufficiently specific and definite to qualify as enforceable rights.’”202 The language of section 1437a is more focused on individual tenants than is the language of section 1437d(l)(2). The former delineates which families are included under the law and how much those families “shall pay”; the latter, under which plaintiffs sue, specifies certain terms and conditions that public housing agencies must include in their leases.
The preceding subsection of the law, section 1437d(k), which plaintiffs do not invoke, provides detailed administrative grievance protections to which tenants are entitled when a housing agency seeks to take adverse action against them.203 Multiple courts have held that subsection 1437d(k)
201 479 U.S. 418 (1987). At the time, section 1437a read: “Dwelling units assisted under this chapter shall be rented only to families who are lower income . . . . A family shall pay as rent for a dwelling unit . . . .”
202 536 U.S. at 280. 203 “The Secretary shall by regulation require each public housing agency receiving assistance under this Act to establish and implement an administrative grievance procedure under which tenants will-(1) be advised of the specific grounds of any proposed adverse public housing
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unambiguously confers enforceable rights.204 Both subsections 1437d(k) and
1427d(l) were enacted by Congress in 1983 as part of a supplemental
appropriations bill in a section entitled “Lease and Grievance Procedures.”205
Subsection 1437d(l)(2) sits somewhere between the provisions at
section 1437a (Wright) and section 1437d(k) (Stevenson and other cases), on the
one hand, and the provisions of FERPA, which the Supreme Court addressed in
Gonzaga, on the other.206 Plaintiffs correctly note that in Gonzaga, the Supreme
agency action; (2) have an opportunity for a hearing before an impartial party upon timely
request within any period applicable under subsection (l) . . . (4) be entitled to be represented by another person of their choice at any
hearing.” 42 U.S.C. § 1437d(k) (emphasis added).
204 See Stevenson v. Willis, 579 F. Supp. 2d 913 (N.D. Ohio 2008) (finding that section 1437d(k) creates federal rights enforceable through section 1983); Gammons v. Massachusetts Dep’t of Housing & Cmty. Dev., 523 F. Supp. 2d 76, 84 (D. Mass. 2007) (same); Fields v. Omaha Housing Auth., No. 04 Civ. 554, 2006 WL 176629, at *8-10 (D. Neb. Jan. 23, 2006) (same).
205 See Domestic Housing and International Recovery and Financial Stability Act, Pub. L. No. 98-181, §204, 97 Stat. 1153 (1983).
206 Three courts have said that section 1437d(l) creates enforceable rights to a lease with specific provisions set forth in the statute (such as provisions mandating that the housing authority keep the building in “decent” condition), but that it does not create a right to sue for a violation of the lease (e.g., alleging that a housing authority breached the lease or infringed a federal right by failing to keep the building in decent condition). See Edwards v. District of Columbia, 821 F.2d 651, 653 n. 2 (D.C. Cir. 1987); Concerned Tenants Assoc. v. Pierce, 685 F. Supp. 316, 322 (D. Conn. 1988) (“Tenants would have an enforceable right under § 1437d(1)(2) and the regulations promulgated thereto to a lease that contains the
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Court found an absence of rights in part because the statute mandated that “no
funds shall be made available” by the Department of Education to schools that have “a policy or practice of permitting the release of education records.”207 This
statutory language was “two steps removed” from establishing individual rights
because it spoke to the Department of Education’s duties given certain institutional
practices. In contrast, section 1437d(l)(2) states that housing authorities shall
utilize leases that do not contain unreasonable terms and conditions; it is an
affirmative command mandating that housing authorities contract with tenants in a
particular way, not an indirect command to the federal agency overseeing the
housing authorities to withhold funding if the agencies have certain policies.
Isolated from the section’s other provisions, section 1437d(l)(2) may
appear to impose duties on housing agencies rather than confer rights upon tenants.
But I find that it does establish an individual right to a reasonable lease because it
requirements provided in the statute and the regulations.”); and Herring v. Chicago Housing Auth., No. 90 Civ. 3797, 1993 WL 489767, at *17 (N.D. Ill. Apr. 22, 1993) (report and recommendation) (concluding that section 1437d(l) “read in conjunction with the grievance procedures in § 1437d(k) and the HUD regulations,” creates a private right enforceable through section 1983). See also Delgado v. New York City Housing Auth., 888 N.Y.S.2d 19, 22 (1st Dep’t 2009) (following Concerned Tenants and finding no right to compliance with the obligatory lease terms described in section 1437d(l) in an action under this section).
207 Gonzaga, 536 U.S. at 287. 76

must be read in context. The preceding sentence, in section 1437d(l)(1), requires that leases be automatically renewed and “that nothing in this title shall prevent a resident from seeking timely redress in court for failure to renew”; two sentences later, in section 1437d(l)(4), the law requires that housing agencies give notice a specific number of days prior to the termination of leases; and, most importantly, section 1437d(k) ensures procedural protections for tenants who are being evicted for violations of the lease provisions governed by section 1437d(l)(2).208 It would make little sense for Congress to give tenants federal rights to procedural protections before they are evicted but no substantive right not to be evicted on unreasonable grounds. The text of these subsections is most reasonably read as providing tenants of public housing important substantive and procedural rights.
This lawsuit alleges that NYCHA has included in its lease addendum unreasonable terms and conditions, not that NYCHA has violated the terms or conditions of the lease. Because section 1437d(l)(2) gives the resident plaintiffs a right to a lease free from unreasonable terms and conditions, the suit alleges an infringement of a federal right actionable under section 1983.209
208 “42 U.S.C. § 1437d(k) mandates the creation of procedural rights for tenants faced with adverse action. The language of the statute unambiguously confers rights for the[ir] benefit.” Gammons, 523 F. Supp. 2d at 84.
209 Plaintiffs may also sue to enforce the valid and reasonable regulations that implement the statute. See Sandoval, 532 U.S. at 284. 24 C.F.R. § 966.4(d)(l)
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A dispute of fact exists about whether the “Highlights of House Rules, Lease Terms and Policy” constitutes a lease addendum. There is also a dispute of fact as to whether the provisions in that document – mandating that tenants cooperate with police officers and avoid “lingering” in common areas – are unreasonable. Because the question of these provisions’ reasonableness involves an inquiry into NYCHA’s practices and policies rather than into plaintiffs’ individual circumstances, the parties have not fully briefed the issue. Based on my evaluation of the arrest of Jackson and Johnson at the top of the stairwell and the corresponding vagueness of the prohibition against “lingering” in common areas, I am skeptical that NYCHA will be able to prevail at summary judgment. Nevertheless, so that both parties have the full opportunity to present their case, NYCHA’s motion is denied without prejudice and with leave to renew.
F. Plaintiffs’ Claim for Violation of Due Process Under the Fourteenth Amendment Plaintiffs’ seventh claim for relief alleges that defendants’ actions
have “directly and substantially interfered with some of plaintiffs’ most intimate
requires NYCHA to include in its leases a provision for the “reasonable accommodation of guests.” I question whether such a regulation is a valid interpretation of statutory language that prohibits the inclusion of “unreasonable terms and conditions.” Although it would be unreasonable to prohibit NYCHA residents from inviting guests into their homes, it is not clear to me that the absence of explicit permission to do so constitutes an “unreasonable term and condition.”
78

relationships,” in violation of the Fourteenth Amendment’s guarantee of due process.210 Although it was pled on behalf of all plaintiffs, their brief addresses
only the “constitutionally protected relationships” of Evans, Washington, and Littlejohn.211
According to plaintiffs’ evidence, Evans’ right to intimate
relationships has been impaired in the following ways: her father, who was stopped
by the NYPD while visiting her at her home, “no longer visits [her] at her residence; instead, he meets her outside her apartment building.”212 Her uncle, who
was also stopped by the police while visiting her, visits less frequently than he did before his stop.213 Evans no longer visits the close family friend, her “aunt,” whom
she had been visiting the night of her arrest and she “has stopped visiting other
210 Pl. Mem. at 30. See also Am. Compl. ¶¶ 272-275. Supreme Court doctrine has located the right to intimate association both in the Fourteenth Amendment – as “a fundamental element of personal liberty” – and in the First Amendment – “a right to associate for the purpose of engaging in . . . speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). Some cases implicate one of the two concerns and some implicate both. Plaintiffs have not pled a violation of the First Amendment and their briefing mentions it only in passing.
211 See Pl. Mem. at 31. The brief also addresses Shawne Jones’ rights, but as noted above, she has fully settled her claims.
212 Id. (quoting Evans Decl. ¶ 6). 213 See id. (citing Pl. Counter 56.1 ¶ 86).
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friends who live in NYCHA developments and no longer has close friends who are NYCHA residents.”214 Washington and Littlejohn are both residents of NYCHA buildings and have been close friends since childhood.215 Washington states that
since his arrest, he feels “no freedom at all” to come and go as he pleases and that as a result he visits Littlejohn less frequently than he used to.216
Plaintiffs argue that their “relationships with their family and close
friends are entitled to substantial constitutional protection,” and that is no doubt correct.217 But their allegation that defendants have interfered with those
relationships hinges entirely on the claim that defendants are unlawfully stopping and arresting plaintiffs and their friends and family members.218 That is to say,
214 Id. (citing Evans Decl. ¶¶ 7-8). 215 See id. at 32. 216 Pl. Counter 56.1 ¶¶ 187-190. 217 Pl. Mem. at 30. “[B]ecause the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. . . . [T]he constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty.” Roberts, 468 U.S. at 618. 218 See Am. Compl. ¶ 273; Pl. Mem. at 30-33.
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unlike the claims in the intimate association cases to which they cite, plaintiffs’
claims are grounded entirely in violations of the Fourth Amendment.219
Defendants point to Tenenbaum v. Williams, in which the Second
Circuit explained that
“where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion of Rehnquist, C.J.) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). “Substantive due process analysis is therefore inappropriate in this case . . . if [the] claim is ‘covered by’ the Fourth Amendment.” County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).220
The Fourth Amendment guarantees that “the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.” The force of the Amendment is at its zenith in
the context of the home:
219 See McKenna, 647 F.2d 332 (public housing authority’s policy requiring tenants to register their guests and obtain permission for overnight visitors unlawfully impinged upon tenants’ freedom of association); Patel v. Searles, 305 F.3d 130 (2d Cir. 2002) (plaintiff claimed that police concocted false evidence about him, leading to the complete ostracization of his family, but he was never arrested).
220 193 F.3d 581, 599 (2d Cir. 1999).
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Since we hold to the “centuries-old principle of respect for the privacy of the home,” Wilson v. Layne, 526 U.S. 603, 610 (1999), “it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people,” Minnesota v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring). We have, after all, lived our whole national history with an understanding of “the ancient adage that a man’s house is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown,” Miller v. United States, 357 U.S. 301, 307 (1958) (internal quotation marks omitted).221
Respect for the privacy of the home is the “central value of the Fourth Amendment.”222 Plaintiffs are both residents and non-residents of NYCHA; they
allege a pattern and practice of violating the Fourth Amendment; they intend to
seek certification as representatives of a class of similarly situated people. Because
the Fourth Amendment provides an explicit textual source of constitutional
protection against the government behavior that plaintiffs allege has interfered with
their most intimate relationships, their substantive due process allegations are
duplicative and unnecessary. Summary judgment is therefore granted to
defendants on plaintiffs’ seventh claim for relief.
G. Standing to Seek Injunctive Relief
NYCHA argues that plaintiffs lack standing to seek injunctive
221 Georgia v. Randolph, 547 U.S. 103, 115 (2006). 222 Id.
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relief because they cannot show that they are threatened with real and immediate – not conjectural or hypothetical – future injury.223 I addressed this issue extensively in Floyd v. City of New York and the same analysis applies here.224
NYCHA does not suggest that the resident plaintiffs lack standing to seek prospective relief regarding their residency-based claims. However, for the reasons articulated in Floyd, plaintiffs also have standing to seek injunctive relief regarding unlawful stops and arrests. Plaintiff Andrew Washington has been stopped inside a NYCHA building two times and arrested once.225 This is sufficient, as “the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”226 In addition, I note that defendants’ policies are targeted at NYCHA residents and people present on NYCHA property; the fact that plaintiffs are members of that relatively narrow community is relevant
223 See NYCHA Mem. at 23 (citing to City of Los Angeles v. Lyons, 461 U.S. 95 (1983)).
224 82 Fed. R. Serv. 3d 833, at *37 (S.D.N.Y. 2012). 225 See Pl. Mem. at 38 n.43. “The possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.” Nicacio v. United States Immigration & Naturalization Serv., 768 F.2d 1133, 1136 (9th Cir. 1985). 226 Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 53 (2006).
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to the standing inquiry.227 Plaintiffs who have already been stopped or arrested and regularly return to NYCHA property allege sufficient risk of future injury to satisfy Article III. V. CONCLUSION
Defendants' motions for summary judgment are granted in part and denied in part. The Clerk of the Court is directed to close these motions [Docket Nos. 173, 183].

Dated:

New York, New York October 9,2012

Shira A. Scheindlin 
 U.S.D.l. 


227 Cf Lyons, 461 U.S. at 111 ("Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.").
84

Appearances

For Plaintiffs:

Katharine E.G. Brooker, Esq. Daniel H. Wolf, Esq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000
Debo P. Adegbile, Esq. Christina Swarns, Esq. Johanna B. Steinberg, Esq. Jin Hee Lee, Esq. Johnathan Smith, Esq. Ria Tabacco, Esq. NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013 (212) 965-2200

Steven Banks, Esq. William D. Gibney, Esq. Steven Wasserman, Esq. Nancy Rosenbloom, Esq. Marlen S. Bodden, Esq. Legal Aid Society of New York 199 Water Street New York, New York 10038 (212) 577-3419

For Defendant City of New York:
Brenda E. Cooke Judson Vickers Wesley Bauman Lisa Richardson George Soterakis Pernell Telfort Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-0993

For Defendant NYCHA:
Steven Jay Rappaport, Esq. New York City Housing Authority 250 Broadway, 9th Floor New York, New York 10007 (212) 776-5152

85

 
 Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

KELTON DAVIS, WILLIAM TURNER, ALTAGRACIA HERNANDEZ, EDWIN LARREGUI, ROMAN JACKSON, KRISTIN JOHNSON, ELEANOR BRITT, ANTHONY ANDERSON, LASHAUN SMITH, SHAWNE JONES, HECTOR SUAREZ, ADAM COOPER, ANDREW WASHINGTON, P.L. BY HIS PARENT LISA PIGGOTT, DAVID WILSON, AND GENEVA WILSON, individually and on behalf of a class of all others similarly situated;
Plaintiffs,
-against-
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY;
Defendants.

i<H!fV-Q6 9 9
COMPLAINT [Class Action] DEMAND FOR JURY TRIAL
c^smzv,s

PRELIMINARY STATEMENT

,

-

1. This is a civil rights action in which Plaintiffs Kelton Davis, William Tume^Altagracia

Hernandez, Edwin Larregui, Roman Jackson, Kristin Johnson, Eleanor Britt, Anthony

Anderson, Lashaun Smith, Shawne Jones, Hector Suarez, Adam Cooper, Andrew

Washington, P.L., by his parent Lisa Piggott, David Wilson, and Geneva Wilson,

(collectively, "Named Plaintiffs"), on behalf of themselves and a class of similarly situated

individuals, seek to remedy the continuing violation of their rights secured by 42 U.S.C. §

1983; 42 U.S.C. § 1981; the Fourth and Fourteenth Amendments to the United States

Constitution; Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000(d); Title VIII of the

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 2 of 56
Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. ("Fair Housing Act"); the United States Housing Act, 42 U.S.C. § 1437, et seq:, the Constitution and laws of the State of New York; and the New York City Human Rights Law. 2. The Defendants, the City of New York ("City") and the New York City Housing Authority ("NYCHA") (collectively, "Defendants"), operating through and in conjunction with the New York City Police Department ("NYPD"), have implemented and continue to conduct, enforce and sanction an unlawful vertical patrol and trespass arrest policy which has resulted in a pattern and practice of illegal stops, seizures, questioning, searches, and false airests of residents of, and authorized visitors to, NYCHA residences. 3. A vertical patrol is a top-to-bottom walk-through patrol or "sweep" of hallways, stairwells, rooftops and landings, elevators, and other common areas of a NYCHA residence. (NYPD Patrol Guide 212-59 and 212-60). Under the vertical patrol policy and trespass arrest practices, New York City Police Department officers conduct roving pedestrian checkpoints in and around NYCHA residences, wherein they indiscriminately stop and question every person they observe, without objective individualized suspicion of a crime, and unlawfully arrest individuals for trespass without probable cause. 4. In addition to organized and directed vertical patrols in NYCHA residences, some trespass arrests are the result of less formal sweeps. 5. As a result, the number of trespass arrests in NYCHA residences has increased dramatically in recent years, without any reasoned justification or correlative rise in criminal activity. Instead, people with a legitimate reason for being on NYCHA property are being unconstitutionally detained and/or arrested on a routine basis.

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6. Defendants enforce the trespass laws in NYCHA residences in an unlawful manner, and without adequate training and controls, based on the race, ethnicity, and/or national origin of NYCHA residents and visitors.
7. Defendants implement and apply these policies, practices, and customs in an intentionally discriminatory and race-based manner by focusing the patrols and trespass arrest practices entirely on communities of color, such as NYCHA residences, where historically entrenched racial segregation ensures that African Americans and Latinos will bear the brunt of Defendants' unlawful actions. Defendants also discriminatorily acquiesce in, ratify, and fail to monitor or rectify NYPD officers' widespread unlawful practices because the victims are overwhelmingly African Americans and Latinos.
8. The rate of trespass stops, arrests, and enforcement in predominantly minority NYCHA residences is, on average, three times higher than surrounding areas with similar rates of crime. The decision to enforce trespass laws in this disproportionate way is not explained or justified by underlying crime levels in NYCHA residences. Moreover, where predominantly minority NYCHA residences are located in predominantly white or gentrifying neighborhoods, the disparities in trespass arrest rates increase even further.
9. The vertical patrol policy and trespass arrest practices do not affect only visitors who are stopped, seized, questioned, searched, and/or arrested; they also intimidate, threaten, and interfere with NYCHA residents' enjoyment of their homes on the basis of race, ethnicity, and/or national origin. In addition, Defendants' vertical patrol policy and trespass arrest practices interfere with the rights of NYCHA residents to freely associate with individuals whom they invite to their homes.

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10. The mandate of the NYPD is to safeguard community members from crime by providing security and otherwise delivering police services. Yet NYCHA residents are not provided protection on the same terms as other community members - instead, they and their invited guests are subject to police harassment and unfounded stops, seizures, questioning, searches, and arrests when merely trying to enter and leave their own homes. A recent report delivered to the NYPD Commissioner by NYCHA tenant leaders critiqued NYPD trespass enforcement and noted that residents feel like they live in "penal colonies." Citywide Council of Presidents of NYCHA, The Public Housing Police and Public Housing Resident Perceptions (Nov. 30, 2009) ("CCOP Statement"). The tenant leaders decried this type of "dehumanized policing" which, they allege, has become the norm instead of the exception in NYCHA residences. Id.
11. The vertical patrol policy and trespass arrest practices, as applied, are unreasonable conditions that deny NYCHA residents their rights to exclusive use and occupancy of their leased unit, and their right to entertain guests in their home.
12. The pattern and practice of police activity in NYCHA buildings is so aggressive and well known that some people are afraid to visit NYCHA residents. As such, this policy has prevented many NYCHA residents from maintaining and fostering close familial and personal relationships without unjustified government interference.
13. The Named Plaintiffs seek to represent a certified class for the purpose of obtaining injunctive and declaratory relief only. Specifically, the Named Plaintiffs seek a class-wide judgment declaring that Defendants' policies, practices, and/or customs described herein violate Plaintiffs' statutory and constitutional rights under federal, state, and local law. The Named Plaintiffs further request a class-wide injunction enjoining Defendants from

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continuing such policies, practices, and/or customs. In addition, the Named Plaintiffs seek compensatory damages for their individual claims, an award of attorneys' fees and costs, and such other relief as this Court deems equitable and just.
JURISDICTION AND VENUE 14. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4), as
this action seeks redress for violations of Plaintiffs' rights under the United States Constitution and federal civil rights laws; and by 42 U.S.C. § 3613(a), as Plaintiffs seek relief with respect to discriminatory housing practices in violation of the Fair Housing Act. 15. Plaintiffs' claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202. 16. This Court also has supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a), over the Plaintiffs' claims under state and local laws because they are so related to the claims within the original jurisdiction of this Court that they form part of the same case or controversy. 17. Venue is proper in the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1391(b), because a substantial part of the events that gave rise to the claims alleged in this complaint occurred in the Counties of the Bronx and New York. In addition, Defendants conduct business and maintain their principal place of business in the Counties of the Bronx and New York.
PARTIES Plaintiffs 18. The Plaintiff Class consists of two subclasses: the "Arrested Plaintiffs" and the "Resident
Plaintiffs."

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19. Arrested Plaintiffs are African-American and Latino NYCHA residents or family members, guests or visitors of NYCHA residents, who were or will be unlawfully stopped, seized, questioned, searched and/or falsely arrested for trespass in or around a NYCHA residence without any reasonable, articulable suspicion or probable cause that they were engaging in criminal activity and on the bases of their race, ethnicity, and/or national origin. All of the Arrested Plaintiffs are still subject to Defendants' unlawful conduct because they continue to lawfully reside in, or visit, NYCHA residences.
20. The Resident Plaintiffs are African-American and Latino NYCHA residents who live in buildings subject to the vertical patrol policy and trespass arrest practices. They, their family members, guests, and authorized visitors have been, or will be, unlawfully stopped, seized, questioned, searched and/or arrested for trespass by NYPD officers when visiting Resident Plaintiffs in NYCHA residences and on the bases of their race, ethnicity, and/or national origin.
21. Plaintiff KELTON DAVIS is an African-American resident of 480 St. Nicholas Avenue in the City of New York, Borough of Manhattan.
22. Plaintiff WILLIAM TURNER is an African-American resident of 77 Locust Hill Avenue in the City of Yonkers, New York.
23. Plaintiff ALTAGRACIA HERNANDEZ is a Latina resident of the NYCHA Carver Houses at 60 East 102nd Street in the City of New York, Borough of Manhattan.
24. Plaintiff EDWIN LARREGUI is a Latino resident of 5045 Linden Road in the City of Rockford, Illinois.
25. Plaintiff ROMAN JACKSON is an African-American resident of 1377 South Beverly Glen Blvd. in the City of Los Angeles, California.

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26. Plaintiff ELEANOR BRITT is an African-American resident of the NYCHA Taft Rehabs at 131 St. Nicholas Avenue in the City of New York, Borough of Manhattan.
27. Plaintiff KRISTIN JOHNSON is an African-American resident of 236 Frederica Avenue in the City of Jackson, Mississippi.
28. Plaintiff SHAWNE JONES is an African-American resident of the NYCHA Langston Hughes Houses at 301 Sutter Avenue in the City of New York, Borough of Brooklyn.
29. Plaintiff LASHAUN SMITH is an African-American resident of 441 Frizzell Avenue in the City of Norfolk, Virginia.
30. Plaintiff ANTHONY ANDERSON is an African-American resident of 348 East 110th Street in the City of New York, Borough of Manhattan.
31. Plaintiff HECTOR SUAREZ is a Latino resident of the NYCHA Louis H. Pink Houses at 1211 Loring Avenue in the City of New York, Borough of Brooklyn.
32. Plaintiff ADAM COOPER is an African-American resident of NYCHA Louis H. Pink Houses at 1260 Loring Avenue in the City of New York, Borough of Brooklyn.
33. Plaintiff P.L., by his parent LISA PIGGOTT, is an African-American resident of NYCHA's Eastchester Gardens at 1236 Burke Avenue in the City of New York, Borough of the Bronx.
34. Plaintiff ANDREW WASHINGTON is an African-American resident of NYCHA's Eastchester Gardens at 1240 Burke Avenue in the City of New York, Borough of the Bronx.
35. Plaintiff DAVID WILSON is an African-American resident of 55 Brooklyn Avenue in the City of New York, Borough of Brooklyn.
36. Plaintiff GENEVA WILSON is an African-American resident of NYCHA's Randolph Houses at 255 West 114th Street in the City of New York, Borough of Manhattan.

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Defendants 37. Defendant City is a municipal entity created and authorized under the laws of the State of
New York. It is authorized under the laws of the State of New York to maintain, operate, and govern a police department, the NYPD, which acts as its agent in the area of law enforcement and for which it is ultimately responsible. The law enforcement activities of NYPD and NYCHA are supported in part by federal funds. 38. Defendant NYCHA is a public housing authority in the City that owns and operates housing for low-income residents in all five boroughs of New York City. NYCHA is responsible for the design and implementation of policing and security policies in NYCHA residences. NYCHA's principal offices are located at 250 Broadway, New York, New York 10007.
CLASS ACTION ALLEGATIONS 39. The Named Plaintiffs bring this action on behalf of themselves, and all others similarly
situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure. 40. The Plaintiff Class includes two subclasses described above at paragraphs 19-21. 41. The Named Plaintiffs representing the Resident Plaintiffs are: KELTON DAVIS;
ALTAGRACIA HERNANDEZ; ROMAN JACKSON; ELEANOR BRITT; ANDREW WASHINGTON; P.L. by his parent LISA PIGGOTT; SHAWNE JONES; HECTOR SUAREZ, and GENEVA WILSON. 42. The Named Plaintiffs representing the Arrested Plaintiffs are: WILLIAM TURNER; EDWIN LARREGUI; ROMAN JACKSON; KRISTIN JOHNSON; ANDREW WASHINGTON; P.L. by his parent LISA PIGGOTT; LASHAUN SMITH; ANTHONY ANDERSON; ADAM COOPER, and DAVID WILSON.

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43. This action is properly maintainable as a class action because the requirements of Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure are met, as explained below.
44. The class and each subclass are so numerous that joinder of all members is impracticable. Upon information and belief, there are presently over 400,000 residents in NYCHA residences, over 95% of whom are nonwhite. In 2008 alone, there were thousands of arrests for trespass in NYCHA residences and the overwhelming majority of those arrested were African American or Latino.
45. Joinder is also impracticable because, upon information and belief, many potential members of the class are not aware that their constitutional, statutory, and common law rights have been violated and that they have the right to seek redress in court. Further, future members of the class are unknown and therefore cannot practically be joined individually. There is no appropriate avenue for the protection of these potential class members' constitutional and statutory rights other than a class action.
46. The claims alleged on behalf of the Named Plaintiffs as class representatives raise questions of law or fact common to the Plaintiffs, and each subclass, and these questions predominate over individual questions. These common questions include, but are not limited to: (a) whether NYPD officers engage in a policy, practice and/or custom of stopping, seizing, questioning, searching, and/or arresting members of the class for trespass in the absence of reasonable, articulable suspicion or probable cause; (b) whether the NYPD has a discriminatory policy, practice, and/or custom of unconstitutional stops, seizures, questioning, searches, and arrests in NYCHA housing that is motivated by the class members' race, ethnicity and/or national origin; (c) whether Defendant City has encouraged, sanctioned, and failed to rectify unconstitutional stops and false arrests for trespass by NYPD

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officers, and whether such acts and omissions have caused constitutional violations against class members; (d) whether Defendant City has failed to adequately train, supervise, and discipline NYPD officers in connection with unconstitutional stops and false arrests for trespass, and whether such acts and omissions have caused constitutional violations against class members; (e) whether Defendants City and NYCHA have discriminated against African-American and Latino residents in the provision of services in connection with their rental of a dwelling because of their race; (f) whether Defendants City and NYCHA have discriminated against African-American and Latino residents of NYCHA by intimidating, threatening, and/or interfering with their enjoyment of a dwelling because of their race; (g) whether Defendants' vertical patrol policy and trespass arrest practices in NYCHA residences unreasonably interfere with tenants' ability to entertain guests and visitors; and (h) whether Defendants' vertical patrol policy and trespass arrest practices in NYCHA residences unconstitutionally interfere with familial, business, and other relationships. 47. The claims of the Named Plaintiffs are typical of the class and each subclass they seek to represent, as they all allege violations related to the existence and implementation of the NYPD's vertical patrol policy and trespass arrest practices in and around NYCHA residences. 48. The legal theories under which the Plaintiffs seek declaratory and injunctive relief are the same or similar to those on which all members of the class and each subclass will rely, and the harms suffered by the Plaintiffs are typical of the harms suffered by all members of the class and each subclass. 49. The Named Plaintiffs are all African-American or Latino residents of NYCHA housing or frequent guests of NYCHA residents. As long as the Defendants continue their policy,
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practice, and/or custom of discriminatorily targeting NYCHA residences for unconstitutional stops, seizures, questioning, searches, and arrests, the named Plaintiffs are, and will remain, at high risk of being illegally stopped, seized, questioned, searched, or arrested by the NYPD. 50. The Named Plaintiffs will fairly and adequately protect the interests of other class members. Plaintiffs' counsel includes attorneys from the NAACP Legal Defense and Educational Fund, Inc., the Legal Aid Society of New York, and Paul, Weiss, Rifkind, Wharton & Garrison LLP — all of whom are experienced in federal class-action litigation, including constitutional and civil rights litigation, and have the resources necessary to pursue this litigation. 51. This action is properly maintainable as a class action under Rule 23(b)(1)(A) of the Federal Rules of Civil Procedure because prosecuting separate actions by or against individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class. 52. This action is properly maintainable as a class action under Rule 23(b)(1)(A) of the Federal Rules of Civil Procedure because prosecuting separate actions by or against individual class members would create a risk of adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. 53. This action is properly maintainable as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure because Defendants have acted and/or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or
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corresponding declaratory relief with respect to the Named Plaintiffs and the class as a whole. The class members are entitled to injunctive relief to end Defendants' policy, practice, and custom of unconstitutional, discriminatory, and otherwise unlawful trespass enforcement. 54. This action is also properly maintainable as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure because the questions of law and fact common to members of the class predominate over questions affecting only individual members and a class action is superior to other available methods for the fair and efficient resolution of this controversy.
FACTS I. Facts Regarding the Named Plaintiffs
A. Plaintiffs Kelton Davis and William Turner 55. Kelton Davis is a 42-year-old African-American male who lived in NYCHA public housing
for over nine years. Mr. Davis lived in NYCHA's Drew Hamilton Houses at 2698 Eighth Avenue, Apt. 5G, in the Borough of Manhattan. 56. Mr. Davis is confined to a wheelchair. Many friends and visitors come to his home due to his limited mobility. On repeated occasions, Mr. Davis's friends and visitors have been unjustifiably stopped, seized, questioned, searched, and/or arrested for trespass while lawfully visiting, or attempting to visit, Mr. Davis. 57. William Turner is a 39-year-old African-American male. Mr. Turner is a consultant to the New York Department of Education, and has been employed in this capacity since approximately 1999. Mr. Turner is a friend of, and authorized visitor to, Kelton Davis. 58. On January 27, 2008, Mr. Turner visited Mr. Davis at his apartment in the Drew Hamilton Houses. At approximately 11:30 p.m., Mr. Turner left Mr. Davis's apartment. Shortly after
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exiting the elevator in Mr. Davis's building, Mr. Turner was approached and stopped in the lobby of the building by four NYPD officers. At the time, Mr. Davis was merely walking out of the building and was not engaged in any activity that might indicate or imply that criminal activity was afoot. 59. One of the police officers immediately asked Mr. Turner to present identification. Mr. Turner complied with this request. The same officer asked Mr. Turner where he was coming from. Mr. Turner explained that he had just left Mr. Davis's apartment and showed the police officers a CD he had recorded during his visit. Surrounded by four armed NYPD officers, Mr. Turner did not believe he was free to leave and asked the officer who initially approached him whether there was a problem. The officer told him to "shut up." The officer then pushed Mr. Turner against a wall and proceeded to search him. The officer did not find anything in the search. Mr. Turner was arrested and charged with trespass. 60. None of the NYPD officers who questioned, detained, and ultimately arrested Mr. Turner ever knocked on Mr. Davis's door to verify that Mr. Turner was, in fact, a visitor of Mr. Davis and had just left Mr. Davis's apartment. Mr. Davis did not become aware of Mr. Turner's arrest until the following day when Mr. Turner informed him of the arrest following his release. 61. Mr. Turner was handcuffed, arrested, taken to the 32nd Precinct and placed in a holding cell with at least five other people from approximately midnight on January 28, 2008 until 5:00 a.m. the next day, when he was given a desk appearance ticket and released. Mr. Turner had to appear in court approximately four times over a six-month period before the case was ultimately dismissed.
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62. As a direct result of the arrest, Mr. Turner suffered a loss of income and work opportunity, including, but not limited to, teaching with the New York City Board of Education. Because of Mr. Turner's arrest, he was placed on the Department of Education's "ineligible inquiry list" and was suspended from all work with the Department of Education pending resolution of the case. For almost eight months, between his arrest in January 2008 and the dismissal of his case in August 2008, Mr. Turner lost the wages he would have earned as a consultant to the New York City Department of Education. Mr. Turner was also prohibited from his regular paying work with various youth organizations. After his case was dismissed, Mr. Turner resumed work with the Department of Education but the volume of his work and hours decreased significantly and never returned to the level of January 2008. Mr. Turner suffered pain, suffering, humiliation, emotional distress, and loss of liberty as a result of his unlawful arrest and Defendants' actions.
63. Many of Mr. Davis's visitors have been stopped and detained by NYPD officers in the lobby and hallways of his apartment building. In rare instances, an NYPD officer will knock on Mr. Davis's door to verify that someone recently left his apartment or was coming to visit him. On numerous occasions, however, as was the case with Mr. Turner's arrest, NYPD officers did not attempt to verify that Mr. Davis had a visitor or was expecting a visitor. As a result of the recurrent unlawful stops and searches in his building, several of Mr. Davis's visitors have been arrested for trespass, and numerous visitors refused to return to his building. His relationship with Mr. Turner, in particular, suffered significantly because Mr. Turner was hesitant to return to Mr. Davis's building for fear of being subjected to another unlawful stop and/or arrest.
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64. On several occasions, Mr. Davis has been stopped and detained in his own lobby at the Drew Hamilton Houses during a vertical patrol. During these encounters, Mr. Davis has had to prove his identity and his place of residence in order to avoid arrest and enter his own apartment. Mr. Davis has suffered pain, suffering, humiliation, and emotional distress as a result of Defendants' actions. B. Plaintiffs Roman Jackson, Kristin Johnson, and Eleanor Britt
65. Roman Jackson is a 25-year-old African-American male who lived in NYCHA public housing for over 20 years. At the time of his arrest, Mr. Jackson lived with his grandmother, Eleanor Britt, in NYCHA's St. Nicholas Houses at 131 St. Nicholas Avenue, in the Borough of Manhattan.
66. Although Mr. Jackson is now employed with the Annenberg Foundation in Los Angeles, California, at the time of his arrest he was employed as a research assistant with the Harlem Children's Zone, a non-profit education organization in New York City.
67. Kristin Johnson is a 23-year-old African-American female who lived at 1738 Crotona Park in the City of New York, Borough of the Bronx, at the time of her arrest. Mr. Jackson and Ms. Johnson are friends.
68. Eleanor Britt is a 61-year-old African-American woman who has lived in NYCHA public housing for over 33 years. Ms. Britt is the grandmother and former guardian of Roman Jackson. She still lives in the building where Mr. Jackson was arrested.
69. On January 31, 2009, Kristin Johnson, was an invited guest to Mr. Jackson's home. When Mr. Jackson and Ms. Johnson were outside the apartment, they were approached and stopped by three NYPD officers. The officers asked Mr. Jackson what he and Ms. Johnson were doing, and he explained that he was a building resident and that he and Ms. Johnson were
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simply having a conversation. Neither Mr. Jackson nor Ms. Johnson was engaged in any activity that might indicate that criminal activity was afoot. The officers demanded that Mr. Jackson and Ms. Johnson stand up and put their hands up against the wall. The officers then patted them both down and searched Ms. Johnson's bags. At no time during their interaction with the officers did Mr. Jackson or Ms. Johnson feel free to leave. The officers did not recover any contraband from Mr. Jackson or Ms. Johnson. 70. One of the officers then asked Mr. Jackson and Ms. Johnson for identification. Mr. Jackson explained that he did not have his identification on his person, but that it was in his apartment, which was located in the building. Mr. Jackson offered to take the officers to his apartment in order to provide them with the requested identification and demonstrate that he was a building resident. The officer denied this request. Ms. Johnson provided the officers with her identification. 71. Mr. Jackson and Ms. Johnson were handcuffed and placed under arrest for trespass. The officers took them outside and placed them into a police van. Once they were inside of the van, Mr. Jackson again tried to explain to the officers that he was a building resident and that his identification was in his apartment. 72. Two of the officers exited the van and went to retrieve Mr. Jackson's identification from his apartment. When the officers went to the apartment, Mr. Jackson's grandmother, Eleanor Britt, opened the door and explained that Mr. Jackson was her grandson and that he lived in her home. Ms. Britt gave the officers Mr. Jackson's New York State driver's license, which plainly stated that Mr. Jackson lived in the building. 73. Despite the fact that the arresting officers had determined that Mr. Jackson was a building resident, Mr. Jackson and Ms. Johnson were transported to the police station for processing.
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They were fingerprinted, photographed, and locked in a holding cell with other people for almost six hours until they were eventually issued desk appearance tickets. On March 2, 2009, the New York County District Attorney's Office declined to prosecute the cases against Mr. Jackson and Ms. Johnson. 74. Mr. Jackson and Ms. Johnson suffered pain, suffering, humiliation, emotional distress, and loss of liberty emanating from their unlawful arrests and Defendants' actions. Ms. Britt suffered pain, suffering, humiliation, and emotional distress as a result of Defendants' actions.
C. Plaintiffs Edwin Larregui and Altagracia Hernandez 75. Edwin Larregui is a 39-year-old Latino male who lived at 1265 Girard Avenue in the City of
New York, Borough of the Bronx, at the time of his arrest. 76. Altagracia Hernandez is the grandmother of Edwin Larregui's wife. She has lived in the
NYCHA Carver Houses at 60 East 102nd Street for 35 years. 77. On the evening of November 9, 2008, Mr. Larregui was visiting Altagracia Hernandez at her
home. As he was leaving Ms. Hernandez' building, Mr. Larregui was stopped by three undercover NYPD officers immediately outside of the building lobby. As Mr. Larregui attempted to walk by the officers, he was directed to stop. One officer grabbed Mr. Larregui by the arm and walked him back into the building lobby where he was surrounded by all three officers. Mr. Larregui was seized and detained by the officers, and did not feel free to leave. 78. Although Mr. Larregui was merely leaving Ms. Hernandez's building and was not engaged in any activity that might indicate that criminal activity was afoot, he was asked by one of the officers if he was on the NYCHA premises to buy drugs. Mr. Larregui explained that he was
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visiting Ms. Hernandez, in Apartment 6A. Nonetheless, the officers grabbed him, threw him against a wall and searched inside his pockets. 79. After the officers failed to find contraband on Mr. Larregui*s person, Mr. Larregui presented his identification. At the time of this incident, Mr. Larregui still carried out-of-state identification. 80. Mr. Larregui was detained in the lobby while one officer stated that he was going to check apartment 6A to determine whether Mr. Larregui was an authorized visitor. Officers went to the apartment but did not ask to speak to Altagracia Hernandez; nor did they identify Mr. Edwin Larregui to the individual who answered the door. 81. Mr. Larregui was handcuffed and arrested for trespass. Mr. Larregui was then taken to a police precinct and strip searched. Nothing was recovered pursuant to the search. Mr. Larregui was then taken to a second police precinct where he was strip searched for a second time. Again, nothing was recovered. Mr. Larregui was then taken to Central Booking where he was strip searched for a third time and placed in a holding cell. 82. Mr. Larregui was arrested at approximately 7:00 p.m. on November 9, 2008. He remained in police custody and did not see a judge until the afternoon of November 10, 2008, at which time he was released. 83. As a result of his arrest, Mr. Larregui was unable to attend work on November 10, 2008 because he was in police custody. He was suspended from his job for two weeks as a result. Mr. Larregui suffered humiliation, pain and suffering, emotional distress, and loss of liberty emanating from Defendants' actions including, but not limited to, his unlawful seizure and arrest, as well as the three consecutive strip searches.

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84. Other family members of Ms. Hernandez, including her daughter, have been similarly stopped, questioned, and detained by NYPD officers on NYCHA premises without individualized reasonable suspicion that she was engaged in criminal activity. Ms. Hernandez suffered pain and suffering, humiliation, and emotional distress as a result of Defendants' actions. D. Plaintiffs Lashaun Smith and Shawne Jones
85. Shawne Jones is a 34-year-old African-American female who has lived in NYCHA public housing all of her life. Ms. Jones has been a resident of the NYCHA Langston Hughes Apartments at 301 Sutter Avenue, Apartment 6D for 20 years.
86. Lashaun Smith is a 31-year-old African-American male who lived in New York City for over 29 years. Mr. Smith currently resides in Norfolk, Virginia.
87. Mr. Smith spent the night at Ms. Jones' home on May 10, 2009. When leaving Ms. Jones' apartment on the morning of May 11, 2009, Mr. Smith was stopped by a police officer on the first floor of the building. Mr. Smith was not engaged in any behavior that might indicate that criminal activity was afoot.
88. The officer seized and detained Mr. Smith, then escorted him into the lobby of the building, where two other NYPD officers were waiting. The three officers questioned Mr. Smith about where he was coming from, and he explained that he had just left the home of his friend, Shawne Jones, in Apartment 6D.
89. Shawne Jones was still asleep and did not go to the door when officers came to her apartment. If the officers had spoken to Ms. Jones, she would have verified that Mr. Smith was an authorized visitor who had just spent the night at her apartment. The officers arrested Mr. Smith for trespass.
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90. Mr. Smith was arrested at approximately 10:30 a.m. on May 11, 2009. Mr. Smith spent the entire night in jail and first saw a judge at approximately 8:00 a.m. on May 12, 2009. The charges were dismissed at arraignment.
91. Due to his arrest and delayed return to Virginia, Mr. Smith missed work. As a result, Mr. Smith had his hours at his job reduced from approximately 35 hours per week to one shift or less per week. Mr. Smith suffered pain and suffering, humiliation, emotional distress, and loss of liberty as a result of his unlawful stop, seizure, and arrest and Defendants' actions. Ms. Jones suffered pain and suffering, humiliation, and emotional distress as a result of Defendants' actions. E. Plaintiff Anthony Anderson
92. Anthony Anderson lives a few blocks from NYCHA's Thomas Jefferson Houses at 325 East 112th Street, where his sister-in-law lives with her two children.
93. Mr. Anderson routinely picks up and drops off his niece and nephew at his sister-in-law's home.
94. On January 18th, 2009, Mr. Anderson had spent the day with his 10-year-old niece and then dropped her off at his sister-in-law's apartment. As he exited the building, he held the door for three NYPD officers who were entering the building. Mr. Anderson was not engaged in any activity that might indicate criminal activity was afoot. Nevertheless, the officers stopped, seized, and detained Mr. Anderson, made him step back into the building and then asked him where he was coming from. From that point forward, Mr. Anderson did not feel free to leave. Mr. Anderson explained to the officers that he had just left his sister-in-law's apartment and identified her apartment number for the officers who were questioning him.
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95. A police officer asked for Mr. Anderson's identification. As Mr. Anderson pulled out his wallet, he asked the officer to look at his identification. The officer immediately placed Mr. Anderson in handcuffs. Upon information and belief, the officers never looked at Mr. Anderson's identification.
96. While Mr. Anderson was detained in the lobby, two police officers went to his sister-in-law's apartment and asked if she was expecting anybody. She said she was expecting her son, who was outside at the time, but did not mention Mr. Anderson since he had already departed and she therefore was no longer expecting him.
97. The officers returned downstairs and Mr. Anderson was placed under arrest for trespass. Mr. Anderson was taken into custody and incarcerated for nearly two weeks. The charges against him were ultimately dismissed.
98. At the time of this incident, Mr. Anderson was employed as a private security guard. Because he missed 12 days of work while he was incarcerated, Mr. Anderson's employment was terminated. He has been unemployed since his release from jail in January. In addition to the loss of employment, Mr. Anderson suffered pain and suffering, humiliation, emotional distress, and loss of liberty emanating from his unlawful stop, seizure, and arrest. F. Plaintiffs Adam Cooper and Hector Suarez
99. Hector Suarez is a 55-year-old Latino male who has lived in NYCHA public housing for 14 years. Mr. Suarez is a resident of the NYCHA Louis H. Pink Houses at 1211 Loring Avenue in the City of New York, in the Borough of Brooklyn.
100. Adam Cooper is a 32-year-old African-American male who has lived in NYCHA public housing for over three years. Mr. Cooper currently resides in NYCHA's Louis Pink Houses at 1260 Loring Avenue. Mr. Cooper lives with his girlfriend, who is Hector Suarez's niece.
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101. In December of 2008, Mr. Suarez suffered serious back injuries for which he underwent regular hospital treatment. As a result, his mobility was limited and he often depended on family members and friends to deliver meals to his home.
102. On December 14, 2008, upon Mr. Suarez's request, Mr. Cooper delivered a hot meal to Mr. Suarez's apartment at approximately 6:00 p.m. As Mr. Cooper was leaving the building he was stopped by three NYPD officers and asked where he was coming from. Mr. Cooper possessed no contraband and was simply leaving the building after delivering a meal to his friend, Mr. Suarez. He was not engaged in any behavior that might indicate criminal activity was afoot. At no time during his interaction with the officers did Mr. Cooper feel free to leave.
103. Mr. Cooper explained that he was coming from visiting his girlfriend's uncle upstairs and told officers the apartment number. Mr. Cooper began to leave and the NYPD officers seized and detained him by pulling on his coat. The officers failed to go upstairs and check with Mr. Suarez. Instead they arrested Mr. Cooper and charged him with trespass.
104. Mr. Cooper was in police custody for three days. The charges were later dismissed. As a direct result of his arrest, Mr. Cooper missed work, as he was still in police custody. Mr. Cooper suffered pain and suffering, humiliation, emotional distress, and loss of liberty emanating from his unlawful stop, seizure, and arrest. Mr. Suarez suffered pain and suffering, humiliation, and emotional distress as a result of Defendants' actions. G. Plaintiffs Andrew Washington and P.L. by his parent Lisa Piggott
105. Lisa Piggott is the mother and legal guardian of P.L., a 17-year-old African-American male who has lived in NYCHA housing for his entire life. P.L. lives in NYCHA's Eastchester Gardens at 1236 Burke Avenue with his mother, Ms. Piggott.
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106. Andrew Naiku Washington is an 18-year-old African-American male who has lived in NYCHA public housing for his entire life. Mr. Washington lives in NYCHA's Eastchester Gardens at 1240 Burke Avenue with his grandmother, Regina McCray.
107. P.L. and Andrew Washington are lifelong friends and neighbors. They are both currently enrolled as high school students. P.L. and Mr. Washington often travel between each other's homes. Although they have different addresses, P.L. and Mr. Washington actually live in the same physical building with separate entrances across a shared courtyard.
108. On the afternoon of June 29, 2009, P.L. spent time with Mr. Washington in his apartment. When Mr. Washington left, he was stopped by two NYPD officers as he was exiting the lobby of P.L.'s building. Mr. Washington was not engaged in any behavior that might indicate criminal activity was afoot. Without making any inquiry of Mr. Washington, the officers stopped Mr. Washington, pushed him back into the building and immediately placed one handcuff on his wrist. Officers seized and detained Mr. Washington who, at that point, did not feel free to leave.
109. After placing one handcuff on Mr. Washington, the officers began questioning him. The officers asked where Mr. Washington was coming from. He explained that he had been visiting his friend in Apartment 5B. The officers then escorted Mr. Washington upstairs to Apartment 5B.
110. Lisa Piggott, P.L.'s mother, answered the door when the police officers knocked. The officers asked Ms. Piggott if she knew Mr. Washington and she identified Mr. Washington as an authorized visitor. Officers continued to question Ms. Piggott, however, and asked her to identify Mr. Washington by name. Unaware that Mr. Washington had identified himself as "Andrew," to the officers, Ms. Piggott identified Mr. Washington by his commonly used
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middle name, Naiku. Noting the discrepency, the officers took Mr. Washington into a nearby stairwell where he was frisked and arrested for trespass. Mr. Washington was never given the opportunity to show the officers identification demonstrating that he lived in the section of the building located across the courtyard. 111. Mr. Washington has been stopped and questioned routinely by NYPD officers in Eastchester Gardens while going to and from his own home and the homes of his friends and neighbors. He still lives in the same building and visits P.L. regularly. 112. Mr. Washington's case was ultimately dismissed. Mr. Washington was held in custody overnight. Mr. Washington suffered pain and suffering, humiliation, emotional distress, and loss of liberty emanating from his unlawful stop, seizure, and arrest. 113. P.L.was also unlawfully arrested for trespass in June 2009 when visiting a nearby friend in a NYCHA residence. His case was also dismissed. P.L. suffered pain and suffering, humiliation, emotional distress, and loss of liberty emanating from his unlawful stop, seizure, and arrest.
H. David Wilson and Geneva Wilson 114. David Wilson is a 53-year-old African-American male who lived at 55 Brooklyn Avenue in
the City of New York, Borough of Brooklyn, at the time of his arrest. 115. Geneva Wilson is the 79-year-old aunt of David Wilson. She lives at 255 West 114th Street
in the City of New York, Borough of Manhattan. She has lived on that block for over 40 years. 116. In light of his aunt's advanced age, Mr. Wilson regularly visits her to make sure she has
everything she needs and to help her manage her day-to-day activities.
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117. On the night of November 14, 2009, Mr. Wilson was going to visit his aunt at her home. Before he could get there, however, Mr. Wilson was stopped by two plainclothes NYPD officers.
118. The NYPD officers asked Mr. Wilson where he was going, at which point Mr. Wilson told the NYPD officers about his aunt. The NYPD officers kept asking Mr. Wilson questions and would not let him go. He also showed the NYPD officers his identification. Mr. Wilson did not feel free to leave.
119. One of the NYPD officers told Mr. Wilson they were going to his aunt's house. At this point, Mr. Wilson was placed in handcuffs and detained with the other officer.
120. Geneva Wilson was home at the time and no NYPD officer knocked on her door or rang her doorbell.
121. The NYPD officer, however, alleged that nobody was home at Geneva Wilson's apartment and the NYPD officers proceeded to place Mr. Wilson under arrest.
122. Mr. Wilson was searched and no contraband was recovered. His bags were searched and no contraband was recovered.
123. Mr. Wilson remained in policy custody and did not see a judge until the following day. 124. On November 19, 2009, the charges against Mr. Wilson were dismissed when his aunt,
Geneva Wilson, came to the courthouse to verify that he was visiting her. He remained incarcerated until the charges were dismissed. 125. While Mr. Wilson was incarcerated, he missed a job interview. Mr. Wilson suffered pain and suffering, humiliation, emotional distress, and loss of liberty emanating from his unlawful seizure and arrest. Ms. Wilson suffered pain and suffering, humiliation, and emotional diress as a result of Defendants' actions.
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II. Vertical Patrols and a Pattern and Practice of Unconstitutional Stops, Seizures, and Arrests in NYCHA buildings
126. The experiences of the Named Plaintiffs are the direct result of the NYPD's policy, practice, and custom of operating roving pedestrian checkpoints, otherwise known as "vertical patrols" or "vertical sweeps," in NYCHA residences.
127. The NYPD first implemented vertical patrols in 1991. The protocol was adopted to address crime, and specifically drug activity, in NYCHA residences. It is considered an "important component of the [NYPD^s drug control strategy." (NYPD Patrol Guide Procedure 212-59).
128. In the course of a vertical patrol, multiple NYPD officers approach anyone they observe in the common areas of a building and require them either to present identification proving their residency in the building or to affirmatively establish a connection to a specific building resident. If an individual stopped and seized pursuant to a vertical patrol fails to identify himself to the satisfaction of the officer, or is unable to demonstrate to the satisfaction of the officer that he or she is going to, or coming from, a visit to a resident or his or her own home, he or she is arrested for trespass. If the individual has not already been searched for contraband pursuant to the seizure, they are subjected to a search for contraband pursuant to their arrest.
129. Defendants' policy amounts to a roving pedestrian checkpoint wherein NYPD officers indiscriminately stop, seize, question, and even search individuals in the common areas of NYCHA residences in the absence of individualized objective facts.
130. In 2005, the NYPD Housing Bureau alone conducted approximately 181,000 vertical patrols in NYCHA residences, and an average of 142,000 annually over the previous six
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years. Testimony of Chief Joanne Jaffe, NYPD Housing Bureau, New York City Council Committee on Public Safety and Subcommittee on Public Housing (November 2, 2006) at 24. These figures understate the actual number of vertical patrols, however, since NYPD officers outside of the Housing Bureau also patrol NYCHA residences, also conduct vertical patrols in NYCHA residences, and also arrest people for trespass in NYCHA residences. 131. In addition to directed or organized vertical sweeps in NYCHA residences, NYPD officers also sweep NYCHA residences for alleged trespassers on an informal basis. 132. Trespassing in public housing is a Class B misdemeanor under subsection (e) of NYPL §140.10, which was enacted in 1992, shortly after the inception, of the vertical patrol program. (L. 1992 ch.434). 133. The number of trespass arrests in NYCHA residences has surged. The City has not provided any legitimate and neutral explanation for this rise in the arrest rate. 134. Officers who make trespass arrests are now required by the local District Attorney's office to complete a special supporting deposition that sets forth the officer's observations and basis for stopping, seizing, and arresting an individual. See, e.g.. Supporting Deposition SD-4 for NYPL §§ 140.15, 140.10 (e) and 140.05, rev'd 04/06/2009 ("Manhattan SD"); Supporting Deposition SD-4 for NYPL §§ 140.15 & 140.10(e), rev'd 06/05/2007 ("Bronx SD"); Supporting Deposition; Criminal Trespass Fact Sheet ("Brooklyn SD"). 135. In Manhattan and the Bronx, the "Observations" section of the supporting deposition merely lists the location where the defendant was observed, the existence of conspicuously posted signs, and whether the entry was locked. Id. atfflf1-3. An officer is not required to identify individualized, objective facts supporting suspicion that criminal activity is afoot. These supporting depositions are reflective of, and consistent with, Defendants' policy,
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practice and custom of indiscriminately stopping, questioning, and seizing every person they observe in NYCHA residences without individualized reasonable suspicion. 136. The NYPD Patrol Guide on vertical patrols provides NYPD officers no guidance on who is to be stopped, seized, questioned, searched or arrested for trespass. It simply directs uniformed patrol officers to "take note of unauthorized persons remaining in lobbies, basements, stair cases and roof landings and take appropriate police action when necessary." (NYPD Patrol Guide 212-60). Yet the vertical patrol provision contains no criteria for determining who is - and who is not - an "unauthorized person." 137. The vertical patrol policy and trespass arrest practices implemented by NYPD officers fails to require that an arresting officer act upon observed behavior that reliably differentiates a suspected trespasser or "unauthorized person" in a NYCHA hallway from a lawful visitor in transit, or a building resident enjoying the common area of his own home. Given the large number of people legally permitted in a NYCHA residence, a police officer who is unfamiliar with building residents and visitors cannot consistently or reliably differentiate between a suspected trespasser and a building resident, visitor, permittee, or licensee based on this policy. 138. Defendants' failure to provide adequate guidance, training, and support to NYPD officers regarding how to conduct vertical patrols, including whom to stop, question, seize, search and arrest for trespass, results in a de facto roving checkpoint and a pattern and practice of unlawful stops, seizures, and arrests. 139. The only guiding principles provided to NYPD officers are consistent with, and reflective of, a policy, practice, and custom of reckless arrests based on less than probable cause. In Manhattan and the Bronx, the supporting deposition requires NYPD officers to select an
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"arrest element" for the arrestee's "reason for presence in the building." Manhattan SD at If 5; Bronx SD «[| 5. Some of the reasons include, but are not limited to: (a) defendant admitted he was not a resident and did not know the surname or apartment number of a tenant; (b) defendant identified the person and apartment they were visiting but the officer "could not locate" the person; or (c) a defendant gives no reason, is not on the tenant roster, and the officer "could not locate" anyone who gave them permission to enter. Id. 140. Under this policy, as written, people are or can be arrested for trying to visit someone who is not at home or based solely on their mere presence in or around a NYCHA residence. People are also arrested in instances in which they only know their friend's first name or nickname, or only know the apartment by the location rather than by number. Individuals who remain silent upon questioning for trespass by NYPD officers are subject to arrest. This is true even if the only basis for the NYPD officer's questioning is the fact that the individual was present in a common area of a NYCHA residence. 141. Defendants' vertical patrol policy and trespass arrest practices, even if diligently followed, cause a pattern and practice of false arrests of many people who are lawfully on the premises. Without probable cause to suspect criminal activity, the individual is forced to defeat a presumption of guilt with the presentation of documents or witnesses at the time of arrest. 142. In addition to screening for suspected trespassers, another purported purpose of the vertical patrol program and trespass arrest practices is to screen and police the NYCHA residents themselves. According to Inspector Michael C. Phipps, Commanding Officer, Housing Bureau Manhattan, the NYPD has the authority to arrest building residents and charge them with second degree trespass for entering certain areas of their own building,
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"namely, the roof landings, the rooftops, store rooms, maintenance areas and basements." Testimony oflnsp. Michael C. Phipps, New York City Council Committee on Public Safety and Subcommittee on Public Housing (April 29, 2004) at 24 ("Phipps Testimony"). Inspector Phipps testified that "[w]hen tenants sign lease agreements with the Housing Authority, they are advised not to enter" these areas in their buildings. Id. 143. In fact, NYCHA leases do not contain any such clause. A NYCHA lease merely provides that, when given proper notice, tenants must comply with all lawful rules and regulations promulgated by the Landlord. For example, signs posted in or around the lobbies of NYCHA residences, if any, may state "No Trespassing" or "Loitering and trespassing in lobby, roof, hallway and stairs is not permitted. Violators are subject to arrest and prosecution by Police Department." 144. Trespass is an offense which requires that a person unlawfully enter or remain in a prohibited area. There is no law prohibiting a resident's mere presence in or around the stairwells, hallways, roofs, or roof landings in his or her own apartment building. Indeed, there could be no lawful regulation or notice provision prohibiting entirely a resident's mere presence in his or her own hallway or stairwell. 145. Loitering also requires a specified unlawful purpose for being present at a location, such as "begging," P.L. § 240.35(1); gambling, P.L. § 240.35(2); sexual conduct, P.L. § 240.35(3); possessing a controlled substance," P.L. § 240.36 or engaging in prostitution, P.L. § 240.37. 146. Thus, there is no legal basis for wholesale stopping, seizing, questioning, searching, and arresting individuals, including residents, for mere presence in lobbies, roofs, hallways, and
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stairwells in and around NYCHA residences. Yet Defendants have enforced, promoted, encouraged and sanctioned these customs and practices. 147. Defendants have failed to supervise and discipline NYPD officers who unlawfully stop, question, seize, search, and arrest individuals for trespass. On information and belief. Defendants do not monitor improper stops, seizures, and searches for trespass. Nor have Defendants instituted any follow up procedure or disciplinary action when charges are dismissed or where it is otherwise established that an individual was arrested without probable cause. 148. As tenant leaders recently noted to NYPD Commissioner Raymond Kelly, the trend of "dehumanizing policing" in NYCHA residences is no longer about "isolated incidences [but] has become the norm in [their] communities." CCOP Statement. III. The Vertical Patrol Policy and Trespass Arrest Practices are Racially Discriminatory 149. Defendants have chosen to enforce the trespass laws in NYCHA residences in an unlawful manner, and to do so without adequate training and controls, because of the race of NYCHA residents and visitors. Defendants apply this unlawful vertical sweep policy and trespass arrest practices in an intentionally discriminatory and race-based manner by focusing vertical patrols and trespass arrests on communities of color. 150. For example, Defendants choose to target NYCHA residences where historically entrenched racial and residential segregation ensures that African Americans and Latinos will bear the brunt of NYPD sweeps and trespass arrests. According to demographic data maintained by NYHCA, over 95% of their residents are nonwhite.
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151. The rate of trespass stops is significantly higher in predominantly minority NYHCA residences than in surrounding areas or in the rest of the city. The disparities in arrest rates are even more extreme. These disparities are not explained or justified by underlying crime levels.
152. The role that race plays in Defendants' enforcement and officer deployment decisions is further illustrated by the fact that the rate of trespass stops and arrests is higher, and the disparity in arrest rates increases, when there is a substantial difference between the racial composition of a housing development and the population in its surrounding neighborhood. Thus, where predominantly minority NYCHA residences are in white or gentrifying neighborhoods, there is a greater difference in trespass arrests and total enforcement. This remains true after controlling for other relevant factors.
153. These disparities are the result of a unique and separate enforcement process consistent with intentional targeting based on race. Essentially, the enforcement practices in NYCHA residences are not related to the enforcement practices in the surrounding areas. This too is true after controlling for other relevant factors or possible explanations.
154. Because vertical patrols and trespass arrests are conducted in an intentionally discriminatory fashion, the overwhelming majority of persons arrested for trespass in New York City are African American or Latino, despite the fact that African Americans and Latinos constitute only 54% of the city's population. This disparity has increased over time.
155. African Americans are more likely to be stopped for suspicion of trespass and more likely to be arrested for trespass. This is true in NYCHA residences just as it is true in communities of color throughout the city.
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156. African Americans in New York City are stopped for trespass approximately 19 times more often than whites. Within NYCHA residences, African Americans are stopped on suspicion of trespass 2 V2 more often as whites.
157. African Americans in New York City are arrested for trespass almost ten times more often than whites. In NYHCA residences, African Americans have over a 25% higher chance of being arrested for trespass.
158. Although whites represent 45% of the citywide population, they are only 4% of those stopped on suspicion of trespass and 6.7% of those arrested for trespass.
159. Although African Americans represent approximately 25% of the citywide population, 61.5% of trespass stops are of African Americans and 51.6% of trespass arrests are of African Americans.
160. Defendants' policy, practice, and custom of stopping individuals without reasonable suspicion, and arresting individuals for trespass without probable cause in NYCHA residences, also has an easily foreseeable discriminatory impact on African Americans and Latinos.
161. Defendants are aware of these constitutional violations and their disparate impact on minority residents of NYCHA and their visitors. See, e.g.. People v. Ruiz, 2007 N.Y. Misc. LEXIS 3530, at *4 (N.Y. Sup. Ct. 2007); Citywide Council of Presidents of NYCHA, The Public Housing Police and Public Housing Resident Perceptions (Nov. 30, 2009); New York Lawyers for the Public Interest, No Place Like Home: A Preliminary Report on Police Interactions with Public Housing Residents in New York City 10 (2008); Barbara Ehrenreich, Is It Now a Crime to Be Poor?, N.Y. Times, Aug. 9, 2009, at WK9; M. Chris Fabricant, Rousting the cops: One man stands up to the NYPD's apartheid-like trespassing crackdown.
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Vill. Voice, Oct. 30, 2007; Rocco Parascandola, Victim down on a policy, Newsday, Oct. 25, 2007, at A19; Rocco Parascandola, Trespassing charge nixed, Newsday, Aug. 4, 2007, at A l l ; Rocco Parascandola, The trouble with trespassing law, Newsday, July 30, 2007, at A6; Rocco Parascandola, Questions don't end as teen beats charges, Newsday, June 25, 2007, at A12; Rocco Parascandola, The Crime Column: Stop-and-frisk stats suggest flaws in NYPD practices, Newsday, Apr. 10, 2007, at A4; Cara Tabachnick, Trespass laws questioned; Stricter rules aimed at curbing crime and violence in projects often catch innocent bystanders in wake, Newsday, Apr. 10, 2007, at A4. 162. Nevertheless, Defendants intentionally allow the constitutional violations to persist because of the race, ethnicity, and/or national origin of NYCHA residents and visitors. Further, the City does not pursue similar law enforcement policies, practices, or customs, or permit similar levels of constitutional violations by NYPD officers in white communities. 163. The reckless and unregulated character of vertical patrols, and the discriminatory nature of Defendants' trespass arrest practices, are well-illustrated by the recent trespass arrest of NYPD Sargeant Reginald McReynolds on October 26, 2009. Cop: I Was Profiled, N.Y. Daily News, Dec. 30, 2009, at 21. Sargeant McReynolds, who is assigned to the NYPD Quality Assurance Division, said "[t]his incident has opened my eyes . . . I can think of no other reason for being stopped but my skin color." Id. 164. The NYPD has a long history of conducting high numbers of stop-and-frisks in New York City neighborhoods largely populated by racial minorities. The NYPD's efforts to aggressively police "high-crime" areas have included stop-and-frisks resulting in repeated litigation and close scrutiny of policing practices.
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165. African Americans are over six times more likely to be stopped and frisked by NYPD officers than are whites. (1999 Office of the Attorney General "Stop & Frisk" Report ("OAG Report") at 95.) In addition, stop-and-frisks in predominantly minority precincts in New York City happen at a significantly higher rate than stops in predominantly white precincts. (OAG Report at 101.) When stops do occur in white neighborhoods, the disparity between racial minority and white "stop" rates is pronounced. (OAG Report at 106.) Racial minorities are also more likely to be unjustly stopped, insofar as stops of racial minorities are less likely to lead to arrests than stops of whites. (OAG Report at 92-3.)
166. According to the New York City Civilian Complaint Review Board ("CCRB"), the number of complaints received by the CCRB regarding unjustified stop-and-frisks now comprises a majority of complaints received by the CCRB. In 1999, there were 1,240 complaints for unjustified stops and frisks. That number increased to 5,089 in 2006.
167. In 1999, the Center for Constitutional Rights filed a class action lawsuit, Daniels, et al. v. City of New York, et al, No. 99-1695 (S.D.N.Y. filed 1999) {"Daniels"), on behalf of African-American and Latino plaintiffs challenging the NYPD's policy and practice of stopping-and-frisking people of color without reasonable suspicion of criminal activity as required by the Fourth Amendment. The plaintiffs further alleged that NYPD officers selectively targeted them on the basis of their race, ethnicity, and/or national origin in violation of the Equal Protection Clause of the Fourteenth Amendment.
168. After that lawsuit settled, updated data revealed that there was a demonstrable increase in stop-and-frisks from 2002 to 2006, including extreme disparities in "stop" rates based on race, ethnicity, or national origin. In the first half of 2008 alone, the NYPD conducted over 270,000 stops, a pace that would make this rate of stops the highest ever. Statement ofMarc
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Krupanski, Center for Constitutional Rights, New York City Council Committee on Public Safety (January 29, 2009) at 2. From 2005 through the first half of 2008, 80% of NYPD stops were of African Americans and Latinos; 85% of NYPD frisks were of African Americans and Latinos; only 2.6% of stops resulted in the discovery of contraband; stops of whites were more likely to yield contraband; and only 4-6% of stops resulted in an arrest. Racial Disparity in NYPD Stops-and-Frisks, Center for Constitutional Rights Report at 1-2. 169. In response to this updated data, another class-action lawsuit was filed against the City, Floyd v. City of New York, No. 08-1034 (S.D.N.Y. filed 2008), challenging the NYPD's pervasive policy, custom and/or practice of stop-and-frisks under the Fourth and Fourteenth Amendments to the United States and New York Constitutions. IV. NYCHA's Express Approval and Adoption of the Vertical Patrol Policy and
Trespass Arrest Practices 170. NYCHA is a public entity that receives federal financial assistance. It owns and operates
approximately 340 public housing developments encompassing more than 2,600 residential buildings in New York City, which house more than 400,000 residents. 171. NYCHA's mission is to provide decent and affordable housing in a safe and secure living environment for low- and moderate-income residents throughout the five boroughs in New York City. See, http://www.nyc.gov/html/nycha/html/about/about.shtml (last visited on January 7, 2009). 172. The NYPD's vertical patrol policy and trespass arrest practices are specifically authorized by NYCHA. NYCHA "has given the Police Department permission to enter [NYCHA] buildings and inquire of those they encounter the reasons for them being there. If an unauthorized person is found there, the Housing Authority has granted the Police
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Department permission to act as a complainant on their behalf and to arrest that violator for the crime of trespass." Phipps Testimony at 23-4. 173. Prior to 1995, NYCHA maintained its own police services, the Housing Authority Police Department ("HAPD"). Pursuant to a Memorandum of Understanding entered into by the City Council and then-Mayor Rudy Guiliani, the HAPD merged with NYPD in 1995. See Public Safety in Public Housing Report by Committee on Public Safety and Subcommittee on Public Housing, p. 2. 174. This Memorandum of Understanding required NYCHA to make annual payments to the NYPD equal to NYCHA's previous HAPD expenditures, adjusted for inflation. See NYCHA Housing: Access Granted, A Staff Report by the Council of the City of New York to the Committee on Oversight and Investigations and the Sub-Committee on Public Housing, p. 4. The agreement provides for NYPD to provide a level of policing that is "over and above baseline services." 175. These payments from NYCHA to the NYPD ranged from $58 million to $88 million annually, between 1995 and 2008. See generally id. at 4; see also Testimony of Molly Wasow Park, Senior Analyst, Before the City Council Committee on Public Safety And the Subcommittee on Public Housing on Public Safety in Public Housing, April 29, 2004, p. 1 ("Park"); FY 2008 Budget Presentation, NYCHA Website. The cost of staffing the vertical patrols has been defrayed with United States Housing and Urban Development funds received by NYCHA and transferred to the NYPD as part of a program known as "Operation Safe Home"(1995 Memorandum of Understanding, "Operation Safe Home"). 176. The NYPD maintains a dedicated Housing Bureau to police NYCHA residences. More than 1,700 uniformed officers were assigned to the Housing Bureau as of 2004. NYCHA
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residences receive additional police services from other NYPD officers and units, sometimes through programs such as Operation Impact. See NYCHA Housing: Access Granted, A Staff Report by the Council of the City of New York to the Committee on Oversight and Investigations and the Sub-Committee on Public Housing, p. ii. 177. Residents of NYCHA are unable to use and enjoy their residences because the vertical patrol policy and trespass arrest practices are conducted in such a consistently unlawful and disproportionate manner that the residents are not free to come and go as they wish and their family, friends, and guests are constantly harassed and intimidated by NYPD officers. 178. The NYPD's policy and practice of conducting its vertical patrol policy and trespass arrest practices within NYCHA hallways, stairwells, and other common areas frequently disrupts the domestic lives of NYCHA residents. A door-to-door survey of 181 households in the Thomas Jefferson Houses in East Harlem and the Walt Whitman Houses in Fort Greene, Brooklyn demonstrated that 30% of these households include a person who has been charged with trespass. In addition, 72% of households in the Thomas Jefferson Houses reported that, in 2008, they and their regular visitors have been stopped by police between 5 to 20 times that year. "No Place Like Home: A Preliminary Report on Police Interactions with Public Housing Residents in New York City (New York Lawyers for the Public Interest Community Oversight of Policing Project, Sept., 2008) p. 2,10, 16-17, available at http://stage.nylpi.org/pub/2008NOPLACELIKEHOMEREPORT. 179. The recent statement delivered to the NYPD Commissioner Kelly by NYCHA tenant leaders critiqued NYPD trespass enforcement and noted that residents feel like they live in "penal colonies" instead of public housing communities. CCOP Statement.
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180. Defendants' policy, practice, and custom of conducting vertical patrols and trespass arrests practices in NYCHA residences disproportionately violates the rights of minorities living in or visiting residences controlled by Defendant NYCHA. NYPD officers engage in a pattern and practice of indiscriminately stopping, seizing, questioning, and searching individuals in the common areas of NYCHA residences in the absence of individualized objective facts suggestive of criminality. Coupled with Defendants failure to provide adequate guidance, training and support to NYPD officers, this causes a pattern or practice of improper stops, seizures, searches, and arrests of residents and visitors who are lawfully on the premises of NYCHA housing.
181. Defendants have enforced, promoted, encouraged and sanctioned the above-described policy of vertical patrols and trespass arrests practices and continue to do so. As a result, over 90% of people arrested for trespass in New York City are African American or Latino, despite the fact that African Americans and Latinos only account for 54% of New York City's population. Residents of NYCHA are unable to enjoy their residences because Defendants' vertical patrol policy and trespass arrest practices are conducted in such a manner that the residents are not free to come and go as they wish and their family, friends and guests are constantly harassed, intimidated and arrested by NYPD officers.
182. Because the vertical patrol policy and trespass arrest practices target African-American and Latino individuals for unlawful stops and false arrests in areas where Arrested Plaintiffs and/or Resident Plaintiffs reside and/or visit, a real and immediate threat exists that the Fourth Amendment and Fourteenth Amendment rights of the Arrested Plaintiffs and Resident Plaintiffs and other class members will be violated by NYPD officers in the future.
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Similarly, there is a real and immediate threat that NYPD officers will violate the Arrested Plaintiffs' and Resident Plaintiffs' rights under federal and state civil rights laws. 183. Moreover, because Defendants' policies, practices and/or customs subject the Named Plaintiffs and other class members to stops, seizures, questions, and searches without any reasonable articulable suspicion of criminality, including on the basis of race, ethnicity, and/or national origin, the Named Plaintiffs and other class members cannot alter their behavior to avoid future violations of their constitutional and civil rights at the hands of Defendants without sacrificing fundamental rights. 184. The Plaintiffs and other members of the class have no adequate remedy at law and will continue to suffer serious and irreparable harm to their constitutional and statutory rights unless Defendants are enjoined from continuing the NYPD's policy, practice and/or custom of the present vertical patrol policy and trespass arrest practices, which encourages and authorizes NYPD officers to stop, seize, question, and search individuals without reasonable suspicion that criminal activity is afoot, and to arrest people without probable cause, including on the basis of race, ethnicity, and/or national origin.
CLAIMS FOR RELIEF First Claim for Relief
Violations of the Fourth Amendment (All Plaintiffs against the City)
185. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 184 above. 186. The vertical patrol policy and trespass arrest practices involve systematic stopping,
seizing, questioning, and searching of any and all persons observed in common areas of NYCHA residences absent individualized suspicion. Thus, each vertical patrol involves a
40

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 41 of 56
series of temporary seizures that implicate the Fourth Amendment to the United States Constitution. 187. By adopting and implementing the vertical patrol policy and trespass arrest practices in this manner, the City has enforced, promoted, encouraged and sanctioned a policy, practice and/or custom of roving pedestrian checkpoints for general crime control wherein they indiscriminately stop and seize individuals in the absence of objective, individualized criteria in violation of the Fourth Amendment to the United States Constitution. 188. By adopting and implementing the vertical patrol policy and trespass arrest practices in this manner, the City has enforced, promoted, encouraged and sanctioned a policy, practice and/or custom of stopping, seizing, questioning, and searching Resident and Arrested Plaintiffs, and the members of the class they seek to represent, without the reasonable articulable suspicion of criminality required by the Fourth Amendment to the United States Constitution. 189. By adopting and implementing the vertical patrol policy and trespass arrest practices in this manner, the City has enforced, promoted, encouraged and sanctioned a policy, practice and/or custom of arresting Resident and Arrested Plaintiffs for trespass, and the members of the class they seek to represent, without probable cause to establish that a criminal offense has been or is being committed, as required by the Fourth Amendment to the United States Constitution. 190. By sanctioning and enforcing the vertical patrol policy and trespass arrest practices in this manner, the City intentionally and under color of state law has stopped, seized, questioned, searched and/or arrested Resident and Arrested Plaintiffs, without reasonable suspicion or
41

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 42 of 56
probable cause that a crime has been committed, in violation of the Fourth Amendment to the United States Constitution. 191. These constitutional abuses and violations were, and are, directly and proximately caused by policies, practices and/or customs devised, implemented, enforced, promoted, encouraged and sanctioned by the City, including but not limited to: (a) the failure to adequately and properly screen, train, and supervise NYPD officers; (b) the failure to properly and adequately monitor and discipline NYPD officers; and (c) the overt and tacit encouragement and sanctioning of, and the failure to rectify, the NYPD's suspicionless stops, seizures, questions, searches and arrests for trespass. 192. The City has acted with deliberate indifference to the Fourth Amendment rights of the Resident and Arrested Plaintiffs and other members of the class. As a direct and proximate result of the acts and omissions of the City, Resident and Arrested Plaintiffs, and members of the class they seek to represent, have been deprived of their rights under the Fourth Amendment to the United States Constitution and 42 U.S.C. § 1983.
Second Claim for Relief Violations of the Equal Protection Clause
(All Plaintiffs against All Defendants) 193. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 192 above. 194. Acting under color of state law, Defendants have applied the vertical patrol policy and
trespass arrest practices against All Plaintiffs and similarly situated individuals in an intentionally discriminatory and race-based manner. Defendants have focused enforcement of the vertical patrol policy and trespass arrest practices in African-American and Latino communities.
42

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 43 of 56
195. Defendants have targeted communities of color, such as NYCHA residences, for focused implementation of vertical patrols and trespass arrest enforcement, as residents in, and visitors to, these buildings are inhabited almost entirely by African Americans and Latinos. This pattern of targeted enforcement is not explained or justified by underlying crime rates in NYCHA residences.
196. Defendants have acquiesced in, ratified, and failed to check widespread violations of the Plaintiffs' constitutional rights to be free from unreasonable searches and seizures, because of the Plaintiffs' race.
197. These constitutional abuses were and are directly and proximately caused by policies, practices and/or customs devised, implemented, enforced, encouraged, and sanctioned by the City and NYCHA, including: (a) targeted implementation of vertical sweeps and trespass arrests in communities of color; (b) the discriminatory failure to adequately and properly screen, train, support, and supervise NYPD officers; (c) the discriminatory failure to adequately and properly monitor and discipline the NYPD officers.
198. As a direct and proximate result of Defendants' practices, Resident and Arrested Plaintiffs, and members of the class they seek to represent, have been deprived of their right to Equal Protection of the laws under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
Third Claim for Relief Claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d), et seq.
(All Plaintiffs against All Defendants)
199. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 198 above.
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Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 44 of 56
200. Residents of NYCHA are unable to use and enjoy their residences because Defendants' vertical patrol policy and trespass arrest practices are conducted in such a consistently unlawful and disproportionate manner that the residents are not free to come and go as they wish. Residents' family, friends, and guests are harassed and intimidated by Defendant NYPD.
201. Plaintiffs are among the intended beneficiaries of Defendants' programs and/or activities receiving federal financial assistance. The Defendants' discriminatory practices prevent the Plaintiffs .from fully participating in and receiving the benefits of the programs and activities supported by federal funds. Resident Plaintiffs are unable to enjoy the normal rights and privileges associated with tenancy in NYCHA residences. All Plaintiffs, who are entitled to receive police protection from the NYPD, are instead victimized by the NYPD's unlawful and discriminatory police activities. Fourth Claim for Relief Unlawful Discrimination Under the Fair Housing Act of 1968 (Title VIII) (Resident Plaintiffs Against All Defendants)
202. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 201 above. 203. Defendants have, as described above, violated, and/or continue to violate, the rights of
Resident Plaintiffs, and the members of the class they seek to represent, under the Fair Housing Act, 42 U.S.C. § 3601, et seq. and implementing regulations by:
a. Discriminating on the basis of race, ethnicity, and/or national origin in the terms, conditions, or privileges of the provision of services or facilities in connection with the sale or rental of a dwelling, in violation of 42 U.S.C. § 3604(b) and the corresponding implementing regulations; and
44

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 45 of 56
b. Discriminating on the basis of race, ethnicity, and/or national origin in the exercise or enjoyment of a dwelling by coercion, intimidation, or interference, in violation of 42 U.S.C. § 3617 and implementing regulations.
204. By the actions described above. Defendants have engaged in, and continue to engage in, a policy, pattern, and practice of discrimination against African American and Latino NYCHA residents due to their race, or the racial composition of their building, in violation of the Fair Housing Act.
205. The past and continuing acts and conduct of Defendants described above, were and are intentional, and have been carried out with deliberate indifference to the federally protected rights of the Resident Plaintiffs and the members of the class they seek to represent.
206. Defendants' policies, patterns, and practices have had, and continue to have, an adverse and discriminatory impact on African Americans and Latinos that is not justified by necessity.
207. Defendants have intentionally, knowingly, and continuously engaged in the practices described above, with the intent of denying equal housing opportunities to the Resident Plaintiffs and the members of the class they seek to represent. Fifth Claim for Relief Claims Under the United States Housing Act, 42 U.S.C. § 1437d(l)(2) (Resident Plaintiffs Against All Defendants)
208. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 207 above. 209. Acting under color of state law, Defendants have, as described above, violated, and/or
continue to violate, the rights of Resident Plaintiffs, and the members of the class they seek to represent, under the United States Housing Act, 42 U.S.C. § 1437(d)(l)(2), its implementing regulations, 42 U.S.C. § 1983, and the federal and New York State
45

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 46 of 56
Constitutions, by failing to provide reasonable accommodation of the Resident Plaintiffs' guests or visitors. 210. Residents of NYCHA are unable to use and enjoy their residences and accommodate guests because Defendants' vertical patrol policy and trespass arrest practices are conducted in such an oppressive manner that the residents are not free to come and go as they wish and their family, friends, and guests are constantly harassed and intimidated. 211. The past and continuing acts and conduct of Defendants, described above, were and are intentional, and have been carried out with deliberate indifference to the federally protected rights of the Resident Plaintiffs and the members of the class they seek to represent. 212. Defendants' policies, patterns, and practices interfere with Resident Plaintiffs' ability to accommodate guests because their family, friends, and guests are harassed, intimidated and arrested by Defendants. Defendants' policies are unreasonable and have had, and continue to have, an adverse impact on African Americans and Latinos that is not justified by necessity. 213. Defendants have intentionally, knowingly, and continuously engaged in the practices described above, with the intent of denying adequate housing to the Resident Plaintiffs and the members of the class they seek to represent.
Sixth Claim for Relief Unlawful Discrimination under 42 U.S.C. § 1981
(All Plaintiffs against All Defendants) 214. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 213 above. 215. By the actions described above, Defendants have continually denied Resident Plaintiffs,
and the members of the class they seek to represent, the same right to make and enforce contracts as is enjoyed by white citizens of the United States, in violation of 42 U.S.C. § 1981. Resident Plaintiffs have been denied the enjoyment of the benefits, privileges, terms.
46

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 47 of 56
and conditions of their contractual relationship with NYCHA, because they are limited in their ability to enter and exit their own homes, and in their ability to receive guests, due to the Defendants' discriminatory and unlawful vertical patrol policy and trespass arrest practices. 216. By the actions described above, Defendants have also denied all Plaintiffs the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and have subjected them to disparate fonns of punishment, pains, penalties, taxes, licenses, and exactions, as compared to white citizens of the United States, in violation of 42 U.S.C. § 1981. All Plaintiffs have been injured by the Defendants' discriminatory and unlawful vertical patrol policy and trespass arrest practices. 217. By the actions described above. Defendants have engaged in, and continue to engage in, a policy, pattern, and practice of discrimination against African-American and Latino NYCHA residents due to their race, or the racial composition of their building, in violation of 42 U.S.C. §§ 1981 and 1983. 218. The past and continuing acts and conduct of the Defendants, described above, were and are intentional, and have been carried out with deliberate indifference to the federally protected rights of the Resident Plaintiffs and the members of the class they seek to represent. 219. Defendants have intentionally, knowingly, and continuously engaged in the practices described above, with the intent of denying equal housing opportunities to the Resident Plaintiffs and the members of the class they seek to represent.
Seventh Claim for Relief Violation of Due Process Under the Fourteenth Amendment
(All Plaintiffs against All Defendants) 220. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 219 above.
47

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 48 of 56
221. Defendants' vertical patrol policy and trespass arrest practices, as written and as applied, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, in that it authorizes and causes NYPD officers to stop, seize, question, search, and arrest individuals for the mere exercise of their constitutional rights to freedom of association and assembly and their constitutional rights to intimate association, in the absence of constitutionally required procedural protections.
222. By enforcing the unconstitutional vertical patrol policy and trespass arrest practices through the initiation and pursuit of criminal charges against certain Arrested Plaintiffs, which charges have directly resulted in arrest and detention of certain Arrested Plaintiffs, Defendants intentionally and under color of law have denied Plaintiffs their right to due process of law, in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
Eighth Claim Violation of the New York Constitution, Article 1, Section 11
(All Plaintiffs against All Defendants) 223. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 222 above. 224. Defendants have applied the vertical patrol policy and trespass arrest practices against All
Plaintiffs and similarly situated individuals in an intentionally discriminatory and race-based manner. Defendants have focused enforcement of the vertical patrol policy and trespass arrest practices in African-American and Latino communities. 225. Defendants have targeted communities of color such as NYCHA residences for focused implementation of vertical patrols and trespass arrest enforcement because residents in, and visitors to, these buildings are almost entirely African Americans and Latinos.
48

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 49 of 56
226. Defendants have acquiesced in, ratified, and failed to address widespread violations of the Plaintiffs' constitutional rights to be free from unreasonable searches and seizures, because of the Plaintiffs' race.
227. These constitutional abuses were and are directly and proximately caused by policies, practices and/or customs devised, implemented, enforced, encouraged, and sanctioned by the City and NYCHA, including: (a) targeted implementation of vertical sweeps and trespass arrests in communities of color; (b) the discriminatory failure to adequately and properly screen, train, support, and supervise NYPD officers; and (c) the discriminatory failure to adequately and properly monitor and discipline the NYPD officers.
228. As a direct and proximate result of Defendants' practices, Resident and Arrested Plaintiffs, and members of the class they seek to represent, have been deprived of their right to equal protection of the laws under Article 1, Section 11 of the Constitution and the laws of the State of New York. Ninth Claim Violation of the New York Constitution, Article 1, Section 12 (Arrested Plaintiffs against the City)
229. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 228 above. 230. By adopting and implementing the vertical patrol policy and the trespass arrest practices
in this manner, the City has enforced, promoted, encouraged and sanctioned a policy, practice and/or custom of stopping and frisking Arrested Plaintiffs, and the members of the class they seek to represent, without the reasonable articulable suspicion of criminality required by the Constitution and laws of the State of New York. 231. By adopting and implementing the vertical patrol policy and trespass arrest practices in this manner, the City has enforced, promoted, encouraged and sanctioned a policy, practice
49

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 50 of 56
and/or custom of arresting Arrested Plaintiffs for trespass, and the members of the class they seek to represent, without probable cause to establish that a criminal offense has been or is being committed as required by the Constitution and laws of New York. 232. By sanctioning and enforcing the vertical patrol policy and trespass arrest practices in this manner, the City intentionally and under color of state law has stopped, seized, questioned, searched, and/or arrested Arrested Plaintiffs, without reasonable suspicion or probable cause that a crime has been committed, in violation of the Constitution and laws of the State of New York. 233. These constitutional abuses and violations were, and are, directly and proximately caused by policies, practices and/or customs devised, implemented, enforced, promoted, encouraged and sanctioned by the City, including but not limited to: (a) the failure to adequately and properly screen, train, and supervise NYPD officers; (b) the failure to properly and adequately monitor and discipline NYPD officers; and (c) the overt and tacit encouragement and sanctioning of, and the failure to rectify, the NYPD's suspicionless questioning and false arrest practices. 234. As a direct and proximate result of the acts and omissions of the City, Resident and Arrest Plaintiffs, and members of the class they seek to represent, have been deprived of their rights under the Constitution and laws of the State of New York.
Tenth Claim Respondeat Superior for False Arrest and False Imprisonment
(Arrested Plaintiffs Against the City) 235. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 234 above. 236. NYPD Officers have unlawfully and unjustifiably detained, arrested, deprived of their liberty against their will, and imprisoned Arrested Plaintiffs.
50

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 51 of 56
237. The unjustifiable and unlawful stops, seizures, questioning, searches, arrests, and imprisonments were carried out without a warrant. 238. At all times mentioned, the unlawful false arrests and imprisonments of the Arrested Plaintiffs were without probable cause, were forcible, and against their will. 239. All of the foregoing occurred without any fault on the part of Arrested Plaintiffs. 240. At all relevant times, these NYPD officers were employees of the City and were acting for, upon, and in furtherance of the business of their employer and within the scope of their employment. 241. Consequently, the City is liable under the doctrine of respondeat superior for their tortious actions.
Eleventh Claim Violation of the New York State Human Rights Law
(Resident Plaintiffs Against All Defendants) 242. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 241 above. 243. Defendants have discriminated and continue to discriminate against Plaintiffs on the basis of race in the terms, conditions or privileges of the sale, rental, or lease of a housing accommodation, or in the furnishing of facilities or services in connection therewith, in violation of the New York Human Rights Law, N.Y. Exec. Law § 290 e/ seq. 244. Defendants have also discriminated and continue to discriminate against Plaintiffs on the basis of race in the terms, conditions or privileges of publicly-assisted housing accommodations, or in the furnishing of facilities or services in connection therewith, in violation of the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. 245. By the actions described above, Defendants have engaged in, and continue to engage in, a policy, pattern, and practice of discrimination against African American and Latino NYCHA
51

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 52 of 56
residents due to their race, or the racial composition of their building, in violation of the New York Human Rights Law, N.Y. Exec. Law § 290 e| seq. 246. Resident Plaintiffs have been and continue to be harmed by Defendants' violations of the New York State Human Rights Law.
Twelfth Claim Violation of the New York City Human Rights Law
(Resident Plaintiffs against All Defendants) 247. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 246 above. 248. Defendants have discriminated and continue to discriminate against Plaintiffs on the basis of race in the terms, conditions or privileges of the sale, rental, or lease of a housing accommodation or in the furnishing of facilities or services in connection therewith in violation of the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. 249. By the actions described above, Defendants have engaged in, and continue to engage in, a policy, pattern, and practice of discrimination against African American and Latino NYCHA residents due to their race, or the racial composition of their building, in violation of the New York City Rights Law, N.Y.C. Admin. Code § 8-101 et seq. 250. Plaintiffs have been, and continue to be, harmed by Defendants' violations of the New York City Human Rights Law.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
a) Certify this action as a class action on behalf of the proposed class pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure, consisting of the following subclasses of:
52

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 53 of 56
a. African-American and Latino NYCHA residents ("Resident Plaintiffs") who live in buildings where they and their family, friends, and guests have been, or will be, subjected to unconstitutional stops, seizures, questions, searches, and arrests for trespass when visiting Resident Plaintiffs in NYCHA residences, including those targeted based on race, ethnicity, and/or national origin, as a result of Defendants' policies, practices, and/or customs; and
b. African-American and Latino persons who have been, or will be, subjected by NYPD officers to Defendants' policy, practice, and/or custom of stopping, seizing, questioning, searching, and/or falsely arresting for trespass ("Arrested Plaintiffs") persons visiting Resident Plaintiffs in NYCHA buildings, including those targeted based on race, ethnicity, and/or national origin.
b) Declare that the Defendants' acts, practices, policies, and omissions have deprived Plaintiffs of their rights under the Fourth and Fourteenth Amendment of the United States Constitution; 42 U.S.C. § 1981; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d); Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. ("Fair Housing Act"); the United States Housing Act, 42 U.S.C. § 1437, et seq.; the Constitution and laws of the State of New York; and the New York City Human Rights Law.
c) Order all appropriate injunctive relief as warranted, including but not limited to, ordering Defendants to cease immediately their violation of Plaintiffs' rights, and to remedy the invidious effects of their violations by patrolling NYCHA residences and effectuating trespass stops and arrests in a reasonable and nondiscriminatory manner;
d) Award compensatory damages to the Named Plaintiffs.

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 54 of 56 e) Order reasonable attorneys' fees and costs to be paid by Defendants pursuant to 28
U.S.C. § 2414 and 42 U.S.C. §§ 1988, 3613; and f) Grant such other and further relief as the Court deems just and equitable.
54

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 55 of 56
Dated: New York, New York January 28, 2010 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
John Payton President and Director-Counsel
Debo P. Adegbile Christina Swams Johanna B. Steinberg Joy Milligan 99 Hudson Street, Suite 1600 New York, NY 10013-2897 (Tel.) 212-965-2200 (Fax) 212-219-2052
-and-
THE LEGAL AID SOCIETY OF NEW YORK
Steve Banks Attomey-in-Chief
Seymour James William Gibney Steven Wasserman 199 Water Street 6th Fl. New York, NY 10038 (Tel.) (212) 577-3300 (Fax)(212) 509-8141
-and-
55

Case 1:10-cv-00699-SAS Document 1 Filed 01/28/10 Page 56 of 56 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Julia Tarver Mason David G. Clunie Jason D.Williamson 1285 Avenue of the Americas New York, New York 10019-6064 Tel: (212)373-3000 Fax: (212)757-3990
56

 
 l1NITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------){ \

KELTON DAVIS, WILLIAM TURNER,

ALTAGRACIA HERNANDEZ, EDWIN

LARREGUI, ROMAN JACKSON,

KRISTIN JOHNSON, ELEANOR BRITT,

ANTHONY ANDERSON, LASHAUN

SMITH, SHAWNE JONES, HECTOR

SUAREZ, ADAM COOPER, ANDREW

WASHINGTON, P.L. BY HIS PARENT

LISA PIGGOTT, DAVID WILSON, AND

OPINION AND ORDER

GENEVA WILSON, individually and on

behalf of a class of all others similarly

10 Civ. 0699 (SAS)

situated,

Plaintiffs,

- against-

THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,

Defendants.
-------------------------------------------------------){
SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

Plaintiffs bring suit, on bthalf of themselves and a class of similarly

situated individuals, against the City of New York (the "City") and the New York

City Housing Authority ("NYCHA") (collectively, "Defendants"), asserting a

continuing violation of their rights pursuant to 42 U.S.c. § 1983,42 U.S.c. § 1981,

the Fourth and Fourteenth Amendments to the United States Constitution, Title VI

1 


of the Civil Rights Act of 1964,1 Title VIII of the Civil Rights Act of 1968 (''Fair
Housing Act")/ the United States Housing Act,3 the Constitution and laws of the State of New York, and the New York City Human Rights Law ("NYCHRL,,).4
Plaintiffs have sought the production of certain documents, which the City has refused to produce, asserting that those documents are protected by the deliberative process privilege. For the reasons stated below, the City is ordered to produce some of the documents, and to submit a more detailed privilege log with respect to certain other documents. II. BACKGROUND
Plaintiffs allege that defendants, "operating through and in conjunction with the New York City Police Department (''NYPD''), have implemented and continue to conduct, enforce and sanction an unlawful vertical patrol and trespass arrest policy which has resulted in a pattern and practice of illegal stops, seizures, questioning, searches, and false arrests of residents of, and authorized visitors to, NYCHA residences."s At the time this suit was instituted,
42 U.S.C. § 2000(d). 2 Id. § 3601, et seq. 3 Id. § 1437, et seq. 4 N.Y.C. Admin. Code § 8-101, et seq. S Complaint ("Comp!.") ~ 2.
2

the NYPD policy at issue was reflected, in part, in section 212-60 of the NYPD Patrol Guide ("P.G. 212-60"), entitled "Interior Vertical Patrol of Housing Authority Bui1dings.,i)
In response to complaints to the Civilian Complaint Review Board ("CCRB") about the legality of stops and arrests in NYCHA buildings and similar concerns raised by NYCHA representatives and tenant leaders, the NYPD leadership decided to "provid[e] additional guidance to police officers patrolling NYCHA properties.,,7 In the fall of2009, NYPD Police Commissioner Raymond Kelly delegated to S. Andrew Schaffer, NYPD Deputy Commissioner for Legal Matters, the task of revising P.G. 212-60 in amsultation with high-ranking NYPD personnel and attorneys from the New York City Corporation Counse1.s On July 8, 2010, P.G. 212-60 was replaced by Interim Order number 23 ("1.0. 23").9
Although 1.0.23 contains much of the same information as its predecessor, it
6 Id. ~ 3. See also 3/15/11 Letter Brief by Tonya Jenerette, counsel to the City of New York ("City Letter") at 1; P.G. 212-60, dated 1/1/00, Ex. B to City Letter.
7 3/15/11 Declaration of S. Andrew Schaffer, NYPD Deputy Commissioner for Legal Matters ("Schaffer Dec1."), attached to City Letter ~ 4.
8 See id. ,-r,-r 3, 5; City Letter at 1-2. 9 See Schaffer Dec1. ~~ 3, 8; City Letter at 2; 1.0. 23, dated 6/8/1 0, Ex. C to City Letter.
3 


differs in that it "discusses in enhanced detail when 'a uniformed member of the
service may approach and question persons who may be violating Housing
Authority rules and regulations, including potentially unauthorized persons found
in Housing Authoritybuildings. ",10
1.0.23 was issued after the commencement of this suit, but plaintiffs
assert that their claims "challenge[] generally Defendants' overall vertical patrol
policies and trespass enforcement practices, including LO. 23.,,11 Plaintiffs have
accordingly demanded that the City produce, as part of its discovery obligations,
"any drafts, correspondence or memoranda concerning the development and
implementation of Interim Order 23" and "any drafts, correspondence or
memoranda concerning the development and implementation of the corresponding
training curriculum, as well as all revisions to the curriculum."12
The City has withheld four categories of documents, which it asserts
10 Schaeffer Decl. ~ 11 (quoting 1.0. 23 ~3). 11 3/29111 Letter Briefby plaintiffs (''PI. Letter") at 7. The City contests plaintiffs' position, arguing, H[a]s the Interim Order literally did not exist on the date the complaint was filed, it could not have been the subject of plaintiffs' claims." City Letter at 6 n.3. However, the City is splitting hairs. Plaintiffs clearly mean that they seek to challenge defendants' overall vertical patrol policies and trespass enforcement practices. Plaintiffs' position is that those policies have been and remain discriminatory, regardless of whether they are manifested in P.O. 212-60, LO. 23, or any other policy document. 12 See City Letter at 1.
4 


all relate to the revision of P.G. 212-60: '0) legal memoranda and NYPD Legal
Bureau analysis of vertical patrols in NYCHA developments; (2) correspondence
and draft revisions to P[.]G[.] 212-60; (3) drafts of the training curriculum/training
scenarios concerning revised P[.]G[.] 212-60; (4) and deliberations about
substantiated CCRB complaints concerning the legality of stops and arrests on
NYCHA properties."13 The City claims that these documents are predecisional and
deliberative and as such, their release would "inaccurately reflect the basis for final
agency policy and chill the candor ofNYPD officials in the future.,,14 In support of
its assertions of privilege, the City has submitted a declaration from S. Andrew
Schaffer; two privilege logs, dated February 25,2011 and April 7, 2011; P.G. 212­
60; and 1.0. 23. 15
III. APPLICABLE LAW
The deliberative process privilege protects from disclosure
13 [d. at 3. 14 Id. at 1. The City's privilege logs also reflect assertions of the attorney-client and attorney work product privileges. The parties were not asked to brief whether those privileges have been properly asserted, thus the Court does not reach that issue. However, in revising its privilege logs in accordance with this Opinion and Order, the City is also ordered to review its assertions of those two privileges and ensure that its assertions are proper. 15 See Schaffer Decl.; 2/25111 City's Privilege Log ("2/25 Log"), Ex. A to City Letter; 4/7111 City's Privilege Log ("4/7 Log"), attached to City's 4/7111
letter in reply to plaintiffs' opposition (''City Reply"); P.G. 212-60; 1.0. 23.
5 


"'documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
fonnulated. ",16 The privilege is intended "'to enhance the quality of agency
decisions, by protecting open and frank discussion among those who make them
within the Government. ",17
In order to qualify for the privilege, a document must be
"predecisional" and "deliberative.,,18 A document is predecisional if it was
'''prepared in order to assist an agency decisionmaker in arriving at his
decision. ",19 The agency claiming privilege "must be able to demonstrate that ...
the document for which ... privilege is claimed related to a specific decision
facing the agency.,,20 A document is deliberative ifit is "'actually ... related to the
16 National UJuncil ofLa Raza v. Department ofJustice ("NCLR"), 411
u.s. F.3d 350,356 (2d Or. 2005) (quoting Tiguev. Dep't ofJustice, 312 F.3d 70,
76 (2d Cir. 2002)). 17 Tigue, 312 F.3d at 76 (quoting Department ofthe Interior v. Klamath
Water Users ProtectiveAss'n, 532 U.S. 1,8-9 (2001)). 18 NCLR, 411 F.3d at 356. 19 Id. at 356 (quoting Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 482
(2d Cir. 1999)). Such materials include "recommendations, draft documents, proposals, suggestions, and other subjective documents [that] reflect the personal opinions of the writer rather than the policy of the agency." Grand Cent. P'ship, 166 F.3d at 482.
20 Tigue, 312 F.3d at 80 (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132,151 n.18 (1975)).
6 


process by which policies are formulated. ",21 Factors used to determine whether a document is deliberative include "whether the document (i) formed an essential link in a specified consultative process, (ii) reflects the personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency."22 The privilege does not extend to "'purely factual' material,,23 or documents later adopted or incorporated into a final agency opinion?4 "The privilege also does not extend to materials related to the explanation, interpretation or application of an existing policy, as opposed to the formulation of a new policy.,,25
The deliberative process privilege is merely a qualified privilege; thus "when the existence of [the] privilege is established, there is a need to balance the public interest in nondisclosure against the need of the particular litigant for access

21 482).

NCLR, 411 F.3d at 356 (quoting Grand Cent. P'ship, 166 F.3d at

22 Grand Cent. P'ship, 166 F.3d at 482 (quotation marks and citation omitted). Accord Tigue, 312 F.3d at 80.
u.s. 23 Grand Cent. P'ship, 166 F.3d at 482 (quoting Hopkins v. Dep't
ofHousing & Urban Dev., 929 F.2d 81,85 (2d Cir. 1991)).

24 See NCLR, 411 F.3d at 356 (citing Sears, 421 U.S. at 161); Coastal States Gas Corp. v. Department ofEnergy, 617 F.2d 854, 866 (D.C. Cir. 1980).

25 Resolution Trust Corp. v. Diamond, 137 F.RD. 634, 641 (S.D.N.Y. 1991 ) (citing Mobil Oil Corp. v. Department ofEnergy, 102 F.R.D. 1, 5 (N.D.N.Y. 1983)).

7 


to the privileged information.,,26 Factors favoring disclosure include:
(I) the relevance of the requested materials to the [requesting party's] case, (2) the importance of the materials to the [requesting party's] case, including the availability ofthe information from alternative sources, (3) the strength of the [requesting party's] case ... , and (4) the importance [of disclosure] to the public interest.27
Factors against disclosure include: (l) threats to public safety, (2) the invasion of
government officials' privacy, (3) the weakening of government programs, and (4) the chilling of internal candor.28 "[T]he burden of persuasion rests on the party
seeking to prevent disclosure.,,29 That burden is a heavy one, in view of "the great
weight of the policy in favor of discovery in civil rights actions and the normal
presumption in favor of broad discovery.,,30
"The claim of deliberative-process privilege must be lodged by the
head of the agency after personal consideration of the allegedly privileged
material" or by a "'subordinate with high authority'" pursuant to "guidelines on the

26 MacNamara v. City ofNew York, 249 F.RD. 70, 79 (S.D.N.Y. 2008) (quotation marks and citation omitted).

27 1988)).

Id. at 80 (citing King v. Conde, 121 F.R.D. 180, 191-93 (E.D.N.Y.

28 Cf id. (describing similar factors specifically applied to law enforcement (citing King, 121 F.RD. at 191-93)).
29 King, 121 F.RD. at 191. 

30 
 MacNamara, 249 F.RD. at 80.

8 


use of the privilege" issued by the head of the agency.3! "The assertion of the privilege by an attorney is therefore improper."32 "Moreover, the agency claiming the privilege must provide precise and certain reasons for preserving the confidentiality of the information."33 IV. DISCUSSION
As a preliminary matter, I find that Deputy Commissioner Schaffer is a proper party to assert the deliberative process privilege on behalf of the NYPD. Although plaintiffs correctly point out that the City has failed to establish explicitly that Schaffer has been delegated the authority to assert the privilege in accordance with agency guidelines, it is evident from the City's submissions that Schaffer is a subordinate of high authority who was delegated the task of revising P.G. 212-60.34 Thus Schaffer is in the best position to assess the NYPD's need for deliberative confidentiality surrounding theP.G. 212-60 revision, whether or not he was
3! Resolution Trust Corp., 137 F.RD. at 641 (quoting Mobil Oil Corp., 102 F.R.D. at 5). Accord Morrissey v. City ofNew York, 171 F.R.D. 85, 89 n.3 (S.D.N.Y. 1997) (collecting cases).
32 Resolution Trust Corp., 137 F.RD. at 641 (citing, inter alia, Mobil Oil, 102 F.RD. at 6).
33 Id. (quotation marks and citations omitted). 34 See PI. Letter at 6 n.4; City Letter at 1-2; see generally Schaeffer Decl.
9 


explicitly or fonnally delegated the authority to assert the privilege.35 A. Sufficiency of Privilege Logs On the whole, the privilege logs submitted by the City are
insufficiently detailed to allow the Court to assess the legitimacy and scope of its assertion of the deliberative process privilege. The City's privilege logs include
the headings "Start Bates," "End Bates," "Author," "Recipient," "Document Date,"
"Subject," and "Privilege." There is nothing improper, in principle, with a privilege log that utilizes these categories, which are fairly standard. However, there are two major deficiencies in the City's logs that renders them inadequate.
First, one or more columns is marked "NIA" for a significant number of entries. Second, the City too often employs vague, confusing, or conclusory descriptions in the "Subject" column. The use of "NIA" may in certain circumstances be appropriate. I understand, for example, that the "Recipient" column might not apply where a document was distributed broadly, or not distributed at all; that it might not be possible to complete the "Author" column when the document was unattributed and unsigned; or that the "Document Date" column might be left blank when a document was left undated. However, a
35 Cf Resolution Trust OJrp., 137 F.RD. at 641 (finding "that the decision to assert the privilege was made not by agency policymakers in consideration of the agency's interest in deliberative confidentiality, but by its outside counsel as a matter oflitigation strategy").
10 


missing date, recipient, and/or author, combined with a vague description of the subject matter of the document, leaves the Court unable to assess whether a given document is an inter- or intra-agency document, and whether it is deliberative and/or predecisional. In a few instances, the City has even left the "Privilege" column blank, leaving the Court in the dark as to which, if any, privilege is being asserted. 36
Given the volume of documents that the City is seeking to withhold, I will not specifically address each and every entry in the logs. Instead, I mention a few illustrative examples, and instruct the City to apply the principles I set forth here in revising its logs. The very first entry in the 2/25 Log lists a one-page document, authored by "NYPD Counsel," with no recipient, no document date, and the subject description "Comm Zoland Housing Verticals Patrols Folder - Deborah Zoland."37 While that form of shorthand may be comprehensible to NYPD personnel, I cannot decipher such language in order to determine whether the privilege applies.
Another series of documents, also lacking recipients or dates, are
36 See Priv00130l-PrivOOl308 (which is dated 9/27110 but ha-; "N/A" for author, recipient, and subject, while privilege is left blank); Priv000135­ PrivOOO 138.
37 11 


described as "Third Endorsement - IDC # 064-299-0479,"38 followed by "Second
Endorsement - IDC # 064-299-0479,"39 and "First Endorsernent."40 Without any infoffilation as to what "IDC # 064-299-0479" is, the Court is left to speculate as to what exactly has been endorsed. Yet another document lacks an author, a recipient, or a document date, and its subject matter is described in the vaguest of terms as "Patrol Guide - NYCHA Bldgs.,,41 That description in no way satisfies the City's burden to establish that the deliberative process privilege should apply. Another document lacking an author or recipient, and dated September 15, 2010,
after the issuance of 1.0. 23, is described merely as "Five Changes."42 Based on
that two-word description, I cannot evaluate whether the five changes were proposed or enacted, by whom, to what, or anything else that would help determine whether the document is predecisional or deliberative. In view of opaque "descriptions" such as these, it is perhaps worth reminding the City that the purpose of a privilege log is to enable the opposing party and the Court to test the asserted privilege. The paltry descriptions provided by the City prevent either
38 Priv_Paper_0000064. 39 Priv_Paper_0000065. 40 Priv_Paper_0000066. 41 Priv_Paper_0000540. 42 Priv_Paper_0000552.
12 


plaintiffs or the Court from performing any such test.43
Furthennore, it is difficult for the Court to believe that every single
one of the several hundred documents included in the City's two privilege logs are
properly privileged in their entirety. The law is clear that the privilege does not
protect "purely factual material.,,44 Thus any factual recitations that can be
disentangled from deliberative analyses must be released. It does not appear that
the City has attempted to make any such distinction. The City is therefore ordered
to release those portions of the requested documents that are factual and can be
separated from the deliberative portions of the documents.
Certain entries in the log reflect a blatant abuse of the assertion of
privilege. A prime example is a document authored by John B. Rhea, the
Chairman ofNYCHA, to Raymond Kelly, NYPD Chief, dated December 23, 2009.
43 To provide some additional guidance to the City, I will identify a few of the entries that I do consider sufficiently detailed and covered by the deliberative process privilege: Priv_Paper_0000554-0000557 ("Draft Interim Order - Revision of Patrol Guide 212-60 Interior Vertical Patrol of Housing Authority Buildings - Number Draft 1"); Priv_Paper 0000562-0000563 (,'Latest Revision to P.G. 212-60 Intcrior Vertical Patrol of Housing AuthorityBuildings"); Priv Paper_00006l3 (''Proposed Language to Add to Patrol Guide Procedure No 212-60 (Interior Vertical Patrol of Housing AuthorityBuildings) under Additional Data").
44 Grand Cent. P'ship, 166 F.3d at 482. Accord Jackson v. City ofNew York, No. 05 Civ. 721, 2006 WL 2789990, at *4 (S.D.N.Y. Sept. 27,2006) ("[s]egregab1e factual material is not covered by the privilege" (citation omitted)).
13 


The subject is described as "[Discussions are Essential to Further Mutual Goal of Providing for Safe and Comfortable Housing Environ~nt for NYCHA Residents]." The City asserts that this document is protected from disclosure by the attorney-client and deliberative process privileges.45 Based on this information alone, it is obvious that this document cannot be an attorney-client communication, as it does not involve communications between an attorney and his client, but rather between the heads of two City agencies. Additionally, the subject description fails to make clear whether and in what way the document is, in whole or in part, predecisional or deliberative. Thus while I do not rule here on the applicability of the attorney-client or attorney work product privileges as they have not been briefed, the City is cautioned to reassess its assertion of all privileges carefully prior to resubmitting the logs. If a random in camera review of a selected group of documents on the privilege logs reveals that the assertion of privilege was baseless, the Court will not hesitate to find that the City has waived any claim of privilege with regard to the remainder of the documents.
B. Category One and Category Two Any documents that properly fall into Category One to the extent
that such documents pertain to the revisions of P.G. 212-60 - or into Category Two
45
14 


are most likely privileged. However, the City has failed to provide adequate information about each document for the Court to ascertain whether the documents so described properly fall within those categories. Additionally, to the extent that documents in Category One do not relate to the revisions ofP.G. 212-60, but raher
constitute analysis of NYPD's past policy and practice of vertical patrols in
NYCHA developments, they cannot be considered predecisional. Therefore the City is ordered to revise its privilege logs with more detailed information about what is actually contained in the documents subsumed under Category One and Category Two so that plaintiffs and the Court can assess the propriety of the assertions of privilege. Not every entry must be revised; however, a significant portion likely will, in accordance with the principles laid out above.
C. Category Three In its letter brief, the City argues that all of the documents it seeks to
withhold are predecisional with respect to the development of the policy ultimately crystallized in 1.0.23.46 However, that cannot be the case with the documents in Category Three, characterized as "drafts of the training curriculum/training scenarios concerning revised P.G. 212-60," or Category Four, characterized as "deliberations about substantiated CCRB complaints concerning the legality of
46 City Letter at 1, 7. 15

stops and arrests on NYCHA properties.,,47 The City apparently believes that by
using the word "draft" or "deliberations," the privilege automatically attaches. The
City is mistaken. A draft may be covered by the privilege, to the extent that it
"reflects the personal opinions of the writer rather than the policy of the agency.,,48
However, the fact that something is a draft does not eliminate the City's obligation to specify the particular policy or decision to which the document relates.49
Furthermore, the City fails to include information about the draft documents "such
as their 'function and significance in the agency's decisionmaking process,,,,50
which is necessary to justify the assertion of the deliberative process privilege.
To the extent that the City acknowledges that the documents in
Category Three are "drafts of the training curriculumltraining scenarios concerning
revised P.G. 212-60,"51 such drafts were necessarily developed after the
completion of the P.G. 212-60 revision. It seems unlikely that the NYPD would
47 [d. at 3-4. 
 48 
 Tigue, 312 F.3d at 80. 49 See New York Times Co. v. United States Dep 't ofDe!, 499 F. Supp. 2d 501,515 (S.D.N.Y. 2007) ("[t]he mere fact that a document is a draft is not a sufficient reason to automatically exempt it from disclosure") (quotation marks, ellipses, and citation omitted). SOld. (quoting The Wilderness Soc); v. United States Dep 't a/the Interior, 344 F. Supp. 2d 1,5 (D.D.C 2004)). 51 City Letter at 3.
16 


waste time developing a curriculum to train officers in a policy that had not yet been finalized. Thus such documents were certainly not predecisional with respect to revisions ofP.G. 212-60, and the City acknowledges as much in its reply. Rather, the City argues that the draft training curriculum are predecisional because "(1) they precede, in temporal sequence, the final training curriculum; and (2) they reflect proposals, suggestions and recommendations on how to 'provide [] additional guidance to police officers patrolling NYCHA properties. ",52
The City's arguments are premised on the idea that a training curriculum and other "guidance" documents constitute an agency policy or decision. The law is clear that "[t]he privilege ... does not extend to materials related to the explanation, interpretation or application of an existing policy."53 However, whether training materials can be considered a policy or decision in the context of the deliberative process privilege is an issue of first impression. Not every minor question that is contemplated by an agency or employee thereof, and the way that question is answered, can be considered an agency policy or decision. "'The [p]rivilege is properly limited to communications relating to policy formulation at the higher levels of government; it does not operate indiscriminately
52 City Reply at 5 (quoting unknown source). 53 Resolution Trust Corp., 137 F.RD. at 641 (quoting Mobil Oil Chrp., 102 F.R.D. at 5).
17

to shield all decision-making by public officials. ",54
Documents written to train officers in the implementation of 1.0. 23
do not constitute a policy, but rather are materials intended to explain an existing
policy - 1.0. 23. While high-ranking NYPD officers were involved in designing
the training curriculum, their involvement is not enough to transform their
explanations of the policy into the equivalent of a policy or decision.55 Thus
Category Three documents are not covered by the deliberative process privilege, as
they are not predecisional to an agency policy. It may be that certain of the
documents are covered by the attorney-client privilege or constitute attorney work
product. If so, the City should designate them as such, providing sufficient detail
to analyze the assertion of those privileges.56
54 Velez v. City ofNY., No. CV 2004-1775,2010 WL 2265443 at *4 (E.D.N.Y. June 2, 2010) (quoting Smtt v. Board ofEduc. of City ofEast Orange, 219 F.R.D. 333, 337 (D.N.J. 2004)). Accord Grossman v. Schwartz, 125 F.RD. 376,381 (S.D.N.Y. 1989); Torr~ v. City Univ. ofNY., No. 90 Civ. 2278,1992 WL 380561, at *7 (S.D.N.Y. Dec. 3, 1992).
55 See Schaeffer Dec!. ~~ 5, 6. 56 In view of footnote 2 in the City's Reply, which misconstrues plaintiffs' argument about attorney-client privilege as an argument about attorney work product, the City is reminded that attorney work product only pertains to documents prepared in anticipation for litigation, although the definition of attorney-client privilege is significantly broader. Compare New York Times Co., 499 F. Supp. 2d at 517 ("The attorney work product privilege protects the files and the mental impressions of an attorney ... prepared in anticipation of litigation.") (quotation marks and citation omitted), and In re County ofErie, 473 F.3d 4l3,
18

D. Category Four The documents that fall into Category Four - "deliberations about
substantiated CCRB complaints concerning the legality of stops and arrests on NYCHA properties,,57 - are clearly not covered by the deliberative process privilege. Again, the City believes that by using the word "deliberation," it has established the privilege. However, courts have consistently held that "recommendations concerning disciplinary review of a discrete incident do not involve the policy formulations protected under the deliberative process privilege."58 Category Four documents, as described by the City, fall precisely into this area of non-privileged communications.
As noted in the discussion of Category Three above, it may be that certain of these documents are covered by the attorney-client privilege or the work product privilege. The City is ordered to reevaluate the documents in Category Four with the Court's TIlling in mind, to release those documents that do not fall under any of the privileges, and to redraft a privilege log to include those
418 (2d Cir. 2007) ("The attorney-client privilege protects most confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance.").
57 City Letter at 4. 
 58 
 Velez, 2010 WL 2265443 at *4.
19 


documents that the City still considers privileged under the attorney-client or work product privileges.
v. CONCLUSION
In accordance with the Court's instructions above, the City is ordered to review its assertions of privilege; revise and resubmit its privilege logs by May 20, 2011; and release the requested documents that are not covered by the deliberative process privilege, or any other privilege, in view of the Court's rulings, whether in their entirety or in redacted form as appropriate.

Dated:

New York, New York May 4,2011

20 


Appearances
For Plaintiffs:
lohnathan Smith, Esq. 
 Johanna B. Steinberg, Esq. 
 NAACP Legal Defense & Educational Fund, Inc. 
 99 Hudson Street, 16th Floor 
 New York, New York 10013 
 (212) 965-2269
William Gibney, Esq. Nancy Rosenbloom, Esq. Legal Aid Society of New York 199 Water Street New York, New York 10038 (212) 577-3419
Katharine E.G. Brooker, Esq. Matthew 1. Moses, Esq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3139
For Defendant City of New York:
Tonya lenerette Morgan David Kunz David M. Hazan Bradford Collins Patrick Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-0993
21

For Defendant NYCHA:
Steven Jay Rappaport, Esq. 
 New York City Housing Authority 
 250 Broadway, 9th Floor 
 New York, New York 10007 
 (212) 776-5152 

22

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)(
KELTON DAVIS, WILLIAM TURNER, ALTAGRACIA HERNANDEZ, EDWIN LARREGUI, ROMAN JACKSON, KRISTIN JOHNSON, ELEANOR BRITT, ANTHONY ANDERSON, LASHAUN SMITH, SHAWNE JONES, HECTOR SUAREZ, ADAM COOPER, ANDREW WASHINGTON, P.L. BY HIS PARENT LISA PIGGOTT, DAVID WILSON, AND GENEVA WILSON, individually and on behalf of a class of all others similarly situated,

OPINION AND ORDER 10 Civ. 699 (SAS)

Plaintiffs,

- against-

THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,

Defendants.
-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

Plaintiffs bring this putaive class action against the City of New York

(the "City") and the New York City Housing Authority ("NYCHA") (collectively,

"Defendants"), alleging a pattern and practice of unlawful stops, seizures, and

arrests for trespass in NYCHA buildings in violation of sections 1983 and 1981 of

title forty-two of the United States Code, the Fourth and Fourteenth Amendments

1

to the United States Constitution, Title VI of the Civil Rights Act of 1964,1 Title VIII of the Civil Rights Act of 1968 (“Fair Housing Act”),2 the United States Housing Act,3 the Constitution and laws of the State of New York, and the New York City Human Rights Law (“NYCHRL”).4 Plaintiffs seek equitable relief in the form of (1) a declaration that Defendants’ acts, practices, policies, and omissions in connection with patrol and arrest activities on NYCHA property are unlawful, and (2) an injunction against their continued application.5
The City now moves for summary judgment on all of Plaintiffs’ claims for equitable relief, asserting that it has taken actions since the commencement of litigation to address Plaintiffs’ allegations and that these actions have rendered Plaintiffs’ claims moot. For the reasons set forth below, the City’s motion is denied in its entirety. II. BACKGROUND
A. Plaintiffs’ Allegations The New York City Police Department (“NYPD”) is responsible for
1 See 42 U.S.C. § 2000(d). 2 See id. § 3601, et seq. 3 See id. § 1437, et seq. 4 See N.Y.C. Admin. Code § 8-101, et seq. 5 See Complaint (“Compl.”) ¶ 53.
2

patrolling public housing facilities operated by NYCHA, with the stated purpose of preventing crime and enforcing NYCHA rules and regulations.6 The inspection of the interior of a NYCHA building is referred to as a “vertical patrol.”7 Plaintiffs commenced the instant action on January 28, 2010, alleging that Defendants, operating through and in conjunction with the NYPD, “have implemented and continue to conduct, enforce and sanction an unlawful vertical patrol and trespass arrest policy which has resulted in a pattern and practice of illegal stops, seizures, questioning, searches, and false arrests of residents of, and authorized visitors to, NYCHA residences.”8
Plaintiffs contend that the NYPD improperly utilizes “checkpoints” on NYCHA property where “officers indiscriminately stop and question every person they observe, without objective individualized suspicion of a crime, and unlawfully arrest individuals for trespass without probable cause.”9 Additionally, Plaintiffs assert that the City has “failed to supervise and discipline officers” who are
6 See Defendants’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Def. 56.1”) ¶ 1; Plaintiffs’ Reply Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶ 1.
7 Def. 56.1 ¶ 5; Pl. 56.1 ¶ 5. 8 Compl. ¶ 2. 9 Id. ¶ 3.
3

involved in these incidents, does not monitor these incidents, and has not “instituted any follow up procedure or disciplinary action when charges are dismissed or where it is otherwise established that an individual was arrested without probable cause.”10
B. Developments Since the Commencement of the Action 1. Changes to NYPD Policy
At the time this suit was instituted, the NYPD policy at issue was reflected, in part, in section 212-60 of the NYPD Patrol Guide (“P.G. 212-60”), entitled “Interior Vertical Patrol of Housing Authority Buildings.”11 However, changes to the policy were already being contemplated: in the summer of 2009, against the backdrop of complaints by the Civilian Complaint Review Board (“CCRB”), NYCHA representatives, and tenant leaders concerning the legality of stops and arrests in NYCHA buildings, the NYPD leadership decided to revise P.G. 212-60 in order to “provid[e] additional guidance to police officers patrolling NYCHA properties.”12
10 Id. ¶ 147. 11 Id. ¶ 3. Despite its title, P.G. 212-60 is not restricted to vertical patrols and discusses overall NYPD responsibilities throughout NYCHA property. See Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8. 12 Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17.
4

As part of the revision process, the NYPD held a meeting on October 15, 2009 with high-ranking NYCHA personnel, including NYCHA Chairman John B. Rhea, and the Citywide Council of Presidents (“CCOP”), NYCHA’s elected tenant association.13 The attendees agreed to establish a permanent Safety and Security Task Force (“SSTF”), co-chaired by Chairman Rhea and the President of the CCOP, to address NYPD and NYCHA resident relations, security on NYCHA property, and other matters of community concern.14
The first SSTF meeting was held on December 10, 2009, with meetings occurring at least once a month thereafter.15 Additionally, at its first meeting, SSTF formed five subcommittees to address specific designated topics; these subcommittees each hold regular additional meetings of their own.16 The two subcommittees most pertinent to NYPD patrols of NYCHA property are the NYPD’s Policies and Relationships with Residents and the NYCHA Rules and Regulations subcommittees — together, these subcommittees address which NYCHA rules need to be implemented and enforced.17 Through the
13 See Def. 56.1 ¶¶ 13-17; Pl. 56.1 ¶¶ 13-17. 14 See Def. 56.1 ¶¶ 24-25, 37; Pl. 56.1 ¶¶ 24-25, 37. 15 See Def. 56.1 ¶¶ 26, 33; Pl. 56.1 ¶¶ 26, 33. 16 See Def. 56.1 ¶¶ 29, 30, 34; Pl. 56.1 ¶¶ 29, 30, 34. 17 See Def. 56.1 ¶¶ 30, 31; Pl. 56.1 ¶¶ 30, 31.
5

subcommittees and SSTF, the NYPD, NYCHA, and NYCHA residents discussed the proposed revisions to NYPD’s vertical patrol policy and reviewed the material that was ultimately incorporated into the final policy.18
On June 8, 2010, P.G. 212-60 was replaced by Interim Order Number 23 (“I.O. 23”).19 The express purpose of I.O. 23 is “[t]o assist the Housing Authority in enforcing its rules, limiting criminal activity, providing a safe and secure environment and ensuring the habitability of its residential buildings for Housing Authority residents and their guests by performing interior vertical patrols.”20 It seeks to “provide uniformed members of the service additional guidance concerning situations occurring within Housing Authority facilities [and to] illustrate[] appropriate action to be taken with consideration afforded to the uniqueness and totality of the circumstances surrounding each encounter.”21 Specifically, I.O. 23 discusses when “a uniformed member of the service may approach and question persons who may be violating Housing Authority rules and regulations, including potentially unauthorized persons found in Housing
18 See Def. 56.1 ¶¶ 40, 43; Pl. 56.1 ¶¶ 40, 43. 19 See Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3. 20 Def. 56.1 ¶ 9; Pl. 56.1 ¶ 9. 21 Def. 56.1 ¶ 5; Pl. 56.1 ¶ 5.
6

Authority buildings.”22 The NYPD developed a ninety-minute training curriculum for I.O. 23
(“I.O. Training”), with input allegedly incorporated from the NYPD Policies and Relationships with Residents Subcommittee.23 The training covers: (1) “the purpose and rationale for conducting interior vertical patrols within Housing Authority property,” (2) “the importance of proper interactions between police officer and Housing Authority residents,” and (3) “the revision to Patrol Guide section 212-60, ‘Interior Vertical Patrol of Housing Authority Buildings,’” with changes between P.G. 212-60 and its successor underlined.24
The I.O. Training was implemented in early fall 2010.25 According to Defendants, the training is to be rolled out in two stages: Phase I training includes “all uniform members of the Housing Bureau of all rank, including executives, as well as members of the Patrol Services Bureau assigned to precinct housing teams;” while Phase II training includes “police officers, sergeants, and lieutenants
22 Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11. 23 See Def. 56.1 ¶¶ 45, 51; Pl. 56.1 ¶¶ 45, 51. 24 Def. 56.1 ¶ 46; Pl. 56.1 ¶ 46. 25 See Def. 56.1 ¶ 70; Pl. 56.1 ¶ 70.
7

assigned to the Patrol Services Bureau and not within a precinct housing team.”26
Defendants report that about ninety percent of Phase I has been completed, with
over eighteen hundred officers trained, with the remaining ten percent to be trained over the next few months.27 Phase II training has yet to begin, but Defendants
assert that it will be completed within the next twelve months and will occur at the required annual training sessions for officers, sergeants and lieutenants.28 As a
result, those officers trained during Phase I are expected to be trained again as part of Phase II.29 The NYPD intends to provide the training to recruits in the future, as well as higher-level supervisors not currently captured in Phase I or Phase II.30 The total anticipated cost of the training is about $2.7 million dollars.31
III. LEGAL STANDARD
A. Summary Judgment
26 Def. 56.1 ¶ 53; Pl. 56.1 ¶ 53. According to Defendants, officers in Phase II interact far less frequently, if at all, with individuals on NYCHA property. See Def. 56.1 ¶ 58.
27 See Def. 56.1 ¶ 53. Plaintiffs assert that the relevant discovery has not been provided, and they can neither admit nor deny statements pertaining to the details of the I.O. Training. See Pl. 56.1 ¶ 53.
28 See Def. 56.1 ¶¶ 57, 61, 63. 29 See id. ¶ 64. 30 See id. ¶ 65. 31 See id. ¶ 68.
8

Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.”32 “An issue of fact is genuine if
‘the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’ A fact is material if it ‘might affect the outcome of the suit
under the governing law.’”33 “[T]he burden of demonstrating that no material fact
exists lies with the moving party . . . .”34 “When the burden of proof at trial would
fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a
lack of evidence . . . on an essential element of the nonmovant’s claim.”35 In turn,
to defeat a motion for summary judgment, the non-moving party must raise a
32 Fed. R. Civ. P. 56(c). 33 Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 34 Miner v. Clinton County, 541 F.3d 464, 471 (2d Cir. 2008). Accord Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). 35 Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). Accord In re September 11 Litig., 500 F. Supp. 2d 356, 361 (S.D.N.Y. 2007) (“Where the nonmoving party bears the burden of proof at trial, the burden on the moving party may be discharged by showing – that is, pointing out to the district court – that there is an absence of evidence to support the nonmoving party’s case.”) (quotation marks and citations omitted).
9

genuine issue of material fact. To do so, the non-moving party must do more than show that there is “‘some metaphysical doubt as to the material facts,’”36 and “‘may not rely on conclusory allegations or unsubstantiated speculation.’”37 However, “‘all that is required [from the non-moving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’”38
“In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.”39 However, “[i]t is a settled rule that ‘[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.’”40 Summary judgment is therefore “appropriate only if there is no genuine issue of material fact and the
36 Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
37 Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)).
38 Kessler v. Westchester County Dep’t of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006) (quoting Anderson, 477 U.S. at 248-49).
39 McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citing Anderson, 477 U.S. at 242, 255).
40 Id. (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). 10

moving party is entitled to judgment as a matter of law.”41
IV. APPLICABLE LAW
“Mootness is a doctrinal restriction stemming from the Article III
requirement that federal courts decide only live cases or controversies; a case is
moot if the parties lack a legally cognizable interest in the outcome of the case.”42
As the Supreme Court has explained,
[t]he underlying concern [of the mootness doctrine] is that, when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated, then it becomes impossible for the court to grant any effectual relief whatever to [the] prevailing party. In that case, any opinion as to the legality of the challenged action would be advisory.43
Because mootness deprives a court of subject matter jurisdiction, it may be
41 Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009). Accord Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009).
42 In re Zarnel, 619 F.3d 156, 163 (2d Cir. 2010) (quotation marks and citation omitted). Accord Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (“Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” (quotation marks and citations omitted)).
43 City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (quotation marks and citations omitted).
11

evaluated at all stages of the litigation.44
“A case becomes moot when interim relief or events have eradicated
the effects of the defendant’s act or omission, and there is no reasonable expectation that the alleged violation will recur.”45 However, “[i]t is well settled
that “‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’”46 Otherwise,
“the courts would be compelled to leave ‘[t]he defendant . . . free to return to his old ways.’”47 Accordingly, the standard “for determining whether a case has been
mooted by the defendant’s voluntary conduct is stringent,” and the party asserting
mootness bears the “heavy burden of persua[ding]” the court that the challenged
44 See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“This case-orcontroversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” (citation omitted)).
45 Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998). Accord United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968) (“A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”).
46 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)).
47 Id. (quoting City of Mesquite, 455 U.S. at 289 n.10). 12

conduct cannot reasonably be expected to start up again.”48 Ultimately, however, the decision to dismiss a case on mootness grounds “lies within the sound discretion of the district court, and a strong showing of abuse must be made to reverse it.”49 IV. DISCUSSION
Defendants argue that “Interim Order 23 and the NYCHA Patrol Training have entirely eliminated the basis for [P]laintiffs’ Monell claim against the City.”50 Defendants assert that I.O. 23 and the I.O. Training constitute “comprehensive” reforms that exceed Plaintiffs’ constitutional demands for declaratory and injunctive relief, even if they do not satisfy Plaintiffs’ “rather extensive wish list of procedures and processes that they would like to see the NYPD implement.”51 Moreover, Defendants argue that there is no reasonable expectation that the NYPD will resume its allegedly unlawful practices, given the
48 Id. (quotation marks and citation omitted). 49 Harrison & Burrowes Bridge Constuctors, Inc. v. Cuomo (“Harrison”), 981 F.2d 50, 59 (2d Cir. 1992) (quotation marks and citation omitted). 50 Defendants’ Memorandum in Support of Its Motion for Summary Judgment on Plaintiffs’ Claims for Declaratory and Injunctive Relief (“Def. Mem.”) at 8. 51 Id.
13

resources it has committed to revising P.G. 212-60. Accordingly, Defendants contend that they have met their burden of establishing that “(1) there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”52 I disagree.
A. Reasonable Expectation of Recurrence In order for the development and implementation of I.O. 23 and the I.O. Training to moot the case, these events must make it “absolutely clear” that the NYPD’s allegedly unlawful practices on NYCHA property could not reasonably be expected to recur.53 Yet Plaintiffs assert that they cannot evaluate the status and substance of I.O. 23 and the I.O. 23 Training, on the grounds that “the relevant discovery has not been produced.”54 It appears that Plaintiffs have not yet had sufficient opportunity to corroborate Defendants’ assertions that I.O. 23 and the I.O. 23 Training are fully compliant with legal requirements. To the extent that Plaintiffs have had access to the new policy and training materials, Plaintiffs identify various deficiencies that, in their view, “both fail to remedy the pre-
52 Lamar Advertising of Penn. LLC v. Town of Orchard Park, 356 F.3d 365, 375 (2d Cir. 2004).
53 Concentrated Phosphate Export Assn., 393 U.S. at 203. 54 See generally Pl. 56.1.
14

existing inadequacies and create additional violations.”55 Defendants’ rebuttals
only highlight the existence of disputed issues of fact. Accordingly, the efficacy
of the new policy guide and training curriculum is, at this stage of the litigation,
either unknown or disputed.56 Under these circumstances, Defendants cannot meet
either the standard for mootness or summary judgment.
As a threshold matter, the parties do not even agree that the
challenged conduct has in fact ceased. Defendants argue that their representations
of voluntary cessation must be credited by virtue of their governmental status. Yet
while “[s]ome deference must be accorded to a state’s representations that certain
conduct has been discontinued,”57 Defendants are not entitled to a complete
exemption from their “formidable” burden of proof.58 As Plaintiffs point out,
55 Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment on Their Claims for Declaratory and Injunctive Relief (“Pl. Mem.”) at 4.
56 See Friends of the Earth, 528 U.S. at 167 (holding that claims by environmental groups for alleged violations by the holder of a pollutant discharge permit were not mooted where defendant had previously achieved substantial compliance with its permit requirements and defendant closed the offending facility following plaintiffs’ appellate victory, because the effect of these events was a disputed fact question — particularly as defendant retained its permit and could ostensibly reopen another offending facility).
57 Harrison, 981 F.2d at 59. 58 Friends of the Earth, 528 U.S. at 191.
15

Defendants have provided no “admissible evidence, statistics, or reports
demonstrating that the violations articulated in the Complaint have been resolved,” let alone completely and irrevocably eradicated.59 Indeed, Defendants concede that
the implementation of the I.O. Training is incomplete, with ten percent of Phase I
remaining and Phase II yet to begin. By implication then, the practices associated
with P.G. 212-60 are still, in some measure, extant within the NYPD.
Even assuming that the challenged conduct has ceased, Plaintiffs have
no concrete assurances that Defendants will not resume their allegedly unlawful
arrest and trespass enforcement practices. As the Second Circuit has opined, the
“determination of whether there is a reasonable expectation that the wrong will be repeated is not foreclosed by expressions of intention by [government] officials.”60
This is particularly so where, as here, Defendants have a history of similar wrongful behavior;61 have not admitted to any constitutional or statutory violation;
59 Pl. Mem. at 4. 60 Armstrong v. Ward, 529 F.2d 1132, 1136 (2d Cir. 1976). Accord Hilton v. Wright, 235 F.R.D. 40, 48 n.6 (N.D.N.Y. 2006) (rejecting state official’s argument that his change in policy and unconditional statement that he will not reinstitute the offending policy eliminates any reasonable expectation that the policy wll be reinstated). 61 See Ahrens v. Bowen, 852 F.2d 49, 53 (2d Cir. 1988) (rejecting a mootness claim by the Secretary of the Department of Health and Human Services where, inter alia, the underlying third-party conduct giving rise to the suit could reasonably be repeated and the Secretary could again attempt to preclude the suit
16

and have refused to enter into any kind of “binding, judicially enforceable agreement.”62 While Defendants argue that it is highly improbable that they will
resume any alleged unlawful behavior in light of the resources they have
committed to the I.O. 23 transition, they have revealed only the projected $2.7
million cost of the training, rather than the amount spent to date. In effect, the
NYPD has modified certain internal documents that do not carry the weight of a
regulation or statute, and which do not bind future officials under a different
administration. In other words, Defendants are “free to return to [their] old ways.”63 Granting summary judgment at this stage of the litigation would
foreclose any opportunity for judicial review precisely where it may be needed the
most — in the context of alleged continuing constitutional violations by the entities
entrusted with protecting the public interest.
by granting last-minute relief to plaintiffs). Accord Casale v. Kelly, 710 F. Supp. 2d 347, 350 (S.D.N.Y. 2010) (holding the City in civil contempt for its “long history of . . . apathetic behavior” and “lack [of] resolve to end the illegal enforcement [of unconstitutional loitering statutes] on its own,” despite the City’s implementation of numerous anti-enforcement provisions and statistics showing reduced enforcement, because “[n]early every measure that the City has undertaken has been at the direction of the Court, the prodding of plaintiffs, and/or under the threat of sanctions”).
62 Kidder, Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556, 563 (2d Cir. 1991) (quotation marks and citation omitted).
63 City of Mesquite, 455 U.S. at 289 n.10. 17

B. Revisions to the Patrol Guide Do Not Fully Address Plaintiffs’ Monell Claims
Perhaps most fatal to Defendants’ mootness motion is the inescapable fact that allegations pertaining to NYPD policy constitute only one aspect of Plaintiffs’ claim. As Plaintiffs point out, “the Complaint never equates the NYPD’s written vertical patrol policy with the City’s larger trespass enforcement and arrest practices.”64 For example, Plaintiffs allege that the City does not “monitor improper stops, seizures, and searches for trespass” and does not supervise, discipline, or otherwise follow-up with officers who do not comport with NYPD procedures.65 Any amendments to the NYPD’s patrol guide or officer training would not address these issues. As a result, the City’s remedial measures do not fully respond to Plaintiffs’ allegations of wrongdoing, and therefore cannot reasonably ensure either that the conduct at issue will not recur in the future or that its effects have been eradicated.
Notably, a Monell claim does not restrict municipal liability to official policies that were adopted and promulgated by City officials, but encompasses informal customs or “‘practices . . . so permanent and well settled as to constitute a
64 Pl. Mem. at 3. 65 Compl. ¶ 147.
18

custom or usage with the force of law.’”66 As the Supreme Court explained in
Monell,
Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a po licy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. . . . [They can also be sued for] deprivations visited pursuant to governm ental ‘custom’ even though such a custom has not recei ved formal approval through the body’s official decisionm aking channels.67 In other words, even granting that I.O. 23 and the I.O. Training represent
comprehensive and adequate reforms of NYPD policy, Defendants cannot establish
that there is no contrary practice or custom for which Plaintiffs may be entitled to
equitable relief. The question of whether NYPD officers actually adhere to the
new policy articulated in I.O. 23 — and the extent to which the City may tacitly
66 Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978) (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168 (1970)). Accord Zherka v. DiFiore, 412 Fed. Appx. 345, 348 (2d Cir. 2011) (“[M]unicipalities are ‘persons’ that may be held liable if a plaintiff proves the municipality violated a federally protected right through (1) municipal policy, (2) municipal custom or practice, or (3) the decision of a municipal policymaker with final policymaking authority.”) (quoting Monell, 436 U.S. at 694). Cf. Los Angeles County, Cal. v. Humphries, 131 S. Ct. 447, 451 (2010) (“We conclude that Monell’s holding applies to section 1983 claims against municipalities for prospective relief as well as to claims for damages.”).
67 Monell, 436 U.S. at 690-91. Accord Humphries, 131 S. Ct. at 452.
19

endorse or tum a blind eye to widespread misconduct - is not answered by reference to NYPD policy as written. Accordingly, revisions to the Patrol Guide, without proof of a change in practice, are insufficient to remedy the entrenched customs and practices underlying Plaintiffs' constitutional and statutory claims. V. CONCLUSION
For the reasons set forth above, Defendants' motion for summary judgment is denied in its entirety. The Clerk of the Court is directed to close this motion [Docket No. 31]. A conference is scheduled for August 9, 2011 at 5 p.m.

Dated:

New York, New York July 5, 2011

20 


– Appearances –
For Plaintiffs:
Johnathan Smith, Esq. Johanna B. Steinberg, Esq. NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013 (212) 965-2269
William Gibney, Esq. Nancy Rosenbloom, Esq. Legal Aid Society of New York 199 Water Street New York, New York 10038 (212) 577-3419
Katharine E.G. Brooker, Esq. Matthew J. Moses, Esq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3139
For Defendant City of New York:
Tonya Jenerette Morgan David Kunz David M. Hazan Bradford Collins Patrick Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-0993
21

For Defendant NYCHA: Steven Jay Rappaport, Esq. New York City Housing Authority 250 Broadway, 9th Floor New York, New York 10007 (212) 776-5152
22

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)(

KELTON DAVIS, WILLIAM TURNER, ALTAGRACIA HERNANDEZ, EDWIN LARREGUI, ROMAN JACKSON, KRISTIN JOHNSON, ELEANOR BRITT, ANTHONY ANDERSON, LASHAUN SMITH, SHAWNE JONES, HECTOR SUAREZ, ADAM COOPER, ANDREW WASHINGTON, P.L. BY HIS PARENT LISA PIGGOTT, DAVID WILSON, and GENEVA WILSON, individually and on behalf of a class of all others similarly situated,
Plaintiffs,

OPINION AND ORDER 10 Civ. 699 (SAS)

f ~~~y

=1

DOCUMENT

. El..B(;fl\ONICAUX FILED i

DOC #': DATI1FlLED:

__ f'
'.-~.

- against-

THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,

Defendants.
-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:

Plaintiffs brought this putative class action, on behalf of themselves

and a class of similarly situated persons, against the City of New York (the "City")

and the New York City Housing Authority ("NYCHA") to remedy the continuing

violation of various constitutional rights secured by 42 U.S.C. § 1983 ("section

1983"). Nine of the sixteen original plaintiffs, hereafter referred to as the "Settling

Plaintiffs," accepted offers of judgment pursuant to Federal Rule of Civil

Procedure 68 (“Rule 68”)1 and took Judgments Pursuant to Rule 68 (“Rule 68
Judgments”) against the City on February 7, 2011.2 On July 8, 2011, the Settling
Plaintiffs moved for an award of attorneys’ fees and costs which the City opposed.
For the following reasons, the Settling Plaintiffs’ motion is granted but not in the
amount sought.
1 Rule 68 states, in relevant part, as follows: “At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” Fed. R. Civ. P. 68(a).
2 The parties dispute whether the Rule 68 Judgments also release NYCHA from the claims brought by the Settling Plaintiffs. The Rule 68 Judgments state that “this judgment shall act to release and discharge defendants The City of New York, their successors and/or assigns; and all past and present officials, employees, representatives, and agents of the City of New York, or any agency thereof, from any and all claims that were or could have been alleged by [the Settling Plaintiff.]” (emphasis added). NYCHA is not an agency of the City of New York. Rather, NYCHA “is ‘a body corporate and politic’ created by state law.” Romero v. Keeney. 168 F.R.D. 483, 484 (S.D.N.Y. 1996) (quoting N.Y. Pub. Hous. Law § 401) (“[T]he New York City Housing Authority, although its members are appointed by the mayor, is not an agency of the City of New York.”). Accord McLaughlin v. Hernandez, 782 N.Y.S.2d 589, 592 (Sup. Ct. N.Y. Co. 2004) (“NYCHA was created as a public housing authority by act of the State Legislature to address the widespread and growing need for adequate low-income housing in New York City.”). Although NYCHA is not an agency of the City of New York, it is the parties’ intent that will control the scope of the Rule 68 Judgments. I do not address this issue at this time.
2

I. BACKGROUND Plaintiffs3 filed the instant action on January 28, 2010, alleging
violations of the Fourth and Fourteenth Amendments of the United States Constitution, Title VI of the Civil Rights Act of 1964,4 Title VIII of the Civil Rights Act of 1968,5 the United States Housing Act,6, the Constitution and laws of the State of New York, and the New York City Human Rights Law.7 Plaintiffs allege that defendants, operating through the New York City Police Department (“NYPD”), were engaged in a pattern and practice of “illegal stops, seizures, questioning, searches, and false arrests” of residents and visitors to housing developments maintained by the NYCHA.8 In particular, plaintiffs complain about
3 The original sixteen plaintiffs in this action include Kelton Davis, William Turner, Altagracia Hernandez, Edwin Larregui, Roman Jackson, Kristin Johnson, Eleanor Britt, Anthony Anderson, Lashaun Smith, Shawne Jones, Hector Suarez, Adam Cooper, Andrew Washington, P.L. by his parent Lisa Piggott, David Wilson and Geneva Wilson. On September 23, 2010, Altagracia Hernandez voluntarily withdrew all of her claims against defendants. See Docket Entry # 22.
4 42 U.S.C. § 2000(d) et seq. 5 Id. § 3601 et seq. (the “Fair Housing Act”). 6 Id. § 1437 et seq. 7 See Complaint ¶ 1. 8 See id. ¶ 2.
3

the use of allegedly unlawful “vertical patrols.”9 These vertical patrols consist of “roving pedestrian checkpoints in and around NYCHA residences, wherein [police officers] indiscriminately stop and question every person they observe, without objective individualized suspicion of a crime, and unlawfully arrest individuals for trespass without probable cause.”10 Plaintiffs further allege that “[d]efendants implement and apply these policies, practices, and customs in an intentionally discriminatory and race-based manner . . . .”11 According to plaintiffs, defendants’ policies are “not explained or justified by underlying crime levels in NYCHA residences” but instead are based on the “race, ethnicity, and/or national origin” of the residents and visitors of NYCHA buildings.12 To remedy these constitutional violations, plaintiffs seek class certification “for the purpose of obtaining injunctive and declaratory relief only.”13 Plaintiffs also seek “compensatory damages for their individual claims[.]”14
9 See id. 10 Id. ¶ 3. 11 Id. ¶ 7. 12 Id. ¶¶ 8-9. 13 Id. ¶ 13. 14 Id.
4

Nine of the sixteen original plaintiffs accepted Rule 68 offers. Four Settling Plaintiffs – Anthony Anderson, Edwin Larregui, William Turner and David Wilson – were extended Rule 68 offers on September 20, 2010, which they accepted on October 4, 2010.15 Five other Settling Plaintiffs – Adam Cooper, Kelton Davis, Shawne Jones, Hector Suarez and Geneva Wilson – were extended Rule 68 offers on December 7, 2010, which they accepted December 20, 2010.16 When the Settling Plaintiffs accepted the Rule 68 offers, they agreed to dismiss all claims in exchange for specified dollar amounts. Thus, the Settling Plaintiffs did not obtain class certification, injunctive relief, or declaratory relief.
In their motion for attorneys’ fees and costs, the Settling Plaintiffs submitted bills for seven attorneys, four from the Legal Aid Society (“LAS” or “Legal Aid”) and three from the NAACP Legal Defense and Educational Fund, Inc. (“LDF” or the “Fund”). Initially, the Settling Plaintiffs sought a total award of $277,255.58, consisting of $114,102.20 in fees for Legal Aid, $151,109.63 in fees for LDF, and $12,043.75 in costs for LDF. In their reply papers, the Settling Plaintiffs seek an additional $5,418.75 in attorneys’ fees for Legal Aid and
15 See Judgment Pursuant to Rule 68, Ex. B to the Declaration of Morgan D. Kunz, Assistant Corporation Counsel, in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs (“Kunz Decl.”).
16 See Judgment Pursuant to Rule 68, Ex. C to the Kunz Decl.
5

$19,370.00 in attorneys’ fees for LDF.17 When the other adjustments proposed by
the Settling Plaintiffs are taken into account,18 the revised amounts sought in
attorneys’ fees is $118,883.45 for Legal Aid and $138,450.88 for LDF, with the
same costs of $12,043.75 for LDF.19
II. LEGAL STANDARD
A “prevailing party” in a civil rights action is entitled to an award of
attorneys’ fees and costs.20 The Second Circuit has held that plaintiffs who accept
Rule 68 offers of judgment qualify as “prevailing parties” entitled to attorneys’
fees and costs.21 Furthermore, a prevailing party is also entitled to reimbursement
17 See Attorney Declaration of Nancy Rosenbloom in Support of Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs (“Rosenbloom Decl.”) ¶ 4.
18 The Settling Plaintiffs propose the following reductions to the amount of fees sought: $637.50 (Legal Aid) and $3,071.25 (LDF) for duplicate entries; $26,422.50 (LDF) for post-Rule 68 work; and $2,535.00 (LDF) for block billing entries. See id. ¶¶ 5, 6 and 7.
19 See id. ¶ 8. 20 See 42 U.S.C. § 1988(b) (stating that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs” in civil rights actions). See also Raishevich v. Foster, 247 F.3d 337, 344 (2d Cir. 2001) (“Although a district court typically has wide discretion in choosing whether to deny attorneys’ fees, . . . this discretion is narrowed by a presumption that successful civil rights litigants should ordinarily recover attorneys’ fees unless special circumstances would render an award unjust.”). 21 See Lyte v. Sara Lee Corp., 950 F.2d 101, 103-04 (2d Cir. 1991) (“A plaintiff involved in litigation ultimately resolved by settlement may still be
6

for time reasonably expended in preparing its attorneys’ fee application.22 Thus,
“absent unreasonably dilatory conduct by the prevailing party in ‘any portion’ of
the litigation, which would justify denying fees for that portion, a fee award
presumptively encompasses all aspects of the civil action,” including litigation over attorneys’ fees.23 “The district court has broad authority to depart from this
basic assumption” where, for example, “the fee claims are exorbitant or the time devoted to presenting them is unnecessarily high.”24
District courts are afforded considerable discretion in determining the amount of attorneys’ fees in any given case.25 In calculating a reasonable fee
award, the Second Circuit has adopted the “presumptively reasonable fee”
entitled to an award of attorneys’ fees.” (citing Maher v. Gagne, 448 U.S. 122, 129 (1980)); Baird v. Boies, Schiller & Flexner LLP, 219 F. Supp. 2d 510, 518 (S.D.N.Y. 2002) (“The Second Circuit has also found that a plaintiff who accepts a Rule 68 offer of judgment can qualify to be a ‘prevailing party’ entitled to attorneys’ fees and costs.”) (citing Sara Lee, 950 F.2d at 104).
22 See Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999) (“[A] reasonable fee should be awarded for time reasonably spent in preparing and defending an application for § 1988 fees.”).
23 Commissioner, INS v. Jean, 496 U.S. 154, 161 (1990). 24 Valley Disposal, Inc. v. Central Vermont Solid Waste Mgmt. Dist., 71 F.3d 1053, 1059, 1060 (2d Cir. 1995) (quotation marks and citation omitted). 25 See Barfield v. New York City Health and Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008).
7

approach.26 “Although the term ‘lodestar’ is now disfavored by the Second Circuit,
the applicable approach still contemplates (1) a consideration of the number of
hours actually spent by counsel and other personnel that are deemed reasonably
necessary to a successful outcome for the client, and (2) the setting of reasonable hourly rates for counsel . . . .”27 “The presumptively reasonable fee boils down to
what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively.”28
“The reasonable hourly rate is the rate a paying client would be willing to pay.”29 In determining the reasonable hourly rates to be applied, courts
should look to the market rates “‘prevailing in the community for similar services
26 Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany and Albany County Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008).
27 Imbeault v. Rick’s Cabaret Int’l Inc., No. 08 Civ. 5458, 2009 WL 2482134, at *1 (S.D.N.Y. Aug. 13, 2009) (“In determining a ‘reasonable’ fee, the ‘most useful starting point . . . is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.’” (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (ellipsis in original)); Metrokane, Inc. v. Built NY, Inc., Nos. 06 Civ. 14447, 07 Civ. 2084, 2009 WL 637111, at *1 (S.D.N.Y. Mar. 6, 2009) (citation omitted).
28 Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (quotation marks and citation omitted).
29 Arbor Hill, 522 F.3d at 190.
8

by lawyers of reasonably comparable skill, experience, and reputation.’”30 “The
relevant community to which the court should look is the district in which the case
was brought.”31 To compensate for the delay in payment, the hourly rates to be
used should be “‘current rather than historic hourly rates.’”32
There is no rule requiring proportionality between the amount of fees
requested and the damages recovered. The Second Circuit has recently stated that
[w]hile a court may, in exceptional circumstances, adjust the lodestar, it may not disregard it entirely. Especially for claims where the financial rec overy is likely to be sm all, calculating attorneys’ fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys’ fees that are disproportionate to the plaintiff’s recovery. Thus, the district court abused its di scretion when it ignored the lodestar and calculated the attorneys’ fees as a proportion of the damages awarded.33
30 Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)).
31 Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d 381, 386 (S.D.N.Y. 2000) (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987)).
32 Gierlinger, 160 F.3d at 882 (quoting Missouri v. Jenkins, 491 U.S. 274, 284 (1989)).
33 Millea v. Metro-North R.R. Co., Nos. 10–409–cv, 10–564–cv, 2011 WL 3437513, at *10 (2d Cir. Aug. 8, 2011) (citation omitted, emphasis in original). Accord Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005)
9

The Second Circuit has stated, however, “that ‘the most critical factor’
in a district court’s determination of what constitutes reasonable attorney’s fees in
a given case ‘is the degree of success obtained’ by the plaintiff.”34 The “degree of
success” inquiry “is not limited to inquiring whether a plaintiff prevailed on
individual claims.”35 “Both the quantity and quality of relief obtained, as
compared to what the plaintiff sought to achieve as evidenced in her complaint, are
key factors in determining the degree of success achieved.”36 “‘If a plaintiff has
achieved only partial or limited success, the product of hours reasonably expended
on the litigation as a whole times a reasonable hourly rate may be an excessive
amount . . . even where the plaintiff’s claims were interrelated, non-frivolous, and
raised in good faith.’”37 Accordingly, “a district judge’s authority to reduce the
fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiff’s
(“Reasoning that a rule calling for proportionality between the fee and the monetary amount involved in the litigation would effectively prevent plaintiffs from obtaining counsel in cases where deprivation of a constitutional right caused injury of low monetary value, we have repeatedly rejected the notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation.”).
34 Barfield, 537 F.3d at 152 (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)).
35 Id. (citing Kassim, 415 F.3d at 254). 36 Id. (quotation marks and citation omitted). 37 Id. (quoting Hensley, 461 U.S. at 436).
10

‘partial or limited success’ is not restricted either to cases of multiple discrete
theories or to cases in which the plaintiff won only a nominal or technical victory.”38
“Congress did not intend the calculation of fee awards to vary
depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization.”39 In furtherance of such parity, the Supreme
Court offered the following guidance within the context of the federal civil rights
fee-shifting statute:
Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer inprivate practice ethically is obligated to exclude such hours from his fee submission. In the private sector, “billing judgm ent” is an im portant component in fee setting. It is no less im portant here. Hours that are not properly billed to one’s client also are not properly billed to one’sadversary pursuant to statutory authority.40
38 Kassim, 415 F.3d at 256. 39 Blum, 465 U.S. at 894. 40 Hensley, 461 at 434 (quotation marks and citation omitted, emphasis in original).
11

Thus, “[i]n determining what fee is reasonable, the court takes account of claimed
hours that it views as ‘excessive, redundant, or otherwise unnecessary.’”41 In
doing so, “the district court does not play the role of an uninformed arbiter but may
look to its own familiarity with the case and its experience generally as well as to
the evidentiary submissions and arguments of the parties.”42 Moreover, the
“presumptively reasonable fee” is subject to further reduction due to plaintiffs’
limited success.43 “In lieu of making minute adjustments to individual timekeeping
entries, a court may make across-the-board percentage cuts in the number of hours
claimed, ‘as a practical means of trimming fat from a fee application.’”44
41 Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley, 461 U.S. at 434).
42 DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985). 43 See Estrella v. P.R. Painting Corp., 596 F. Supp. 2d 723, 727 (E.D.N.Y. 2009) (“The Second Circuit has observed that district courts retain the authority to reduce a statutory fee award by reason of the plaintiff’s ‘partial or limited success.’”) (quoting Kassim, 415 F.3d at 256). 44 Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048, 2007 WL 1373118, at *5 (S.D.N.Y. May 8, 2007) (quoting In re Agent Orange, 818 F.2d at 237). Accord Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (“[I]n dealing with . . . surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed ‘as a practical means of trimming fat from a fee application[.]’”) (quoting New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)).
12

III. DISCUSSION
A. The February Proposal
On February 25, 2011, plaintiffs presented the City with a fee
settlement proposal (the “February Proposal”). The February Proposal did not
include any attorneys’ fees or costs for work done by the Paul Weiss attorneys.
The February Proposal was intended to only include fees for work through
December 7, 2010, the date of the City’s second round of Rule 68 offers. The
February Proposal states:
Because these settlements are limited to individual damages and are for a subset of Plaintiffs, our present application is limited to fees that we attribute to work done on behalf of the Rule 68 Plaintiffs’ individual damages only. As such, this application does not seek fees for work done solely in furtherance of the Monell claims or injunctiv e relief. Moreover, where the work is attributable to all o f the Plaintiffs, we have discounted the amount in half since this application is on behalf of approximately half of the Plaintiffs.45
The February Proposal sought $41,041.50 in attorneys’ fees for the following
attorneys: Amanda Moretti, Steve Wasserman, Nancy Rosenbloom, Johanna
Steinberg, and Jih Hee Lee.46
45 2/25/11 Letter from Katharine E.G. Brooker, attorney at Paul Weiss, to Tonya Jenerette and Bradford C. Patrick of the Special Federal Litigation Division of the Office of the Corporation Counsel at 1.
46 See id., Attorney Hours Summary.
13

Included in the declarations of attorneys William Gibney and Johanna B. Steinberg in Support of Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs is an identical Exhibit B which contains time entries associated with the Settling Plaintiffs’ individual claims.47 Although the City apparently “absolutely refused to negotiate a bifurcated fee settlement,”48 this Court finds that the fees associated with plaintiffs’ pattern and practice claims should be deferred, pending the ultimate resolution of this action. To allocate a portion of such fees to the Settling Plaintiffs at this stage of the litigation makes little sense given that the degree of plaintiffs’ success with regard to their pattern and practice claims has not yet been determined. The degree of plaintiffs’ success is perhaps the most crucial factor to be considered when determining the amount of fees to be awarded. Accordingly, this Court will confine the present fee request to the fees associated with the Settling Plaintiffs’ individual claims for money damages.
In determining the appropriate amount of such fees, the supporting documentation found in Exhibit B – detailing each attorneys’ time charges for the
47 See Ex. B to Declaration of William Gibney in Support of Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs (“Gibney Decl.”); Ex. B to Declaration of Johanna B. Steinberg in Support of Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs (“Steinberg Decl.”).
48 Memorandum of Law in Support of Plaintiffs’ Application for an Award of Attorneys’ Fees and Costs (“Pl. Mem.”) at 5.
14

Settling Plaintiffs’ claims – will be relied upon and reviewed. Because of a previous mathematical error in the amount of attorneys’ fees originally included in Exhibit B, plaintiffs submitted a revised Exhibit B on October 3, 2011. The amount of fees included in the revised Exhibit B is $38,032.50.
B. Hourly Rates The City argues that there is a “disconnect” between the hourly rates
sought for the attorneys seeking fees and the level of experience for those attorneys. The following chart summarizes the information found in Exhibit B.49

Attorney

Hour Rate Total

Adjusted Adj.

Total

Hrs

LAS Moretti

27.25 $425 $11,581.25 $7,596.88 17.88

Wasserman 23.25 $425

$9,881.25 $8,659.38 20.38

Rosenbloom 1.50 $425

$637.50

$637.50 1.50

LDF Steinberg Pre 7/1/10 47.25 $360 $17,010.00 $10,890.00 30.63

Post 7/1/10 25.10 $390

$8,287.50 $7,848.75 23.90

Lee

11.00 $400

$4,400.00 $2,400.00 6.00

Totals

$38,032.51

49 The last column, Adjusted Hours, is arrived at by dividing the Adjusted Total by the attorney’s hourly rate. For example, the Adjusted Total for Moretti is $7,596.88. Dividing that amount by Moretti’s hourly rate of $425 yields 17.88 in Adjusted Hours. Finally, the “Adjusted Total” column differs from the “Total” column because, as stipulated to by the parties, the attorneys only billed fifty percent (50%) for those time entries applicable to all plaintiffs as opposed to one-hundred percent (100%) for those time entries specifically identifying one or more of the Settling Plaintiffs by name.
15

The hourly rates sought by the Settling Plaintiffs, the rates proposed by the City, and the rates determined by this Court are summarized in below.

Attorney
Wasserman Moretti Rosenbloom Steinberg pre 7/1/10 Steinberg post 7/1/10 Lee

Years Experience 31 20 24
9
9 11

Hourly Rate Sought $425 $425 $425

Hourly Rate Proposed $400 $350 $350

Hourly Rate Set by Court $425 $400 $400

$360

$300

$350

$390 $400

$300 $300

$375 $375

Wasserman has the most experience, thirty-one years, and is therefore entitled to the highest rate sought by the Settling Plaintiffs. Moretti and Rosenbloom have considerably less experience than Wasserman, twenty and twenty-four years respectively, but the Settling Plaintiffs seek the same hourly rate of $425 per hour for both attorneys.50 To account for the differences in experience, this Court finds that a small reduction, to $400 per hour, is appropriate for these

50 In their reply papers, plaintiffs suggest that “[i]f the Court finds that different rates are appropriate, it would be more appropriate to raise the rates of the most senior attorneys rather than reduce the rates of the next most experienced.” Reply Memorandum of Law in Support of Plaintiffs’ Application for an Award of Attorneys’ Fees and Costs (“Reply”) at 3. Because the most experienced attorney is being compensated at an appropriate level, this Court declines plaintiffs’ suggestion.
16

attorneys. Finally, Steinberg and Lee have roughly half of the experience of
Moretti and Rosenbloom yet the Settling Plaintiffs seek rates of $360/$390 and
$400 per hour for these attorneys. Surely, a reasonable paying client would not
pay an attorney with ten years experience the same hourly rate he would pay an
attorney with twenty or thirty years experience. Accordingly, the Court sets the
rates for Steinberg and Lee at $350 per hour. The rates established above are in
accord with relevant case law.51
C. Pre-Complaint Work
The City objects to a number of time entries that pre-date the filing of
the Complaint on the ground that the work billed must be expended on the
litigation itself.52 In Webb v. Board of Education of Dyer County, Tennessee, the
51 See, e.g., Handschu v. Special Servs. Div., 727 F. Supp. 2d 239, 246 (S.D.N.Y. 2010) (approving $400 per hour for seasoned civil rights attorneys admitted to the bar in the 1960s and 1970s) (citing Simmonds v. New York City Dep’t of Corr., No. 06 Civ. 5298, 2008 WL 4303474, at *5 (S.D.N.Y. Sept. 16, 2008) (where, in the context of a Title VII civil rights case, the court relied upon her “independent knowledge of the rates charged by attorneys for similar services and of recent awards in the district for complex civil rights matters” in compensating the two lead attorneys at $425 per hour)); Rahman v. Smith & Wollensky Rest. Grp., Inc., No. 06 Civ. 6198, 2008 WL 1899938, at *4 (S.D.N.Y. Apr. 29, 2008) (compensating an attorney with ten years experience at $350 per hour); Heng Chan, 2007 WL 1373118, at *4 (finding $400 per hour to be a reasonable rate for an attorney at the Urban Justice Center who had fifteen years of civil rights litigation experience).
52 See Defendant City of New York’s Memorandum of Law in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs (“Def. Mem.”) at
17

Supreme Court noted that “[t]he time that is compensable under § 1988 is that ‘reasonably expended on the litigation.’”53 The Supreme Court suggested that the standard to use to determine if pre-complaint work is compensable is whether the work “was both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before settlement.”54 The question, then, is how much of the work performed prior to the filing of the complaint was useful to advance the federal claims subsequently asserted herein.
Wasserman’s time charges begin on January 15, 2009 and end on December 10, 2009.55 Thus, for purposes of the instant fee award, all of Wasserman’s time is pre-complaint. Steinberg’s time charges begin on May 27, 2009, and continue through January 22, 2010.56 According to the supporting documentation, the vast majority of Wasserman’s time entries list the actual
16-17. 53 471 U.S. 234, 242 (1985) (emphasis in original). 54 Id. at 243. 55 See Attorney Time Detail – Steve Wasserman (LAS), Ex. B to the
Gibney and Steinberg Decls. 56 See Attorney Time Detail –Johanna Steinberg (LDF), Ex. B to the
Gibney and Steinberg Decls.
18

plaintiff with whom the work was associated.57 For those entries that do not
identify a particular plaintiff, the Settling Plaintiffs allocate half the amount as compensable, in accordance with the parties’s stipulation.58 Conversely, most of Steinberg’s pre-complaint time entries do not identify a particular plaintiff.59 As
with Wasserman, the Settling Plaintiffs include only fifty percent of Steinberg’s
unidentifiable pre-complaint work in the instant fee request.
This Court finds that most of Wasserman’s and Steinberg’s pre-
complaint work was relevant and related to the instant litigation and is thus
compensable. However, for those time entries that relate to “potential plaintiffs,”
the following adjustments are needed: Wasserman – 2.50 hours (8/24/09), 1.25
hours (8/26/09) (3.75 hours total reduction); Steinberg – 2.50 hours (8/24/09),
1.25 hours (8/26/09), 0.50 hours (9/5/09) (4.25 hours total reduction, all pre 7/1/10).60
57 See, e.g., 1/15/09 (Adam Cooper: conferred with Legal Aid Attorney); 4/18/09 (Anthony Anderson; wrote letter to Plaintiff); 5/27/09 (met with Edwin Larregui).
58 See 8/24/09; 8/26/09; 10/14/09. 59 The time entries that do identify a particular plaintiff include 6/10/09; 11/23/09; 1/19/10; 1/22/10. The remaining entries are described in terms more general such as “plaintiffs,” “potential plaintiffs,” and “clients.” 60 The fact that only minor adjustments were made to adjust for precomplaint work is not intended to bind this Court with respect to any future fee
19

D. Travel Time The City acknowledges that the Settling Plaintiffs seek compensation
for travel time at fifty percent (50%) of their normal rates. Nonetheless, the City argues that “given the wide availability of electronic means of communication, . . . a reasonable paying client would not agree to pay for travel time.”61 The City has therefore identified two areas for possible deductions: (1) those time entries specifically designated as travel time only, for which a 100% reduction is suggested; and (2) those time entries that list meetings held in outside offices but do not contain separate entries for travel time, for which a 33% reduction is proposed.62
This Court rejects the City’s proposal to eliminate, in their entirety, those time entries specifically designated as travel only, which were billed at fifty percent (50%) of the attorneys’ normal rates. Courts in this district typically allow
requests, where more substantial reductions may be necessary for work not reasonably expended on the litigation, pre-complaint and otherwise. Furthermore, this Court does not intend for this Opinion and Order to have any res judicata/collateral estoppel effect or otherwise affect the objections, challenges, and/or defenses that could be raised by the defendants in the future.
61 Def. Mem. at 15-16. 62 See id. at 16.
20

for travel time at fifty percent.63 However, this Court agrees with the second category of adjustments but does not agree with the suggested discount rate of 33%. Accordingly, the following adjustments, in hours, are needed to discount travel time: Moretti – 0.50 hours (5/24/10); 0.50 hours (9/24/10) (1 hour total reduction); Wasserman – 1.00 hours (4/18/09), 0.50 hours (5/27/09) (1.50 hours total reduction); Steingberg – 1.00 hours (11/5/09), 1.00 hours (11/23/09), 0.50 hours (8/17/10), 1.00 hours (9/23/10) (3.5 hours total reduction, 2 hours pre 7/1/10 and 1.5 hours post 7/1/10); Lee - 0.50 hours (5/25/10), 0.50 hours (8/17/09) (1 hour total reduction).
E. Class Certification Attorney Jin Hee Lee charged one hour on October 26, 2010 for
“Draft class cert declaration for S. Jones.” The Settling Plaintiffs, however, achieved no class-wide relief, only money damages for their individual claims. Thus, work related to class certification did not advance the settlement efforts of the Settling Plaintiff and is therefore non-compensable. Accordingly, one hour of
63 See, e.g., Colburn Family Found. v. Chabad’s Children of Chernobyl, No. 06 Civ. 2351, 2011 WL 1758639, at *5 (S.D.N.Y. Apr. 12, 2011); In re Painewebber Ltd. P’ships Litig., No. 94 Civ. 8547, 2003 WL 21787410, at *4 (S.D.N.Y. Aug. 4, 2003) (“When determining attorneys’ fees, courts in the Southern District of New York generally do not credit travel time at the attorney’s full hourly rate and customarily reduce the amount awarded for travel to at least 50% of that rate.”).
21

Lee’s time will be deducted from the instant award. F. Revised Summary of Charges In light of the adjustments made above, to both the hourly rates and
the number of hours, the following chart summarizes the attorneys’ fees that relate to the litigation of the Settling Plaintiffs’ claims.64

Attorney Amanda Moretti Steve Wasserman Nancy Rosenbloom Johanna Steinberg pre 7/1/10 post 7/1/10 Jin Hee Lee Total

Adjusted Hours 16.88 15.13 1.5 24.38

Adjusted Rates $400 $425 $400 $350

22.4

$375

4

$375

Adjusted Fees $6,752.00
$6,430.25 $600.00
$8,533.00
$8,400.00 $1,500.00 $32,215.25

The Settling Plaintiffs also seek attorneys’ fees relating to the filing of the instant fee application. The hours requested, and the adjusted rates, are as follows: Lee - 7 hours at $375 per hour ; Rosenbloom - 12.75 hours at $400 per

64 Because this award encompasses only the fees relating to the individual damages claims, the City’s suggestion of an across-the-board reduction due to plaintiffs’ limited success and vague and block billing is unnecessary.
22

hour; Smith - 45.25 hours at $280 per hour;65 Steinberg - 10.00 hours at $375 per hour. The corresponding amounts are as follows: Lee - $2,625.00; Rosenbloom $5,100.00; Smith - $12,670.00; Steinberg - $3,750.00, all of which total $24,145.00.
G. Expert Fees Pursuant to section 1988, courts only have the discretion to tax expert
fees as costs in actions brought under 42 U.S.C. §§ 1981 and 1981a, not section 1983.66 The Supreme Court has held that section 1988 does not authorize courts to shift expert fees to the losing party as part of a “reasonable attorney’s fee” in a section 1983 case.67 “After Casey, Congress enacted the Civil Rights Act of 1991, which amended 42 U.S.C. § 1988 to give courts discretion to shift expert fees to the losing party in cases arising under 42 U.S.C. §§ 1981 and 1981(a). As

65 Jonathan Smith has four years experience and, as such, his hourly rate of $280 per hour is appropriate.

66 See 42 U.S.C. § 1988(c) (“In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.”); Tatum v. City of New York, No. 06 Civ. 4290, 2010 WL 334975, at *13 (S.D.N.Y. Jan. 28, 2010) (“Finally, the law is clear that counsel may not recover under Section 1988 for expert fees paid in connection with a Section 1983 action.”) (citing Wilder v. Bernstein, 975 F. Supp. 276, 287 (S.D.N.Y. 1997)).

67
(1991).

See West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102

23

Congress explicitly limited the amendment to cases arising under § 1981, Casey
still prohibits the award of expert fees in § 1983 cases."68 Consequently, plaintiffs cannot recover any amounts paid in expert witness fees. IV. CONCLUSION
For the reasons stated above, the Settling Plaintiffs are awarded $56,360.25 in attorneys' fees ($32,215.25 in litigation fees and $24,145.00 in fees related to the fee application) and zero costS.69 The Clerk of the Court is directed to close the motion for attorneys' fees (Docket Entry # 80).
SO ORDERED:

Dated:

New York, New York October 17,2011

68 Wilder, 975 F. Supp. at 287, n.12 (citation omitted).
69 Because all of plaintiffs' costs represent expert witness fees, see Ex. C to the Steinberg Decl., they are disallowed in their entirety.
24

- Appearances -

For Plaintiffs:

John Payton, Esq. Johanna B. Steinberg, Esq. Jonathan J. Smith, Esq. Jin H. Lee, Esq. NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013 (212) 965-2200

William D. Gibney, Sr., Esq. Amanda C. Moretti, Esq. Nancy Rosenbloom, Esq. The Legal Aid Society 199 Water Street, 6th Floor New York, NY 10038 (212) 577-3300

Katherine E.G. Brooker, Esq. Daniel J. Leffell, Esq. David G. Clunie, Esq. Andre D. Williams, Esq. Jason D. Williamson, Esq. Paul, Weiss, Rifkin, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000

For Defendant City of New York:

For Defendant NYCHA:

Morgan D. Kunz Bradford C. Patrick Brenda E. Cooke Tonya Jenerette Assistant Corporation Counsel Corporation Counsel of the City of New York 100 Church Street, Room 3-189 New York, NY 10007 (212) 788-0422

Steven Jay Rappaport, Esq. New York City Housing Authority 250 Broadway, 9th Floor New York, NY 10007 (212) 776-5152

25

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X

KELTON DAVIS, et al.,

:

Plaintiffs,

:

-against-

:

THE CITY OF NEW YORK, et al.,

:

Defendants.

:

-----------------------------------X

10 Civ. 699 (SAS)(HBP)
OPINION AND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

This is a civil rights action brought pursuant to 42 U.S.C. § 1983, and other federal and state laws, in which the plaintiffs, on behalf of themselves and a class of similarly situated individuals, seek injunctive and declaratory relief and damages resulting from defendants' allegedly unlawful trespass enforcement policies and practices.
By notice of motion dated October 21, 2011, plaintiffs move for an Order pursuant to Rule 37 of the Federal Rules of Civil Procedure, compelling the production of certain documents1

1 A list of the documents plaintiffs challenge is attached as Exhibit B to the Amended Declaration of Jon Hee Lee in Support of Plaintiffs' Motion to Compel Production of Documents, dated Oct. 26, 2011 (Docket Item 122)("Lee Decl.").

that defendants are withholding on the basis of the attorneyclient and the deliberative process privileges (Docket Item 119). For the reasons set forth below, plaintiffs' motion is granted in part and denied in part.
II. Facts
A. Background
Plaintiffs allege that defendants, the City of New York (the "City") and the New York City Housing Authority ("NYCHA"), "operating through and in conjunction with the New York City Police Department ("NYPD"), conduct, enforce and sanction unlawful trespass arrest policies and practices [which] result in a pattern and practice of unlawful stops, seizures, questioning, frisks, searches, and arrests of residents of, and authorized visitors to, NYCHA public housing residential property" (Amended Complaint, dated May 27, 2011 (Docket Item 69) at ¶ 2). Plaintiffs' allegations are set forth in greater detail in an opinion issued by the Honorable Shira A. Scheindlin, United States District Judge, denying the City's motion for partial summary judgement. Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL 2652433 (S.D.N.Y. July 5, 2011). Judge Scheindlin summarized the
2

facts relevant to the present discovery dispute in an Order,
dated May 5, 2011, as follows:
At the time this suit was instituted, the NYPD policy at issue was reflected, in part, in section 212–60 of the NYPD Patrol Guide ("P.G. 212–60"), entitled "Interior Vertical Patrol of Housing Authority Buildings."
In response to complaints [and] concerns . . . . NYPD Police Commissioner Raymond Kelly delegated to S. Andrew Schaffer, NYPD Deputy Commissioner for Legal Matters, the task of revising P.G. 212–60 in consultation with high-ranking NYPD personnel and attorneys from the New York City Corporation Counsel. On July 8, 2010, P.G. 212–60 was replaced by Interim Order number 23 ("I.O. 23"). Although I.O. 23 contains much of the same information as its predecessor, it differs in that it "discusses in enhanced detail when 'a uniformed member of the service may approach and question persons who may be violating Housing Authority rules and regulations, including potentially unauthorized persons found in Housing Authority buildings.'"
I.O. 23 was issued after the commencement of this suit, but plaintiffs assert that their claims "challenge[ ] generally Defendants' overall vertical patrol policies and trespass enforcement practices, including I.O. 23." Plaintiffs have accordingly demanded that the City produce, as part of its discovery obligations, "any drafts, correspondence or memoranda concerning the development and implementation of Interim Order 23" and "any drafts, correspondence or memoranda concerning the development and implementation of the corresponding training curriculum, as well as all revisions to the curriculum."
Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL 1742748 at *1-
*2 (S.D.N.Y. May 5, 2011)(footnotes omitted).
Two categories of documents concerning the revisions to
P.G. 212-60 are at issue here: "(1) legal memoranda and NYPD
3

Legal Bureau analysis of vertical patrols in NYCHA developments; [and] (2) correspondence and draft revisions to PG 212–60" ("Category One" and Category Two," respectively) (Letter Brief of Tonya Jenerette, counsel to the City, dated Mar. 15, 2011 ("City's Letter Brief"), at 3). In support of its assertions of privilege, the City submitted a declaration from S. Andrew Schaffer, dated March 15, 2011, two privilege logs dated February 25, 2011 and April 7, 2011, and a copy of P.G. 212-60 and I.O. 23 (see City's Letter Brief and attached exhibits) .
Judge Scheindlin, in her May 5 Order addressing the City's assertion of the deliberative process privilege, held that "[o]n the whole, the privilege logs submitted by the City are insufficiently detailed to allow the Court to assess the legitimacy and scope of its assertion of the deliberative process privilege." Davis v. City of N.Y., supra, 2011 WL 1742748 at *3. Judge Scheindlin noted "two major deficiencies in the City's logs that render them inadequate. First, one or more columns [are] marked 'N/A' for a significant number of entries. Second, the City too often employs vague, confusing, or conclusory descriptions in the 'Subject' column." Davis v. City of N.Y., supra, 2011 WL 1742748 at *3. Judge Scheindlin noted that, although "[t]he use of "'N/A' may in certain circumstances be appropriate, [when] combined with a vague description of the subject matter of
4

the document, [the index submitted by defendants] leave[s] the Court unable to assess" whether the assertion of a privilege, as to a given document, is proper. Davis v. City of N.Y., supra, 2011 WL 1742748 at *3.
Next, Judge Scheindlin noted that documents that fall within Categories One and Two "are most likely" privileged pursuant to the deliberative process privilege. However, "to the extent that documents in Category One do not relate to the revisions of P.G. 212-60 [which is the operative policy under deliberation during the relevant period], but rather constitute analysis of NYPD's past policy and practice of vertical patrols in NYCHA developments, they cannot be considered predecisional," and would not, therefore, be protected by the deliberative process privilege. Davis v. City of N.Y., supra, 2011 WL 1742748 at *5. Accordingly, Judge Scheindlin ordered the City to "revise its privilege logs [and provide] more detailed information about what is actually contained in the documents subsumed under Category One . . . so that plaintiffs and the Court can assess
5

the propriety of the assertions of privilege."2 Davis v. City of
N.Y., supra, 2011 WL 1742748 at *5.
Finally, Judge Scheindlin noted that "[c]ertain entries
in the [City's privilege] log reflect a blatant abuse of the
assertion of privilege," and issued the following instruction to
the City:
Thus while I do not rule here on the applicability of the attorney-client . . . privilege[] as [it has] not been briefed, the City is cautioned to reassess its assertion of all privileges carefully prior to resubmitting the logs. If a random in camera review of a selected group of documents on the privilege logs reveals that the assertion of privilege was baseless, the Court will not hesitate to find that the City has waived any claim of privilege with regard to the remainder of the documents.
Davis v. City of N.Y., supra, 2011 WL 1742748 at *4.
B. The Present Discovery Dispute
Pursuant to Judge Scheindlin's May 5 Order, the City
submitted a revised privilege log on May 27, 2011, as well as a
"redlined" version illustrating the revisions made to the origi-
2 Judge Scheindlin also ordered the City to revise its privilege logs with respect to Category Two documents; however, plaintiffs do not presently challenge the assertion of the deliberative process privilege with respect to Category Two documents (Exhibit D to the Lee Decl.). Plaintiffs do argue, however, that they have a substantial need for the Category Two documents sufficient to overcome the deliberative process privilege (see infra Part III.A.4).
6

nal privilege log (Amended Declaration of Jon Hee Lee in Support of Plaintiffs' Motion to Compel Production of Documents, dated Oct. 26, 2011 ("Lee Decl.")(Docket Item 122), at ¶¶ 3-4). 125 documents are at issue in this motion; the City asserts they are protected by the deliberative process privilege, the attorneyclient privilege, or both (see Exhibit J to the Declaration of Judson Vickers in Opposition to Plaintiffs' Motion to Compel Production of Documents, dated Nov. 9, 2011 ("Vickers Decl.")(Docket Item 128)).3
The City asserts the deliberative process privilege as to 107 documents; the plaintiffs challenge the assertion of this privilege as to 19 of these documents, on the grounds that the City has not established, through the information provided in the revised privilege log, or through other evidence, that these documents are predecisional and deliberative –- the two essential elements of the deliberative process privilege. The plaintiffs also argue that all 107 documents withheld on the basis of the deliberative process privilege should be produced because the
3 The index contained in Exhibit J to the Vickers Declaration effectively summarizes the privilege log entries in issue here, as well as plaintiffs' arguments as to each entry. Accordingly, for the purposes of this Opinion and Order, I shall use the document numbers from Exhibit J to the Vickers Declaration to refer to the individual documents, rather then referring to the documents by Bates number.
7

plaintiffs' need for the documents, outweighs the publics' interest in nondisclosure (Exhibit J to Vickers Decl.).
The City also asserts the attorney-client privilege as to all 125 documents in issue; the plaintiffs challenge that assertion with respect to 124 of those documents, either on the ground that the City has provided insufficient information in its revised privilege log to support the assertions of privilege, or on the ground that the information in the privilege log does not suggest a communication to a client containing legal advice (Exhibit J to Vickers Decl.).
III. Analysis
A. Deliberative Process Privilege
1. Legal Principals Related to the Deliberate Process Privilege
Questions of privilege in federal civil rights cases are governed by federal law. Fed. R. Evid. 501; von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987). The deliberative process privilege was comprehensively described by the Honorable Richard J. Sullivan, United States District Judge,
8

in MacNamara v. City of N.Y., 249 F.R.D. 70, 77-78 (S.D.N.Y.
2008):
"The deliberative process privilege is designed to promote the quality of agency decisions by preserving and encouraging candid discussion between officials. It is based on 'the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.'" Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001)). An "inter- or intra-agency document" may be subject to the privilege if it is both (1) "predecisional" and (2) "deliberative." La Raza, 411 F.3d at 356 (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)) (additional internal citations omitted).
A document is predecisional "when it is prepared in order to assist an agency decisionmaker in arriving at his decision." Tigue v. United States Dep't of Justice, 312 F.3d 70, 80 (2d Cir. 2002). The Second Circuit has noted some factors to consider in determining whether a document is "predecisional," including whether the organization asserting the privilege can (1) "pinpoint the specific . . . decision to which the document correlates" and (2) "verify that the document precedes, in temporal sequence, the 'decision' to which it relates." Grand Cent. P'ship, 166 F.3d at 482 (quoting Providence Journal Co. v. United States Dep't of the Army, 981 F.2d 552, 557 (1st Cir. 1992)).
A document is deliberative when it is "actually . . . related to the process by which policies are formulated." Grand Cent. P'ship, 166 F.3d at 482 (citing Hopkins, 929 F.2d at 84) (additional citation and internal quotation marks omitted). In other words, "the privilege does not protect a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment." Tigue, 312 F.3d at 80 (internal quotation marks and citation omitted). Thus,
9

the privilege "focus[es] on documents 'reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Grand Cent. P'ship, 166 F.3d at 482 (quoting Hopkins, 929 F.2d at 84-85) (additional internal quotation marks and citation omitted). In particular, it is well-settled that "[d]raft documents, by their very nature, are typically predecisional and deliberative. They reflect only the tentative view of their authors; views that might be altered or rejected upon further deliberation either by their authors or by superiors." Exxon Corp. v. Dep't of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (internal quotation marks and citation omitted); see also Nat'l Council of La Raza v. Dep't of Justice, 339 F. Supp. 2d 572, 573 (S.D.N.Y. 2004) ("Drafts and comments on documents are quintessentially predecisional and deliberative.").
Nevertheless, a document is not "deliberative" where it concerns "purely factual" information regarding, for example, investigative matters or factual observations. See Grand Cent. P'ship, 166 F.3d at 482; Hopkins v. U.S. Dep't of Hous. and Urban Dev., 929 F.2d 81, 85 (2d Cir. 1991). "Thus, factual findings and conclusions, as opposed to opinions and recommendations, are not protected." E.B. v. New York City Bd. of Educ., 233 F.R.D. 289, 292 (E.D.N.Y. 2005) (internal quotation marks and citation omitted).
10

2. The Requirement of an Index of Documents Withheld on the Ground of Privilege
Federal Rule of Civil Procedure Section 26(b)(5)4 and
Local Civil Rule 26.25 both require a party withholding documents
4 Fed.R.Civ.P. 26(b)(5) provides:
When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
5 Local Civil Rule 26.2 provides:
(a) Unless otherwise agreed by the parties or directed by the Court, where a claim of privilege is asserted in objecting to any means of discovery or disclosure . . . and an answer is not provided on the basis of such assertion,
(1) the person asserting the privilege shall identify the nature of the privilege (including work product) which is being claimed and, if the privilege is governed by state law, indicate the state's privilege rule being invoked; and
(2) the following information shall be provided in the objection . . . unless divulgence of such information would cause disclosure of the allegedly privileged information:
(continued...)
11

on the basis of a privilege to prepare an index of the withheld
documents. In order to satisfy the requirements of these rules,
the index of documents withheld must, "as to each document, . . .
set[ ] forth specific facts that, if credited, would suffice to
establish each element of the privilege or immunity that is
claimed." Golden Trade, S.r.L. v. Lee Apparel Co., 90 Civ. 6291
(JMC), 1992 WL 367070 at *5 (S.D.N.Y. Nov. 20, 1992) (Dolinger,
M.J.); see also Willemijn Houdstermaatschaapij BV v. Apollo
Computer Inc., 707 F. Supp. 1429, 1439 (D. Del. 1989) ("[A] party
asserting work product protection must 'identify the withheld
documents with sufficient particularity that the opposing counsel
can intelligently argue that the privilege ought not to ap-
ply.'"), quoting Petz v. Ethan Allen, Inc., 113 F.R.D. 494, 497
(D. Conn. 1985).
Where a properly prepared index of withheld documents
has been served, the withholding party's obligation to produce
evidence to sustain its assertions of privilege should be limited
5(...continued) (A) For documents: (i) the type of
document, e.g., letter or memorandum; (ii) the general subject matter of the document; (iii) the date of the document; and (iv) the author of the document, the addressees of the document, and any other recipients, and, where not apparent, the relationship of the author, addressees, and recipients to each other. . . .
12

to those elements of the privilege or protection challenged by the adversary. ECDC Envtl. L.C. v. N.Y. Marine & Gen. Ins. Co., 96 Civ. 6033 (BSJ)(HBP), 1998 WL 614478 at *3-*4 (S.D.N.Y. June 4, 1998) (Pitman, M.J.). As the parties asserting privilege, defendants have the burden of establishing through its privilege log, affidavits, or other evidentiary material that the elements of the privilege exist. See Johnson Matthey, Inc. v. Research Corp., 01 Civ. 8115 (MBM)(FM), 2002 WL 31235717 at *3 (S.D.N.Y. Oct. 3, 2002) (Mass, M.J.) ("[W]here the information in the privilege log is insufficient to establish a factual basis for the privilege, the proponent of the privilege bears the burden of showing its applicability, a gap which often is filled through an affidavit or deposition testimony.").
3. Plaintiffs' Specific Challenges to the Assertion of the Deliberative Process Privilege
The plaintiffs' argue that, as to 19 of the documents in issue,6 "[t]he City has not established that [they] are both predecisional and deliberative" (Memorandum of Law in Support of
6 These are Documents 2, 15, 16, 17, 19, 21, 24, 25, 46, 50, 51, 54, 55, 60, 68, 73, 74, 96, and 105 on Exhibit J to the Vickers Decl.
13

Plaintiffs' Motion to Compel Production of Documents, dated Oct. 21, 2011 ("Memo. in Support")(Docket Item 120), at 5).
Except for Document 96, each of these documents appears to fall within Category One –- "legal memoranda and NYPD Legal Bureau analysis of vertical patrols in NYCHA developments." Judge Scheindlin, in her May 5 Order, specifically directed the City to "revise its privilege logs with more detailed information about what is actually contained in the documents subsumed under Category One," because, "to the extent that documents in Category One do not relate to the revisions of P.G. 212-60, but rather constitute analysis of NYPD's past policy and practice of vertical patrols in NYCHA developments, they cannot be considered predecisional." Davis v. City of N.Y., supra, 2011 WL 1742748 at *5.
A review of the "redlined" version of City's Courtordered revised privilege log clearly demonstrates that the City has made only the slightest revisions to the descriptions of some of the Category One documents,7 while others were not revised at
7 For example, in Documents 17 and 51, the City merely added a parentheses stating "w/Handwritten Notations" to the "Subject" description; in Document 54, the City removed the word "issues" from the "Subject" description; and in Document 74, the City added the word "Draft" to the "Subject" description. None of these changes addressed Judge Scheindlin's request for more substantive information related to the nature of the document.
14

all.8 It appears as though the City made no attempt to comply
with Judge Scheindlin's Order and provide the Court with informa-
tion it can use to determine whether the "legal memoranda" and
"analysis" in these Category One documents relate to past poli-
cies, or future revisions to a policy under deliberation.
Given the insufficient information provided in the
revised privilege log, I find that the City has failed to meet
its burden in establishing the deliberative process privilege
with respect to Documents 2, 15, 16, 17, 19, 21, 24, 25, 46, 50,
51, 54, 55, 60, 68, 73, 74, and 105.9 See Local Civil Rule 26.2;
8 Documents 2, 15, 21, 24, 25, 50, 60, and 105.
9 Although the City has offered to make the documents in issue available for in camera review, this is not an adequate or appropriate cure for the deficiencies in the City's privilege log. First, Judge Scheindlin ordered the City to supplement its privilege log. She did not give the City an option of electing either to supplement its privilege log or submit the withheld documents for in camera review. Second, if in camera review were an adequate remedy to a deficient privilege log, there would be little reason for litigants to comply with the Federal Rules of Civil Procedure and the Local Rules and prepare an index of documents withheld on the ground of privilege. Litigants could merely submit the documents to the Court and let the Court try to guess what privileges might be applicable and why, while the adverse party would have no meaningful opportunity to participate or to be heard. Third, in camera review of documents withheld on the ground of privilege is only conducted in exceptional cases. "In camera inspection is the exception rather than the rule . . . ." American S.S. Owners Mut. Prot. and Indem. Ass'n, Inc. v. Alcoa S.S. Co., 04 Civ. 4309 (LAK)(JCF) 2006 WL 278131 at *2 (S.D.N.Y. Feb. 2, 2006) (Francis, M.J.), citing Collens v. City of N.Y., No. 03 Civ. 4477 (JGK)(HBP), 2004 WL 1395228 at *2 (S.D.N.Y. June 22, 2004) (Pitman, M.J.).
15

United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 47374 (2d Cir. 1996)("general allegations" and "cursory description[s]" "simply do not provide enough information to support the privilege claim"); Safeco Ins. Co. of Am. v. M.E.S., Inc., 09-cv-3312 (ARR)(ALC), 2011 WL 6105014 at *4 (E.D.N.Y. Dec. 7, 2011) (holding when a privilege log is not "adequately detailed," the proponent does not meet its "heavy burden of proving that the privilege or protection applies to the documents or communications at issues" (internal quotation marks omitted)); Bodega Invs., LLC ex rel. Kreisberg v. United States, 08 Civ. 4065 (RMB)(MHD), 2009 WL 2634767 at *3 (S.D.N.Y. Aug. 21, 2009) (Dolinger, M.J.); Resolution Trust Corp. v. Diamond, 773 F. Supp. 597, 602-06 (S.D.N.Y. 1991) (Carter, R., D.J.). The City has also waived the privilege, as to documents 2, 15, 16, 17, 19, 21, 24, 25, 46, 50, 51, 54, 55, 60, 68, 73, 74, and 105 by their noncompliance with Judge Scheindlin's May 5 Order.
Because the plaintiffs do not challenge the City's assertion of the attorney-client privilege as to Document 96 –which does not seem to be a Category One document -- the plaintiffs' motion to compel this Document is denied. See Five Borough Bicycle Club v. City of N.Y., 07 Civ. 2448 (LAK), 2008 WL 4302696 at *2 (S.D.N.Y. Sept. 16, 2008) (Kaplan, D.J.) ("There is no need to rule on the deliberative process privilege claim as to
16

the remaining documents as long as the attorney-client and other
privilege claims with respect to them remain unchallenged and
unresolved.").
4. Balancing of the Parties' Interests
Plaintiffs challenge eighty-eight Category Two documents10 comprised of "correspondence and draft revisions to PG
212–60" on the ground that the deliberative process privilege
should be pierced due to their need to access these documents in
this litigation. Plaintiffs do not otherwise challenge the
applicability of the deliberative process privilege to these
documents.
Unlike the attorney-client privilege, the deliberative
process privilege is not absolute.
[T]he deliberative process [is a] qualified privilege[] and, therefore, "when the existence of [the] privilege is established, there is a need to balance the public interest in nondisclosure against the need of the particular litigant for access to the privileged information." United States v. United States Currency in Sum of Twenty One Thousand Nine Hundred Dollars, No.
10 These are Documents 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, 20, 22, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 52, 56, 57, 58, 59, 63, 64, 65, 66, 67, 70, 71, 72, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, and 121.
17

98 Civ. 6168 (SJ), 1999 WL 993721, at *2 (E.D.N.Y. Sept. 21, 1999) (citing Friedman v. Bache Halsey Stuart Shields, 738 F.2d 1336, 1341 (D.C. Cir. 1984), and Raphael v. Aetna Cas. & Sur. Co., 744 F. Supp. 71, 74-75 (S.D.N.Y. 1990)) (additional internal citation omitted).
Thus, in assessing the government's assertion of privilege, "[t]he court must balance the interests favoring and disfavoring disclosure, keeping in mind that the burden of persuasion rests on the party seeking to prevent disclosure. The court must also consider the value of appropriate protective orders and redactions." King, 121 F.R.D. at 190-91; see also Kitevski v. City of New York, No. 04 Civ. 7402 (RCC)(RLE), 2006 WL 680527, at *3 (S.D.N.Y. March 16, 2006) ("Whether the showing of relevance and need rises to the requisite level is a discretionary determination that must necessarily be made on a case-by-case basis."); United States v. Sawinski, No. 00 Crim. 0499 (RPP), 2000 WL 1702032, at *3 (S.D.N.Y. Nov. 14, 2000) (citing In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988)).
MacNamara v. City of N.Y., supra, 249 F.R.D. at 79-80.
In balancing the parties interests,
[f]actors favoring disclosure include (1) the relevance of the requested materials to the [requesting party's] case, (2) the importance of the materials to the [requesting party's] case, including the availability of the information from alternative sources, (3) the strength of the [requesting party's] case . . . , and (4) the importance [of disclosure] to the public interest. Factors against disclosure include (1) threats to public safety, (2) the invasion of government officials' privacy, (3) the weakening of government programs, and (4) the chilling of internal candor.
In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 643
F. Supp. 2d 439, 442-43 (S.D.N.Y. 2009) (Scheindlin, D.J.); see
also In re Delphi Corp. v. United States, 276 F.R.D. 81, 85-86
18

(S.D.N.Y. 2011) (Castel, D.J.), citing Export-Import Bank of the United States v. Asia Pulp & Paper Co., 232 F.R.D. 103, 109 (S.D.N.Y. 2005) (Francis, M.J).
The importance of the evidence to the plaintiffs' case, or the plaintiffs' need for the evidence, has consistently been viewed as "the most important of all factors." King v. Conde, 121 F.R.D. 180, 194 (E.D.N.Y. 1988); Otterson v. Nat. R.R. Passenger Corp., 228 F.R.D. 205, 209 (S.D.N.Y. 2005) (Kaplan, D.J.); Export-Import Bank of the United States v. Asia Pulp & Paper Co., supra, 232 F.R.D. at 109, citing In re Franklin Nat. Bank Sec. Litig., 478 F. Supp. 577, 580-82 (E.D.N.Y. 1979). The critical factor is frequently whether the government's deliberations, motivations, or thought process themselves are genuinely in issue in the case. The privilege is routinely found to be inapplicable where the agency deliberations are central to the case. See, e.g., MacNamara v. City of N.Y., 04 Civ. 9612 (KMK)(JCF), 2007 WL 755401 at *10 (S.D.N.Y. Mar. 14, 2007) (Francis, M.J.) ("Accordingly, 'in a civil rights action where the deliberative process of State or local officials is itself genuinely in dispute, privileges designed to shield that process from public scrutiny must yield to the overriding public policies expressed in the civil rights laws.'" (quoting Grossman v. Schwarz, 125 F.R.D. 376, 381 (S.D.N.Y. 1989) (Wood, D.J.)); Nat.
19

Res. Def. Council v. Fox, 94 Civ. 8424 (PKL)(HBP), 1998 WL 158671 at *5 (S.D.N.Y. Apr. 6, 1998) (Pitman, M.J.); Dep't of Econ. Dev. v. Arthur Anderson & Co., 139 F.R.D. 295, 299 (S.D.N.Y. 1991) (Stewart, D.J.) ("Where the adjudication of fraud claims turns upon issues of [the agency's] knowledge, reliance, and causation, direct evidence of the deliberative process is irreplaceable."); Burka v. N.Y.C. Transit Auth., 110 F.R.D. 660, 667 (S.D.N.Y. 1986) (Francis, M.J.) ("Where the decision-making process itself is the subject of the litigation, the deliberative privilege may not be raised as a bar against disclosure of critical information."). Other courts have found it to be a critical factor in a balancing of interests test. See, e.g., In re Delphi Corp. v. United States, supra, 276 F.R.D. at 85-86 ("Where the deliberative or decisionmaking process is the 'central issue' in the case, the need for the deliberative documents will outweigh the possibility that disclosure will inhibit future candid debate among agency decision-makers."); Resolution Trust Corp. v. Diamond, supra, 773 F. Supp. at 605 ("[T]he considerations that RTC took into account in its deliberations are directly in issue in this case, making the contested evidence highly relevant by the very fact that it is deliberative.").
Here, the plaintiffs do not contest the applicability of the deliberative process privilege to the requested documents;
20

rather, they argue that they have substantial need for these
documents and that their need is sufficient to overcome the
privilege (Memo. in Support at 7). I find that the plaintiffs
have not "demonstrated a sufficiently 'strong need' for the
materials to overcome the privilege." Ingles v. City of N.Y., 01
Civ. 8279 (DC), 2004 WL 2274653 at *2 (S.D.N.Y. Oct. 8, 2004)
(Chin, then D.J., now Cir. J.); see also Otterson v. Nat. R.R.
Passenger Corp., supra, 228 F.R.D. at 209. The NYPD Deputy
Commissioner for Legal Matters S. Andrew Schaffer, states in his
Declaration that:
[t]he personal views and opinions expressed are not reflective of the ultimate reasons and rationales for issuing Interim Order 23 . . . . The disclosure of this information would create confusion as to the ultimate basis for revising the Patrol Guide. In addition, disclosure would inhibit the frank and candid exchange of opinions that are part of the deliberative process and which best inform final agency decisions [and] would inhibit ongoing and future consultations and deliberations that take place in the Department's review of its procedures.
(Schaffer Decl. ¶¶ 13-14). These concerns are the precise
reasons the deliberative process privilege has been recognized.
See MacNamara v. City of N.Y., supra, 249 F.R.D. at 77-78 ("[The
privilege] is based on the obvious realization that officials
will not communicate candidly among themselves if each remark is
a potential item of discovery and from page news." (internal
quotation marks and citations omitted)).
21

Although the Court in MacNamara v. City of N.Y., supra, 249 F.R.D. at 83, was not ultimately persuaded by the argument that disclosure of protected documents would chill internal candor, I find Deputy Commissioner Schaffer's concerns to be compelling. The City was faced with complaints about the NYPD's practices which were brought before the Civilian Complaint Review Board and raised by NYCHA representatives and tenant leaders, and later, raised in the context of the current litigation (Schaffer Decl. ¶ 4). The NYPD, therefore, sought to modify its official policy so as to provide enhanced guidance to its officers (Schaffer Decl. ¶ 11). Deputy Commissioner Schaffer does not claim that discussions about modifying policy will never occur in the future; rather, he believes that openness in future discussions will be made more difficult if public disclosure in litigation is a real possibility. See In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., supra, 643 F. Supp. 2d at 114 ("There is a danger that a fear of public disclosure could chill candid debate among the case team members, resulting in inefficient or ineffective site remediation decisions." (footnote omitted)).
Moreover, unlike MacNamara, this is not a case in which the deliberations themselves are in issue. The plaintiffs are not arguing, for example, that the City intentionally designed
22

I.O. 23 to set impermissibly vague standards for NYPD officers,
and, thereby, sanction illegal trespass enforcement policies and
practices. Rather, the plaintiffs argue that the "[d]efendants
implemented and applied vertical patrol policies and trespass
enforcement practices in violation of state and federal law and
'in an intentionally discriminatory and race-based manner'"
(Memo. in Support at 7, citing Amended Complaint ¶¶ 198-216, 249) (emphasis added).11
In addition, the plaintiffs fail to sufficiently
articulate a need for the draft documents. Because plaintiffs
have not alleged the unlawfulness of I.O. 23 independent of its
application and implementation, and considering the fact that
plaintiffs have a copy of I.O. 23, there is no apparent need for
documents reflecting the underlying deliberations. See Methyl
Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., supra, 643 F.
Supp. 2d at 114 ("Evaluation of the propriety of the NJDEP's
actions can be made through the use of non-privileged information
11 Additionally, Judge Scheindlin held, in her May 5 Order, that the plaintiffs were not challenging the legality of I.O. 23 itself, but rather "seek to challenge defendants' overall vertical patrol policies and trespass enforcement practices. Plaintiffs' position is that those practices have been and remain discriminatory, regardless of whether they are manifested in P.O. 212-60, I.O. 23, or any other policy." Davis v. City of N.Y., supra, 2011 WL 1742748 at *1 n.11; see also Letter Brief of Johnathan Smith, counsel to the plaintiffs, dated Mar. 29, 2011, at 7.
23

–- access to internal communications is unnecessary to advance the argument that the NJDEP's orders did not constitute appropriate remediation."). Although the information in the withheld documents may be relevant under the Federal Rules of Evidence, the plaintiffs have not shown why these documents are critical or necessary to their case.
Although the burden of persuasion continues to rest with the party seeking to prevent disclosure, and the allegations at issue in this litigation are very serious, after considering the nature of these documents, the City's proffered reasons for withholding them, the lack of allegations which would bring the deliberations directly in issue and the lack of a sufficiently articulated need for these documents, I find that, on balance, the plaintiffs' need does not outweigh the "public interest in nondisclosure."12
Because plaintiffs have not demonstrated an adequate basis to pierce the deliberative process privilege, I need not address the validity of the City's assertion of the attorney-
12 Although the Court in MacNamara v. City of N.Y., 249 F.R.D. at 83, suggests that protective orders can be useful to minimize the risk of chilling internal candor, I find that, considering the overall balance of interests in this case, ordering disclosure of these documents subject to a protective order would not adequately protect the interests that underlie the deliberative process privilege.
24

client privilege, as to these documents. Five Borough Bicycle Club v. City of N.Y., supra, 2008 WL 4302696 at *2. Accordingly, the plaintiffs' motion to compel the following documents, is denied: 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, 20, 22, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 52, 56, 57, 58, 59, 63, 64, 65, 66, 67, 70, 71, 72, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, and 121.
B. Attorney-Client Privilege
Still in dispute are thirty-six documents, with respect to which either the City asserts only the attorney-client privilege, or the City asserts both privileges but has failed to meet its burden and waived, the deliberative process privilege.13
1. Applicable Legal Principles
The elements of the attorney-client privilege are well settled:
13 These are Documents 2, 15, 16, 17, 19, 21, 23, 24, 25, 26, 46, 50, 51, 53, 54, 55, 60, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100, 101, 102, 103, 104, 105, 122, 123, 124, and 125 on Exhibit J to the Vickers Declaration.
25

"The [attorney-client] privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client."
Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160
F.R.D. 437, 441 (S.D.N.Y. 1995) (Francis, M.J.), quoting United
States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358–59 (D.
Mass. 1950); see United States v. Davis, 131 F.R.D. 391, 398
(S.D.N.Y. 1990) (Conboy, D.J.). The privilege "exists to protect
not only the giving of professional advice to those who can act
on it, but also the giving of information to the lawyer to enable
him to give sound and informed advice." Upjohn Co. v. United
States, 449 U.S. 383, 390 (1981). Therefore, "[i]t is now [also]
well established that the privilege attaches not only to communi-
cations by the client to the attorney, but also to advice ren-
dered by the attorney to the client, at least to the extent that
such advice may reflect confidential information conveyed by the
client." Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A.,
supra, 160 F.R.D. at 441–42; see also O'Brien v. Board of Educ.,
26

86 F.R.D. 548, 549 (S.D.N.Y. 1980) (Leval, then D.J., now Cir. J.); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 520–22 (D. Conn. 1976).
"'[T]he burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship.'" von Bulow by Auersperg v. von Bulow, supra, 811 F.2d at 144, quoting In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224 (2d Cir. 1984). Thus, the party seeking to invoke the privilege must establish all elements of the privilege. Bowne of NYC, Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y. 1993) (Dolinger, M.J.) (collecting cases).
2. Application
With respect to ten of the remaining documents,14 I find that the City has met its burden in providing a description sufficient to demonstrate either the giving of legal advice, or the creation of a document which most likely contains client confidences disclosed in connection with a request for legal advice. As to each of these documents, the City has identified the author and recipient, and has provided a description of the
14 These are Documents 2, 15, 19, 24, 25, 46, 50, 55, 60, and 105.
27

document which either includes a legal term of art, such as
"administrative stops," or some other language suggesting the
document relates to legal advice.15 Accordingly, I find the City
has sustained its burden as to Documents 2, 15, 19, 24, 25, 46,
50, 55, 60, and 105 and the plaintiffs motion to compel, as to
these documents, is denied. See MacNamara v. City of N.Y.,
supra, 2007 WL 755401 at *7.
15 The plaintiffs argue that the City's revised privilege log does not indicate a communication between a client and an attorney, but rather a communication between attorneys at the NYPD Legal Bureau and that these documents are, therefore, not protected by the attorney-client privilege (see Memo. in Support at 12-15, citing Jackson v. City of N.Y., 05 Civ. 721 (RWS)(MHD), 2006 WL 2789990 (S.D.N.Y. Sept. 27, 2006) (Dolinger, M.J.)). However, with respect to government lawyers, it is not uncommon for attorneys to participate in the provision of legal advice in dual capacities –- both giving legal advice to agency employees and requesting legal advice from in-house or outside counsel. See In re the County of Erie, 473 F.3d 413, 421 (2d Cir. 2007). Here, because it is the NYPD as an entity which is the client and the holder of the privilege, see United States v. Int'l Bhd. Of Teamsters, 119 F.3d 210, 214-15 (2d Cir. 1997), it is likely that certain members of the NYPD Legal Bureau, such as Deborah Zoland, Assistant Deputy Commissioner for Legal Matters, were essentially functioning as the requester of legal advice. The fact that Ms. Zoland or others may have played the role as the requester of legal advice on behalf of the NYPD is especially likely considering the delegation of all matters related to the revisions of P.G. 212-60 to S. Andrew Schaffer, head of the NYPD legal bureau and Ms. Zoland's supervisor. Additionally, documents created by attorneys which contain client confidences obtained in the course of rendering legal advice, even if not a communication between attorney and client, are properly privileged. ECDC Envtl., L.C. v. N.Y. Marine Gen. Ins. Co., 96 Civ. 6033 (BSJ)(HBP), 1998 WL 614478 at *10-*11 (S.D.N.Y. June 4, 1998) (Pitman, M.J.).
28

As to the remaining twenty-six documents,16 I find the description of each document is insufficient to sustain an assertion of privilege. Some documents describe the subject matter as "Memo re: Vertical Patrol Stops in NYCHA Owned Buildings (s/Handwritten Notations)," or "Handwritten Notes Regarding Vertical Patrols" with no indication that legal advice was requested or given. Other documents in this category are insufficiently described because the log does not identify the author and intended or actual recipients—required information under Local Civil Rule 26.2. Still other documents indicate "revisions" to "Lesson: Policing Housing Developments Including Conducting Interior Vertical Patrols," without indicating who created the underlying document or the nature of the revisions.17 The City's descriptions simply do not suggest that an attorney's legal skills were involved in the preparation of these documents. An attorney and client can have many communications which are not privileged, for example, correspondence advising of the date and time of meetings, correspondence transmitting documents, memo-
16 These are Documents 16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100, 101, 102, 103, 104, 122, 123, 124, 125.
17 Although I conclude that even non-legal revisions to a document which itself was privileged, would be privileged, there is no information provided as to the nature of the underlying "Lesson" document.
29

randa containing purely factual material, and non-substantive edits and revisions to a draft document. Because the proponent of the privilege bears the burden of proof, where it is not clear that a document involves a legal communication and a client confidence, production must be ordered.
Given the insufficient information provided in the revised privilege log, and Judge Scheindlin's strict instructions in her May 5 Order, I find that the City has failed to meet its burden in establishing the attorney-client privilege with respect to Documents 16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100, 101, 102, 103, 104, 122, 123, 124, and 125, and that these documents should be produced. See United States v. Constr. Prods. Research, Inc., supra, 73 F.3d at 473-74; Safeco Ins. Co. of Am. v. M.E.S., Inc., supra, 2001 WL 6102014 ("Focusing on the descriptive portion on the log and ignoring the conclusory labels[, the facts provided in the privilege log] do not establish the elements of a claim of attorney-client privilege (e.g., that the email contains legal advice or was prepared to elicit legal advice from Sgarlata). . . ."); Resolution Trust Corp. v. Diamond, supra, 773 F. Supp. at 601 ("The court has concluded that the remaining documents . . . are not covered by the attorney-client privilege [as the] RTC has not made a sufficient showing that they consist of or contain privileged attor-
30

ney-client communications.") i see also In re McRay, Richardson, Santana, Wise, and Salaam Litig., 03 Civ. 9685 (DAB) (RLE) , 2011 WL 5880994 at *7 (S.D.N.Y. Nov. 22, 2011) (Ellis, M.J.) (finding attorneys "typographical edits" and "handwritten notes recommend­ ing the inclusion of certain facts or the exclusion of others" not privileged) .

IV. Conclusion

Plaintiffs' motion to compel is granted to the extent that it seeks an Order directing the City to produce Documents 16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100{ 101, 102, 103, 104, 122, 123, 124, and 125. In all other respects, plaintiffs' motion to compel is denied.

Dated: New York, New York February 27, 2012

SO ORDERED

HENRY PITMAN United States Magistrate Judge

31 


Copies transmitted to:
Johnathan J. Smith, Esq. NAACP Legal Defense &
Education FUND, Inc. 16th Floor 99 Hudson Street New York, New York 10013
Katharine E.G. Booker, Esq. Paul, Weiss, Rifkind, Wharton
& Garrison LLP 1285 Avenue of the Americas New York, New York 10019
Nancy Rosenbloom, Esq. The Legal Aid Society of
New York 199 Water Street New York, New York 10038
Tonya Jenerette, Esq. Senior Counsel Special Federal tigation Division Office of the Corporation Counsel City of New York 100 Church Street New York, New York 10007
Steven J. Rappaport, Esq. New York City Housing Authority 9th Floor 250 Broadway New York, New York 10007
32 


 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X

KELTON DAVIS, et al.,

:

Plaintiffs,

:

-against-

:

THE CITY OF NEW YORK, et al.,

:

Defendants.

:

-----------------------------------X

10 Civ. 699 (SAS)(HBP)
OPINION AND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

In an Opinion and Order dated February 27, 2012 ("Feb. 27, 2012 Order")(Docket Item 153), familiarity with which is assumed, I granted in part, and denied in part, plaintiffs' motion seeking to compel the production of certain documents that defendant City of New York (the "City") was withholding on the basis of the attorney-client and the deliberative-process privileges (Docket Item 119). Davis v. City of N.Y., 10 Civ. 699 (SAS)(HBP), 2012 WL 612794 (S.D.N.Y. Feb. 27, 2012).
The City requests reconsideration of certain portions of the Feb. 27, 2012 Order; plaintiffs oppose the City's request for reconsideration and seek reconsideration of a different portion of the Feb. 27, 2012 Order. For the reasons set forth

below, both requests for reconsideration are denied in all respects.
II. Facts
A. Background
This is a civil rights action brought pursuant to 42 U.S.C. § 1983, and other federal and state laws, in which the plaintiffs, on behalf of themselves and a class of similarly situated individuals, seek injunctive and declaratory relief and damages resulting from the allegedly unlawful trespass enforcement policies and practices of the defendants, the City and the New York City Housing Authority ("NYCHA"), working together with the New York City Police Department ("NYPD").1
At the time this suit was commenced, the relevant NYPD policy was reflected in Section 212-60 of the NYPD Patrol Guide ("P.G. 212-60"). Because of complaints and litigation, S. Andrew Schaffer, the NYPD Deputy Commission for Legal Matters undertook the task of revising P.G. 212-60. After working together with
1 Plaintiffs' allegations are set forth in greater detail in an opinion issued by the Honorable Shira A. Scheindlin, United States District Judge, denying the City's motion for partial summary judgement. Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL 2652433 (S.D.N.Y. July 5, 2011).
2

high-ranking NYPD personnel and attorneys from the New York City Corporation Counsel's office, P.G. 212-60 was replaced by Interim Order number 23 ("I.O. 23").
Two categories of documents concerning the revisions to P.G. 212-60 were at issue in the Feb. 27, 2012 Order: "(1) legal memoranda and NYPD Legal Bureau analysis of vertical patrols in NYCHA developments; [and] (2) correspondence and draft revisions to PG 212–60" ("Category One" and Category Two," respectively) (Letter Brief of Tonya Jenerette, counsel to the City, dated Mar. 15, 2011 ("City's Letter Brief"), at 3).
The Honorable Shira A. Scheindlin, United States District Judge, in an Order, dated May 5, 2011 ("May 5, 2011 Order") found several deficiencies in the City's privilege logs and ordered the City to submit revised logs. Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL 1742748 (S.D.N.Y. May 5, 2011). Judge Scheindlin noted that "[c]ertain entries in the [City's privilege] log reflect a blatant abuse of the assertion of privilege," and issued the following instruction to the City:
Thus while I do not rule here on the applicability of the attorney-client . . . privilege[] as [it has] not been briefed, the City is cautioned to reassess its assertion of all privileges carefully prior to resubmitting the logs. If a random in camera review of a selected group of documents on the privilege logs reveals that the assertion of privilege was baseless, the Court will not hesitate to find that the City has
3

waived any claim of privilege with regard to the remainder of the documents. Davis v. City of N.Y., supra, 2011 WL 1742748 at *4. Pursuant to Judge Scheindlin's May 5, 2011 Order, the City submitted a revised privilege log on May 27, 2011, as well as a "redlined" version illustrating the revisions made to the original privilege log. On October 21, 2011, plaintiffs moved to compel the production of 125 documents which the City asserted were protected by the deliberative-process privilege, the attorney-client privilege, or both (see Exhibit J to the Declaration of Judson Vickers in Opposition to Plaintiffs' Motion to Compel Production of Documents, dated Nov. 9, 2011 ("Vickers Decl.")(Docket Item 128)).2 The City asserted the deliberative-process privilege as to 107 documents; the plaintiffs challenged the assertion of this privilege as to 19 of these documents, on the ground that the City had not established, through the information provided in the revised privilege log, or through other evidence, the applicability of the privilege. The plaintiffs also argued that all 107 documents withheld on the basis of the deliberative-process
2 For the purposes of this Opinion and Order, I shall use the document numbers from Exhibit J to the Vickers Declaration to refer to the individual documents, rather then referring to the documents by Bates number.
4

privilege should be produced because the plaintiffs' need for the documents, outweighed the publics' interest in nondisclosure.
The City also asserted the attorney-client privilege as to all 125 documents; the plaintiffs challenged that assertion with respect to 124 of those documents, either on the ground that the City has provided insufficient information in its revised privilege log to support the assertions of privilege, or on the ground that the information in the privilege log did not suggest a communication to a client containing legal advice.
In my Feb. 27, 2012 Order, I first found that the descriptions in the privilege log with respect to 18 of the 19 documents3 withheld on the basis of the deliberative-process privilege, and challenged by plaintiffs, were insufficient to show the applicability of the privilege. Davis v. City of N.Y., supra, 2012 WL 612794 at *6. I also held that the City had waived the deliberative-process privilege as to these documents by its failure to comply with Judge Scheindlin's May 5, 2011 Order directing it to revise the privilege log to address a deficiency in the descriptions. Davis v. City of N.Y., supra, 2012 WL 612794 at *6. I further found the dispute to be moot
3 These are Documents 2, 15, 16, 17, 19, 21, 24, 25, 46, 50, 51, 54, 55, 60, 68, 73, 74, and 105 on Exhibit J to the Vickers Decl.
5

with respect to the remaining putative deliberative-process
documents, because the plaintiffs did not also challenge the
City's assertion of the attorney-client privilege with respect to
these documents.4 Davis v. City of N.Y., supra, 2012 WL 612794
at *6.
Next, I held that plaintiffs had not shown a sufficient
basis to pierce the deliberative-process privilege with respect
to the 88 documents5 which were otherwise unchallenged:
Although the burden of persuasion continues to rest with the party seeking to prevent disclosure, and the allegations at issue in this litigation are very serious, after considering the nature of these documents, the City's proffered reasons for withholding them, the lack of allegations which would bring the deliberations directly in issue and the lack of a sufficiently articulated need for these documents, I find that, on balance, the plaintiffs' need does not outweigh the "public interest in nondisclosure."
Davis v. City of N.Y., supra, 2012 WL 612794 at *10 (footnote
omitted).
4 Document 96. 5 These are Documents 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, 20, 22, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 52, 56, 57, 58, 59, 63, 64, 65, 66, 67, 70, 71, 72, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, and 121.
6

Consequently, I also found plaintiffs' challenge to the
City's assertion of the attorney-client privilege to be moot as
to these documents. Still in dispute were thirty-six documents,6 with
respect to which the City either asserted only the attorney-
client privilege, or the City asserted both privileges but had
failed to sustain its assertion of the deliberative-process
privilege. With respect to ten of the remaining documents,7 "I
f[ound] that the City ha[d] met its burden [of] providing a
description sufficient to demonstrate either the giving of legal
advice, or the creation of a document which most likely contains
client confidences disclosed in connection with a request for
legal advice." Davis v. City of N.Y., supra, 2012 WL 612794 at
*10 (footnotes omitted).
I also added the following in a footnote:
The plaintiffs argue that the City's revised privilege log does not indicate a communication between a client and an attorney, but rather a communication between attorneys at the NYPD Legal Bureau and that these documents are, therefore, not protected by the
6 These are Documents 2, 15, 16, 17, 19, 21, 23, 24, 25, 26, 46, 50, 51, 53, 54, 55, 60, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100, 101, 102, 103, 104, 105, 122, 123, 124, and 125 on Exhibit J to the Vickers Declaration.
7 These are Documents 2, 15, 19, 24, 25, 46, 50, 55, 60, and 105.
7

attorney-client privilege (see Memo. in Support at 1215, citing Jackson v. City of N.Y., 05 Civ. 721 (RWS)(MHD), 2006 WL 2789990 (S.D.N.Y. Sept. 27, 2006) (Dolinger, M.J.)). However, with respect to government lawyers, it is not uncommon for attorneys to participate in the provision of legal advice in dual capacities –- both giving legal advice to agency employees and requesting legal advice from in-house or outside counsel. See In re the County of Erie, 473 F.3d 413, 421 (2d Cir. 2007). Here, because it is the NYPD as an entity which is the client and the holder of the privilege, see United States v. Int'l Bhd. Of Teamsters, 119 F.3d 210, 214-15 (2d Cir. 1997), it is likely that certain members of the NYPD Legal Bureau, such as Deborah Zoland, Assistant Deputy Commissioner for Legal Matters, were essentially functioning as the requester of legal advice. The fact that Ms. Zoland or others may have played the role as the requester of legal advice on behalf of the NYPD is especially likely considering the delegation of all matters related to the revisions of P.G. 212-60 to S. Andrew Schaffer, head of the NYPD legal bureau and Ms. Zoland's supervisor. Additionally, documents created by attorneys which contain client confidences obtained in the course of rendering legal advice, even if not a communication between attorney and client, are properly privileged. ECDC Envtl., L.C. v. N.Y. Marine Gen. Ins. Co., 96 Civ. 6033 (BSJ)(HBP), 1998 WL 614478 at *10-*11 (S.D.N.Y. June 4, 1998) (Pitman, M.J.).
Davis v. City of N.Y., supra, 2012 WL 612794 at *11 n.15.
With respect to the remaining 26 documents:8
I f[ound] the description of each document [to be] insufficient to sustain an assertion of privilege. . . . The City's descriptions simply do not suggest that an attorney's legal skills were involved in the preparation of these documents. . . . Because the proponent of the privilege bears the burden of proof, where it is
8 These are Documents 16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100, 101, 102, 103, 104, 122, 123, 124, 125.
8

not clear that a document involves a legal communication and a client confidence, production must be ordered. Davis v. City of N.Y., supra, 2012 WL 612794 at *11 (footnote omitted). In sum, I directed the City to produce Documents 16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100, 101, 102, 103, 104, 122, 123, 124, and 125, and denied plaintiffs' motion in all other respects. I also declined to review the documents in camera because (a) Judge Scheindlin Ordered the City to supplement its privilege log and did not give the City the option of supplementing its log or submitting the documents for in camera review, (b) "if in camera review were an adequate remedy to a deficient privilege log, there would be little reason for litigants to comply with the Federal Rules of Civil Procedure and the Local Rules and prepare an index of documents withheld on the ground of privilege," and (c) in camera review is conducted only in exceptional circumstances. Davis v. City of N.Y., supra, 2012 WL 612794 at *6 n.9.
9

B. The Present Discovery Dispute
The City seeks reconsideration "only to the extent of requesting an in camera review of four legal memoranda . . . . Documents 17, 21, 51 and 54" (Letter Brief of Judson Vickers, counsel to the City, dated March 2, 2012 ("City's Letter Brief"), at 1 and Exhibit A annexed thereto).
Plaintiffs' oppose the City's request for reconsideration and also cross-move for reconsideration of my Feb. 27, 2012 Order, to the extent I denied plaintiffs' motion to compel ten documents -- Documents 2, 15, 19, 24, 25, 46, 50, 55, 60, and 105 (Letter Brief of Johnathan J. Smith, counsel to the plaintiffs, dated Mar. 12, 2012 (Plaintiffs' Letter Brief) at 3 and Appendix A annexed thereto).
III. Analysis
A. Legal Principles Relating to Motions for Reconsideration
Motions for reconsideration are appropriate only in very limited circumstances. As explained by the Honorable Michael B. Mukasey, United States District Judge, now retired, in
10

McMahan & Co. v. Donaldson, Lufkin & Jenrette Sec. Corp., 727 F.
Supp. 833, 833 (S.D.N.Y. 1989):
Motions for reargument "are granted when new facts come to light or when it appears that controlling precedents were overlooked." Weissman v. Fruchtman, 658 F. Supp. 547 (S.D.N.Y. 1987). The proponent of such a motion is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use [Local Civil Rule 6.3] to advance new facts and theories in response to the court's rulings. The purpose of the rule is "to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Lewis v. New York Telephone, No. 83 Civ. 7129, slip op. at 2, 1986 WL 1441 (S.D.N.Y. 1986) cited in Carolco Pictures Inc. v. Sirota, 700 F. Supp. 169 (S.D.N.Y. 1988).
See also Mahmud v. Kaufmann, 496 F. Supp. 2d 266, 269-70
(S.D.N.Y. 2007) (Conner, D.J.). "A movant for reconsideration
bears the heavy burden of demonstrating that there has been an
intervening change of controlling law, that new evidence has
become available, or that there is a need to correct a clear
error or prevent manifest injustice." Quinn v. Altria Grp.,
Inc., 07 Civ. 8783 (LTS)(RLE), 2008 WL 3518462 at *1 (S.D.N.Y.
Aug. 1, 2008) (Swain, D.J.), citing Virgin Airways v. Nat'l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992).
"[T]o be entitled to reargument under Local [Civil Rule
6.3, a party] must demonstrate that the Court overlooked control-
ling decisions or factual matters that were put before the Court
11

on the underlying motion." Am. Alliance Ins. Co. v. Eagle Ins. Co., 163 F.R.D. 211, 213 (S.D.N.Y. 1995) (Sweet, D.J.), rev'd on other grounds, 92 F.3d 57 (2d Cir. 1996), citing Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993) (Sweet, D.J.); Fulani v. Brady, 149 F.R.D. 501, 503 (S.D.N.Y. 1993) (Sweet, D.J.), aff'd sub nom., Fulani v. Bentsen, 35 F.3d 49 (2d Cir. 1994); E. Coast Novelty Co. v. City of N.Y., 141 F.R.D. 245, 245 (S.D.N.Y. 1992) (Sweet, D.J.); B.N.E., Swedbank, S.A. v. Banker, 791 F. Supp. 1002, 1008 (S.D.N.Y. 1992) (Sweet, D.J.); Novak v. Nat'l Broad. Co., 760 F. Supp. 47, 48 (S.D.N.Y. 1991) (Sweet, D.J.); Ashley Meadows Farm, Inc. v. Am. Horse Shows Ass'n, 624 F. Supp. 856, 857 (S.D.N.Y. 1985) (Sweet, D.J.). Thus, "a party in its motion for reargument 'may not advance new facts, issues or arguments not previously presented to the court.'" In re Integrated Res. Real Estate Ltd. P'ships Sec. Litig., 850 F. Supp. 1105, 1151 (S.D.N.Y. 1993) (Sweet, D.J.), quoting Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 86 Civ. 6447 (JMC), 1989 WL 162315 at *4 (S.D.N.Y. Aug. 4, 1989) (Cannella, D.J.), rev'd on other grounds, 967 F.2d 742 (2d Cir. 1992); accord Caribbean Trading & Fid. Corp. v. Nigerian Nat'l Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991); see also Woodard v. Hardenfelder, 845 F. Supp. 960, 966 (E.D.N.Y. 1994). "These limitations serve to ensure finality and to prevent losing
12

parties from using motions for reconsideration as a vehicle by which they may then plug the gaps of a lost motion with additional matters." In re City of N.Y., as Owner & Operator of M/V Andrew J. Barberi, CV-03-6049 (ERK)(VVP), 2008 WL 1734236 at *1 (E.D.N.Y. Apr. 10, 2008), citing Zoll v. Jordache Enter. Inc., 01 Civ. 1339 (CSH), 2003 WL 1964054 at *2 (S.D.N.Y. Apr. 24, 2003) (Haight, D.J.); Cohn v. Metropolitan Life Ins., Co., 07 Civ. 0928 (HB), 2007 WL 2710393 at *1 (S.D.N.Y. Sept. 7, 2007) (Baer, D.J.); In re Rezulin Prods. Liab. Litig., 224 F.R.D. 346, 349 (S.D.N.Y. 2004) (Kaplan, D.J.); Horsehead Res. Dev. Co., Inc. v. B.U.S. Envtl. Servs., Inc ., 928 F. Supp. 287, 289 (S.D.N.Y. 1996) (Scheindlin, D.J.).
B. Application
1. The City's Motion For Reconsideration
The City asserts two purported bases for reconsideration. Neither are meritorious.
First, the City argues that reconsideration of Documents 17, 21, 51, and 54, by way of in camera review, is appropriate because plaintiffs did not challenge these documents on the ground that the privilege log is inadequate, merely on the ground that the documents contain "communications . . . between
13

lawyers, with no indication of communicating legal advice to client" (City's Letter Brief 2).
The City mischaracterizes the arguments plaintiffs asserted with respect to these four documents. In their motion to compel, plaintiffs made two arguments challenging the assertion of the attorney-client privilege. First, the plaintiffs argued that the "Court-Ordered privilege logs do not provide sufficient information about the authors or recipients of the challenge documents to support [the assertion of the] attorneyclient privilege" (Memorandum of Law in Support of Plaintiffs' Motion to Compel Production of Documents, dated Oct. 21, 2011 ("Memo. in Support")(Docket Item 120), at 10). Second, plaintiffs argued that the "attorney-client privilege does not apply" to these documents because they appear to be "communications between lawyers that do not indicate the provision of legal advice to a client" (Memo. in Support 12). Reading plaintiffs' Memo. in Support together with the charts of challenged documents plaintiffs attached to the Amended Declaration of Jon Hee Lee in Support of Plaintiffs' Motion to Compel Production of Documents, dated Oct. 26, 2011 (Docket Item 122)("Lee Decl."), it is clear that plaintiffs challenged these four documents only on the latter ground (Exhibit F to Lee Decl.). However, notwithstanding the title of Exhibit F to the Lee Decl. -- "Challenged Entries
14

Asserting Attorney-Client Privilege (Attorney-Attorney Communications Not Conveyed To A Client)" -- plaintiffs' latter argument had two distinct parts. First, plaintiffs argued that these documents cannot be protected by the attorney-client privilege because they appear to be communications shared between attorneys at the NYPD Legal Bureau that were never transmitted to a client –- a claim I expressly rejected. See Davis v. City of N.Y., supra, 2012 WL 612794 at *11 n.15. However, the plaintiffs also argued that these documents should be produced because "in order for the attorney-client privilege to apply to the Challenged Documents, the City must demonstrate that the documents constitute requests for, or the provision of, legal advice. . . . The Court-Ordered Privilege Logs to not indicate that . . . the Challenged Documents were a . . . communication where the 'predominant purpose . . . is to render or solicit legal advice'" (Memo. in Support 14-15, quoting In re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007)). It was on basis of this aspect of the plaintiffs' second argument that I directed the City to produce these documents. See Davis v. City of N.Y., supra, 2012 WL 612794 at *11 ("The City's descriptions simply to not suggest that an attorney's legal skills were involved in the preparation of these documents. . . . Because the proponent of the privilege bears the burden of proof, where it is not clear that a document
15

involved a legal communication and a client confidence, produc-
tion must be ordered.").
The City also argues that reconsideration is warranted
because any omissions from the subject-matter descriptions are
"relatively minor, given the author's status as an attorney in
the office of [NYPD] Legal Affairs, as well as the timing of the
creation of these (and similar) memorandum" with "[s]uch omis-
sions includ[ing] Defendant's failure to indicate the memorandum
in question is a memorandum of law, as opposed to a memorandum"
(City's Letter Brief 2).
Here too, the City fails to show that I overlooked
controlling decisions or factual matters that were put before me
on the motion. In opposition to the plaintiffs' motion to
compel, the City argued that:
[P]laintiffs argue that the documents listed in Lee Dec. Exhibit F are not protected by the attorneyclient privilege because . . . (2) they constitute general legal analysis rather than specific legal advice. Plaintiffs Brief at 14-15.
Plaintiffs are wrong. As previously noted, the vast majority of these documents are classic legal memoranda addressing a variety of legal issues relating to NYCHA vertical patrols, PG 212-60 revisions, trespassing on NYCHA property and NYCHA rulemaking. As such, they should be afforded the same attorney-client privilege protections such documents would possess in the context of litigation involving non-governmental parties
16

(Defendant City of New York's Memorandum of Law in Opposition to
Plaintiffs' Motion to Compel Production of Documents, dated Nov.
9, 2011 ("Memo. in Opp.")(Docket Item 127), at 12 (emphasis
added)(footnote and citation omitted)).
After considering the City's argument, reviewing the
privilege log entries, and bearing in mind Judge Scheindlin's May
5, 2011 Order in which she gave the City a second opportunity to
submit a privilege log with descriptions sufficient to support
the asserted privileges, I found some entries to be sufficient
and some to be insufficient. The City appears to be requesting
that I reevaluate that decision without pointing to facts or law
which I have overlooked.9 Accordingly, the City's motion for
reconsideration is denied.10
9 The City also fails to articulate any basis for reconsidering my holding declining to review the challenged documents in camera.
10 The City, implicitly acknowledging the weakness with the grounds on which it seeks reconsideration, cites National Council of La Raza v. Department of Justice, 03 Civ. 2559 (LAK), 2004 WL 2314455 (S.D.N.Y. Oct. 14, 2004) as "persuasive legal authority" in support of its request for reconsideration. In National Council, the Honorable Lewis A. Kaplan, United States District Judge, reconsidered an order directing a party to produce purportedly privileged documents after in camera review, despite a finding that "strict application of Rule 6.3 would require denial of the motion for reconsideration," because "the deliberative process privilege, and FOIA Exemption 5, serve important public interests." 2004 WL 2314455 at *1. Considering the multiple opportunities the City had to update its privilege log or supplement its assertion of privilege with affidavits or
(continued...)
17

2. Plaintiffs' Motion For Reconsideration
The plaintiffs move for reconsideration of my Feb. 27, 2012 Order, to the extent I declined to compel the production of ten documents, on the basis that I erred in my legal analysis and conclusions.11
Plaintiffs argue that my finding that "the City has met its burden in providing a description sufficient to demonstrate either the giving of legal advice, or the creation of a document which most likely contains client confidences disclosed in connection with a request for legal advice," Davis v. City of N.Y., supra, 2012 WL 612794 at *11, was error because "there is no indication that a client requested and/or received the information" (Plaintiffs' Letter Brief 4). Plaintiffs also contend that my finding that the attorney-client privilege applies even though the documents were transmitted between attorneys working in the NYPD Legal Bureau was error (Plaintiffs' Letter Brief 4).
10(...continued) other evidence, and considering the more narrow interests involved in disputes over the attorney-client privilege, rather than the deliberative-process privilege and FOIA Exemption 5, I decline to grant the City the same leeway Judge Kaplan granted the defendant in National Council.
11 These are Documents 2, 15, 19, 24, 25, 46, 50, 55, 60, and 105.
18

They argue that my decision warrants reconsideration because there is no case law on point which supports the proposition that communications between government attorneys within one agency's legal department can be protected by the attorney-client privilege and because the descriptions in the City's privilege log do not demonstrate that NYPD Legal Bureau attorneys were functioning in dual capacities with some attorneys functioning as representatives of the NYPD entity, while others, functioning as legal advisors to the NYPD (Plaintiffs' Letter Brief 4-5).
Plaintiffs do not cite any controlling facts or legal authorities that were called to my attention in connection with the underlying motion that I overlooked. Rather, the plaintiffs' motion treats my Feb. 27, 2012 Order as if it were an invitation to further discussion and merely attempts to debate further the issues resolved by that Order. Thus, the plaintiffs' motion for reconsideration also fails.
19

IV. Conclusion

The City's and the plaintiffs' motions for reconsidera­ tion are denied in their entirety.

Dated: New York, New York June 4, 2012

SO ORDERED
IL..~P~
HENRY PlMAN United States Magistrate Judge

Copies transmitted to:
Johnathan J. Smith, Esq. NAACP Legal Defense &
Education FUND, Inc. 16th Floor 99 Hudson Street New York, New York 10013
Katharine E.G. Booker, Esq. Paul, Weiss, Rifkind, Wharton
& Garrison LLP 1285 Avenue of the Americas New York, New York 10019
Nancy Rosenbloom, Esq. The Legal Aid Society of
New York 199 Water Street New York, New York 10038
20

Tonya Jenerette, Esq. Senior Counsel Special Federal tigation Division Office of the Corporation Counsel City of New York 100 Church Street New York, New York 10007 Steven J. Rappaport, Esq. New York City Housing Authority 9th Floor 250 Broadway New York t New York 10007
21 


 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)( KELTON DAVIS, et ai., individually and on
behalf of a class of all others similarly situated,
Plaintiffs,

MEMORANDUM 
 OPINION AND ORDER 


- against-

10 Civ. 0699 (SAS) 


THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,

Defendants.
-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:

After the close of fact discovery and as they are preparing their

summary judgment briefs, the parties have presented the Court with the latest in a

long line of discovery disputes.

On May 11,2012, plaintiffs asked the Court to order production of

the NYPD Housing Bureau's Reports of Self-Initiated Cases ("Reports"), which

are summaries of investigations conducted by Integrity Control Officers CICOs") into police misconduct.1 They argued that these reports were crucial to determine

"the scope of the City's supervision and disciplining of Housing Bureau officers

See 5/11/12 Letter from Johnathan Smith (Plaintiffs' Counsel) to Court ("May 11 Letter").
1

conducting unlawful stops and arrests."2 The City of New York ("City") responded by saying that "such documents do not exist ... ICOs do not have jurisdiction over review of trespass arrests; complaints regarding false arrests, abuse of authority, discourtesy and offensive language are handled by [the Civilian Complaint Review Board] and complaints regarding corruption are handled by [the Internal Affairs Bureau]."3 The City cited the testimony of Chief Delatorre to support its argument that the Reports "concern[] ICO oversight of police officer conduct that has nothing to do with the claims asserted in this lawsuit.,,4 It went on to explain that "when asked whether ICO self-initiated cases were ever used to determine whether officers were conducting proper arrests Chief Delatorre testified that he 'can't tell you that we have looked at that specifically. ",5 The City therefore objected to the production of the reports because it would be "speculative and not reasonably calculated to lead to the discovery of admissible evidence.,,6

2 Id. at 1.

3 5/14112 Letter from Brenda Cooke (Counsel to City) to Court ("May 14 Letter") at 1.

4 Id. at 2.

5

Id.

6

Id.

2 


In order to resolve the dispute, I examined two of the Reports in camera. I marked the portions of Reports that related to the claims in this lawsuit and ordered the City to tum them over to plaintiffs, along with similar material from the other Reports.7
Previously, on December 21, 2011, I orally denied plaintiffs' request to depose an lCO because I determined that other depositions ofNYPD officials had already provided plaintiffs with sufficient information about the lCOs' responsibilities and that "it is not entirely clear that the lCOs' functions ... have to do with this lawsuit .... [T]hese people don't investigate unlawful stops or arrests because that goes to lAB and CCRB."g That decision was based on the City's statement that "most of the lCOs' functions have nothing to do with the issues in this lawsuit."9
Plaintiffs now seek reconsideration of my decision; a deposition of an lCO is merited, they argue, because "the newly-produced information in the redacted [Reports] contradicts the City's representations to the Court, and confirms Plaintiffs' understanding that lCOs play an important role in monitoring,

7 See 5/24112 Email from Court to Parties. 


g

12/21111 Conference Tr. at 9:14-17. 


9

12119/11 Letter from Tonya Je~erette (Counsel to City) to Court.

3

investigating, and/or identifying possible problems with officers' enforcement activity."IO The City again objects, arguing, in sum, that "[a]mple additional discovery relevant to ICOs' actions regarding claims in this lawsuit and the supervision and discipline of Housing Bureau officers regarding the same has been provided to plaintiffs."!!
It is indeed true that plaintiffs have obtained significant documentary and testimonial evidence regarding the ICOs. Given that fact discovery was scheduled to end long ago, a case can be made that an additional deposition would be "unreasonably cumulative or duplicative" and that "the burden or expense of the proposed discovery outweighs its likely benefit."!2 But denying plaintiffs the deposition would reward the City when it in fact deserves admonishment.
According to the City, the Reports it produced after my in camera review contain information about 71 investigations, over a five year period, addressing complaints filed with the CCRB, the completion ofUF-250 forms describing stops and frisks, the execution of vertical patrols, and officers' failure
10 6/8/12 Letter from Jin Hee Lee (Plaintiffs' Counsel) to Court ("June 8 Letter") at 1.
11 6/11/12 Letter from Brenda Cooke (Counsel to City) to Court (June 11 Letter") at 2.
12 Fed. R. Civ. P. 26(b)(2)(C). 
 4 


to comply with enforcement activity performance standards. 13 This information is not merely "discoverable" - i.e., "reasonably calculated to lead to the discovery of admissible evidence" - but in fact goes to the very heart of plaintiffs' allegations.
These Reports should have been produced (in redacted fonn to include only relevant infonnation) at the beginning of discovery in 2010. Had they been produced, plaintiffs could have sought an ICO deposition long ago and, if faced with the City's resistence, could have shown the Reports to the Court. Instead, I denied plaintiffs' request for the deposition in part because neither they nor I had complete infonnation about the scope of the lCOs' role. 14
The City's representations to the Court in its May 14 letter were false. It is not true that Reports containing infonnation regarding the supervision and discipline of officers for unlawful stops and arrests "do not exist" or that the lCO oversight relates only to "conduct that has nothing to do with the claims asserted in this lawsuit.,,15 The selective and blatantly misleading quotation from Chief
13 See June 11 Letter at 1. 14 The City's December 19 statement that "most of the lCOs' functions have nothing to do with the issues in this lawsuit" was technically correct. But it is now clear that a not-insignificant portion of the reos' functions are relevant to plaintiffs' allegations. 15 May 14 Letter at 1-2.
5 


Delatorre's deposition, documented in full on page two of plaintiffs , June 8 letter, is particularly flagrant: in contrast to the City's representation, Chief Delatorre stated that, "for sure," the ICOs would open an investigation "if there is an indication that the officer didn't understand the laws of arrest or anything along those lines."16
Because the Reports should have been produced long ago, because the City has been less than forthright with the Court about the content of these Reports and the role oflCOs, and because a deposition of an ICO is likely to lead to the discovery of admissible evidence, plaintiffs' request is granted. Defendants shall make available for deposition an ICO from one of the Police Service Areas that arrested one of the named plaintiffs; the deposition shall be limited to seven hours, not the one hour that the City suggests; and, given expert report deadlines, it shall take place by June 22. The deposition shall not be limited to the topics in the Reports all of the ICOs' duties are appropriate subjects of investigation. 17 The deadlines for the production of expert reports and the submission of summary
16 Deposition of01iefDelatorre at 479. 17 Additionally, the City is ordered to provide plaintiffs with the total number of cases listed in each Report. Plaintiffs convincingly explain why thi s "denominator" information is relevant. If it is easier to do so, defendants may simply inform plaintiffs of these numbers without providing ne.vly-redacted versions of the Reports.
6

judgment briefs will not be extended as a result of this Order.

Dated:

New York, New York June 13,2012

7 


Appearances

For Plaintiffs:

Johnathan Smith, Esq. 
 Jin Hee Lee, Esq. 
 NAACP Legal Defense & Educational Fund, Inc. 
 99 Hudson Street, 16th Floor 
 New York, New York 10013 
 (212) 965-2200

Nancy Rosenbloom, Esq. Legal Aid Society of New York 199 Water Street New York, New York 10038 (212) 577-3300

Matthew Moses, Esq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000

For Defendant City of New York:

For Defendant NYCHA:

Brenda Cooke Judson Vickers Pernell Telfort George Soterakis Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-0993

Steven Jay Rappaport, Esq. New York City Housing Authority 250 Broadway, 9th Floor New York, New York 10007 (212) 776-5152

8 


 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X 

KELTON DAVIS, et . ,

Plaintiffs,

10 Civ. 699 (SAS) (HBP)

-againstTHE CITY OF NEW YORK, et al.,

MEMORANDUM OPINION AND ORDER

Defendants.
-----------------------------------x

PITMAN, United States Magistrate Judge:

By an endorsed Order dated June 20, 2012, Judge

Scheindlin directed that I reconsider my ruling with respect to

four documents -- Documents 17, 21, 51 and 54 -- that the City is

withholding on the grounds of the attorney-client and delibera­

tive process privileges. On reconsideration, I grant the City's

application for in camera review and upon reviewing the documents

in camera, I deny

plaintiff's application to compel produc­

tion.

The first three documents are draft memoranda prepared

by a Police Department attorney to an Assistant Deputy Commis­

sioner addressing several legal issues that arise in connection

with vertical patrol stops in NYCHA-owned buildings, with hand­

wr

marginalia. The principal issue that I had with the

City's listings for these memoranda in its index of privileged

documents was that the descriptions did not suggest that legal

skills had been involved in the preparation of the memoranda.

Not every utterance or memo from an attorney to a client is

leged. For example, attorneys routinely author documents

such as transmittal letters, memos seeking to schedule meetings,

memos advising when meetings will be held and memos reporting on

the outcome of legal proceedings. None of these documents would

be privileged unless they contained legal advice or analysis or

reflected a client con

communicated for the purpose of

obtaining legal advice. If the City had been more forthcoming in

its descriptions of these three documents and disclosed

that they were dra

I analyses, much time and trouble could

have been avoided.

The fourth document is also a draft memorandum prepared

by a Police

attorney to an Assistant Deputy Commis­

sioner addressing numerous legal issues in connection with NYCHA

rulemaking. It also reflects the author's legal

ysis and is,

therefore, privi

2 


Accordingly, on recons ration, plainti , motion to

compel product

of documents 17, 21, 51 and 54 is denied.

Dated: New York, New York June 26, 2012

SO ORDERED

HENRY Pl MAN United States Magistrate Judge

Copies transmitted to:

Johnathan J. Smith, Esq. NAACP Legal Defense &
Education FUND, Inc. 16th Floor 99 Hudson Street New York, New York 10013

Katharine E.G. Booker, Esq. Paul, Weiss, Rifkind, Wharton
& Garrison LLP 1285 Avenue of the Arne cas New York, New York 10019

Nancy Rosenbloom, Esq.

The

Aid Society of

New York

199 Water Street

New York, New York 10038

Tonya Jenerette, Esq.

Senior Counsel

Spe

ral Litigation Division

Office of the Corporation Counsel

City of New York

100 Chu

Street

New York, New York 10007

3

Steven J. Rappaport, Esq. New York City Housing Authori 9th Floor 250 Broadway New York, New York 10007
4

 
 Case 1:10-cv-00699-SAS-HBP Document 240 Filed 12/14/12 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KELTON DAVIS, et ai., individually and on behalf of a class of all others similarly situated;
Plaintiffs,
- against -
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY;
Defendants.

10 Civ. 0699 (SAS) ECF Case

PLAINTIFFS' NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT
PLEASE TAKE NOTICE that, upon the annexed Attorney's Declaration of Johanna B. Steinberg, dated December 14, 2012, and the exhibits attached thereto, Plaintiffs' Statement of Undisputed Facts pursuant to Local Civil Rule 56.1, the accompanying Memorandum of Law, and all the pleadings and proceedings herein, counsel for Plaintiffs will move on January 18, 2013, or as soon thereafter as counsel may be heard, before the Honorable Shira A. Scheindlin, United States District Judge for the Southern District of New York, United States Courthouse, Courtroom 15C, 500 Pearl Street, New York, New York, for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on Plaintiffs' claim that Defendant City of New York (the "City") violates Plaintiffs' rights under the Fourth Amendment to the United States Constitution.
Plaintiffs move for judgment as a matter of law against the City, declaring that the City violates Plaintiffs' rights under the Fourth Amendment to the United States Constitution through its policy of trespass enforcement as embodied, in part, in Interim Order 23. Plaintiffs

Case 1:10-cv-00699-SAS-HBP Document 240 Filed 12/14/12 Page 2 of 3

respectfully request that this Court order all appropriate injunctive relief, including, but not

limited to, enjoining the City from arresting people on NYCHA developments without probable

cause to believe a crime is being committed.

PLEASE TAKE FURTHER NOTICE that pursuant to this Court's order, opposition to

Plaintiffs' motion, if any, shall be filed and served on the undersigned counsel on or before

January 7, 2013, and Plaintiffs' reply shall be filed and served on counsel for Defendants on or

before January 18, 2013.

Dated:

New York, New York December 14, 2012
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

By:

sf Johanna Steinberg

Debo P. Adegbile Christina Swarns Johanna B. Steinberg Jin Hee Lee Johnathan J. Smith Ria A. Tabacco 99 Hudson Street, Suite 1600 New York, New York 10013-2897 Tel: 212.965.2200 Fax: 212.219.2052 j steinberg@naacpldf.org

THE LEGAL AID SOCIETY Steven Banks William Gibney Steven Wasserman Nancy Rosenbloom Marlen S. Bodden 199 Water Street, 6th Floor New York, New York 10038 Tel: 212.577.3300 Fax: 212.509.8141 nrosenbloom@legal-aid.org

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Katharine E. G. Brooker

2

Case 1:10-cv-00699-SAS-HBP Document 240 Filed 12/14/12 Page 3 of 3
Matthew Moses 1285 Avenue of the Americas New York, New York 10019 Tel: 212.373.3000 Fax: 212.492.0139 kbrooker@paulweiss.com Attorneysfor Plaintiffs
To: Brenda Cooke Special Federal Litigation Division New York City Law Department 100 Church Street New York, NY 10013 Counsel for City of New York Steven J. Rappaport 250 Broadway, 9th floor New York, NY 10007 Counsel for New York City Housing Authority
3

 
 Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KELTON DAVIS, et ai., individually and on behalf of a class of all others similarly situated;
Plaintiffs,
- against -
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY;
Defendants.

10 Civ. 0699 (SAS) ECF Case

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 2 of 11
Roman Jackson, Kristin Johnson, Rikia Evans, Raymond Osorio, Lashaun Smith, Patrick Littlejohn, Andrew Washington, Vaughn Frederick, Shawne Jones, Hector Suarez, and Eleanor Britt (collectively, "Plaintiffs") respectfully submit this memorandum of law in support of Plaintiffs' motion for partial summary judgment against Defendant City of New York (the "City") pursuant to Rule 56 of the Federal Rules of Civil Procedure.
PRELIMINARY STATEMENT By virtue of living in-or visiting a friend or family member who lives in-a New York City Housing Authority ("NYCHA") residence, the plaintiffs in this putative class action are subjected to violations of their Fourth Amendment rights by the same New York City Police Department ("NYPD") officers who are sworn to protect them. These constitutional injuries stem directly from the City's official policy, as stated, in part, in Interim Order 23 ("1.0. 23") and related instructional materials. That policy requires NYCHA residents and guests, who are by definition under the policy not suspected of criminal activity, to either: (1) affirmatively establish their right to be in a NYCHA building or (2) leave the premises upon request by an NYPD officer. The refusal to meet these two demands can result in an arrest for criminal trespass, even where there is no independent evidence giving rise to reasonable suspicion-let alone probable cause-that the person was trespassing. This policy is in blatant violation of the Fourth Amendment. An individual who is not suspected of engaging in criminal conduct has the right to refuse to answer a police officer's questions, provide identification, or explain his or her business without fear of criminal arrest. See Brown v. Texas, 443 U.S. 47, 53 (1979). That is true anywhere in New York City-whether it be in a NYCHA or private residence, or on the street. The City, however, treats public housing differently. According to the City's own policy, which

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 3 of 11
is not in dispute, residents of, and visitors to, NYCHA apartments cannot simply go about their business and ignore an NYPD officer's inquiries, even in situations where they are not suspected of any criminal activity. In essence, NYCHA residents and visitors are forced to surrender their Fourth Amendment rights-or risk arrest-for simply being in public housing.
RELEVANT FACTS The New York State criminal trespass laws provide that:
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property ... (e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or (f) where a building is used as a public housing project in violation ofa personally communicated request to leave the premises from a housing police officer or other person in charge thereof ... N.Y. Penal Law § 140.10(e)-(f) (McKinney 2012) (emphasis added). Pursuant to a 1994 Memorandum of Understanding ("MOU") between Defendants City and NYCHA, the City agreed to provide NYCHA with services over and above routine police services, including vertical patrols, in consideration for a substantial annual payment. PIs. 56.1 ~ 1. In addition to enforcing criminal laws, such as criminal trespass, NYPD officers also are "empowered to enforce such NYCHA rules and regulations and perform such other duties as shall be determined ... by the City and NYCHA." PIs. 56.1 ~ 2. Consistent with the MOU, the NYPD purports to have inherited "custodial authority for NYCHA property." PIs. 56.1 ~ 17. The City's trespass enforcement policy in NYCHA developments is set forth and incorporated in NYPD Patrol Guide Section 212-60 ("PG 212-60"), as revised, and related instructional materials. See Monell v. Dep 't ofSoc. Servs., 436 U.S. 658, 690 (1978) (explaining
2

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 4 of 11
that a municipal policy includes any "policy statement[s], ordinance[s], regulation[s], or decision[s] officially adopted and promulgated by that body's officers").
Before the instant litigation was filed, PG 212-60 merely directed officers to "[b]e alert for persons loitering within the buildings, or suspicious conditions." PIs. 56.1 ~ 4. In June 20 1O-after the filing of this lawsuit-the City revised PG 212-60 with 1.0.23, which added two protocols relevant to this motion: (1) an approach-and-question protocol for officers who encounter individuals, including "potentially unauthorized person[s]," who may be violating the House Rules; and (2) a protocol for arresting individuals who refuse to leave the premises when asked to do so by NYPD officers. PIs. 56.1 ~5, 11 and 13.
Pursuant to 1.0. 23, NYPD officers policing NYCHA developments are directed to "be alert for persons who may be violating Housing Authority rules and regulations, including potentially unauthorized persons within NYCHA Property." PIs. 56.1 ~ 10. Upon encountering such persons, the City's trespass enforcement policy directs officers to approach the person and ask three questions:
(1) If he or she lives in the building (2) If he or she is visiting someone in the building (3) If he or she has business in the building. PIs. 56.1 ~ 11. 1.0. 23 does not require an officer to have reasonable suspicion before "approaching" and engaging in this questioning protocol. PIs. 56.1 ~ 22. Moreover, 1.0. 23 and the related instructional materials state that a person's silence or refusal to explain his or her presence in the building, alone, cannot be used to escalate the encounter or establish reasonable suspicion or probable cause. PIs. 56.1 ~ 19; Davis, 2012 WL 4813837, at *14.
3

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 5 of 11
According to La. 23, "[i]f a person refuse[s] to explain or is unable to explain his or her
presence in the building, the officer may instruct the person that he or she must leave the
building or be subject to arrest for trespass." PIs. 56.1 ~ 13. La. 23 authorizes an arrest if the
"person refuses to exit the building and does not promptly establish a right to be in the building."
Id. Officers are not required to have reasonable suspicion or probable cause of criminal trespass
before asking that person to leave NYCHA premises. (La. 23, Training, Sweet/Anderson.) The
basis for arresting someone refusing to leave a NYCHA residence is the "violation of a
personally communicated request to leave the premises" by the NYPD officer pursuant to N.Y.
Penal Law § 140.10(f); accord Pis. 56.1 ~ 26.)
The City prepared instructional materials for NYPD officers who patrol NYCHA
residences (the "Lesson"). This Lesson, which is contained both in an internal Lesson Plan as
well as a PowerPoint presentation, presents the following hypothetical scenario as consistent
with the City's policy:
An officer on vertical patrol in a NYCHA building is filling out a Field Report indicating a broken front door lock when she observes a person enter the building through the unlocked door. The officer approaches the person and asks if he is a resident of the building. The person says he lives in Apartment 6C. The officer asks the person if he has identification or a key to the front door. He says that he left both in his Apartment. The officer then asks the man if he would mind coming with her to 6C. The man refuses. The officer advises the man he must establish a right to be in the building or leave the location. 1 .... [T]he man refuses to leave the building, tells the officer he is going nowhere, and remains in the lobby. The officer arrests the man for criminal trespass . . . [W]hen the officer returns to the stationhouse she notices that the man's identification shows that he was in fact a resident of the building. The officer should follow appropriate police procedures to void the arrest ....
1 Up until this point, the Lesson states that there is no reasonable suspicion or probable cause that a crime has been or is being committed during the encounter.
4

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 6 of 11
PIs. 56.1 ~ 21,23 and 25. Thus, 1.0. 23 expressly authorizes NYPD officers to ask an individual, who may be a resident, to leave a NYCHA apartment building when there is no evidence of criminality, and to arrest that potential NYCHA resident for refusing to do so.
ARGUMENT The power ofNYPD officers-whether they are acting on behalf of NYCHA, pursuant to their independent mandate to enforce criminal laws, or both-is subject to the limitations of the Fourth Amendment to the United States Constitution. Yet, the City is circumventing the Fourth Amendment by instructing NYPD officers via I. O. 23 that they can arrest people for trespass without independent probable cause that they are trespassing or committing any other crime. The scheme constructed by 1.0. 23 operates as follows: without reasonable suspicion or probable cause, NYPD officers can command people to affirmatively establish their right to be in a NYCHA residence or leave the premises, and then arrest those who refuse to comply. As the Supreme Court has recognized, such a policy "is an unjustified impairment of liberty." See City ofChicago v. Morales, 527 U.S. 41, 59 (1999). The City's policy authorizes an end-run around the guarantees of the Fourth Amendment by impermissibly shifting the burden onto the NYCHA resident or guest to affirmatively disprove trespass, or risk arrest, without any indicia of criminality. In addition, NYPD officers rely on their purported custodial authority to act outside the boundaries of the Fourth Amendment, resulting in unfettered discretion to request that individuals leave the premises, or risk arrest, despite the absence of reasonable suspicion or probable cause. The constitutional flaws in the City's policy are evident not only in the language of I. O. 23 itself, but also in the Lesson, including the hypothetical described above. As the City's own
5

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 7 of 11
Lesson makes abundantly clear, it is City policy that NYCHA residents who elect not to answer an NYPD officer's inquiries, or whose answers fail to satisfy the officer, can be expelled from their own buildings-or, worse, arrested-in the complete absence of reasonable suspicion or probable cause that they are trespassing. The City's policy proposes a solution to such unlawful arrests: voiding the arrest once the individual's residence has been established at the stationhouse. That is unacceptable. A voided arrest denies the magnitude of the Fourth Amendment violation sustained by an innocent NYCHA resident or guest, who has suffered the indignity and injury of being unlawfully stopped and questioned, arrested without probable cause, and taken into custody by law enforcement officers.
The City contends that the arrest of a person who refuses to leave a NYCHA residence is permissible pursuant to its "custodial authority" for NYCHA property and the powers imbued under N.Y. Penal Law § 140.10(f), which makes it a crime to remain in a public housing building in "violation of a personally communicated request to leave the premises" by an NYPD officer. (PIs. 56.1 ~ 26.) But Section 140.10(f) or the City's policy, either separately or in combination, cannot pass constitutional muster where it does not require the officer to have any indicia of criminality, let alone indicia of trespassing, to make the request to leave.
This raises a concern implicated by the City's policy: the unconstitutional burden on the NYCHA resident or guest to affirmatively disprove trespass, or risk arrest, without any indicia of criminality. The City acknowledges, in both 1.0. 23 and the Lesson, that citizens have a right not to respond to police inquiries, and that refusal will not provide an officer reasonable suspicion to effect a stop, let alone probable cause to arrest. See Florida v. Bostick, 501 U.S. 429, 437 (1991) (holding that refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or a seizure); Florida v. Royer, 460 U.S. 491, 497-
6

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 8 of 11
98 (1983) (where officer approaches individual without reasonable suspicion or probable cause, individual has the right to ignore the police and go about his business); PIs. 56.1 ~ 19. And as this Court recognized in its ruling on the City's and NYCHA's most recent motions for summary judgment, "[t]here is no probable cause to arrest a person if the only facts known to the police are that the person says she does not live in the building and refuses to say more about her license or privilege to be there." Davis v. City of New York, No. 10 Civ. 0699, 2012 WL 4813837, at *15 (S.D.N.Y. Oct. 9, 2012). "[I]t is the state's burden to prove that an invitee does not have privilege or license to remain on the premises." Id. at *13. Nevertheless, the City's policy improperly shifts the burden to the person being questioned by the police to affirmatively justify his or her license to be on the premises.
The City's policy also empowers NYPD officers, as purported custodians of NYCHA property, to approach anyone they believe "may be violating Housing Authority rules and regulations, including potentially unauthorized persons," and expel on pain of arrest not just those who refuse to justify their presence, but also those who fail to justify it to the satisfacation of the officer. PIs. 56.1 ~ 10. Courts have struck down statutes in similar circumstances where a citizen was required to "identify himself' or "give a reasonably credible account of his conduct and purposes," holding that they invite arbitrary enforcement because the "enforcement of [such a policy] depends entirely upon whether the arresting officer is satisfied that a suspect has given an acceptable account of his presence." People v. Bright, 71 N.Y.2d 376, 385 (1988) (citations and internal quotation marks omitted). Here, where there are also "no standard[s] for determining what a suspect has to do in order to satisfy the requirement," the City's policy impermissibly vests "virtually complete discretion in the hands of the police." Id. (citations and internally quotation marks omitted). See United States v. Buenaventura-Ariza, 615 F.2d 29, 31
7

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 9 of 11
(2d Cir. 1980) ("[T]here must be a line separating investigatory stops supported by 'specific, objective facts' from those stops occurring essentially at the 'unfeterred discretion of officers in the field" (quoting Brown, 443 U.S. at 51)).
That an NYPD officer purports to act as NYCHA's custodian or agent when issuing a dispersal order does not vitiate the Fourth Amendment's protections against an officer's unfettered discretion. See United States v. Santiago, 950 F.Supp. 590, 596 (S.D.N.Y. 1996) (policy for conducting safety checks involving livery taxi impermissible where it "results in an end run around the Fourth Amendment"). The NYPD officers patrolling public housing residences are not akin to doormen or other custodians in private buildings: Unlike private individuals or security guards, officers must comply with the Fourth Amendment and cannot circumvent constitutional constraints merely because they are acting on behalf of NYCHA. The City's policy, if left in place, will affect hundreds of thousands oflaw-abiding New Yorkers who call NYCHA home, as well as their family and friends, by subjecting them to constitutional violations for merely living in or visiting public housing.
CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that this Court grant Plaintiffs' motion for partial summary judgment against the City on Plaintiffs' Fourth Amendment claim.
8

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 10 of 11

Dated: New York, New York December 14, 2012

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

By:

sf Johanna B. Steinberg

Debo P. Adegbile Christina Swarns Johanna B. Steinberg Jin Hee Lee Johnathan J. Smith Ria A. Tabacco 99 Hudson Street, Suite 1600 New York, New York 10013 Tel: 212.965.2200 Fax: 212.219.2052 j steinberg@naacpldf.org

THE LEGAL AID SOCIETY Steven Banks William Gibney Steven Wasserman Nancy Rosenbloom Marlen S. Bodden 199 Water Street, 6th Floor New York, New York 10038 Tel: 212.577.3300 Fax: 212.509.8141 nrosenbloom@legal-aid.org
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
Katharine E. G. Brooker Matthew Moses 1285 Avenue of the Americas New York, New York 10019 (212) 373.3000
Attorneysfor Plaintiffs
9

Case 1:10-cv-00699-SAS-HBP Document 241 Filed 12/15/12 Page 11 of 11 10

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)(
KELTON DAVIS, WILLIAM TURNER, EDWIN LARREGUI, ANTHONY ANDERSON, SHAWNE JONES, HECTOR SUAREZ, ADAM COOPER, DAVID WILSON, GENEVA WILSON, ELEANOR BRITT, ROMAN JACKSON, KRISTIN JOHNSON, LASHAUN SMITH, ANDREW WASHINGTON, PATRICK LITTLEJOHN, RAYMOND OSORIO, VAUGHN FREDERICK, and R.E., by her parent D.E., individually and on behalf of a class of all others similarly situated,
Plaintiffs,
- against-
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,
Defendants.
-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:

OPINION & ORDER 10 Civ. 0699 (SAS)

I. INTRODUCTION ............................................. 2 
 II. BACKGROUND .............................................. 8 
 III. LEGAL STANDARD FOR SUMMARY JUDGMENT . . . . . . . . . . . . . . 13 
 IV. MONELL LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 
 V. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 


1 


A. Fourth Amendment Claims Against the City. . . . . . . . . . . . . . . . . . . 19 1. Plaintiffs’ Claim of an Unconstitutional Policy. . . . . . . . . . . . 26
a. Plaintiffs’ Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 i. Plaintiffs’ Challenge to IO 23 Arrest Policy. . . . 28 ii. Plaintiffs’ Challenge to IO 23 Stop Policy.. . . . . 31
b. The City’s Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2. Plaintiffs’ Claim of an Unconstitutional Custom and Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
a. Widespread Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 i. Documentary and Testimonial Evidence. . . . . . . 44 ii. Dr. Fagan’s Analysis. . . . . . . . . . . . . . . . . . . . . . 48
b. Deliberate Indifference. . . . . . . . . . . . . . . . . . . . . . . . . . 55
B. Fourteenth Amendment Equal Protection Claims Against the City .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
C. Title VI Claims Against the City.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 D. Section 1981 Claims Against the City.. . . . . . . . . . . . . . . . . . . . . . . . 78 E. FHA Claims Against the City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 F. NYSC Article I Section 12 Claims Against the City. . . . . . . . . . . . . 83 G. Race Discrimination Claims Against NYCHA. . . . . . . . . . . . . . . . . . 85 H. USHA Claims Against NYCHA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
I. INTRODUCTION
This case, filed in 2010, is one of three cases currently before this
Court challenging aspects of the City of New York’s “stop and frisk” practices.1
1 Floyd v. City of New York, filed in 2008, challenges the NYPD’s stop and frisk practices for pedestrians, arguing among other things that the NYPD is systematically violating the Fourth and Fourteenth Amendments to the United States Constitution. See Floyd v. City of New York, 283 F.R.D. 153, 159 (S.D.N.Y.
2

What distinguishes this case from the other two is its focus on stop and frisk
practices at public housing properties owned and operated by the New York City
Housing Authority (“NYCHA”). Plaintiffs argue that the New York City Police
Department (“NYPD”) uses unlawful stops, searches, and arrests to enforce the prohibition against trespassing in NYCHA buildings.2 According to plaintiffs, the
NYPD’s practices violate the Fourth Amendment to the United States Constitution,
which guarantees “[t]he right of the people to be secure . . . against unreasonable
searches and seizures.” Plaintiffs also argue that the NYPD’s practices are based
on racial discrimination against African Americans and Latinos, and thus violate
the Fourteenth Amendment, which guarantees “the equal protection of the laws.”
As the Supreme Court of the United States has repeatedly affirmed,
2012) (granting class certification); Floyd v. City of New York, 813 F. Supp. 2d 417 (S.D.N.Y. 2011), on reconsideration, 813 F. Supp. 2d 457 (S.D.N.Y. 2011) (granting in part and denying in part defendants’ motion for summary judgment). Ligon v. City of New York, filed in 2012, deals with trespass stops and arrests in and around privately owned buildings enrolled in the Trespass Affidavit Program (“TAP”). See Ligon v. City of New York, — F. Supp. 2d —, No. 12 Civ. 2274, 2013 WL 628534, at *44 n.461 (S.D.N.Y. Feb. 14, 2013) (granting plaintiffs’ motion for preliminary injunction, but staying relief pending consolidated remedies hearing in Floyd and Ligon).
2 See Davis v. City of New York (“Davis I”), — F. Supp. 2d —, No. 10 Civ. 0699, 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).
3

“the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”3 In Terry v. Ohio, the Supreme Court held that under the Fourth Amendment, it is constitutionally reasonable for the police to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”4 This form of investigative detention is now known as a Terry stop.5
In the years since Terry, the Supreme Court and the Second Circuit have developed and refined the balance under the Fourth Amendment “‘between the public interest and the individual’s right to personal security free from arbitrary
3 Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). Accord Pennsylvania v. Mimms, 434 U.S. 106, 108–09 (1977) (per curiam) (“The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’” (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968))). In judging reasonableness, a court balances “‘the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.’” Illinois v. Lidster, 540 U.S. 419 (2004) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)).
4 United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)) (certain quotation marks omitted).
5 See Davis I, 2012 WL 4813837, at *2 (citing Terry, 392 U.S. at 88). 4

interference by law officers.’”6 The long line of cases concerning “the power of
the police to ‘stop and frisk’ . . . suspicious persons” has frequently presented a
conflict between individual liberty and dignity on the one hand, and public safety
on the other.7
This case illustrates the tensions between liberty and security in
particularly stark form, because it deals with police practices in and around the
home, where the interests in both liberty and security are especially strong.8 The
6 Mimms, 434 U.S. at 109 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
7 Ligon, 2013 WL 628534, at *40 (quoting Terry, 392 U.S. at 10) (certain quotation marks omitted).
8 On liberty and security in the home, see, for example, Florida v. Jardines, No. 11–564, slip op. at 4 (Mar. 26, 2013) (noting that at the Fourth Amendment’s “‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion’” (quoting Silverman v. United States, 365 U.S. 505, 511 (1961))); McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3036 (2010) (noting that “‘the need for defense of self, family, and property is most acute’ in the home” (quoting District of Columbia v. Heller, 554 U.S. 570, 628 (2008))); Georgia v. Randolph, 547 U.S. 103, 115 (2006) (“We have . . . lived our whole national history with an understanding of ‘the ancient adage that a man’s house is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown,’ Miller v. United States, 357 U.S. 301, 307 (1958) (internal quotation marks omitted).”); Payton v. New York, 445 U.S. 573, 583–90 (1980) (discussing “‘the sanctity of the home’” under the Fourth Amendment (quoting United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978))); Boyd v. United States, 116 U.S. 616, 630 (1886) (discussing the “indefeasible right of personal security, personal liberty, and private property” against “all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life” (citing Entick v. Carrington, 95
5

gravity of the alleged injuries to plaintiffs’ liberty is reflected in the testimony of
Reginald Bowman, President of the Citywide Council of Presidents, a NYCHA
resident leadership group:
[W]henever I have an opportunity to talk to someone in law enforcement who might listen, my question to them is: Suppose I came into your neighborhood tonight and you were in civilian attire and you were on your way to the store to get milk and cookies for your kids, and I stopped you the way that some of your personnel do, what would you do? How would you feel about that?
. . . When this type of practice is instituted and done to people on a regular basis . . . I use the term “penal colony,” it’s almost like we have been colonized for a decade.9
At the same time, many NYCHA tenants have expressed a desire for
greater security services from the police, including “more officers on foot patrol
like we used to have when officers walked around, knew residents and built
relationships with them.”10 As I noted in an earlier opinion in this case, there is a
Eng. Rep. 807 (C.P. 1765))). 9 Excerpts from 3/28/12 Deposition of Reginald Bowman, President of
the Citywide Council of Presidents, Exhibit (“Ex.”) 18 to 1/7/13 Declaration of Jin Hee Lee, counsel for plaintiffs (“Lee Decl.”), at 94–95.
10 1/26/12 Declaration of Pamela Thrower, Resident Association President of NYCHA Queensbridge Houses, Ex. 14 to Lee Decl., ¶ 3. Accord 1/26/12 Declaration of Luis Torres, Resident Association President of NYCHA Moore Houses, Ex. 15 to Lee Decl., ¶ 4 (“My residents are constantly complaining to me that the police do not help when they are needed, but, when you do see the police, they are harassing residents for no reason.”).
6

long and often underappreciated history of anti-crime activism by NYCHA tenant organizations: “‘The activists, most of whom were women, . . . believed that securing their fair share of municipal services, including police protection, was a fundamental right . . . .’”11
This case is solely concerned with whether the NYPD’s trespass enforcement practices in NYCHA buildings violate the Constitution, or other laws. If so, the practices must stop, no matter how effective they may be. As the Supreme Court recently noted, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”12 Just as public schools face constitutional constraints on religious expression that do not apply to private schools, and public employers face constitutional restrictions that do not apply to private employers, so public security in public housing must operate within constitutional limitations that would not apply in a purely private context. NYPD officers on patrol in NYCHA buildings are members of the City’s police force. As a result, they must operate in accord with constitutional rules that would not apply
11 Davis I, 2012 WL 4813837, at *1 n.8 (quoting FRITZ UMBACH, THE LAST NEIGHBORHOOD COPS: THE RISE AND FALL OF COMMUNITY POLICING IN NEW YORK PUBLIC HOUSING 5 (2010)).
12 Heller, 554 U.S. at 636. I noted in Ligon that “[n]o 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.” Ligon, 2013 WL 628534, at *41 n.453.
7

to private security in a private building. The NYPD may not, for example, forcibly stop and question every person who enters a NYCHA building, as a doorman in a private building is free to do.
It is against this backdrop that I address plaintiffs’ and defendants’ motions for summary judgment. The parties agreed to brief these motions in two parts. The first part, adjudicated in October 2012, addressed the individual circumstances of plaintiffs’ arrests and tenancies.13 The second part, adjudicated here, addresses defendants’ practices and policies.
For the reasons set forth below, the parties’ motions for summary judgment are granted in part and denied in part. A summary of the Court’s decisions appears in the Conclusion to this Opinion. II. BACKGROUND
I begin by offering a brief summary of the procedural background to plaintiffs’ pending claims against the City and NYCHA. Plaintiffs’ Amended Complaint identified the putative plaintiff class in this case as consisting of two overlapping subclasses, the “arrested plaintiffs” and the “resident plaintiffs.”14 Plaintiffs identified the following thirteen plaintiffs as representing the arrested
13 See Davis I, 2012 WL 4813837. 14 See Amended Complaint (“Am. Compl.”) ¶¶ 21–23.
8

plaintiffs: Anthony Anderson, Adam Cooper, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, William Turner, Andrew Washington, and David Wilson.15 Plaintiffs identified the following eight plaintiffs as representing the resident plaintiffs: Eleanor Britt, Kelton Davis, Frederick, Shawne Jones, Littlejohn, Hector Suarez, Washington, and Evans.16 Plaintiff Geneva Wilson, a NYCHA resident and aunt of David Wilson who was eighty years old at the time of the Amended Complaint, was not listed as representing either subclass.17
Prior to the filing of the Amended Complaint, nine of the named plaintiffs accepted offers of judgment from the City pursuant to Federal Rule of Civil Procedure 68, but continued to assert their claims against NYCHA: Anderson, Cooper, Davis, Jones, Larregui, Suarez, Turner, David Wilson, and Geneva Wilson.18
In the Amended Complaint, plaintiffs brought the following claims:
15 See id. ¶ 46. 16 See id. ¶ 47. 17 See id. ¶¶ 46–47, 89–100. 18 See id. ¶ 1 n.1; Davis v. City of New York, No. 10 Civ. 0699, 2011 WL 4946243, at *1 (S.D.N.Y. Oct. 18, 2011) (awarding attorney’s fees to settling plaintiffs).
9

(1) The arrested plaintiffs who had not accepted offers of judgment from the City (Evans, Frederick, Jackson, Johnson, Littlejohn, Osorio, Smith, and Washington) brought Fourth Amendment, New York State Constitution (“NYSC”) article 1 section 12 (which guarantees security against unreasonable searches and seizures), and respondeat superior claims against the City.19 Plaintiffs also alleged violations of resident plaintiffs’ Fourth Amendment rights, but did not plead a claim based on these violations.20
(2) The resident plaintiffs brought claims against the City and NYCHA under Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act” or “FHA”), the United States Housing Act (the “USHA”), the Civil Rights Act of 1866 (42 U.S.C. § 1981, or “section 1981”), and the New York State and City Human Rights Laws (the “NYSHRL” and “NYCHRL”).21
(3) All plaintiffs brought claims against the City and NYCHA under the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (“Title VI”), and NYSC article 1 section 11 (which guarantees equal protection).22
Because it was undisputed in Davis I that Frederick and Washington are not
19 See Am. Compl. ¶¶ 237–244 (Fourth Amendment), 281–286 (NYSC article 1 section 12), 287–293 (respondeat superior).
20 See id. ¶¶ 240–244.
21 See id. ¶¶ 254–259 (FHA), 260–265 (USHA), 266–271 (section 1981), 294–302 (NYSHRL and NYCHRL).
22 See id. ¶¶ 245–250 (Fourteenth Amendment equal protection), 251–253 (Title VI), 272–274 (due process), 275–280 (article 1 section 11).
10

authorized NYCHA tenants, I granted summary judgment to the City and NYCHA on their claims as resident plaintiffs.23 Based on this and plaintiffs’ omission of Davis and Geneva Wilson from the list of resident plaintiffs in their briefing, I concluded that the remaining resident plaintiffs were Britt, Evans, Jones, Littlejohn, and Suarez.24 In the briefing prior to Davis I, plaintiffs withdrew their claims against the City under the USHA.25 I also granted summary judgment in Davis I on the following claims to the following parties: (1) to NYCHA on all plaintiffs’ Fourteenth Amendment equal protection and article 1 section 11 claims;26 (2) to the City on the resident plaintiffs’ NYSHRL and NYCHRL claims;27 and (3) to the City and NYCHA on non-resident plaintiffs’ Title VI claims,28 on Britt’s equal protection, FHA, section 1981, NYSHRL, NYCHRL, and
23 See Davis I, 2012 WL 4813837, at *17 n.151. 24 See id.; Davis v. City of New York, No. 10 Civ. 0699, 2013 WL 145584, at *1 (S.D.N.Y. Jan. 14, 2013) (addressing NYCHA’s supplemental motion for partial summary judgment based on Jones’s and Suarez’s tenancies). 25 See 7/20/12 Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions for Partial Summary Judgment (“Pl. Opp. (7/20/12)”) at 33 n.36. 26 See Davis I, 2012 WL 4813837, at *16. 27 See id. at *21. 28 See id. at *17 n.155.
11

Title VI claims,29 and on all plaintiffs’ due process claims.30
As a result, the following claims from the original three categories of
claims, above, remained viable after the first round of summary judgment briefing:
First, the remaining arrested plaintiffs are Evans (trespass stop and arrest),
Frederick (trespass stop and arrest), Jackson and Johnson (trespass arrests),
Littlejohn (trespass stop and arrest), Osorio (trespass stop), Smith (trespass stop
and arrest), and Washington (trespass stop and arrest). These plaintiffs maintain
Fourth Amendment, Fourteenth Amendment equal protection, NYSC article 1
sections 11 and 12, and respondeat superior claims against the City.31 Second, the
29 The City correctly concludes that Davis I granted both defendants summary judgment on all of Britt’s claims that depended on the impairment of her residency-based rights, except Britt’s USHA claim against NYCHA. Contra Pl. Opp. at 27 n.20, see City Mem. at 14 n.20 (citing Davis I, 2012 WL 4813837, at *17 (“Plaintiffs point to no evidence regarding the impairment of Britt’s residency-based rights beyond those under the United States Housing Act that guarantee the provision of a reasonable residential lease.”)). See also Davis I, 2012 WL 4813837, at *15 n.136 (granting summary judgment on Britt’s equal protection claims against the City); id. at *20 (granting summary judgment on Britt’s section 1981 claims against the City and NYCHA).
30 See Davis I, 2012 WL 4813837, at *26. 31 See id. at *2–15; Am. Compl. ¶¶ 118–133 (Washington), 149–155 (Frederick); 12/4/12 Defendant City of New York’s Memorandum of Law in Support of Its Motion for Summary Judgment on Plaintiffs’ Claims Against the City (“City Mem.”) at 1. Because the parties’ submissions do not address plaintiffs’ respondeat superior claims, I will not address those claims in this Opinion.
12

remaining resident plaintiffs are Britt, Evans, Littlejohn, Jones, and Suarez. All maintain USHA claims against NYCHA; all but Britt maintain Title VI, FHA, NYSHRL, NYCHRL, and section 1981 claims against NYCHA; and Evans and Littlejohn maintain Title VI, FHA, section 1981, Fourteenth Amendment equal protection, and NYSC article 1 section 11 claims against the City. III. LEGAL STANDARD FOR SUMMARY JUDGMENT
“Summary judgment is designed to pierce the pleadings to flush out those cases that are predestined to result in a directed verdict.”32 Thus, summary judgment is appropriate “only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party’s favor, there is ‘no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.’”33 “A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”34
32 Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997). 33 Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 692 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)) (other quotations omitted). 34 Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012) (quotations and alterations omitted).
13

“[T]he burden of demonstrating that no material fact exists lies with the moving party . . . .”35 “When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non[-]movant’s claim.”36 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact.37 The non-moving party “‘must do more than simply show that there is some metaphysical doubt as to the material facts,’”38 and cannot “rely on conclusory allegations or unsubstantiated speculation.”39
In deciding a motion for summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.”40 “‘Credibility determinations, the weighing of the evidence,

35 Miner v. Clinton Cnty., N.Y., 541 F.3d 464, 471 (2d Cir. 2008) (citation omitted).

36 Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).

37 See id.

38 Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

39

Id.

40
2012).

Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.

14

and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’”41
IV. MONELL LIABILITY
42 U.S.C. § 1983 (“section 1983”) creates “‘a species of tort
liability’” for, among other things, certain violations of constitutional rights.42 As
the Supreme Court established in Monell v. New York City Department of Social
Services,43 in order to have recourse against a municipality or other local
government under section 1983, plaintiffs “must prove that ‘action pursuant to
official municipal policy’ caused the alleged constitutional injury.”44 “In other
41 Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
42 Heck v. Humphrey, 512 U.S. 477, 483 (1994) (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)).
43 436 U.S. 658 (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 policies or on the basis of “‘customs’” or “‘usages.’” Id. at 690–91 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–68 (1970)).
44 Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011), cert. denied, 132 S. Ct. 1741 (2012) (quoting Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011), in turn quoting Monell, 436 U.S. at 691 (quotation marks omitted)). Cases after Monell “considerably broadened the concept of official municipal action.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004) (Sotomayor, J.).
15

words, municipalities are ‘responsible only for their own illegal acts,’ and cannot be held ‘vicariously liable under § 1983 for their employees’ actions.’”45 In general, “[o]fficial municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”46 Such policies “may be pronounced or tacit and reflected in either action or inaction.”47
One way to establish the existence of a municipal policy is through a showing of “deliberate indifference” by high-level officials. “‘[W]here a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official’s inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983.’”48 “Deliberate indifference” requires “‘proof that a municipal actor disregarded a known or obvious consequence of his action.’”49
45 Cash, 654 F.3d at 333 (quoting Connick, 131 S. Ct. at 1359) (certain quotation marks omitted).
46 Connick, 131 S. Ct. at 1359 (citing Monell, 436 U.S. at 694; Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986); Adickes, 398 U.S. at 167–68).
47 Cash, 654 F.3d at 334. 48 Id. (quoting Amnesty, 361 F.3d at 126). 49 Connick, 131 S. Ct. at 1359 (quoting Board of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)).
16

Recognizing that “deliberate indifference” is “a stringent standard of
fault,” the Second Circuit requires “that the policymaker’s inaction was the result
of ‘conscious choice’ and not ‘mere negligence.’”50 The Second Circuit has also
held that municipal liability can be established “by demonstrating that the actions
of subordinate officers are sufficiently widespread to constitute the constructive
acquiescence of senior policymakers.”51
A municipality may incur Monell liability based on deliberate
50 Cash, 654 F.3d at 334 (quoting Connick, 131 S.Ct at 1360; Amnesty, 361 F.3d at 128).
51 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 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. See Ligon, 2013 WL 628534, at *4 n.32 (discussing Jones v. Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012)).
Whether or not the phrase “constructive acquiescence” persists in Second Circuit case law, the theory remains valid under the terms of Connick: “practices so persistent and widespread as to practically have the force of law” represent official municipal policy for the purpose of Monell liability. Connick, 131 S. Ct. at 1359 (citing Adickes, 398 U.S. at 167 (“[A] ‘custom or usage, of (a) State’ for purposes of § 1983 must have the force of law by virtue of the persistent practices of state officials.”)). See also City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989) (“It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are ‘deliberately indifferent’ to the need.” (emphasis added)).
17

indifference through its training practices. Although “[a] municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train,”52 the Supreme Court has held that “[w]hen city policymakers are
on actual or constructive notice that a particular omission in their training program
causes city employees to violate citizens’ constitutional rights, the city may be
deemed deliberately indifferent if the policymakers choose to retain that program.”53 “[D]eliberate indifference may be inferred where ‘the need for more
or better supervision to protect against constitutional violations was obvious,’ but
the policymaker ‘fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs[.]’”54
52 Connick, 131 S. Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)).
53 Id. (citing Bryan Cnty., 520 U.S. at 407). 54 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:
(1) policymaker knows “to a moral certainty” that its employees will confront a given situation; (2) either situation presents employees with [a] 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.
18

V. DISCUSSION A. Fourth Amendment Claims Against the City Both Davis I and the preliminary injunction opinion in Ligon included
detailed discussions of the law of seizures.55 As the Supreme Court reaffirmed in Florida v. Bostick, the test for determining whether a Terry stop has taken place “is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”56 Whether a stop has taken place depends on “whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’”57
While the Supreme Court explicitly refrained from determining

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 Canton, 489 U.S. at 390). In order to establish Monell liability based on the Walker test, plaintiffs must also, of course, show that the training or supervision was in fact inadequate and that this inadequacy caused plaintiffs’ constitutional injuries. See Reynolds, 506 F.3d at 193.

55 See Ligon, 2013 WL 71800, at *28–29, *41–42; Davis I, 2012 WL 4813837, at *2–15.

56 501 U.S. 429, 436 (1991).

57
(1988)).

Id. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569

19

whether a seizure occurred in Bostick,58 it noted several types of police encounters that previous cases had identified as not necessarily constituting stops.59 The
Supreme Court made a point of confirming that even in these types of cases, the
“terminate the encounter” standard applies: “[E]ven when officers have no basis
for suspecting a particular individual, they may generally ask questions of that
individual; ask to examine the individual’s identification; and request consent to
search his or her luggage — as long as the police do not convey a message that compliance with their requests is required.”60 The Bostick majority emphasized
that police officers may not “demand of passengers their ‘voluntary’ cooperation”
58 See id. 59 See id. at 434–35. 60 Id. (collecting cases) (emphasis added and citations omitted). Accord INS v. Delgado, 466 U.S. 210, 216 (1984) (“[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.” (emphasis added)). The Supreme Court did not rule in Bostick, nor in Delgado, that questioning, or a request for identification, cannot rise to the level of a Terry stop. Rather, the Court affirmed that the manner and context of police conduct are relevant to the inquiry into whether a reasonable person would have felt free to terminate the encounter. As the Second Circuit has noted, this inquiry is essentially “an objective assessment of the overall coercive effect of the police conduct.” United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990) (citing Chesternut, 486 U.S. at 573–74).
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through “‘an intimidating show of authority.’”61
The Second Circuit has held that the following factors are indicative
of a “seizure,” a term that encompasses both Terry stops and arrests:
the threatening presence of several officers; the display of a weapon; the physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person’s personal effects, such as airplane tickets or identification; and a request by the officer to accompany him to the police station or a police room.62
In Ligon, I noted two examples of police encounters that the Second Circuit held to
be Terry stops, despite their arguably low level of coercion:
The Second Circuit has held . . . that a stop took place where an officer twice ordered a person to “hold on a second,” and after the second order the person stopped. The Second Circuit also held that a stop occurred where an officer pointing a spotlight at a person said, “What, are you stupid? Come here. I want to talk to
61 Bostick, 501 U.S. at 438 (quoting Bostick, 501 U.S. at 447 (Marshall, J., dissenting)) (emphasis omitted).
62 United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992) (quoting Lee, 916 F.2d at 819). Accord United States v. Drayton, 536 U.S. 194, 203–04 (2002) (concluding, under Bostick framework, that reasonable passenger on bus would feel free to leave, where “officers gave the passengers no reason to believe that they were required to answer the officers’ questions,” and officer asking questions of passengers “did not brandish a weapon or make any intimidating movements,” “left the aisle free so that respondents could exit,” and “spoke to passengers one by one and in a polite, quiet voice”). The principle of seizure “applies equally to seizures of persons and to seizures of property,” and “the arrest of a person is ‘quintessentially a seizure.’” Payton, 445 U.S. at 585 (quoting United States v. Watson, 423 U.S. 411, 428 (1976) (Powell, J., concurring)).
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you,” and then told the person to show his hands.63 By contrast, the Second Circuit held that no Terry stop took place “where a person encountered two officers in his dorm lobby, and the officers asked him to show them his hands.”64
In Davis I, the City of New York conceded, and I held, that a person was subject to a Terry stop when he encountered an officer in a stairway, the officer asked if he lived in the building, the officer asked for his ID, and then the officer asked him to step out of the stairwell and into the lobby.65 I also held that a person was stopped “when she attempted to walk to the elevator, was told to ‘come back’ by [an officer], and stopped walking,” because the officer’s “order to ‘come back’ was an order to stop and [she] obeyed the order.”66
In Ligon, I held that a person was subject to a Terry stop when a patrol car pulled in front of the building he was trying to leave; the officer caused the person to stop by asking him pointed questions designed to elicit an incriminating
63 Ligon, 2013 WL 628534, at *36 (citing United States v. Simmons, 560 F.3d 98, 101 (2d Cir. 2009); Brown v. City of Oneonta, N.Y., 221 F.3d 329, 340 (2d Cir. 2000)).
64 Id. at *36 n.410 (citing Brown, 221 F.3d at 341). 65 See Davis I, 2012 WL 4813837, at *5–6. 66 Id. at *14.
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response; the officer asked for the person’s ID and took it; and the officer told the person and his companions that they could not stand in front of their building.67 By contrast, I held that a person was not subject to a Terry stop when two officers approached her in front of a supermarket in her apartment complex, “asked her whether she lived there and whether she had an ID, then took her ID, looked at it, handed it back to her, and said to have a nice day,” where there was no evidence that the officers approached or questioned her “in an aggressive, coercive, or threatening manner.”68
In sum, the test for whether a Terry stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter.69 In order for such a stop to comply with the Fourth Amendment, it must be based on reasonable suspicion. “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making
67 See Ligon, 2013 WL 628534, at *13–14, *29. 68 Id. at *16–17. 69 The Second Circuit has further held: “[a] seizure occurs when (1) a person obeys a police officer’s order to stop or (2) a person that does not submit to an officer’s show of authority is physically restrained.” Simmons, 560 F.3d at 105 (citing Swindle, 407 F.3d at 572).
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the stop.”70 “‘The officer [making a Terry stop] . . . must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.’”71
“Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.”72 In general, reasonable suspicion requires an individualized suspicion of wrongdoing.73
Finally, because the NYPD’s training materials place great importance
on the New York state common law of stops, as articulated in People v. De Bour and its progeny,74 a few words regarding the relationship between De Bour and the
Fourth Amendment will be useful. I highlight one important difference between
De Bour and the Fourth Amendment: these two sources of law draw the line
between permissible and impermissible police encounters in different ways; as a
result, De Bour is in some respects more protective of liberty from governmental
70 Illinois v. Wardlow, 528 U.S. 119, 123 (2000). 71 Alabama v. White, 496 U.S. 325, 329 (1990) (quoting Sokolow, 490 U.S. at 7) (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). 72 United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000). 73 See City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308 (1997)). 74 People v. De Bour, 40 N.Y.2d 210 (1976). See, e.g., City Mem. at 6; Ligon, 2013 WL 628534, at *35–39.
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intrusion than the Fourth Amendment, and in other respects less.75
75 In the words of the Second Circuit, as already noted, whether a stop has taken place under the Fourth Amendment depends on “an objective assessment of the overall coercive effect of the police conduct.” Lee, 916 F.2d at 819 (citing Chesternut, 486 U.S. at 573–74). The line between constitutional and unconstitutional police questioning — in the absence of reasonable suspicion — may depend on how threatening or intimidating an officer’s behavior was during the encounter. See id. (collecting cases). Thus, the Fourth Amendment places great weight on the manner in which police officers carry out questioning, because an officer’s manner can convey the message that the questioned person is not free to terminate the encounter. See Bostick, 501 U.S. at 436–39.
By contrast, De Bour and its progeny tend to emphasize the content of police questioning, not its manner. In People v. Hollman, the New York Court of Appeals reaffirmed De Bour and stated that “as a general matter, . . . basic, nonthreatening questions regarding, for instance, identity, address or destination . . . need be supported only by an objective credible reason not necessarily indicative of criminality.” 79 N.Y.2d 181, 185 (1992). Accord id. at 191 (“[A] request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area.”). Only if an officer poses “more pointed questions” is a founded suspicion of criminality required. Id. at 185. As the Court of Appeals concluded: “To some extent, . . . our distinction rests on the content of the questions, the number of questions asked, and the degree to which the language and nature of the questions transform the encounter from a merely unsettling one to an intimidating one.” Id. at 192. In other words, the distinction rests, for the most part, on what questions the police ask, not how they approach and ask them.
De Bour’s largely content-based approach to police questioning is distinct from the more manner-based approach of the Fourth Amendment. An officer could conceivably comply with De Bour but violate the Fourth Amendment by, for example, approaching and questioning a NYCHA resident, without reasonable suspicion, in a hostile, aggressive manner that would make a reasonable person not feel free to terminate the encounter — but asking only questions concerning identity, address, and destination. On the other hand, an officer might comply with the Fourth Amendment but violate De Bour by, for example, approaching and questioning a NYCHA resident, without a founded suspicion of criminality, in a polite, respectful, and non-coercive manner — but asking
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1. Plaintiffs’ Claim of an Unconstitutional Policy
The City and plaintiffs have both moved for summary judgment on
plaintiffs’ claim that the City’s written trespass enforcement policies (as opposed
to the City’s unwritten practices) violate the Fourth Amendment. I will discuss
plaintiffs’ motion first, and then turn to the City’s motion. For the reasons stated
below, both motions for partial summary judgment are denied.
a. Plaintiffs’ Motion
Plaintiffs’ motion argues that it is undisputed that the City’s policy, as
embodied in Interim Order 23 of 2010 (“IO 23”) and associated training materials,
instructs NYPD officers that they may do the following: “without reasonable
suspicion or probable cause, NYPD officers can command people to affirmatively
establish their right to be in a NYCHA residence or leave the premise, and then arrest those who refuse to comply.”76 Plaintiffs argue that this scheme authorizes
NYPD officers to stop NYCHA residents and guests without reasonable suspicion,
questions whose contents fell outside the scope of a “request for information” under Hollman.
76 12/15/12 Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary Judgment (“Pl. Mem. (Policy)”) at 5. The City presents IO 23 as the policy that has governed “vertical patrols” in NYCHA buildings since 2010. See 12/4/12 Defendant City of New York’s Statement of Facts Pursuant to Local Rule 56.1 ¶ 118. IO 23 should not to be confused with Interim Orders 22 and 23 of 2012, which concern vertical patrols in private TAP buildings. See Ligon, 2013 WL 628534, at *24–25.
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and to arrest NYCHA residents and lawful guests for criminal trespass without
probable cause, in violation of the Fourth Amendment.77
The City presents plaintiffs’ challenge to the stop and arrest policies
of IO 23 as a facial rather than as-applied challenge.78 Plaintiffs’ challenge is facial
at least in the sense that plaintiffs focus exclusively on the language of IO 23 and
related training materials, and do not argue that they are entitled to summary
judgment based on undisputed evidence of how IO 23 is applied.79 The Second
77 Because neither party has argued otherwise, I assume in the following discussion that the same constitutional standards govern police encounters during a vertical patrol and when patrolling a sidewalk. Neither party has argued, for example, that under the reasonableness analysis of the Fourth Amendment, different standards should apply to vertical patrols in NYCHA buildings, just as special standards apply for vehicle checkpoints. See Edmond, 531 U.S. at 45–46 (“[P]rogrammatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion.” (collecting cases)); Terry, 392 U.S. at 15 (“[O]f course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.”); Ligon, 2013 WL 628534, at *35 n.398.
78 See, e.g., City Opp. (Policy) at 10.
79 The distinction between facial and as-applied challenges is not always clear, and has been defined in various ways. See, e.g., Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 CAL. L. REV. 915 (2011) (defining facial challenges as “ones that, if accepted, would establish that a statute has no valid applications whatsoever,” and on this basis, concluding that the Supreme Court has upheld facial challenges under an “astonishingly large number of constitutional provisions,” but also noting that “it is sometimes difficult to differentiate facial from as-applied challenges, partly but not exclusively because the Court is often
27

Circuit has stated that in order to succeed on a facial challenge to a statute, at least outside of the First Amendment context, the challenger must show that “‘no set of circumstances exists under which the [statute] would be valid, i.e., that the law is unconstitutional in all of its applications,’ or at least that it lacks a ‘plainly legitimate sweep.’”80 Thus, in the present case, plaintiffs must show, at minimum, that there is no set of circumstances under which the undisputed stop and arrest scheme laid out in IO 23 and related training materials, as described above, would be valid, or at least that the scheme lacks a plainly legitimate sweep.
i. Plaintiffs’ Challenge to IO 23 Arrest Policy The City correctly argues that plaintiffs lack standing for their facial challenge of IO 23’s arrest policy, because no plaintiff has been subjected to the kind of arrest that plaintiffs contest.81 That is, no plaintiff has been arrested for criminal trespass in a NYCHA building simply based on refusal to answer an officer’s questions and refusal to leave when requested by an officer.
inattentive to the distinction”). As I have previously stated, “[t]here are few areas of the law that are as confused and conflicted as the law governing facial challenges.” In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab., 674 F. Supp. 2d 494, 505 (S.D.N.Y. 2009).
80 United States v. Decastro, 682 F.3d 160, 168 (2d Cir. 2012) (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (quotation marks and citation omitted)).
81 See City Opp. (Policy) at 10. 28

“To establish Article III standing, an injury must be ‘concrete,
particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’”82 No plaintiff has suffered an actual,
concrete injury from the IO 23 arrest policy that is the focus of plaintiffs’ facial
challenge. Plaintiffs’ reply brief points to Rikia Evans, a guest in a NYCHA
building who was arrested for trespass after refusing to answer an officer’s questions and refusing to provide her identification on request.83 But Evans
specifically alleged that she was not offered the opportunity to exit the building after she refused to establish her right to be there.84 Because plaintiffs have offered
no evidence of any person being arrested under IO 23’s arrest policy simply for
refusing to answer questions and refusing to leave on request, plaintiffs’ injuries are insufficient to confer standing.85
82 Clapper v. Amnesty Int’l USA, — S. Ct. —, 2013 WL 673253, at *7 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2752 (2010)).
83 See 1/18/13 Plaintiffs’ Reply Memorandum of Law in Further Support of Motion for Partial Summary Judgment (“Pl. Reply (Policy)”) at 5; Davis I, 2012 WL 4813837, at *10–15.
84 See Davis I, 2012 WL 4813837, at *11. 85 I note, however, that the constitutionality of IO 23’s arrest policy could be relevant to the deliberate indifference analysis of plaintiffs’ Monell claim. If, hypothetically, the City were to cite the development and implementation of IO 23 as evidence that it has not been deliberately indifferent to earlier, problematic
29

arrest practices, then any authorization of unconstitutional conduct in IO 23 would weaken the City’s argument. In order to avoid repetition if the issue of the constitutionality of IO 23’s arrest policy arises again in this case, I offer the following observations on the arguments already presented in the parties’ briefs:
The City defends IO 23’s arrest policy in part by suggesting that NYPD officers have authority under New York Penal Law section 140.10(f) to revoke the permission of any person to be inside a NYCHA building. See City Opp. (Policy) at 6–8. The City analogizes section 140.10(f) to section 140.10(d), which is similarly phrased but involves trespass on school property “in violation of a personally communicated request to leave the premises from a principal, custodian, school board member or trustee, or other person in charge thereof.” Courts have held that under section 140.10(d), a principal or other person in charge who makes a personally communicated request to leave the premises thereby revokes whatever privilege the person had to be on the premises. See Matter of Max X., 717 N.Y.S.2d 773, 774–75 (3d Dep’t 2000) (“[A]ny license or privilege that respondent may have had at the time he entered the school building was revoked when the principals advised him that he had no right to be on the school premises and was required to leave.”); Arum v. Miller, 331 F. Supp. 2d 99, 109–10 (E.D.N.Y. 2004) (concluding that when “a person capable of revoking permission to be in the school” asks a visiting parent to leave, and the parent does not comply, this is “sufficient to create probable cause for a police officer to arrest an individual for criminal trespass in the third degree” under section 140.10(d)).
But the City provides no basis for concluding that an NYPD officer has the legal authority to revoke a person’s privilege to be in a NYCHA building, as a principal does in a school. In support of the NYPD’s authority to revoke permission to be in a NYCHA building, the City cites People v. Brown, which states: “Since it is clear that defendant lawfully entered the premises, a conviction could be had only if the prosecution established that (1) a lawful order not to remain was personally communicated to the defendant and (2) that he defied such a lawful order.” 306 N.Y.S.2d 449, 452 (1969). Similarly, the City cites a case in which a tenant revoked whatever privilege a guest might have had to be in her apartment. See People v. Randolph, 795 N.Y.S.2d 782, 783 (3d Dep’t 2005). Rather than answering the question of when, if ever, an NYPD officer has the legal authority to revoke someone’s privilege to be in a NYCHA building, however, these citations beg the question. Both deal with circumstances in which the person revoking the privilege clearly had the legal right to do so.
Unless NYPD officers have some legal authority, as yet unidentified,
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ii. Plaintiffs’ Challenge to IO 23 Stop Policy IO 23 states that upon encountering “persons who may be violating Housing Authority rules and regulations, including potentially unauthorized persons within NYCHA property,” officers are to “[a]pproach the person(s) and ask: (1) If he or she lives in the building[;] (2) If he or she is visiting someone in the building[;] (3) If he or she has business in the building.”86 IO 23 then states, in italics: “When a person’s authority to be present in the building is in question, take reasonable measures to verify such authority (e.g., asking for identification, a key to the building entrance doors, etc.).”87 IO 23 explicitly warns that “an officer may not stop (temporarily detain) a suspected trespasser unless the officer reasonably suspects that the person is in the building without authority.”88 The City acknowledges in its brief that IO 23 authorizes police to approach and
to revoke at will the privilege to be inside a NYCHA building, the refusal to obey an officer’s request to leave cannot constitute probable cause for a trespass arrest. A person’s refusal to obey a request to leave a NYCHA building from someone who has no authority to revoke the privilege to be in the building provides no evidence that the person is not lawfully in the building.
86 IO 23, Ex. O to 12/4/12 Declaration of Brenda E. Cooke, counsel to defendant City (“Cooke Decl.”), at ¶ 12 (emphases added).
87 IO 23 at 2. 88 Id. at 1.
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question individuals, and to request their identification or keys, without reasonable suspicion of any crime.89
Plaintiffs have standing to challenge the stop policy in IO 23, based on plaintiffs’ allegations and evidence of having been personally stopped under the policy, and plaintiffs’ continued risk of such stops.90 Nevertheless, plaintiffs’ facial challenge to IO 23’s stop procedure fails for two reasons. First, not every police encounter involving the kinds of questions and requests described in IO 23 inevitably constitutes a Terry stop. The test for whether a police encounter rises to the level of a Terry stop is whether, in light of the totality of the circumstances, a reasonable person would “feel free to decline the officers’ requests or otherwise terminate the encounter.”91 Because questions and requests concerning purpose and identity could be carried out in such a manner that a reasonable person would feel free to terminate the encounter, such questioning is neither categorically inside or outside the scope of Fourth Amendment protection. The level of coercive effect will depend on the totality of the circumstances, including, for example, “‘the
89 See City Opp. (Policy) at 4. 90 Although some of plaintiffs’ stops occurred before the promulgation of IO 23, others occurred after. See, e.g., Davis I, 2012 WL 4813837, at *3–4 (Osorio’s November 18, 2010 stop), *10–15 (Evans’ October 16, 2010 stop). Evans continues to live in NYCHA housing. See id. at *2 & n.12. 91 Bostick, 501 U.S. at 436.
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threatening presence of several officers; . . . language or tone indicating that
compliance with the officer was compulsory; [or] prolonged retention of a person’s
personal effects, such as . . . identification.’”92
Plaintiffs offer no evidence in their facial challenge that it is
impossible for a police officer to ask the kinds of questions and make the kinds of
requests described in IO 23 in such a way that a reasonable person would feel free
to terminate the encounter.93 The City argues that suspicionless encounters based
92 Glover, 957 F.2d at 1008 (quoting Lee, 916 F.2d at 819).
93 “[N]o seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage — so long as the officers do not convey a message that compliance with their requests is required.” Bostick, 501 U.S. at 437. Accord Ligon, 2013 WL 628534, at *17 (concluding that a plaintiff had not provided adequate evidence that the police conveyed a message that compliance with their requests was required, where officers approached and asked questions politely and without coercion). It is true that based on the evidence at the preliminary injunction hearing in Ligon, I expressed skepticism as to whether an expansive program of suspicionless police encounters involving intrusive field interrogations and ID requests could avoid resulting in widespread constitutional violations — especially where officers received inaccurate training on the Fourth Amendment. As I stated there:
If the difference between a Terry stop and a less intrusive encounter hinges on indefinite factors such as the demeanor and positioning of the officers; and if it is safe to assume that officers routinely display their authority and power through aggressive behavior, as many of the officers did in their encounters with plaintiffs in the instant case; then a training program that invites officers to approach large numbers of people and question them without reasonable suspicion will inevitably result in frequent Terry stops that lack reasonable suspicion, effectively
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on IO 23 do not rise to the level of stops;94 plaintiffs argue the contrary.95 The
dispute between the parties represents a genuine issue of material fact that will
have to be resolved by a fact-finder based on evidence of actual police encounters,
not based simply on a textual analysis of IO 23.96
Second, it is true, as plaintiffs argue, that IO 23 contains no criteria for
identifying either persons who may be violating Housing Authority rules or
persons whose authority to be in the building is questionable, yet presents both of
guaranteeing the commission of widespread constitutional violations.
Id. at *38. For evidence that the NYPD’s training misconstrues the Fourth Amendment, see id. at *35–39. Ligon also shows, however, that determining whether a practice of suspicionless police encounters has actually resulted in suspicionless Terry stops is a fact-intensive inquiry. See, e.g., id. at *10–19, *28–30 (factual analyses of individual plaintiffs’ stops).
94 See City Opp. (Policy) at 1, 3–6, 9. 95 See Pl. Mem. (Policy) at 1–2; Pl. Reply (Policy) at 2–3. 96 I note that plaintiffs may succeed at trial on an as-applied challenge to the stop policy in IO 23 even though they are not entitled to summary judgment on their facial challenge. This is so because the stop policy directs officers to engage in behavior that is constitutional (that is, suspicionless encounters that a reasonable person would feel free to terminate), but is ambiguous as to whether it directs officers to engage in additional, unconstitutional behavior (that is, suspicionless Terry stops). A facial challenge to the policy must fail because the policy may be interpreted, in practice, as directing only the former, constitutional behavior. But if evidence shows — again, in practice — that officers interpret the ambiguous aspect of the policy as directing them to engage in unconstitutional behavior, and as a result they do so, then the policy would be at least partially unconstitutional.
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these factors as justifications to approach and question a person.97 As a result, it appears that NYPD officers have complete discretion under IO 23 to approach and question anyone in a NYCHA building. This discretion, however, is not problematic if the NYPD officers approach and question individuals in ways that do not implicate their Fourth Amendment (or other constitutional) rights. But whether this is the case, again, cannot be determined from the face of IO 23 and its associated training materials.
For the foregoing reasons, plaintiffs’ motion for summary judgment on the unconstitutionality of IO 23’s stop policy is denied.
b. The City’s Motion The City moves for summary judgment on plaintiffs’ claim that the NYPD has a policy of making unconstitutional stops or arrests for trespass on NYCHA property.98 Based on the analysis above, the City’s motion is rejected with regard to the stop policy in IO 23 and its associated training materials. A reasonable juror could conclude that the NYPD’s policy for trespass enforcement
97 See IO 23; Pl. Reply (Policy) at 4–5 (arguing that IO 23 stop policy “fails to establish appropriate limits on officers’ discretion”). Accord NYCHA Rules & Regulation Training PowerPoints, Bates Nos. NYC0021989-22024, Ex. U to Cooke Decl., at NYC0022020 (offering no criteria for determining when a person’s right to be in the building is in question).
98 See City Mem. at 2. 35

in NYCHA buildings is to conduct both constitutionally permissible non-coercive questioning and constitutionally impermissible suspicionless Terry stops. Such a policy could form the basis for Monell liability whether it was implemented with the intent to violate the Constitution, or merely out of ignorance of the Constitution’s requirements.99
The City’s motion for summary judgment is also denied with regard to the NYPD’s trespass arrest policies in NYCHA buildings. While plaintiffs lack standing to challenge the constitutionality of the conjectural type of trespass arrest described above — that is, an arrest based solely on refusing to answer questions and refusing to leave after being requested to do so by a police officer — plaintiffs have also argued that the NYPD’s trespass enforcement policy is unconstitutional because it “permits the arrest of NYCHA residents and their guests just for being present in areas designated as ‘prohibited’ by NYCHA, such as roofs and roof
99 A policy may be unconstitutional and a source of Monell liability under section 1983 even if municipal policymakers believed in good faith that the policy was constitutional, or even if the constitutionality of the policy was not yet clearly established. See Skehan v. Village of Mamaroneck, 465 F.3d 96, 109 (2d Cir. 2006) (“Municipalities are not entitled to qualified immunity for their actions, even where the individual officers who acted on the municipality’s behalf would be.”), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008).
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landings, without adequate notice.”100 Plaintiffs have standing to challenge this type of arrest. Two plaintiffs, Roman Jackson and Kristin Johnson, were arrested in January 2009 for trespass based on sitting at the top of a stairwell in a NYCHA building. Jackson was a tenant in the building at the time, and Johnson was his guest. The parties dispute whether the top of the stairwell was a “roof landing,” which has been defined as a prohibited area. The parties also dispute whether there was a sign at the top of the stairwell: plaintiffs have presented testimony that there was no sign; the City has argued that there was a sign stating that “loitering and trespassing in lobby, roof, hallway and stairs is not permitted.”101
In Davis I, I held that the City was not entitled to summary judgment on Jackson’s and Johnson’s Fourth Amendment claims based on the circumstances of their arrest, because a reasonable juror could find that their arrest lacked probable cause.102 I did not reach the issue of Monell liability. In order to survive the City’s motion for summary judgment on Monell liability regarding IO 23’s arrest policy, plaintiffs must show not only that a reasonable juror could conclude that Jackson’s and Johnson’s arrest lacked probable cause, but that Jackson’s and
100 1/7/13 Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions for Partial Summary Judgment (“Pl. Opp.”) at 3.
101 Davis I, 2012 WL 4813837, at *8. 102 See id. at *8–10.
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Johnson’s constitutional injuries resulted from a municipal policy.103
Plaintiffs have offered sufficient evidence to create a genuine issue of
material fact as to whether the NYPD has a policy of arresting the residents of
NYCHA buildings for trespass in areas that lack the requisite “conspicuously
posted rules or regulations” defining them as prohibited areas.104 There is also
103 See Cash, 654 F.3d at 333. I note that in Davis I, I assumed based on the parties’ briefing that Jackson and Johnson had been arrested for loitering in the stairway, in violation of the prohibition on such loitering contained in the sign that the City alleges was conspicuously posted at the top of the stairway. See Davis I, 2012 WL 4813837, at *8–10. Proceeding from this assumption, I analyzed the constitutionality of applying the sign’s loitering prohibition to a resident and concluded that the prohibition was unconstitutionally vague and thus could not provide a basis for probable cause or punishment. See id.
It now appears that there is uncertainty regarding why Jackson and Johnson were arrested. The City argues that Jackson and Johnson “fit the circumstances” of someone who has been arrested for “being in a prohibited area,” and not for loitering. 1/18/13 Defendant City of New York’s Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment on Plaintiffs’ Claims Against the City (“City Reply”) at 1 n.2. If Jackson and Johnson were arrested not for violating a prohibition on loitering but for violating a prohibition on trespassing in prohibited spaces, my earlier discussion of the vagueness of the loitering prohibition may no longer be material to the analysis of named plaintiffs’ individual circumstances.
104 See, e.g., Pl. Opp. at 3; 1/7/13 Plaintiffs’ Local Rule 56.1 Statement of Additional Material Facts in Opposition to Defendant City of New York’s and Defendant New York City Housing Authority’s Motion for Summary Judgment (“PAF”) ¶¶ 1–2, 91; Policing Housing Developments, Including Conducting Interior Vertical Patrols (Lesson Plan for the Patrol Guide Revision of 212–60), Ex. 3 to 12/15/12 Declaration of Johanna B. Steinberg, counsel for plaintiffs (“Steinberg Decl.), at 5 (noting that “[t]he absence of a [No Trespassing] sign does not preclude effecting a trespass arrest”). New York Penal Law sections 140.10(e) and (f) state:
38

sufficient evidence for a reasonable juror to conclude that some version of this
policy was already in effect when Jackson and Johnson were arrested.105
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property . . .
(e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or
(f) where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof.
Some New York courts have held that a person unlawfully present in the common or “public” areas of a NYCHA building may be charged with second degree criminal trespass under Penal Law section 140.15 (knowingly entering or remaining unlawfully in a dwelling) whether or not the requirements of sections 140.10(e) or (f) are satisfied. See, e.g., People v. Quinones, No. 01-371, 2002 WL 432917, at *1 (1st Dep’t Mar. 5, 2002); People v. Delossantos, 924 N.Y.S.2d 258, 260 (Crim. Ct. N.Y. Co. 2011) (defending Quinones and similar cases based on statutory text and policy). But see People v. Siton, 906 N.Y.S.2d 703, 706 (Crim. Ct. Kings Co. 2010) (calling into doubt Quinones and similar cases based on legislative history). In the present case, plaintiffs have been arrested under both laws:
Arrested Plaintiffs Mr. Jackson, Ms. Johnson, Ms. Evans, and Mr. Osorio were arrested under N.Y. Penal Law § 140.15. Arrested Plaintiffs Mr. Smith, Mr. Littlejohn, Mr. Washington, and Mr. Fredrick were arrested under N.Y. Penal Law § 140.10(e).
Pl. Opp. (7/20/12) at 6 n.4.
105 See, e.g., Excerpts from 3/25/11 Deposition of Police Officer Granit Selimaj, Ex. 2 to Lee Decl., at 78–79 (officer referring to “automatic arrests for anybody if you are on the rooftop or rooftop landing,” in discussion of June 2009
39

The Constitution does not prevent NYCHA from prohibiting residents from entering certain areas of its buildings, such as roofs and roof landings, nor does it prevent the NYPD from arresting residents for trespassing into those areas. The Constitution does, however, require that criminal statutes, and any rules or regulations they incorporate, “‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.’”106 Drawing all reasonable inferences in favor of plaintiffs, a reasonable juror could find (1) that the NYPD has a policy of arresting people in prohibited areas of NYCHA buildings, such as roofs and roof landings, even where there are no sufficiently conspicuous rules to put a resident or guest on constitutionally adequate notice that access to the areas is prohibited; (2) that Jackson and Johnson were arrested without probable cause in January 2009 pursuant to some version of this policy; and (3) that plaintiffs have therefore established the City’s Monell liability for an unconstitutional trespass arrest policy resulting in Jackson’s and Johnson’s arrest.
The City’s motion for partial summary judgment on plaintiffs’ claim of an unconstitutional trespass arrest policy in NYCHA buildings is therefore
arrest). 106 Gonzales v. Carhart, 550 U.S. 124, 148–49 (2007) (quoting Kolender
v. Lawson, 461 U.S. 352, 357 (1983)). 40

denied.107
2. Plaintiffs’ Claim of an Unconstitutional Custom and Practice
The preceding sections addressed the parties’ motions for summary
judgment on plaintiffs’ claim that the City bears Monell liability for its express
trespass enforcement policies in NYCHA buildings. I now turn to plaintiffs’ claim
that the City bears Monell liability for its trespass enforcement practices in
NYCHA buildings. Plaintiffs argue (1) that the City’s unconstitutional trespass
enforcement practices are sufficiently widespread to serve as a basis for Monell
liability, either based on a theory of constructive acquiescence, or based on actual
acquiescence;108 and (2) that the City has displayed deliberate indifference to the
107 The City also argues that even if Jackson’s and Johnson’s arrest was unconstitutional, plaintiffs have failed to provide evidence of a pattern of arrests like theirs, which the City argues would be necessary to show that the City’s policy is unconstitutional. See City Reply at 1 n.2 (citing Connick, 131 S. Ct. at 1360–61). In Connick, the Supreme Court stated: “A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” 131 S. Ct. at 1360 (quoting Bryan Cnty., 520 U.S. at 409). This rule has no bearing on the current discussion, which addresses plaintiffs’ policy theory of Monell liability, not its deliberate indifference theory. “[O]nce a municipal policy is established, ‘it requires only one application . . . to satisfy fully Monell’s requirement that a municipal corporation be held liable only for constitutional violations resulting from the municipality’s official policy.’” Pembaur, 475 U.S. at 478 n.6 (quoting Tuttle, 471 U.S. at 822).
108 See Pl. Opp. at 4 & n.8. The City contends that plaintiffs waived some or all of their “custom” theory of Monell liability by not including the phrase
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constitutional rights of NYCHA residents and guests based on its failure “to
supervise, discipline, and train its police officers to ensure lawful trespass
enforcement, despite an obvious need to do so.”109 The former argument focuses
on the City’s widespread practices, while the latter argument focuses on the City’s
deliberate indifference.
As an initial matter, the implementation of IO 23 and its associated
training after the commencement of this litigation creates complications regarding
the temporal scope of plaintiffs’ claim. Some of plaintiffs’ evidence of unlawful
stops and arrests predates IO 23, while other evidence postdates the policy. In the
Ligon preliminary injunction hearing, I addressed a similar issue involving the
even more recent implementation of new policies and training. In that case, I
conducted a two-stage analysis. First, I analyzed plaintiffs’ evidence of deliberate
“constructive acquiescence” in their Amended Complaint. See City Mem. at 2 n.5. However, plaintiffs clearly pleaded both policy-based and custom-based Monell claims, and the parties have argued these claims throughout the years of litigation. See, e.g., Am. Compl. ¶¶ 238–242; Davis v. City of New York, 812 F. Supp. 2d 333, 341 (S.D.N.Y. 2011). The City has cited no basis for concluding that the term “constructive acquiescence” must be recited in every custom-based claim of Monell liability based on the prevalence of unconstitutional practices. As noted above, if a municipality engages in sufficiently persistent and widespread unconstitutional practices, Monell liability will attach, even in the absence of direct evidence of acquiescence by policymakers. See Connick, 131 S. Ct. at 1359 (citing Adickes, 398 U.S. at 167); Canton, 489 U.S. at 390 n.10; Ligon, 2013 WL 628534, at *4 n.32 (discussing Jones, 691 F.3d at 82).
109 Pl. Opp. at 9. 42

indifference arising prior to the new policies and training. Second, I analyzed
whether defendants had rebutted plaintiffs’ evidence of deliberate indifference based on the recent steps taken by the NYPD.110
A two-stage analysis may also be appropriate here. I reserve decision
on that issue, however, because plaintiffs have raised a genuine issue of material
fact as to whether IO 23 and its associated training significantly altered the NYPD’s trespass enforcement practices in NYCHA buildings.111 Drawing all
reasonable inferences in favor of plaintiffs, as I must, I assume in the following
discussion that IO 23 and its associated training materials did not significantly alter
the NYPD’s trespass enforcement practices. As a result, evidence of
unconstitutional practices before the implementation of IO 23 remains relevant to
determining whether the NYPD continues to engage in unconstitutional practices.
110 See Ligon, 2013 WL 628534, at *28. 111 See Pl. Opp. at 7 & n.15, 9 (noting that NYCHA residents and guests testified to unlawful stops and arrests after the introduction of IO 23, that two named plaintiffs raised genuine issues of material fact regarding post-IO 23 unlawful stops, and that one did so regarding a post-IO 23 unlawful arrest). More than one officer testified that IO 23 did not change either the NYPD’s stop policy or trespass enforcement practices in general. See, e.g., Excerpts from 11/29/11 Deposition of Police Officer Keith Devine, Ex. 5 to Lee Decl., at 192–193. In addition, plaintiffs offer evidence that more than two years after the introduction of IO 23, the Bronx District Attorney’s Office announced a policy that was intended in part to address the problem of NYCHA “‘tenants and invited guests . . . being prosecuted unlawfully’” for trespass. Pl. Opp. at 9 (quoting PAF ¶ 42).
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a. Widespread Practice i. Documentary and Testimonial Evidence
Plaintiffs offer various forms of documentary and testimonial evidence supporting the conclusion that the City has a persistent and widespread practice of performing unconstitutional trespass stops and arrests in NYCHA buildings. In addition to the testimony of named plaintiffs discussed in Davis I, plaintiffs’ evidence includes the following:
(1) According to plaintiffs, the City’s Civilian Complaint Review Board (“CCRB”) became concerned about complaints that officers were stopping people without reasonable suspicion in and around NYCHA buildings. In many cases, the officers stated that they could stop anyone inside a NYCHA building. The CCRB conducted a study that revealed substantiated complaints regarding suspicionless stops in and around NYCHA and TAP buildings at a thirty-two percent rate, nearly three times the substantiation rate for similar complaints in other locations.112
The City does not meaningfully contest these allegations in its brief.113 Rather, the City argues that the CCRB study predates the implementation of IO 23
112 See Pl. Opp. at 6–7. For convenience, I cite the parties’ briefs, which in turn cite evidence in the record.
113 See City Reply at 2–3. 44

and its associated training materials, and thus can no longer provide evidence of the City’s practices. As I noted above, however, there is at minimum a genuine issue of material fact as to whether IO 23 significantly changed the City’s practices.114
(2) A sample of decline to prosecute forms from various District Attorney’s offices provides further evidence of NYPD officers stopping individuals merely for exiting a NYCHA building.115 According to plaintiffs’ analysis, “[o]f the 64 DP Forms for trespass arrests on NYCHA Property, 24 DP Forms indicate that the ‘individual was observed exiting a New York City Housing Authority building. Based on this information, the individual was stopped and questioned.’”116
The City argues that these forms are inadmissible hearsay.117 “The Federal Rules of Evidence define hearsay as a declarant’s out-of-court statement
114 See Pl. Opp. at 7–9 & n.15. 115 See id. at 7. 116 1/7/13 Declaration of Katharine E.G. Brooker, counsel for plaintiffs (“Brooker Decl.”), at ¶ 9 (quoting and citing, as an example, the Decline to Prosecute form at Ex. A to Brooker Decl.). 117 See City Reply at 3.
45

‘offer[ed] in evidence to prove the truth of the matter asserted in the statement.’”118 The decline to prosecute forms, which contain written assertions by out-of-court declarants and are offered in evidence to prove the truth of those assertions, are hearsay, but may be admissible under one of the exceptions to the hearsay rule.
Because the City’s hearsay argument is made in its reply brief, plaintiffs have not yet had an opportunity to respond. In Ligon, I allowed the admission of decline to prosecute forms describing stops outside TAP buildings, as rebuttable evidence of the basis for the stops.119 Unlike in this case, however, the City had conceded the admissibility of the records for that limited purpose.120
Based on the record at this stage, I am inclined to allow the admission of the decline to prosecute forms in this case as well, based either on the public records exception under Federal Rule of Evidence 803(8)(A)(iii),121 or on the
118 United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013) (quoting Fed. R. Evid. 801(c)).
119 See Ligon, 2013 WL 628534, at *7–8. 120 See id. 121 “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . (8) Public Records. A record or statement of a public office if: (A) it sets out: . . . (iii) in a civil case . . ., factual findings from a legally authorized investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)(iii).
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residual hearsay exception under Rule 807.122 But I reserve any final decision until
the parties have had an opportunity to make further arguments specifically
addressing the issue of whether the decline to prosecute forms are inadmissible
hearsay.123 In any case, the admission or exclusion of the decline to prosecute
forms is not dispositive of any issue at the summary judgment stage.
(3) According to plaintiffs, the testimony of officers, as well as
122 Rule 807 states:
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.
123 In support of the City’s argument that decline to prosecute forms cannot be relied on to infer that a stop lacked reasonable suspicion or that an arrest was made without probable cause, the City cites an unreported three-page 2003 opinion from the Eastern District, which quite correctly concluded that a prosecutor’s decision not to prosecute a charge against a section 1983 plaintiff “provides no indication that plaintiff’s arrest was without probable cause.” Quinn v. City of New York, No. 99 Civ. 7068, 2003 WL 1090205, at *4 (E.D.N.Y. Mar. 12, 2003). See City Reply at 3. To say that the decision to decline to prosecute is insufficient to support a section 1983 claim for false arrest is quite different from saying that the information contained in decline to prosecute forms is irrelevant to an analysis of police practices.
47

NYCHA residents and guests, further corroborates the existence of an unconstitutional practice of stops and arrests in and around NYCHA buildings.124 Plaintiffs have offered abundant testimony regarding residents and guests, young and old, male and female, being stopped and arrested without basis in and around NYCHA buildings.125
ii. Dr. Fagan’s Analysis Officers are required to complete a UF-250, also known as a “Stop, Question and Frisk Report Worksheet,” after each Terry stop.126 The front and back of the form contain various checkboxes and fields in which officers are required to indicate the nature of the stop and the circumstances that led to and justified the stop.127 Officers are required to record all the reasons justifying a stop, and the UF-250 provides spaces for officers to record any reason.128 There is a checkbox for “Other Reasonable Suspicion Of Criminal Activity (Specify)” (the “Other” box) that officers can check and then supplement with a handwritten
124 See Pl. Opp. at 7. 125 See PAF ¶¶ 21–28. 126 See Ligon, 2013 WL 628534, at *9 n.92; Floyd, 861 F. Supp. 2d at 278, 280–81. 127 See Ligon, 2013 WL 628534, at *19–20, *31–34 (discussing Dr. Fagan’s analysis of UF-250 forms), App. B (copy of UF-250 form). 128 See id.
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note.129 Plaintiffs’ expert, Dr. Jeffrey Fagan, has conducted a statistical
analysis of UF-250 forms and arrest data between 2004 and 2011.130 Based on his analysis, Dr. Fagan concluded that there were roughly 200,000 stops on suspicion of trespass in NYCHA buildings between 2004 and 2011.131 In order to determine how many of these stops were apparently unjustified, Dr. Fagan analyzed the boxes checked on the forms, as well as a sample of the notes that officers wrote after checking the “Other” box.132 Although the details of Dr. Fagan’s reports are somewhat unclear based on the excerpts offered by the parties, Dr. Fagan also appears to have conducted a more detailed analysis of the apparent legal sufficiency of trespass stops in NYCHA buildings from 2009 to 2011.133 If a jury were to find Dr. Fagan’s analysis of these stops credible, and if the legal
129 See id. at *31, App. B. 130 See Pl. Opp. at 5–6. 131 See Excerpts from the 7/25/12 Corrected Expert Report of Jeffrey Fagan, Ph.D. (“Fagan Report”), Ex. 7 to Lee Decl., at 81. 132 See id. at 80, 81 tbl. 24, 86. 133 See Excerpts from the 10/11/12 Amended Rebuttal Report of Jeffrey Fagan, Ph.D. (“Fagan Rebuttal”), Ex. 8 to Lee Decl., at 35.
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underpinnings of Dr. Fagan’s analysis are sound,134 it would follow that only fifty
percent of the NYCHA trespass stops between 2009 and 2011 were apparently
justified, while nineteen percent of the stops — or nearly thirteen thousand stops
— apparently lacked reasonable suspicion.135
In support of partial summary judgment, the City argues that “[Dr.]
Fagan’s analysis fails to connect any pattern [of constitutional violations] with the
alleged constitutional violations at issue here.”136 This is incorrect. Plaintiffs have
134 Dr. Fagan assumes that the narrative “loitering” does not indicate apparent justification for a trespass stop in a NYCHA building. See PAF ¶ 9; Fagan Report at 86 tbl. 27. I note that neither my prior opinions in Floyd nor Davis I addressed the difficult question of whether, on a UF-250 form recording a trespass stop in a NYCHA building, the narrative “loitering” could indicate that an officer apparently had reasonable suspicion. Even if “loitering” outdoors in a public space most likely does not provide reasonable suspicion of any crime, see Floyd, 861 F. Supp. 2d at 299, and a general criminal prohibition on “loitering” by a resident in her own NYCHA building is unconstitutionally vague, see Davis I, 2012 WL 4813837, at *8–10, behavior that could reasonably be described as “loitering” in a NYCHA building could conceivably provide a sufficient basis for a Terry stop during a vertical patrol. NYCHA buildings are the homes of NYCHA residents, not public streets for “‘carefree . . . fellow[s]’” to use as they “walk or loaf or loiter or stroll,” to borrow some of Justice William O. Douglas’ celebrated language from Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972) (extolling public idleness and other “amenities of life,” and quoting Anthony Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 CRIM. L. BULL. 205, 226 (1967)).
135 See Fagan Rebuttal at 35. 136 City Mem. at 3.
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alleged that the NYPD engages in an unconstitutional practice of making trespass
stops without reasonable suspicion and trespass arrests without probable cause in
NYCHA buildings. Dr. Fagan’s study attempts to quantify the magnitude of such
stops and arrests. It is hard to see what connection the City finds lacking: based on
plaintiffs’ evidence, a reasonable juror could find that the constitutional injuries
suffered by named plaintiffs are the same injuries quantified by Dr. Fagan’s report
and further supported by the other documentary and testimonial evidence discussed
above.137
The City also reiterates its longstanding arguments against the use of
137 The City also attempts to analogize the instant case to Connick, where the Supreme Court determined that a district attorney’s office may not be “held liable under § 1983 for failure to train based on a single Brady violation.” Connick, 131 S. Ct. at 1356. See City Mem. at 3 (citing Connick, 131 S. Ct. at 1360). In Connick, the Supreme Court held that the plaintiff did “not contend that he proved a pattern of similar Brady violations,” and that the four other Brady violations noted by the plaintiff were “not similar to the violation at issue” and thus “could not have put [the municipality] on notice that specific training was necessary to avoid this constitutional violation.” Connick, 131 S. Ct. at 1360.
The City’s reliance on Connick is puzzling. Connick delimits the periphery of custom-based municipal liability under section 1983, in order to prevent Monell from becoming a back door to respondeat superior liability for aberrant constitutional torts by rogue municipal employees. See Connick, 131 S. Ct. at 1365 & n.12. That risk is not remotely present in the current case. While Connick involved an individual plaintiff’s claim regarding a single Brady violation, the instant case is a putative class action based on evidence of tens of thousands of similar Fourth Amendment violations over a number of years, during which the alleged violations were the subject of frequent and intense public dispute. The allegations in this case lie close to the core of custom-based Monell liability, not at the periphery like the claim in Connick.
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UF-250 data as evidence of the rough magnitude of unconstitutional stops and arrests.138 I have repeatedly emphasized that it would be inappropriate to rely on a UF-250 form alone to definitively determine the legality or illegality of an individual stop.139 But given the unfeasibility of taking live testimony regarding a sufficient sample of the stops and arrests in this case, “it would be an injustice to prevent the jury from hearing about the extremely rich and informative material” contained in the UF-250 database.140 The City cites three cases where courts have expressed skepticism regarding the use of statistics in drawing conclusions regarding the constitutionality of criminal justice practices.141 All three cases, however, involved equal protection claims where plaintiffs attempted to prove discriminatory intent through statistics indicating disparate impact.142 None of these cases address the validity of relying on statistical evidence to estimate the magnitude of an ostensible practice involving stops and arrests in violation of the
138 See City Mem. at 3–5. 139 See, e.g., Floyd, 861 F. Supp. 2d at 278, 291, 293; Ligon, 2013 WL 628534, at *20 & nn.230, 234. 140 Floyd, 861 F. Supp. 2d at 291. 141 See City Mem. at 3–4 (citing McCleskey v. Kemp, 481 U.S. 279, 297 (1987); Ricketts v. City of Columbia, 36 F.3d 775, 781–82 (8th Cir. 1994); Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988)). 142 See id.
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Fourth Amendment, where a plaintiff has also offered documentary and testimonial
evidence of the practice.143 Nor do the cases stand for the general proposition that
where the criminal justice system is concerned, the ordinary laws of statistical
inference do not apply.144
The City’s remaining arguments were either sufficiently addressed in
the Daubert decision regarding Dr. Fagan’s opinions in Floyd,145 or raise factual
143 It is true that the Tenth Circuit in Watson stated: “Whether or not probable cause exists is not susceptible to statistical quantification.” Watson, 857 F.2d at 695. This dictum, however, appeared in the context of a defense of the probative value of statistics regarding arrest rates. The Tenth Circuit concluded that the plaintiff’s failure to include statistical data regarding probable cause was not fatal to the plaintiff’s use of arrest rate statistics, because there was no feasible way for the plaintiff to provide statistical evidence of probable cause. See id. Presumably if the plaintiff or the defendants had succeeded in offering reliable statistical evidence regarding probable cause, the Tenth Circuit would have considered this evidence just as it considered the statistical evidence that was introduced.
144 Even in the distinct and highly sensitive context of equal protection claims, the Supreme Court “has accepted statistics as proof of intent to discriminate in certain limited contexts.” McCleskey, 481 U.S. at 293.
145 See, e.g., City Mem. at 3–5, 3 n.7; City Reply at 2. The City is incorrect to suggest that there is an inconsistency between Dr. Fagan’s analysis of the text strings offered as “Other” stop justifications and my conclusion in Floyd that it would mislead the jury to admit “expert testimony that makes generalizations about the level of reasonable suspicion indicated by the forms [that contain only an ‘Other’ factor on Side 1].” Floyd, 861 F. Supp. 2d at 299–300. This statement appeared in the context of my rejection of Dr. Fagan’s initial conclusion “that all . . . of the UF-250s on which the only box checked on Side 1 is ‘Other’ are ‘Indeterminate.’” Id. at 296. I continue to hold that it would mislead the jury if experts were to testify about the general character of the forms that
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issues that argue in favor of, rather than against, submitting the case to a jury.146
Whether Dr. Fagan’s conclusions are persuasive is a mixed question of fact and
law for the jury, not a question susceptible to legal resolution by this Court.147
In sum, based on plaintiffs’ documentary and testimonial evidence, as
well as Dr. Fagan’s opinions, a reasonable juror could conclude that the City has
contain only an “Other” factor on Side 1 — for example, by describing these forms as “Indeterminate,” “Presumptively Justified,” “Apparently Unjustified,” or under any other general label. But the Daubert decision in Floyd did not prohibit expert testimony based on a closer inspection of the “Other” text strings. To the contrary, I stated that “one can make certain determinations” regarding “a particular UF250” containing “Other” text strings “with the same or more confidence” as one can make such determinations regarding other UF-250s. Id. Accord Fagan Rebuttal at 31 n.71. In Ligon, I relied in part on the analysis of “Other” text strings, see Ligon, 2013 WL 628534, at *31–34, and Dr. Fagan’s text string analysis is no less relevant in Davis. Finally, to the extent that the City’s argument rests on the quality of Dr. Fagan’s sampling of text strings and inferences based on them, see City Reply at 4, the City’s arguments have not yet shown in what sense Dr. Fagan’s methods depart from reliable, garden-variety random sampling and statistical inference. Such proof may be developed at trial.
146 See, e.g., City Mem. at 4; City Reply at 2 n.4. Even if there were merit to some of the City’s criticisms of Dr. Fagan’s analysis, it would be inappropriate to grant summary judgment to the City on the basis of such arguments, because the magnitude of unconstitutional stops identified by Dr. Fagan leaves significant room for error. Cf. Ligon, 2013 WL 628534, at *33–34 (accepting for the sake of argument that some of the City’s criticisms might have merit, but noting that even then, “plaintiffs have succeeded in showing a clear likelihood that they will be able to prove that the City of New York and its agents displayed deliberate indifference toward the violation of the constitutional rights of hundreds and more likely thousands of individuals”).
147 See Floyd, 861 F. Supp. 2d at 287, 300.
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engaged in a practice of making unconstitutional stops and arrests in and around NYCHA buildings as part of its trespass enforcement practices, and that this practice is sufficiently persistent and widespread to serve as a basis for Monell liability. Plaintiffs have raised genuine issues of material fact regarding their widespread practice claim. Thus, the City’s motion for partial summary judgment on this claim is denied.
b. Deliberate Indifference If a jury were to find either that the City has a policy of making unconstitutional stops and arrests in NYCHA buildings, or that the City has a sufficiently persistent and widespread practice of making such stops and arrests to establish Monell liability, it would be unnecessary to reach the issue of deliberate indifference. At the same time, in turning to this issue, I must draw all reasonable inferences in favor of plaintiffs. As a result, I will assume in the following analysis, as I did earlier, that a reasonable juror could conclude that IO 23 and its associated training materials represent an unconstitutional trespass enforcement policy, and that the widespread practice of making unconstitutional trespass stops and arrests in NYCHA buildings both preceded and followed the introduction of IO 23. The only questions remaining under the deliberate indifference analysis would be (1) whether the City had sufficient notice of the unconstitutionality of its
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practices, either constructively through the obviousness of the unconstitutionality,
or based on actual notice,148 and (2) whether the City failed “‘to make meaningful
efforts to address the risk of harm to plaintiffs.’”149
148 See Cash, 654 F.3d at 334. On the issue of notice, the City is incorrect to suggest that plaintiffs must show the City “had notice that a particular training or other supervisory flaw was obviously causing such violations.” City Mem. at 5. Actual notice that a training program is causing constitutional violations is sufficient: such notice by itself makes the need for more or different training obvious. It is only in the absence of actual notice that the deficiencies of a training program must be “obvious” in order to satisfy the requirements of Monell liability. See Cash, 654 F.3d at 334 (noting that “deliberate indifference requires proof that [a] ‘municipal actor disregarded a known or obvious consequence of his action’” (quoting Brown, 520 U.S. at 407) (emphasis added)).
The City is also incorrect to suggest that plaintiffs have not identified the inadequacies in the City’s training with sufficient specificity. See City Mem. at 5 (citing Reynolds, 506 F.3d at 193). As discussed in the following paragraphs, plaintiffs have offered abundant evidence that adequate training, supervision, and discipline of officers who engage in vertical patrols in NYCHA buildings could have prevented the constitutional harms allegedly suffered by plaintiffs, but that the City chose not to provide that training. It would also be incorrect to suggest that plaintiffs must point to one or more particular elements of the NYPD’s training program that specifically cause officers to perform unconstitutional stops or arrests. Deliberate indifference does not require that officers be trained to commit constitutional violations. Rather, “where ‘the need for more or better supervision to protect against constitutional violations [is] obvious,’” Cash, 654 F.3d at 334 (quoting Vann, 72 F.3d at 1049), mere failure to “‘make meaningful efforts to address the risk of harm to plaintiffs,’” Cash, 654 F.3d at 334 (quoting Reynolds, 506 F.3d at 192), is enough. If a “‘city’s policy of inaction in light of notice that its program will cause constitutional violations is the functional equivalent of a decision by the city itself to violate the Constitution,’” Cash, 654 F.3d at 334 (quoting Connick, 131 S. Ct. at 1360), then a fortiori a city’s policy of inaction in light of notice that its program has caused, continues to cause, and will cause widespread constitutional violations is sufficient to establish Monell liability.
149 Cash, 654 F.3d at 334 (quoting Reynolds, 506 F.3d at 192).
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Drawing all reasonable inferences in favor of plaintiffs, both questions raise triable issues of fact. With regard to notice, a reasonable juror could find that the NYPD had actual notice from numerous sources of a widespread pattern of unconstitutional trespass stops and arrests in NYCHA buildings of precisely the kind that plaintiffs allege in this case. Not only did the City receive notice of the unconstitutionality of its practices through individual CCRB reports and the CCRB study noted above, but plaintiffs have offered evidence that “NYCHA residents and tenant leaders have, for years, publicly complained about the City’s unlawful practices in NYCHA residences.”150 Plaintiffs also cite the abundant media coverage over several years of alleged unconstitutional trespass enforcement practices at NYCHA buildings.151 Indeed, based on this and other evidence,152 it is questionable whether any reasonable juror could find the City failed to receive actual notice of the alleged constitutional infirmities at issue in this case.
With regard to whether the City took meaningful efforts to address the risk of harm, plaintiffs bear a heavy burden in establishing the inadequacy of the
150 Pl. Opp. at 10 n.21 (citing PAF ¶¶ 25–30). 151 See id. 152 See generally id. at 9–10.
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NYPD’s supervision, discipline, and training of its officers.153 For the purposes of
surviving summary judgment, however, plaintiffs have cited sufficient evidence to
raise a genuine issue of material fact on this point. For nearly every laudatory-
sounding supervisory, disciplinary, or training procedure cited by the City in its
brief, plaintiffs cite evidence that the procedure does not operate as described, is
ineffective, or fails to address the allegedly unconstitutional practices at issue in
this case.154
Plaintiffs do not dispute that in recent years the City has made various
policy and training changes that relate to stops and arrests in NYCHA buildings.
The City developed IO 23 and its associated training materials, revised other
153 “A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick, 131 S. Ct. at 1359 (citing Tuttle, 471 U.S. at 822–23).
154 Compare, e.g., City Mem. at 7 (citing evidence that Integrity Control Officers (“ICOs”) ensure that officers follow rules and policies), and id. (citing evidence that supervisors verify arrests at the scene and review paperwork to ensure proper officer performance), with, e.g., Pl. Opp. at 11–12 (citing evidence that no supervising officer deposed in this case testified to having ever observed a stop that lacked reasonable suspicion or an arrest that lacked probable cause), and id. at 11–12 (citing evidence that ICOs do not behave as the City describes). Similar disputes of fact regarding training, monitoring, supervising, and disciplining appeared in the Floyd summary judgment briefing, with a similar result. See Floyd, 813 F. Supp. 2d at 429–35 (detailing a sample of the “numerous disputed issues of fact as to the constitutional sufficiency of the NYPD’s practice of training, monitoring, supervising, and disciplining its officers for stops and frisks conducted in violation of the Fourth Amendment” (footnote omitted)).
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training materials and procedures, and in 2012 implemented a refresher course at
Rodman’s Neck on Stop, Question and Frisk in general.155 However, for many of
the same reasons that IO 23 and its associated training materials may constitute
unconstitutional policies, as discussed above,156 plaintiffs have at minimum raised
a genuine issue of material fact as to whether the City’s response to its alleged
notice of unconstitutional stops and arrests was sufficient to avoid Monell
liability.157 I also note that some of the training materials at issue in this case are
the same as those I criticized in the Ligon preliminary injunction opinion.158
155 See City Mem. at 5–7. 156 See supra Part V.A.1. 157 See also Pl. Opp. at 15–16. Plaintiffs criticize the City’s production of “instructional materials relating to the 2012 . . . training at Rodman’s Neck and the 2012 training on NYCHA rules and regulations,” which “were produced only in response to Plaintiffs’ demand on October 23, 2012, after learning about their existence while observing the Ligon preliminary injunction hearing.” Id. at 15 n.26. I accept the City’s representation that the latter training was not finalized until October and was produced on November 20, 2012. See City Reply at 1 n.1. While the City’s failure to produce the Rodman’s Neck instructional materials until after they had already appeared in the Ligon hearing is troubling, it is not sufficiently problematic to justify granting plaintiffs’ request to preclude the City from relying on these materials in its summary judgment motion. See Pl. Opp. at 15 n.26. 158 See Ligon, 2013 WL 628534, at *35–39. I note with concern that the City’s briefs point to evidence of training on the four levels of De Bour, see City Mem. at 6, but make no reference to training on what constitutes a stop under the Fourth Amendment. See Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 227654, at *2 n.23 (S.D.N.Y. Jan. 22, 2013) (“If [the City] accept[s] that Bostick’s
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In evaluating plaintiffs’ claim that the City has displayed deliberate
indifference to a widespread practice of constitutional violations, a reasonable juror
might also note that the City continues to contest in this litigation whether a
constitutionally problematic practice of trespass stops and arrests in NYCHA
buildings has ever existed.159 The City is not arguing that its police officers
engaged in constitutional violations in the past, but that the City was unaware of
this, and that as soon as it received notice of the violations, it altered its policies
and training to prevent them, and therefore is not deliberately indifferent. Rather,
the City argues that plaintiffs have failed to offer reliable evidence of constitutional
violations,160 and that any changes to policy and training in recent years have
view of the Fourth Amendment governs the NYPD, then the NYPD should train its officers in accordance with that standard.”). I am also concerned that at least some of the City’s most recent training materials direct officers to complete a UF-250 only when they have reasonable suspicion, rather than each time they have made a Terry stop. Compare Ligon, 2013 WL 628534, at *38–39 (criticizing training materials), with, e.g., 12/4/12 Declaration of Michele Irizarry, counsel to City (including as exhibits training materials that are similar or identical to those criticized in Ligon). The City draws attention in its briefs to the recent decline in apparently unjustified stops, according to Dr. Fagan’s own metrics. See, e.g., City Mem. at 11–12, 14. If this decline, however, is attributable to officers interpreting the NYPD’s new policies as an instruction not to fill out UF-250 forms when a Terry stop was not based on reasonable suspicion, then the decline would not necessarily show an improvement in the NYPD’s practices.
159 See City Mem. at 2–9; City Reply at 1–4. 160 See City Mem. at 1 n.3 (arguing that named plaintiffs’ stops and arrests complied with constitutional standards), 3–4 (arguing that Dr. Fagan’s
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simply “improved the quality” of stops and arrests.161 Finally, the City argues that plaintiffs have failed to provide evidence
of “actual causation,” that is, evidence that “specific deficiencies in the City’s training and/or supervision program(s) actually caused their alleged constitutional deprivations.”162 The City argues that plaintiffs bear the “burden of ruling out those causes of the alleged [Fourth Amendment] violations that would not support City liability, such as negligent program administration or officers’ negligent or intentional disregard of training.”163 But a reasonable juror could conclude that plaintiffs have adequately shown causation. As discussed above, plaintiffs have provided evidence that NYPD officers have engaged in a widespread practice of unconstitutional trespass stops and arrests in NYCHA buildings as a result of receiving inadequate training and supervision regarding constitutional standards, and inadequate discipline in response to violations of those standards. As the
analysis shows no pattern of constitutional violations); City Reply at 1–2 (further arguments against Dr. Fagan’s analysis), 2 (acknowledging that CCRB study identified “concerns,” but not acknowledging the validity of those concerns), 3 (denying that decline to prosecute forms provide evidence of unlawful stops or arrests).
161 City Reply at 3. 162 Id. at 4 (citing Connick, 131 S. Ct. at 1358 n.5). See also City Mem. at 9. 163 City Mem. at 9 (citing Amnesty Am., 361 F.3d at 130).
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Supreme Court phrased the causation issue in City of Canton v. Harris: “Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect?”164 Plaintiffs have clearly raised a genuine issue of material fact as to whether the unconstitutional stops and arrests in this case would have been avoided had NYPD officers received adequate training, supervision, and discipline relating to the constitutional standards governing trespass stops and arrests in NYCHA buildings.
For the foregoing reasons, the City’s motion for summary judgment on plaintiffs’ deliberate indifference claims, like the City’s motion for summary judgment on plaintiffs’ widespread practice claims, is denied.
B. Fourteenth Amendment Equal Protection Claims Against the City The Equal Protection Clause of the Fourteenth Amendment prohibits
intentional discrimination on the basis of race, not government action that has a disproportionate racial impact.165 Plaintiffs argue that the City bears Monell liability for violations of the equal protection rights of African-American and Latino residents and guests of NYCHA buildings based on the City’s alleged
164 489 U.S. at 391. 165 See Washington v. Davis, 426 U.S. 229 (1976).
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racially discriminatory trespass enforcement practices.166 In order to succeed on
their equal protection claims, plaintiffs must show that the City’s practices (1) have
an “‘adverse effect’” on African-American and Latino residents and guests in NYCHA buildings,167 and (2) that the practices were “‘motivated by discriminatory animus.’”168 In other words, plaintiffs must prove both disproportionate impact and discriminatory purpose.169
As noted above, the plaintiffs who maintain Fourteenth Amendment
claims against the City are the remaining arrested plaintiffs, and two of the
remaining resident plaintiffs, Evans and Littlejohn, who also happen to be arrested
plaintiffs. The City argues that all the resident plaintiffs conceded any equal
protection claim by failing to respond to the City’s arguments during the first stage of summary judgment briefing.170 Plaintiffs deny such a concession and argue that
166 Plaintiffs do not argue that the City’s trespass enforcement policies contain express racial classifications, nor that the City bears Monell liability based on having a policy of carrying out NYCHA trespass enforcement in a racially discriminatory manner. Rather, plaintiffs’ Fourteenth Amendment claims against the City are based on the City’s alleged practices. See Pl. Opp. at 16–17.
167 Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009) (quoting Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir. 2001)).
168 Id. 169 See Hayden v. Paterson, 594 F.3d 150, 163–64 (2d Cir. 2010). 170 See City Mem. at 9 n.12 (citing 6/16/12 City’s Memorandum of Law in Support of Its Motion for Summary Judgment Based on Plaintiffs’ Individual
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Evans, Littlejohn, Jones, and Suarez “maintain that they are adversely affected by the City’s racially discriminatory practices in NYCHA residences.”171 Neither side
is completely correct. Because Jones and Suarez withdrew their claims against the
City, they cannot serve as representative resident plaintiffs against the City. On the
other hand, Evans and Littlejohn have not withdrawn their equal protection claims
against the City and remain valid representatives of both the arrested and resident
plaintiffs’ putative subclasses. As I stated in denying the City’s motion for
summary judgment on Evans’ and Littlejohn’s section 1981 claims, they have both
proffered concrete evidence showing that since their arrests, they feel less free to come and go from their buildings and to have guests visit them. Evans has testified that police officers referred to her as “nigger” when she was arrested and Littlejohn testified that his friend Washington was also called a “nigger” in Littlejohn’s building while he was attempting to visit Littlejohn.172
Evans and Littlejohn were both arrested as NYCHA residents, and are both African-American.173 They are entitled to proceed on their equal protection claims
as representatives of both the arrested and resident plaintiffs’ putative subclasses.
Circumstances at 14; 8/3/12 City’s Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment Based on Plaintiffs’ Individual Circumstances at 7 n.22); City Reply at 4 n.8.
171 Pl. Opp. at 16 n.30. 172 Davis I, 2012 WL 4813837, at *19. 173 See Am. Compl. ¶¶ 38, 41.
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Turning now to the Monell aspects of plaintiffs’ equal protection
claims: with regard to discriminatory purpose, plaintiffs need not prove that the “‘challenged action rested solely on racially discriminatory purposes,’”174 or even that a discriminatory purpose “was the ‘dominant’ or ‘primary’ one.”175 Rather,
plaintiffs must prove that “a discriminatory purpose has been a motivating factor” in the City’s acts.176 That is, plaintiffs must show that the City “selected or
reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”177 As the Second Circuit
and the Supreme Court have explained:
Because discriminatory intent is rarely susceptible to direct proof, litigants may make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.”178
The consequences of government action are sometimes evidence of the
174 Hayden, 594 F.3d at 163 (quoting Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977)).
175 Arlington Heights, 429 U.S. at 265. 176 Id. at 265–66 (emphasis added). 177 Hayden, 594 F.3d at 163 (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (citation and footnote omitted)) (certain quotation marks omitted). 178 Id. (quoting Arlington Heights, 429 U.S. at 266).
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government’s intent: “proof of discriminatory intent must necessarily usually rely on objective factors . . . . The inquiry is practical. What a legislature or any official entity is ‘up to’ may be plain from the results its actions achieve, or the results they avoid.”179 “Once it is shown that a decision was motivated at least in part by a racially discriminatory purpose, the burden shifts to the defendant to show that the same result would have been reached even without consideration of race.”180
With regard to disproportionate impact, plaintiffs rely primarily on Dr. Fagan’s study.181 Drawing all reasonable inferences in favor of plaintiffs, the study shows that the level of “law enforcement activity” — defined as the ratio of stops to crime complaints — is greater in NYCHA buildings than in the surrounding areas. Because there are higher concentrations of African Americans and Latinos in NYCHA buildings than in the surrounding areas, the presence of greater law enforcement activity in the former would by itself create a racial disparity. Dr. Fagan also found that the racial disparity in enforcement activity is
179 Arlington Heights, 429 U.S. at 279 n.24. “An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [practice] bears more heavily on one race than another.” Washington, 426 U.S. at 242.
180 United States v. City of Yonkers, 96 F.3d 600, 612 (2d Cir. 1996) (citing Arlington Heights, 429 U.S. at 270 n.21).
181 See Pl. Opp. at 17–18. 66

greatest in NYCHA residences with the highest concentration of African-American
residents, and that the disparity in all residences is greatest for stops on suspicion
of trespass. Indeed, based on multivariate regression analysis, Dr. Fagan found
that the racial composition of NYCHA buildings is a better predictor of trespass
enforcement disparities than any racially neutral policy-rationalizing variables, including crime, policing activity, vertical patrols, or socioeconomic conditions.182
The City argues that there are non-discriminatory law enforcement
rationales for dedicating disproportionate law enforcement resources to NYCHA buildings.183 Indeed, there could be good, racially neutral reasons for dedicating
law enforcement resources to certain areas out of proportion to those areas’ crime
rates, and this could result in higher stop-to-crime ratios in those areas. In theory,
race may even be correlated with some racially neutral factor that would justify
182 See id. (citing PAF ¶¶ 18–20). I reject the City’s unsupported argument that Dr. Fagan’s comparison between NYCHA buildings and the areas surrounding them is not “statistically appropriate” as a matter of law, or that Dr. Fagan has failed as a matter of law to identify a “statistically appropriate comparator.” City Mem. at 9–10 n.13; City Reply at 10.
183 See City Mem. at 13; City Reply at 5 n.9. The City also raises valid points for a jury to consider involving the relatively small size of the difference in racial composition between NYCHA buildings and surrounding areas, see id. at 10–12 n.15, the negative correlation between stop-to-crime ratios and the concentration of Hispanics in NYCHA residences, see id. at 11–12, and recent changes in the enforcement statistics cited by Dr. Fagan, see id. at 12.
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increased law enforcement activity, and for which Dr. Fagan has not controlled.184 But the City has not yet proven the existence of such a factor, and in any case this discussion is more relevant to the question of discriminatory purpose than disproportionate impact. Drawing all reasonable inferences in favor of plaintiffs, a reasonable juror could find based on Dr. Fagan’s study that the City’s stop practices and its trespass enforcement practices in NYCHA buildings disproportionately impact African Americans and Latinos.
On the issue of discriminatory purpose, the City offers similar arguments to those it offered in favor of its motion for summary judgment in Floyd. There, I concluded that “[t]he statistical evidence in the instant case, while strong enough to show a disparate impact, is not strong enough to show discriminatory purpose standing alone. However, plaintiffs have presented other proof in addition to the statistical evidence — [including] the inadequacy of the
184 Perhaps, as the City suggests in another context, the NYPD’s deployment of its resources can be explained in racially neutral terms by a decision to focus on crime in buildings with high population density or entrenched criminality. See City Mem. at 11. Of course, even if the City were to produce evidence that the correlation between law enforcement activity and racial concentration disappears once population density and entrenched criminality are controlled for, the plausibility of these explanations for the NYPD’s law enforcement activity, as opposed to a race-based explanation, would still have to be weighed by a jury.
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City’s efforts to take remedial steps to reduce the racial disparity of stops . . . .”185 I
also stated:
This is clearly not a situation in which the City has taken no remedial steps. Nonetheless, considering the statistical evidence in conjunction with the narrative evidence of significant shortcomings in the ways that the City’s policies have been put into practice, I find that there is a triable issue of fact as to whether the NYPD leadership has been deliberately indifferent to the need to train, monitor, supervise, and discipline its officers adequately in order to prevent a widespread pattern of suspicionless and race-based stops.186
Although plaintiffs’ evidence of discriminatory purpose in the present
case is more tenuous than in Floyd, I conclude that a similar analysis ultimately
applies. Plaintiffs’ statistical evidence of racial disparities is likely not strong
enough to support an inference of discriminatory purpose, standing alone,187 but it
provides a “starting point” for an examination of “circumstantial and direct
evidence of intent.”188
First, while there is nothing inherently problematic in the City
185 Floyd, 813 F. Supp. 2d at 452–53. 186 Id. at 456. 187 See Arlington Heights, 429 U.S. at 266 (citing, as examples of rare cases where “a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action,” Yick Wo v. Hopkins, 118 U.S. 356 (1886), and Gomillion v. Lightfoot, 364 U.S. 339 (1960)). 188 Id.
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dedicating disproportionate resources to policing in NYCHA buildings, and indeed residents may favor such an approach, the City offers no explanation of why it might be desirable or how it might be non-discriminatory to dedicate greater law enforcement attention to NYCHA residences with greater concentrations of African Americans.189 In the absence of any racially neutral explanation for this correlation, a reasonable juror could draw the troubling inference that the NYPD regards crimes by African Americans in NYCHA housing as a source of greater concern than identical crimes by similarly situated non-African Americans, and treats similar crime levels more aggressively when they occur in NYCHA buildings containing a higher proportion of African Americans. Dr. Fagan’s statistical study thus represents a circumstantial starting point for at least a prima facie finding of discriminatory intent.
Second, plaintiffs argue that “the City was fully aware of residents’ public complaints about its racially discriminatory trespass enforcement activities in NYCHA residences,” but failed to take adequate steps to address those complaints, leading to an inference that it intended the racially discriminatory practices to continue.190 None of the materials cited by plaintiffs includes evidence
189 See Pl. Opp. at 17; PAF ¶ 18. 190 Pl. Opp. at 19.
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of NYHCA residents making public complaints, or complaints to the NYPD, that
explicitly allege racially discriminatory trespass enforcement activities.191 Other
exhibits provided by plaintiffs, however, adequately make this showing. For
example, Pearl Barkley, a fifty-seven year old African-American woman who has
lived in NYCHA housing in East Harlem for approximately fourteen years,
testified that “[b]ased on my experience, young black and Latino men living in the
Jefferson Houses suffer the most from these abusive NYPD practices,” and that
“[a]s a result of what I have seen and experienced, I attended a number of meetings
with NYPD officials to complain about the way in which the officers patrol
NYCHA property, and the way they treat young people who reside in the Jefferson
191 See id. (citing PAF ¶¶ 25–30, 83). In fact, of these citations, the only one that explicitly alleges racial discrimination is the following, a declaration from a sixty-seven year old African-American woman who has been a NYCHA resident since 1975 and a tenant patrol supervisor for ten years:
I have heard many complaints about the ways in which [NYPD] officers interact with people in the Smith Houses. The NYPD officers are often very rude and disrespectful to the people who live in the Smith Houses, particularly young black and Latino male residents. In my opinion, officers often stop, question, and harass people based on what they are wearing, and not because they are doing anything illegal.
1/23/12 Declaration of Mary Baez, Tenant Patrol/Resident Watch Supervisor in NYCHA Smith Houses, Ex. 19 to Lee Decl., ¶ 3. Because the declaration does not include evidence that Baez’s allegation of racial discrimination was conveyed to the NYPD, it does not by itself provide evidence of notice to the City of a racially discriminatory practice by the NYPD.
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Houses.”192 A reasonable juror drawing all inferences in favor of plaintiffs could find that such testimony, alongside the factual allegations in the Davis litigation itself, shows that the City was on notice of possible racially discriminatory trespass enforcement activities in NYCHA buildings.193 A reasonable juror could also conclude that the City’s response to these allegations has been insufficient to negate the inference of discriminatory intent. Other than a cursory reference to IO 23, whose relevance to the issue of racial discrimination is not explained, the City provides no evidence that it has attempted to address the racially discriminatory practices alleged in plaintiffs’ Amended Complaint, or even acknowledges their existence.194
Third, and most importantly, as plaintiffs note, the alleged racial disparities in Davis “exist in the context of the NYPD’s long history of biased stop, question, and frisk activity.”195 The overlap and similarities between this litigation and the Floyd case, which is now on trial, provide an independently sufficient ground for denying summary judgment on the issue of discriminatory intent. The
192 1/26/12 Declaration of Pearl Barkley, Resident of NYCHA Jefferson Houses, Ex. 13 to Lee Decl., ¶¶ 3, 8.
193 See Am. Compl. ¶¶ 198–216. 194 See City Mem. at 12–14; City Reply at 5–6. 195 Pl. Opp. at 18.
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Davis plaintiffs, following Dr. Fagan’s approach, have focused their arguments for the most part on evidence of differences between law enforcement practices in and around NYCHA buildings and practices beyond those buildings.196 If the Floyd plaintiffs succeed in showing that a discriminatory purpose has been a motivating factor for the NYPD’s stop and frisk practices in general, however, it is possible that the Davis plaintiffs could show a discriminatory purpose in part based on evidence of similarities and connections between the NYPD’s trespass enforcement program in NYCHA buildings and the stop and frisk policies outside of those buildings.197
For the foregoing reasons, the City’s motion for summary judgment on plaintiffs’ equal protection claims is denied.
C. Title VI Claims Against the City Title VI of the Civil Rights Act of 1964 states that “[n]o person in the
United States shall, on the ground of race, color, or national origin, be excluded
196 See id. at 17. 197 As an example of evidence of the City’s notice of racially discriminatory police practices involving stop and frisk generally, plaintiffs cite the following report: OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, CIVIL RIGHTS BUREAU, NEW YORK CITY POLICE DEPARTMENT’S “STOP & FRISK” PRACTICES: A REPORT TO THE PEOPLE OF THE STATE OF NEW YORK 174 (1999) (stating that racial minorities have been subjected to more intrusive stops). See Pl. Opp. at 18 n.32.
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from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”198 The remaining resident plaintiffs have alleged that they are “unable to use and enjoy their residences because [the City’s] vertical patrol and trespass enforcement practices are conducted in such a consistently unlawful and discriminatory manner that the residents are not free to come and go as they wish.”199
The parties agree that the remaining resident plaintiffs can prevail on their Title VI claim only if they can show that the City is the recipient of federal assistance, and does not merely benefit from that assistance.200 Whether an entity indirectly receives, rather than merely benefits from, federal financial assistance is a fact-specific inquiry that depends on factors such as (1) whether the entity is Congress’s intended recipient, and (2) whether the entity was in a position to
198 42 U.S.C. § 2000d. 199 Am. Compl. ¶ 252. 200 See City Mem. at 16–17 (citing United States Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 604 (1986); Alfano v. Bridgeport Airport Servs., Inc., 373 F. Supp. 2d 1, 6 (D. Conn. 2005)); Pl. Opp. at 25–27 (same). The cited cases discuss section 504 of the Rehabilitation Act, but there is no dispute that the same standard governs Title VI. See Paralyzed Veterans, 477 U.S. at 600 & n.4 (“Title VI is the congressional model for subsequently enacted statutes prohibiting discrimination in federally assisted programs or activities. We have relied on case law interpreting Title VI as generally applicable to later statutes.”).
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accept or reject the funds.201
Even based on the City’s presentation of the facts, both factors
support the conclusion that the City has been a recipient of federal financial
assistance for Title VI purposes. First, the City does not contest that under the
Memorandum of Understanding (“MOU”) between the City and NYCHA, the City
receives funding from NYCHA that NYCHA in turn receives from the federal
government under, among other programs, the USHA, 42 U.S.C. § 1437g, and the
Public and Indian Housing Drug Elimination Program, 42 U.S.C. §§ 11901 et seq.
(“PIHDEP”).202 PIHDEP states that “[g]rants under this subchapter may be used in
public housing or other federally assisted low-income housing projects for . . . (1)
201 See Alfano, 373 F. Supp. 2d at 5–6; Paralyzed Veterans, 477 U.S. at 605–06 (“By limiting coverage to recipients, Congress imposes the obligations of § 504 upon those who are in a position to accept or reject those obligations as part of the decision whether or not to ‘receive’ federal funds.”).
202 See City Mem. at 16–17; MOU, Ex. B to 12/5/12 Declaration of Brian P. Clarke, ¶¶ 13–18; NYCHA’s Rule 56.1 Statement in Support of Its Motion for Summary Judgment (“NYCHA 56.1”) ¶ 31. The MOU clearly envisions NYCHA and the NYPD working together to apply for federal money for the NYPD’s police services in NYCHA buildings. See, e.g., MOU ¶ 19 (“NYCHA and the City agree to work together in the preparation of applications for grants and subsidies under existing and future federal and state programs that may provide funding for public housing safety and law enforcement functions . . . .”). This general commitment appears immediately after a series of specific commitments by NYCHA to seek federal funding for the NYPD’s police services in NYCHA buildings, which NYCHA will then pay to the NYPD. See id. ¶¶ 13–18. The MOU also envisions “that the parties shall comply with all such laws and regulations in the expenditure of monies deriving from federal and state grant and subsidy programs.” Id. ¶ 25.
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the employment of security personnel; [or] (2) reimbursement of local law enforcement agencies for additional security and protective services . . . .”203 Congress clearly intended and authorized public housing agencies to distribute PIHDEP funds to local law enforcement agencies, just as NYCHA agreed to distribute PIHDEP funds to the NYPD under the MOU.204 Under Department of Justice regulations implementing Title VI, the “primary recipient” of federal financial assistance is “any recipient which is authorized or required to extend Federal financial assistance to another recipient.”205 Thus, under the MOU, NYCHA is the “primary recipient” of PIHDEP funding, and the NYPD, through NYCHA, is “another recipient,” no less bound by the non-discrimination requirements of Title VI.
The NYPD is not, like the airlines in Paralyzed Veterans that benefitted from federal aid to airports for construction projects, a mere “beneficiary” of federal financial assistance given to a recipient of aid.206 Nor is
203 42 U.S.C. § 11903(a)(1)–(2). 204 See MOU ¶ 16. 205 28 C.F.R. § 42.102g (emphasis added); id. § 42.102f (defining “recipient”). 206 See Paralyzed Veterans, 477 U.S. at 607.
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the NYPD’s receipt of funding simply an “‘economic ripple effect[]’”207 of
NYCHA’s use of its federal financial assistance. Rather, through PIHDEP and
other programs, Congress intended to subsidize police services for public housing.
As a law enforcement agency providing police services to public housing, the
NYPD is an intended recipient of Congress’s subsidies.208
Second, the NYPD could have rejected the federal financial assistance
envisioned in the MOU. The NYPD was free to avoid the burdens of non-
discrimination by not entering into the MOU, and remains free to reject the federal
financial assistance it receives through NYCHA. The City’s position is quite
different from that of the airlines in Paralyzed Veterans, who never received “a
single penny of the money” distributed to airport operators and therefore could not
207 Id. (quoting Grove City Coll. v. Bell, 465 U.S. 555, 572 (1984) (finding that a college was Congress’s intended recipient of federal money despite checks being sent to individual students, who then used money to pay tuition)).
208 Because the statutory language of PIHDEP is particularly clear in its authorization of indirect financial assistance to local law enforcement, and because plaintiffs need only establish that the City’s police services in NYCHA are supported by some federal funding, it is unnecessary to address congressional intent under the other sources of federal funding invoked in the MOU. But I note that a similar analysis would apply to, for example, 42 U.S.C. § 1437g(e)(1)(C) (authorizing public housing agencies to use federal financial assistance to pay “the costs of providing adequate security for public housing residents, including above-baseline police service agreements”). See also id. § 1437g(d)(1)(I) (authorizing “capital expenditures to improve the security and safety of residents”); MOU ¶ 14 (agreeing to transfer funding from NYCHA to the NYPD under a predecessor of this provision).
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refuse it.209 Based on the preceding analysis, which is based on undisputed facts, I
conclude that the City is a recipient of federal financial assistance for Title VI purposes. There is, however, a genuine issue of material fact as to whether the City has violated Title VI by providing police services in NYCHA buildings in a discriminatory manner. “[T]he reach of Title VI’s protection extends no further than the Fourteenth Amendment,”210 but it extends just as far. As I stated above with regard to plaintiffs’ Fourteenth Amendment claims under section 1983, a reasonable juror drawing all reasonable inferences in favor of plaintiffs could conclude that the City has failed to negate the inference that a discriminatory purpose played a role in its police services in NYCHA buildings.
For the foregoing reasons, the City’s motion for summary judgment on plaintiffs’ Title VI claims is denied.
D. Section 1981 Claims Against the City The Civil Rights Act of 1866, now codified at 42 U.S.C. § 1981
(“section 1981”), protects the rights of all persons “to make and enforce contracts”
209 Paralyzed Veterans, 477 U.S. at 605. 210 United States v. Fordice, 505 U.S. 717, 732 n.27 (1992) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (opinion of Powell, J.); id. at 328 (opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part)).
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free from discrimination on the basis of race. After the Supreme Court reaffirmed
a narrow construction of that provision in 1989,211 Congress passed the Civil
Rights Act of 1991, which, among other changes, added section 1981(b):
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (Emphasis added).
Section 1981 “offers relief when racial discrimination . . . impairs an
existing contractual relationship, so long as the plaintiff has or would have rights
under the existing or proposed contractual relationship.”212 As I noted in Davis I,
the remaining resident plaintiffs
are authorized residents on a lease (that is, a contract) with NYCHA. There is no doubt that [they] have rights under the existing contractual relationship. The question is whether that relationship has been impaired because of racial discrimination.213
211 See Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989) (stating that section 1981 “does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations”).
212 Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). 213 Davis I, 2012 WL 4813837, at *18. The City’s brief does not contest that the City may be liable under section 1981 for impairing plaintiffs’ contract with NYCHA based on racial discrimination. Indeed, even if NYCHA were not a defendant in this case, there is precedent for concluding that the City could be held liable for such interference. See Ginx, Inc. v. Soho Alliance, 720 F. Supp. 2d 342, 358 (S.D.N.Y. 2010) (noting that allegation of “interference with a contractual
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I concluded that under federal regulations, as well as the Second Circuit’s recognition of a constitutional protection of public housing residents’ freedom of association, “[b]oth the right to come and go as they please and the right to accommodate guests are material to plaintiffs’ contracts.”214
If plaintiffs succeed in showing that the City’s trespass enforcement practices in NYCHA buildings are based at least in part on a discriminatory motive, then a reasonable juror could conclude, based on the evidence of contractual impairment introduced by plaintiffs, that the racially discriminatory aspects of the City’s trespass enforcement practices prevent the remaining resident plaintiffs from coming and going and having guests as they wish. Contrary to the City’s suggestion, there is no need as a matter of law for plaintiffs to produce statistical evidence regarding the proportion of NYCHA residents whose contractual rights have been impaired by the City’s practices.215 Of course, the City will be free to argue that plaintiffs have not provided persuasive evidence that the contractual rights of the putative class of NYCHA residents have in fact been
relationship between Plaintiffs and someone other than Defendants does not bar a claim under § 1981” (citing Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000))).
214 Davis I, 2012 WL 4813837, at *19. 215 See City Mem. at 18–19.
80

impaired sufficiently to give rise to Monell liability. But plaintiffs’ evidence of contractual impairment is sufficient to survive summary judgment.216
For the foregoing reasons, the City’s motion for summary judgment on plaintiffs’ section 1981 claims is denied.
E. FHA Claims Against the City Section 3604(b) of the Fair Housing Act (“FHA”) makes it unlawful
to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith.”217 In Davis I, I concluded that the law is best understood to prohibit post- as well as pre-acquisition discrimination in the provision of housing-related services.218 I also noted that the FHA is generally interpreted as allowing claims based on disparate impact, even in the absence of evidence of discriminatory intent.219 Plaintiffs have now stated that they “consent to the dismissal of their
216 See Davis I, 2012 WL 4813837, at *19. 217 42 U.S.C. § 3604(b). 218 See Davis I, 2012 WL 4813837 at *20. I also noted that no party had raised the argument that NYCHA and not the NYPD is liable under the FHA. See id. at *20 n.174. 219 See id. at *21 (citing Cox v. City of Dallas, 430 F.3d 734, 746 (5th Cir. 2005); Smith v. NYCHA, 410 Fed. App’x 404, 406 (2d Cir. 2011) (citing Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir. 2003))).
81

disparate impact claim against both Defendants,” and continue only with their disparate treatment claim.220
To establish a prima facie case of disparate treatment (that is,
intentional discrimination) under the FHA, resident plaintiffs “‘must present
evidence that animus against the protected group was a significant factor in the
position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.’”221 Thus, for resident plaintiffs
to survive summary judgment on their FHA claim against the City, resident
plaintiffs must present sufficient evidence for a reasonable juror to conclude that
racial animus against African Americans or Latinos was a significant factor in the
City’s provision of police services in connection with resident plaintiffs’ NYCHA
220 Pl. Opp. at 28. The City also argues that plaintiffs’ claims under 42 U.S.C. § 3617 (“section 3617”) are barred by Frazier v. Rominger, 27 F.3d 828, 833–34 (2d Cir. 1994). See City Mem. at 14 n.21. Plaintiffs offer no defense to this challenge. See Pl. Opp. at 28 n.46 (noting that this Court did not reach the section 3617 claims in Davis I, but offering no defense of the claims). Plaintiffs’ section 3617 claims against the City are therefore also dismissed.
221 Smith, 410 Fed. App’x at 406 (quoting Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002)). “If the plaintiffs make out a prima facie case, then the burden of production shifts to the defendants to provide a legitimate, nondiscriminatory reason for their decision.” Middletown, 294 F.3d at 49 (explaining how the burden-shifting framework proceeds under various evidentiary showings).
82

rentals.222
For the same reasons that a reasonable juror could find plaintiffs’
evidence in support of their equal protection claim, discussed above, to be
sufficient to show that racial animus was a significant factor in the City’s provision
of police services in NYCHA buildings, the City’s motion for summary judgment
on the FHA claims of the remaining plaintiffs bringing these claims (Evans and
Littlejohn) is denied.
F. NYSC Article I Section 12 Claims Against the City
Plaintiffs now consent to the dismissal of their equal protection claims
under Article I section 11 of the New York Constitution as duplicative.223 As a
result, plaintiffs’ only remaining claims under the New York Constitution are
under Article I section 12, which provides similar but in some circumstances
222 The City also argues that plaintiffs’ claim must fail because section 3604 “only remedies conduct that affects housing opportunities or availability.” City Mem. at 15 (emphasis omitted). As plaintiffs correctly note, this issue was resolved in Davis I, 2012 WL 4813837, at *20–21. To be sure, plaintiffs’ claims would be more closely bound to the FHA’s core concern with housing availability for protected groups if plaintiffs had offered statistical evidence of African Americans and Latinos leaving, or not entering, NYCHA housing in order to avoid the City’s allegedly racially discriminatory police services there. At the same time, where the choice may be between public housing and no housing at all, it would surely be contrary to the FHA’s goals to require protected groups to opt for the latter in order to demonstrate the severity of a discriminatory post-acquisition practice.
223 See Pl. Opp. at 29 n.51. 83

broader protections than the Fourth Amendment to the United States Constitution.224 The Court of Appeals of New York has “demonstrated its willingness to adopt more protective standards” under Article I section 12 than those that exist under the Fourth Amendment “when doing so best promotes ‘predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.’”225
On the other hand, “New York courts will only imply a private right of action under the state constitution where no alternative remedy is available to the plaintiff.”226 In order to survive summary judgment, plaintiffs must at least show that they have suffered constitutional injuries under Article I section 12 that are not recognized under the Fourth Amendment. Plaintiffs have failed to do so. Plaintiffs argue, persuasively, that the City’s trespass enforcement practices in NYCHA buildings may involve both conduct that violates the Fourth Amendment, and conduct that does not violate the Fourth Amendment but does violate the New
224 See Evans v. Solomon, 681 F. Supp. 2d 233, 255 (E.D.N.Y. 2010). 225 People v. Torres, 74 N.Y.2d 224, 228 (1989) (quoting People v. P. J. Video, 68 N.Y.2d 296, 304 (1986)) (certain quotation marks omitted). 226 Felmine v. City of New York, No. 09 Civ. 3768, 2012 WL 1999863, at *6 (E.D.N.Y. June 4, 2012). Accord Flores v. City of Mount Vernon, 41 F. Supp. 2d 439, 446–47 (S.D.N.Y. 1999) (“[N]o private right of action exists for violations of the New York State Constitution where a Plaintiff has alternative damage remedies available.”).
84

York state law of De Bour and its progeny.227 As the Court of Appeals of New
York made clear in People v. Hollman, however, De Bour and its progeny are
rooted not in federal or state constitutional law, but in state common law.228
For the foregoing reasons, the City’s motion for summary judgment
on plaintiffs’ NYSC claims is granted.229
G. Race Discrimination Claims Against NYCHA
Resident plaintiffs have brought race discrimination claims against
NYCHA under a number of laws, including some of those discussed above: Title
VI, the FHA, section 1981, and the NYSHRL and NYCHRL.230 NYCHA argues,
227 See Pl. Opp. at 29–30; People v. Ventura, 913 N.Y.S.2d 543, 547 (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.” (citing Adam Carlis, The Illegality of Vertical Patrols, 109 COLUM. L.REV. 2002 (2009)).
228 See Hollman, 79 N.Y.2d at 195–96 (affirming De Bour “as a matter of State common law”).
229 Because I conclude that plaintiffs have failed to show how section 1983 does not provide an adequate alternative remedy for their NYSC claims, I do not reach the City’s argument that plaintiffs’ claims are barred under the New York State law doctrine of “governmental immunity.” See City Mem. at 19–20 (citing Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 470 (S.D.N.Y. 2008)).
230 See Pl. Opp. at 20. Plaintiffs do not dispute that all of their claims against NYCHA under these laws depend, at minimum, on a showing that NYCHA engaged in race discrimination, either directly through its own acts or indirectly through its relationship with the City. Compare Memorandum of Law of
85

and plaintiffs do not contest, that plaintiffs must show a racially discriminatory purpose in order to succeed on their Title VI, section 1981, and NYSHRL and NYCHRL claims.231 In addition, because plaintiffs have now abandoned their disparate impact claims against both the City and NYCHA under the FHA,232 plaintiffs must also show intentional discrimination in order to succeed on their FHA claims. Thus, all of plaintiffs’ race-discrimination claims against NYCHA require that plaintiffs show NYCHA engaged in intentional racial discrimination.
Plaintiffs’ brief in opposition to NYCHA’s motion for summary judgment on the race-discrimination claims is remarkably lacking in legal argument. Plaintiffs criticize NYCHA for having failed to provide safe and secure premises to its residents, and for empowering NYPD officers to act “with unfettered discretion” as NYCHA’s agents despite NYCHA’s alleged knowledge that the NYPD’s stop and arrest practices are racially discriminatory.233 Plaintiffs do not explain, however, how this proves intentional race discrimination.234
Defendant New York City [Housing] Authority in Support of Its Motion for Summary Judgment (“NYCHA Mem.”) at 9, with Pl. Opp. at 20.
231 See NYCHA Mem. at 9–10 (collecting cases). 232 See Pl. Opp. at 28 n.48. 233 Id. at 20. 234 Plaintiffs’ only legal citations are to two cases involving state and municipal liability under section 1983 for equal protection violations. See id. at
86

Even if plaintiffs are able to prove that NYCHA has failed to provide safe and secure premises to its residents, the fact that “over 90% of the affected resident community is African American or Latino”235 would not, by itself, convert NYCHA’s failure into a form of intentional race discrimination. According to plaintiffs’ logic, nearly any shortcoming by NYCHA would provide evidence of racial bias — because NYHCA knows that nine out of ten of the people who will be affected by the shortcoming are African Americans and Latinos. This cannot be correct. Yet plaintiffs provide no other argument in support of their claim that NYCHA discriminates based on race through failing to provide adequate safety and security.236
Plaintiffs have also failed to raise a genuine issue of material fact as to whether NYCHA displayed racial bias by empowering the NYPD to conduct vertical patrols and other services in NYCHA buildings. Plaintiffs’ argument is based on the premise that “the City’s unlawful and discriminatory stop and arrest
22–23 (citing City of Yonkers, 96 F.3d at 613–14; Comer v. Cisneros, 37 F.3d 775, 804 (2d Cir. 1994)). NYCHA is a municipal agency, see United States v. Torres, 703 F.3d 194, 202 (2d Cir. 2012), but I dismissed plaintiffs’ equal protection claims against NYCHA in Davis I, 2012 WL 4813837, at *16.
235 Pl. Opp. at 20. 236 For its part, NYCHA has provided uncontested evidence of a NonDiscrimination Policy and related procedures, as well as of numerous security measures. See NYCHA Mem. at 7–8, 10–14.
87

practices are well-known to NYCHA officials.”237 While I denied summary judgment, above, on plaintiffs’ claim that the City’s trespass enforcement practices in NYCHA buildings discriminate in violation of the Equal Protection Clause, I noted that plaintiffs’ evidence was tenuous. Plaintiffs’ attempt to establish NYCHA’s liability for various race discrimination claims based on NYCHA’s knowledge of the City’s equal protection violations is a step too far. Even if a jury were to find that the City’s trespass enforcement practices violate the Equal Protection Clause, plaintiffs cite no evidence that NYCHA continued to rely on the City’s services despite constructive or actual notice that the City’s practices were discriminatory.238 All of plaintiffs’ evidence of notice to NYCHA of unlawful trespass enforcement practices concerns notice of stops and arrests based on inadequate legal justification under the Fourth Amendment, not based on race discrimination.239
For the foregoing reasons, NYCHA’s motion for summary judgment on plaintiffs’ remaining race discrimination claims is granted.240
237 Pl. Opp. at 20. 238 See id. at 20–23. 239 See id. at 21 (citing sources contained in PAF ¶¶ 29–30, 84–85). 240 As noted above, I already granted summary judgment to NYCHA on plaintiffs’ equal protection claims in Davis I, 2012 WL 4813837, at *16.
88

H. USHA Claims Against NYCHA
In Davis I, I concluded that because 42 U.S.C. § 1437d(l)(2) “gives
the resident plaintiffs a right to a lease free from unreasonable terms and
conditions, [plaintiffs’] suit alleges an infringement of a federal right actionable
under section 1983.”241 I went on to note:
A dispute of fact exists about whether the “Highlights of House Rules, Lease Terms and Policy” constitutes a lease addendum. There is also a dispute of fact as to whether the provisions in that document — mandating that tenants cooperate with police officers and avoid “lingering” in common areas — are unreasonable. . . . Based on my evaluation of the arrest of Jackson and Johnson at the top of the stairwell and the corresponding vagueness of the prohibition against “lingering” in common areas, I am skeptical that NYCHA will be able to prevail at summary judgment. Nevertheless, so that both parties have the full opportunity to present their case, NYCHA’s motion is denied without prejudice and with leave to renew.242
NYCHA has renewed its motion for summary judgment on resident
plaintiffs’ USHA claims, and the parties have submitted briefing on whether the
provisions in the Highlights document are unreasonable. NYCHA also renews its
argument that the Highlights document is not a part of the lease.243 Based on the
241 Id. at *24. 242 Id. at *25. See also id. at *22 n.192 (detailing dispute over “Highlights”). 243 See NYCHA Mem. at 14–16.
89

parties’ submissions, there is a genuine issue of material fact concerning whether the requirements in the Highlights document were effectively incorporated into the standard NYCHA lease for the purposes of the USHA.
As I suggested in Davis I, the Highlights document is highly ambiguous.244 On the one hand, the Highlights document states, in bold, near the top of the first page: “Note that this document is NOT a lease and NOT a lease addendum.”245 In addition, NYCHA argues that lease changes and the adoption of formal rules and regulations require various procedures that were not followed in issuing the Highlights document.246 NYCHA concludes that the Highlights document cannot have been incorporated into the standard NYCHA lease under paragraph 12d of that lease, which requires all tenants to “abide by all necessary and reasonable regulations promulgated from time to time by the Landlord, which shall be posted in the Property Management Office and incorporated by reference in this Lease.”247
244 See Davis I, 2012 WL 4813837, at *22 n.192. 245 Highlights of House Rules, Lease Terms and Policy (“Highlights”), Ex. 28 to 7/20/12 Declaration of Katharine E.G. Brooker, at 1. 246 See NYCHA Mem. at 15–16 (citing 24 C.F.R. § 966.3; New York Public Housing Law § 56). 247 NYCHA Resident Lease Agreement (“NYCHA Lease”), Ex. B to 12/5/12 Declaration of Alan Pelikow, counsel for NYCHA (“Pelikow Decl.”),
90

On the other hand, the top of the Highlights document presents the document as containing “requirements” for “NYCHA residents.”248 The document in fact contains a list of apparently legally binding requirements, was mailed to all NYCHA residents in December 2010, and states on its final page that “NYCHA requires” that all tenants and household members sign the document.249 The warning on the first page that the document is not a lease or lease addendum could be read, in context, not as implying that the requirements are optional, but rather as clarifying that signing the Highlights document confers no legal rights: the next line states that “[t]he act of signing this document will not grant any rights of tenancy or authorized occupancy.”250 Plaintiffs also argue that the Highlights document was incorporated into the lease under paragraph 12bb, which requires all tenants to “comply with and obey all rules and regulations prescribed from time to time by the Landlord concerning the use and care of the Leased Premises or any common or community spaces . . . .”251 The distinction between the word “prescribed” in paragraph 12bb and “promulgated” in paragraph 12d may suggest

¶ 12d.
248 249 250 251

Highlights at 1. Id. at 4; Pelikow Decl. at ¶ 17. Highlights at 1. Pl. Opp. at 23 (citing NYCHA Lease ¶ 12bb).
91

that two different types of rules are at issue, both legally binding under the terms of the lease and for the purpose of the USHA’s “unreasonable terms” prohibition, but only one requiring the formal procedures laid out in 24 C.F.R. § 966.3 and New York Public Housing Law § 56.
As noted above, section 1437d(l)(2) of the USHA states that “[e]ach public housing agency shall utilize leases which . . . do not contain unreasonable terms and conditions.” Drawing all reasonable inferences in favor of plaintiffs, the preceding evidence raises a genuine issue of material fact as to whether some or all of the requirements listed in the Highlights document are “contained” in the standard NYCHA lease by way of paragraph 12bb. A public housing agency may not evade the requirements of section 1437d(l)(2) simply by introducing unreasonable lease terms and conditions for tenants in a document that nominally purports not to be a lease or lease addendum. On the other hand, there is a question as to whether a public housing agency exposes itself to liability under the USHA if it deliberately conveys to residents the belief that a set of rules are legally binding requirements and could result in eviction, while at the same time knowing that the rules have no legal status or practical effect. Extrinsic evidence will likely be decisive in determining the meaning and effect of the Highlights document, as even NYCHA seems to acknowledge, implicitly, by encouraging the Court to
92

interpret the Highlights document based on a detailed factual declaration accompanying NYCHA’s brief.252 The significance and credibility of this extrinsic
evidence is for a jury, and cannot be determined as a matter of law.
Assuming that a reasonable juror could find that some or all of the
Highlights document rules were “contained” in the standard NYCHA lease for the
purposes of the USHA, I now turn to what constitutes an “unreasonable term or
condition” under section 1437d(l)(2). At least one court has held that section
1437d(l)(2) “require[s] that lease terms be rationally related to a legitimate housing purpose.”253 Courts have looked to statutes, legislative history, and HUD regulations for evidence of relevant housing purposes.254 “Lease provisions which
are arbitrary and capricious, or excessively overbroad or under-inclusive, will be invalidated” as unreasonable.255 The possibility of applying a rule “in an arbitrary or discriminatory manner” may weigh in favor of finding unreasonableness.256
252 See NYCHA Mem. at 14–16 (citing Pelikow Decl.). 253 Richmond Tenants Org., Inc. v. Richmond Redevelopment, 751 F. Supp. 1204, 1205 (E.D. Va. 1990) (emphasis added), aff’d, 947 F.2d 942 (4th Cir. 1991) (unreported) (per curiam). 254 See, e.g., Thompson v. Ashe, 250 F.3d 399, 409 (6th Cir. 2001). 255 Richmond, 751 F. Supp. at 1205. Accord Cabrini-Green Local Advisory Council v. Chicago Hous. Auth., No. 29 C 6949, 2007 WL 294253, at *2 (N.D. Ill. Jan. 29, 2007) (citing Richmond, 751 F. Supp. at 1205–06). 256 Richmond, 751 F. Supp. at 1206.
93

Plaintiffs argue that two of the rules in the Highlights document are unreasonable. First, plaintiffs argue that the rule prohibiting “lingering” in “the lobby, corridors, and stairwell” and mandating that “[t]he lobby or stairwell is meant for resident use to either go in or out of the building or to walk from floor to floor” is excessively overbroad and invites arbitrary or discriminatory enforcement.257 Second, plaintiffs argue that the rule requiring residents to “cooperate with inquiries from . . . the police regarding their presence or conduct in any building” unreasonably pressures residents to interact with NYPD officers without regard to their constitutional rights, including the Fifth Amendment right to remain silent.258
NYCHA does not meaningfully defend the reasonableness of either rule. Instead, NYCHA continues its earlier argument that the rules in the Highlights document are not enforceable lease terms, and indeed are of little consequence. Perhaps NYCHA means to imply that the rules challenged by plaintiffs cannot be unreasonable terms, because they have no unreasonable effects. NYCHA argues that under IO 23, NYPD officers who observe a resident violating a NYCHA rule can, at most, fill out a “Field Report” and submit it to NYCHA
257 See Pl. Opp. at 24 (citing Highlights ¶ 21). 258 See id. at 25 (citing Highlights ¶ 18).
94

Management, which might then call the resident “to ascertain the circumstances.”259 NYCHA also notes that New York’s criminal trespassing laws do not permit NYPD officers to stop or arrest someone for violating NYCHA’s rule against “lingering.” NYCHA suggests that if Dr. Fagan’s study shows that many officers have, in fact, stopped many people in NYCHA buildings based on lingering, the officers did so prior to the issuance of the Highlights document and not based on the rule against lingering contained in it.260 Finally, NYCHA states that a Field Report based on lingering cannot lead to the termination of tenancy.261
NYCHA’s disavowals of the practical significance of the Highlights document provide further evidence in support of finding that the rules in the document are not contained in the standard NYCHA lease for the purposes of the USHA. Nevertheless, drawing all reasonable inferences in favor of plaintiffs, a reasonable juror could reject NYCHA’s evidence that the Highlights rules have little or no effect,262 and could also conclude that the rules are unreasonable for the
259 Pelikow Decl. at ¶ 25. See NYCHA Mem. at 16, 18. 260 See NYCHA Mem. at 16–18. 261 See id. at 18. 262 For example, the Highlights document states that “NYCHA may start a proceeding to terminate tenancy if a tenant or family member . . . breaches NYCHA rules.” Highlights ¶ 28. But see 12/5/12 NYCHA’s Rule 56.1 Statement in Support of Its Motion for Summary Judgment ¶¶ 10–17 (suggesting that tenants
95

reasons stated by plaintiffs. As a result, NYCHA’s motion for summary judgment
on plaintiffs’ USHA claim is denied.263
VI. CONCLUSION
The City’s, NYCHA’s, and plaintiffs’ motions for summary judgment
are granted in part and denied in part:
(1) The City’s and plaintiffs’ motions for summary judgment on plaintiffs’ Fourth Amendment claims are denied, leaving the remaining arrested plaintiffs with viable claims.
(2) The City’s motion for summary judgment on the remaining arrested plaintiffs’ Fourteenth Amendment equal protection claims is denied.
(3) The City’s motion for summary judgment on resident plaintiffs’ Fourteenth Amendment equal protection, Title VI, section 1981, and FHA claims is denied, leaving Evans and Littlejohn with viable claims.
(4) The City’s motion for summary judgment on plaintiffs’ remaining NYSC claims is granted.
may only be evicted based on rules violations where the rules have been formally promulgated).
263 My conclusion is unaffected by the issue, discussed above, of whether Jackson and Johnson were stopped for presence in a prohibited area or for loitering or lingering. See supra Part V.A.1.b. Resident plaintiffs have standing to sue under section 1983 regarding unreasonable terms and conditions in their NYCHA leases whether or not any one of them has already been stopped or arrested based on those terms. See Richmond, 751 F. Supp. at 1205 (adjudicating claims by public housing tenants who challenged “various provisions of a new dwelling lease” as unreasonable under the USHA, prior to implementation of the new lease).
96

(5) NYCHA's motion for summary judgment on plaintiffs' remaining race discrimination claims is granted.
(6) NYCHA's motion for summary judgment on plaintiffs' USHA claim is denied, leaving all remaining resident plaintiffs (Britt, Evans, Littlejohn, Jones, and Suarez) with viable claims.
The Clerk of the Court is directed to close these motions [Docket Nos. 226, 240].
A conference is scheduled for April 5,2013 at 4:30 p.m.

Dated:

New York, New York March 28, 2013

HEINDL IN

97 


Appearances

For Plaintiffs:

Katharine E.G. Brooker, Esq. Matthew J. Moses, Esq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000
Debo P. Adegbile, Esq. Christina Swarns, Esq. Johanna B. Steinberg, Esq. Jin Hee Lee, Esq. Johnathan Smith, Esq. Ria Tabacco, Esq. NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013 (212) 965-2200

Steven Banks, Esq. William D. Gibney, Esq. Steven Wasserman, Esq. Nancy Rosenbloom, Esq. Marlen S. Bodden, Esq. Legal Aid Society of New York 199 Water Street New York, New York 10038 (212) 577-3419

For Defendant City of New York:

For Defendant NYCHA:

Brenda E. Cooke Judson Vickers Wesley Bauman Lisa Richardson George Soterakis Pernell Telfort Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-0993

Steven Jay Rappaport, Esq. New York City Housing Authority 250 Broadway, 9th Floor New York, New York 10007 (212) 776-5152

98

 
 Case 1:10-cv-00699-SAS-HBP Document 271 Filed 05/03/13 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KELTON DAVIS, et ai., individually and on behalf of a class of all others similarly situated,
Plaintiffs,
-againstTHE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,
Defendants.

10 Civ. 0699 (SAS) ECF Case

NOTICE OF MOTION FOR CLASS CERTIFICATION PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law in Support of Plaintiffs' Motion for Class Certification; the accompanying Declaration of Matthew Moses, dated May 3, 2013, and the exhibits attached thereto, the Declaration of Nancy Rosenbloom, dated May 3,2013; and all other papers and proceedings in this action, Plaintiffs will move this Court, before the Honorable Shira A. Scheindlin, at a date and time to be determined by the Court, for an Order, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, to certify a class of all African-American and Latino New York City Housing Authority ("NYCHA") residents and/or family members, authorized guests or visitors of NYCHA residents, who, since January 28, 2007, have been or will be unlawfully stopped, seized, questioned, frisked, searched, and/or arrested for trespass by New York City Police Department officers in or around NYCHA residences, including on the basis of race and/or ethnicity, and a subclass of all members of the class who are also authorized NYCHA residents, and to appoint the NAACP Legal Defense and Education Fund, Inc., The Legal Aid Society, and

Case 1:10-cv-00699-SAS-HBP Document 271 Filed 05/03/13 Page 2 of 4 2
Paul, Weiss, Rifkind, Wharton & Garrison LLP as counsel for the class and subclass pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.

Case 1:10-cv-00699-SAS-HBP Document 271 Filed 05/03/13 Page 3 of 4 3

Dated: May 3, 2013 New York, New York

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
By: ('ft1 ttXlJWu 7uv:#J
Matthew Moses Daniel J. Leffell Katharine E. Brooker Jason L. Meizlish James E. Stanley 1285 Avenue of the Americas New York, New York 10019-6064 Tel.: (212) 373-3000 Fax: (212) 757-3990
-of Counsel-
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 Tel.: (212) 965-2200 Fax: (212) 219-2052
Christina Swarns Johanna B. Steinberg Jin Hee Lee Johnathan J. Smith Ria Tabacco Mar
THE LEGAL AID SOCIETY 199 Water Street, 6th Fl. New York, NY 10038 Tel: (212) 577-3300 Fax: (212) 509-8141
Steven Banks William Gibney Steven Wasserman Nancy Rosenbloom Marlen S. Bodden
Attorneys for Plaintiffs and the Proposed Class

Case 1:10-cv-00699-SAS-HBP Document 271 Filed 05/03/13 Page 4 of 4
4

To: Steven Rappaport New York City Housing Authority 250 Broadway, 9th Floor New York, NY 10007

Brenda Cooke Lisa Richardson Morgan Kunz Judson Vickers Corporation Counsel of the City of New York 100 Church Street, Room 3-186 New York, NY 10007

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)(
KELTON DAVIS, WILLIAM TURNER, EDWIN LARREGUI, ANTHONY ANDERSON, SHAWNE JONES, HECTOR SUAREZ, ADAM COOPER, DAVID WILSON, GENEVA WILSON, ELEANOR BRITT, ROMAN JACKSON, KRISTIN JOHNSON, LASHAUN SMITH, ANDREW WASHINGTON, PATRICK LITTLEJOHN, RAYMOND OSORIO, VAUGHN FREDERICK, and R.E., by her parent D.E., individually and on behalf of a class of all others similarly situated,

OPINION AND ORDER 10 Civ. 0699 (SAS)

Plaintiffs, - against-

_ .. .. , .. "" ...,,,, , - "" , ....~ -'. .

THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,
DefendalJls.
-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:

"',"';.

1 -'
! \ :". .~~.'

, \ .L

.

,-.II.._q ..,-,'" . -<'."'----',...~.

I. INTRODUCTION

Plaintiffs allege that the New York City Police Department ("NYPD")

uses unlawful stops, searches, and arrests to enforce the prohibition against

trespassing in New York City Housing Authority ("NYCHA") buildings. I This

See Davis v. City ofNew York ("Davis If'), No.1 0 Civ. 0699,2013
WL 1288176, at *1 (S.D.N.Y. Mar. 28,2013). This case is one of three putative or
1 


Court has granted in part and denied in part the parties’ motions for summary
judgment.2 Plaintiffs now move for certification of the following class and
subclass:
Class: All African-American and Latino NYCHA residents and/or family members, authorized guests or visitors of NYCHA residents, who, since January 28, 2007, have been or will be unlawfully stopped, seized, questioned, frisked, searched, and/or arrested for trespass by New York City Police Department (“NYPD”) officers in or around NYCHA residences, including on the basis of race and/or ethnicity.
Resident Subclass: All members of the class who are authorized NYCHA residents.3
Because plaintiffs satisfy the legal standard for class certification,
their motion is granted, subject to amendment of the class definition as described
certified class actions challenging aspects of the NYPD’s “stop and frisk” practices. Compare Davis II, 2013 WL 1288176, at *1, with Floyd v. City of New York (“Floyd Liability Opin.”), No. 08 Civ. 1034, 2013 WL 4046209 (S.D.N.Y. Aug. 12, 2013), and Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 628534 (S.D.N.Y. Feb. 14, 2013).
2 See Davis II, 2013 WL 1288176, at *3 (granting in part and denying in part the parties’ motions for summary judgment based on defendants’ policies and practices); Davis v. City of New York, No. 10 Civ. 0699, 2013 WL 145584 (S.D.N.Y. Jan. 14, 2013) (denying NYCHA’s motion for summary judgment on two individual plaintiffs’ section 1981 claims); Davis v. City of New York (“Davis I”), 902 F. Supp. 2d 405, 410 (S.D.N.Y. 2012) (granting in part and denying in part the parties’ motions for summary judgment based on the individual circumstances of plaintiffs’ arrests and tenancies).
3 5/3/13 Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification (“Pl. Mem.”) at 2.
2

below. II. FACTUAL BACKGROUND
At the class certification stage, district courts must engage in a rigorous analysis of the underlying facts in order to determine whether the plaintiffs have satisfied the requirements of Rule 23. The following factual findings, based on a preponderance of the evidence, are made only for the purpose of adjudicating this motion and will not be binding on the jury at trial.4
A. Evidence of Unlawful Trespass Enforcement Policies and Practices The City provides policing services to NYCHA under a 1994
Memorandum of Understanding. As part of these services, NYPD officers conduct vertical patrols in NYCHA buildings. The procedures for conducting vertical patrols are described in the NYPD’s Interim Order 23 of 2010 (“IO 23 of 2010”) and associated training materials. These materials direct officers to approach and question individuals in NYCHA buildings without reasonable suspicion of trespass, and to arrest for trespass those who fail to leave or affirmatively establish their right to be in a NYCHA residence.5
4 See In re Initial Pub. Offerings Sec. Litig. (“IPO”), 471 F.3d 24, 41 (2d Cir. 2006).
5 See Davis II, 2013 WL 1288176, at *7, *20 (discussing Memorandum of Understanding). For the purposes of class certification, the City “proceeds on
3

The procedures for conducting trespass enforcement in and around
NYCHA buildings are chosen and implemented through the NYPD’s centralized
and hierarchical institutional structure, which regulates officer activity through
the assumption (except where otherwise stated) that the Court’s two most-recent summary judgment decisions sufficiently and accurately state and summarize the evidence and law relating to this case.” 6/7/13 Defendant City of New York’s Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification (“Def. Mem.”) at 2. The primary factual issue that the City contests in its submission is plaintiffs’ characterization of certain anecdotal evidence. See id. Because the City for the most part does not contest plaintiffs’ characterization of the evidence for the purposes of class certification, this Opinion’s summary of the evidence is brief.
I note that New York’s Appellate Division, First Department recently clarified the standard under De Bour for approaching and questioning an individual in a NYCHA building regarding trespass. See State v. Johnson, 2013 NY Slip Op. 05723 (1st Dep’t Aug. 27, 2013) (holding that “an individual’s desire to avoid contact with police” — as expressed by stopping on the stairs at the sight of officers — does not constitute an objective credible reason to approach and question under De Bour Level 1, even in a high-crime or drug-prone location such as the NYCHA building where defendant was stopped). When the officer was asked why he had engaged Johnson in conversation, the officer began to testify: “It is a NYCHA building and we’re allowed to ask anybody inside the building—” As the court sustained an objection, the officer interjected, “It is a prone drug [sic] location.” Id.
In another case whose dismissal was recently reversed by the Second Circuit on procedural grounds, the plaintiff alleged that he entered a NYCHA building to visit a friend, eased himself out of his wheelchair, and began to pull his way up a small flight of stairs. Two officers stopped him on suspicion of trespass, allegedly without reasonable suspicion, and then searched his wheelchair, also allegedly without legal basis. He was then arrested in part for trespass, although all charges were later dismissed. See Askins v. City of New York, No. 10 Civ. 2230, Slip Op. at 1–4, 8 (S.D.N.Y. Feb. 14, 2012), rev’d sub nom. Askins v. Doe No. 1, No. 12 Civ. 0877, 2013 WL 4488698 (2d Cir. Aug. 23, 2013).
4

training, supervision, monitoring, and discipline.6 The record evidence at this stage
shows that the NYPD’s trespass enforcement policies and practices have resulted in thousands of trespass stops that apparently lacked reasonable suspicion,7 as well as large numbers of apparently unjustified trespass arrests.8 Anecdotal evidence
suggests that the apparently unlawful stops and arrests display factual similarities resulting from common features of officers’ training and supervision.9
In addition, individual testimony and the testimony of community
leaders confirm that the NYPD’s trespass enforcement activities in NYCHA
buildings have resulted in a large number of NYCHA residents being impeded in coming and going freely from their homes and having guests.10 Finally, plaintiffs’
6 See Pl. Mem. at 4–5 (collecting sources); Floyd Liability Opin., 2013 WL 4046209, at *24–47 (describing institutional evidence of deliberate indifference regarding unconstitutional stops in general); Floyd v. City of New York (“Floyd Class Cert.”), 283 F.R.D. 153, 162–66 (S.D.N.Y. 2012) (describing centralized and hierarchical structure of NYPD in general).
7 See Pl. Mem. at 6–7 (collecting statistical evidence). 8 See id. at 7–8 (collecting evidence from prosecution declinations). 9 See, e.g., Davis v. City of New York, No. 10 Civ. 0699, 2013 WL 2298165, at *2–3 (S.D.N.Y. May 24, 2013) (quoting decline-to-prosecute forms that appear to describe trespass stops based merely on entering and/or exiting NYCHA buildings); Davis I, 902 F. Supp. 2d at 412–13 (description of Raymond Osorio’s trespass stop, which appears to have been based merely on his exiting a NYCHA building). 10 See Pl. Mem. at 8–11 (collecting sources).
5

statistical and anecdotal evidence of racial disparities in enforcement is sufficient for the purposes of class certification.11 III. LEGAL STANDARDS
A. Federal Rule of Civil Procedure 23(a) Rule 23(a) permits individuals to sue as representatives of an
aggrieved class. To be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a), generally referred to as numerosity, commonality, typicality, and adequacy.12 District courts have broad discretion in deciding whether to certify a proposed class under Rule 23.13

11 See id. at 9–10 (collecting statistical evidence); Davis II, 2013 WL 1288176, at *16–20 (discussing evidence of racial disparities in NYCHA trespass enforcement); Davis I, 902 F. Supp. 2d at 435 (anecdotal evidence); Floyd Liability Opin., 2013 WL 4046209, at *72–75 (concluding that the NYPD’s policy of targeting “the right people” for stops in general constitutes a form of indirect racial profiling in violation of the Fourteenth Amendment).
12 See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201–02 (2d Cir. 2008). In full, Rule 23(a) reads:

13
2003).

Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
See Parker v. Time Warner Entm’t Co. L.P., 331 F.3d 13, 28 (2d Cir.
6

“Rule 23 does not set forth a mere pleading standard. A party seeking
class certification must affirmatively demonstrate [its] compliance with the Rule —
that is, [it] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”14 Plaintiffs seeking class
certification bear the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements set forth in Rule 23(a).15
When assessing whether plaintiffs have met this burden, courts must take into account “all of the relevant evidence admitted at the class certification stage.”16 A
court may certify a class only after determining that “whatever underlying facts are relevant to a particular Rule 23 requirement have been established.”17 This
rigorous analysis requires examining the facts of the dispute, not merely the
pleadings, and it will frequently “entail some overlap with the merits of the plaintiff’s underlying claim.”18
14 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original).
15 See Teamsters, 546 F.3d at 202. 16 IPO, 471 F.3d at 42. 17 Id. at 41. 18 Wal-Mart, 131 S. Ct. at 2551. “Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation.” Id. at 2552.
7

At the class certification stage, “a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement.”19 The court’s “determination as to a Rule 23 requirement is made only for purposes of class certification and is not binding on the trier of facts, even if that trier is the class certification judge.”20
1. Numerosity Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” In the Second Circuit, sufficient numerosity can be presumed at a level of forty members or more.21 “The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible — only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate.”22 Courts do not require “evidence of exact class size
19 Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 251 (2d Cir. 2011) (quotation marks and citation omitted). Courts must ensure “that a class certification motion does not become a pretext for a partial trial of the merits.” IPO, 471 F.3d at 41.
20 IPO, 471 F.3d at 41. 21 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”). 22 Central States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 244–45 (2d Cir. 2007).
8

or identity of class members to satisfy the numerosity requirement.”23 2. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common
to the class.” Commonality thus requires plaintiffs “to demonstrate that the class members ‘have suffered the same injury.’”24 Commonality further requires that the claims asserted “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”25
3. Typicality “Typicality ‘requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events[] and each class member makes similar legal arguments to prove the defendant’s liability.’”26 The typicality requirement may be

23 Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).

24 Wal-Mart, 131 S. Ct. at 2551 (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)).

25

Id.

26 Central States, 504 F.3d at 245 (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)).

9

satisfied where “injuries derive from a unitary course of conduct by a single system.”27
The purpose of typicality is to ensure that class representatives “have the incentive to prove all the elements of the cause of action which would be presented by the individual members of the class were they initiating individualized actions.”28 A lack of typicality may be found in cases where the named plaintiff “was not harmed by the [conduct] he alleges to have injured the class”29 or the named plaintiff’s claim is subject to “specific factual defenses” atypical of the class.30
4. Adequacy “Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.”31 Thus, the question of adequacy “entails inquiry as to whether: 1) plaintiffs’ interests are antagonistic to

27 Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).

28 In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510 (S.D.N.Y. 1996).

29
2006).

Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 64 (S.D.N.Y.

30 Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006).

31 Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006).

10

the interest of other members of the class and 2) plaintiffs’ attorneys are qualified, experienced and able to conduct the litigation.”32 In order to defeat a motion for certification, any conflicts between the class representative and members of the putative class must be “fundamental.”33
5. Implied Requirement of Ascertainability Some courts have added an “implied requirement of ascertainability”34 to the express requirements of Rule 23(a). These courts have refused to certify a class “unless the class description is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.”35 However, where the primary relief sought is injunctive rather than compensatory, as here, “it is not clear that the implied requirement of definiteness should apply to Rule 23(b)(2) class actions at all.”36 B. Federal Rule of Civil Procedure 23(b)(2)

32 Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000).

33
2009).

In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir.

34 IPO, 471 F.3d at 30.

35 Casale v. Kelly, 257 F.R.D. 396, 406 (S.D.N.Y. 2009).

36 WILLIAM B. RUBENSTEIN ET AL., NEWBERG ON CLASS ACTIONS § 3:7 at 1-172 (2011).

11

If the requirements of Rule 23(a) are met, the court “must next
determine whether the class can be maintained under any one of the three subdivisions of Rule 23(b).”37 Plaintiffs seek certification under Federal Rule of
Civil Procedure 23(b)(2) (“Rule 23(b)(2)”). To certify a class under Rule 23(b)(2),
plaintiffs must show that defendants “acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole.” As the Supreme Court
explained in Wal-Mart, Rule 23(b)(2) is intended to cover cases such as this one:
When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.38
“[C]laims for individualized monetary damages preclude class certification under
Rule 23(b)(2)” unless the claims are “merely ‘incidental’ to the requested declaratory or injunctive relief.”39

37
2008).

McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir.

38 131 S. Ct. at 2558. Accord Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (“Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) class actions).

39 Nationwide Life Ins. Co. v. Haddock, 460 Fed. App’x 26, 29 (2d Cir. 2012) (quoting Wal-Mart, 131 S. Ct. at 2557–60).

12

C. The Galvan Doctrine Under the doctrine established by the Second Circuit’s decision in
Galvan v. Levine, certification of a Rule 23(b)(2) class is unnecessary when “prospective relief will benefit all members of a proposed class to such an extent that the certification of a class would not further the implementation of the judgment.”40 IV. DISCUSSION
A. Claims Against the City 1. Plaintiffs Satisfy the Four Prerequisites of Rule 23(a) The City’s argument against class certification focuses almost entirely
on the issue of commonality.41 I address that issue first, then turn to the remaining three prerequisites for class certification under Rule 23(a).
a. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” This requires plaintiffs “to demonstrate that the class members ‘have
40 Berger v. Heckler, 771 F.2d 1556, 1566 (2d Cir. 1985) (citing Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973) (Friendly, J.) (affirming denial of certification of a 23(b)(2) class after the government “withdrew the challenged policy” and “stated it did not intend to reinstate the policy”)).
41 See Pl. Mem. at 8–19. 13

suffered the same injury.’”42 In Wal-Mart, plaintiffs sought to certify a class of approximately 1.5 million female employees of the retail giant, alleging that “the discretion exercised by their local supervisors over pay and promotion violates Title VII by discriminating against women.”43 The Supreme Court found that the plaintiffs had failed to satisfy commonality because the putative class members were subjected to an enormous array of different employment practices: “Other than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’ — much less one that ties all their 1.5 million claims together.”44
In granting certification to the putative class in Floyd, I emphasized the contrasts between the legal issues and evidence in that case and in Wal-Mart. Plaintiffs in Floyd were stopped and frisked pursuant to policies and practices that were generated from a centralized source and implemented through a hierarchical supervisory structure:
Precinct commanders are not given leeway to conduct stops and frisks if, when, and how they choose; instead, they are required to use the tactic as a central part of the Department’s pro-active policing strategy. They are required to monitor, document, and
42 Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 157). 43 Id. at 2547. 44 Id. at 2555.
14

report their stop and frisk activity to headquarters using a uniform system; all officers are subject to centralized stop and frisk training; performance standards are obligatory and a recognized part of productivity evaluations in all precincts.45 In addition, I noted that plaintiffs’ documentary and testimonial evidence of unconstitutional stops and frisks was far more extensive than the proof of discrimination rejected in Wal-Mart.46 The analysis that led to class certification in Floyd applies even more strongly here. Because Floyd dealt with stops, frisks, and searches of pedestrians in general, it involved a broader range of factual scenarios, policies, and customs than are at issue in this case, which is solely concerned with the NYPD’s trespass enforcement activities in and around NYCHA buildings. While the City in Floyd resisted the notion that stop and frisk could be described as a “program,”47 the City does not and could not dispute that the NYPD has a specific, uniform program of trespass enforcement in and around NYCHA buildings. The NYPD has a written policy, IO 23 of 2010, that specifies how officers are to conduct patrols in NYCHA
45 Floyd Class Cert., 283 F.R.D. at 173–74. 46 See id. at 174 n.137. 47 See, e.g., 12/20/11 Defendant City of New York’s Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification, Floyd v. City of New York, No. 08 Civ. 1034, at 24 (stating that the NYPD’s use of stop and frisk is not “a specific police interdiction program with rules and procedures”).
15

buildings, with particular emphasis on the procedures for stopping and arresting trespassers.48 This policy is embedded in a web of other policies and practices for
training, supervising, monitoring, and disciplining officers who conduct trespass enforcement in and around NYCHA buildings.49 Unlike the delegation of
discretion in Wal-Mart, these policies and practices are promulgated by senior
officials and determine the specific ways in which officers perform NYCHA
trespass enforcement.
Moreover, because plaintiffs’ putative class is limited to residents or
authorized visitors who have been unlawfully subject to enforcement activities for
trespassing in or around NYCHA residences, the class is not overly broad. If
plaintiffs succeed in establishing they suffered unlawful enforcement for
trespassing, their legal injuries will have resulted from the NYPD’s centralized,
hierarchical program of trespass enforcement in and around NYCHA buildings.
48 See IO 23 of 2010, Ex. O to 12/4/12 Declaration of Brenda E. Cooke, Attorney for the City, in Support of the City’s Motion for Summary Judgment on Plaintiffs’ Claims Against the City.
49 These policies and practices provide more than enough “glue” to hold together the individual decisions by officers and supervisors that led directly to plaintiffs’ alleged legal injuries. See Wal-Mart, 131 S. Ct. at 2552 (requiring that there be “some glue” holding together the millions of employment decisions, so that it will be possible “to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored”).
16

As plaintiffs note, the claims of the putative Class and Resident Subclass are united
by several common questions of law and fact that are susceptible to common proof.50 In the terminology of Wal-Mart, a class-wide proceeding here will
“generate common answers” to these questions that are “apt to drive the resolution of the litigation.”51
b. Numerosity, Typicality, Adequacy
Rule 23(a)(1) requires that a class be “so numerous that joinder of all
members is impracticable.” Plaintiffs have presented statistical evidence of
thousands of apparently unjustified trespass stops in and around NYCHA buildings between 2009 and 2011, which is only a portion of the class period.52 Plaintiffs
have also presented sufficient testimonial and anecdotal evidence to support the
inference that far more than forty of NYCHA’s over 360,000 African-American or
Latino residents have been impeded in coming and going freely from their homes
50 These questions include, for example: “Do NYPD officers stop . . . individuals for criminal trespass in and around NYCHA residences in the absence of reasonable, articulable suspicion . . . ?” “Do NYPD officers stop . . . individuals for criminal trespass in and around NYCHA residences at least in part because of race and/or ethnicity?” “Has the City failed to adequately train, supervise, and/or discipline officers in connection with trespass enforcement in and around NYCHA residences, and have such acts and omissions caused . . . the constitutional violations against Class members?” Pl. Mem. at 17.
51 131 S. Ct. at 2551. 52 See Pl. Mem. at 6, 15.
17

and having guests.53
The City offers no arguments specifically directed at typicality or adequacy.54 In practice, the “‘commonality and typicality requirements of Rule
23(a) tend to merge,’” and “‘[t]hose requirements . . . also tend to merge with the
adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.’”55 The
City does not dispute the competence of plaintiffs’ attorneys to represent the interests of the class.56
2. Class Certification Is Proper Under Rule 23(b)(2)
Like the plaintiffs in Floyd, plaintiffs in this case have established that they are entitled to class certification under Rule 23(b)(2).57 The City’s trespass
53 See id. at 16; 6/21/13 Plaintiffs’ Reply Memorandum of Law in Further Support of Plaintiffs’ Motion for Class Certification (“Pl. Reply”) at 6.
54 See Def. Mem. at 19, 21. See also Pl. Mem. at 21–23 (addressing typicality); id. at 23–24 (addressing adequacy).
55 Wal-Mart, 131 S. Ct. at 2551 n.5 (quoting Falcon, 457 U.S. at 157–58 & n.13). Accord Marisol A., 126 F.3d at 376 (stating that commonality and typicality “tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3)”).
56 See Def. Mem. at 21. I also note that the class definition, as amended below, is clear enough to make proposed class members sufficiently ascertainable for the purposes of Rule 23(b)(2).
57 See Floyd Class Cert., 283 F.R.D. at 177–78. Indeed, the City’s opposition to plaintiffs’ motion does not explicitly challenge the appropriateness of
18

enforcement activities in and around NYCHA buildings have affected the class generally, “so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”58 If plaintiffs establish that the City’s NYCHA trespass enforcement policies and practices caused their injuries, a uniform injunctive remedy involving reforms to the City’s policies and practices will provide appropriate relief.
3. Class and Subclass Definitions Finally, the City is correct that plaintiffs’ proposed Class and Resident Subclass differ from the class structure proposed in the Amended Complaint.59 In particular, the class in the Amended Complaint included not only residents and visitors who have been or will be subject to unlawful trespass enforcement, but also residents “whose family members, guests, and/or authorized visitors have been or will be unlawfully stopped, seized, questioned, searched and/or arrested for trespass by NYPD officers when visiting NYCHA residents.”60 The class that plaintiffs now move to certify omits the latter category. As the City observes, this
class certification under Rule 23(b)(2). See Def. Mem. at i, 8–9, 11, 13–14 & n.19. 58 Rule 23(b)(2). 59 See Def. Mem. at 20–21. Compare Pl. Mem. at 2, with Davis II, 2013
WL 1288176, at *3 (citing Amended Complaint (“Am. Compl.”) ¶¶ 21–23). 60 Am. Compl. ¶ 21. 19

omission is problematic, because plaintiffs include in the Resident Subclass
residents of NYCHA buildings who have never been stopped or arrested, such as
Eleanor Britt — with the result that the Resident Subclass contains individuals who
are not members of the Class.61
There are a number of ways to resolve the confusion in plaintiffs’
proposed class structure, which is ultimately more a problem of phrasing than of
substance. Rather than certifying plaintiffs’ proposed Class and Resident Subclass,
I am amending the proposed class definition into two overlapping classes, as
follows:
Stopped Class: All African-American and Latino NYCHA residents and/or family members, authorized guests or visitors of NYCHA residents, who, since January 28, 2007, have been or will be unlawfully stopped, seized, questioned, frisked, searched, and/or arrested for trespass by New York City Police Department (“NYPD”) officers in or around NYCHA residences, including on the basis of race and/or ethnicity.
Resident Class: All authorized NYCHA residents who belong to the Stopped Class or whose family members, authorized guests or visitors, since January 28, 2007, have been or will be unlawfully stopped, seized, questioned, frisked, searched, and/or arrested for trespass by NYPD officers in or around NYCHA residences, including on the basis of race and/or ethnicity.
B. Claim Against NYCHA
NYCHA does not dispute that for the purposes of plaintiffs’ USHA
61 See Def. Mem. at 21 n.29. 20

claims against NYCHA, resident plaintiffs satisfy the requirements for a class under Rule 23(a) and Rule 23(b)(2).62 Instead, NYCHA argues that class
certification is unnecessary under the Galvan doctrine, which permits courts to
decline class certification when “prospective relief will benefit all members of a
proposed class to such an extent that the certification of a class would not further the implementation of the judgment.”63 As plaintiffs note, however, NYCHA’s
refusal to withdraw, amend, or clarify the challenged House Rules argues against the application of Galvan.64 This is not a case where “‘withdrawal of the
challenged action or non-enforcement of the challenged statute’” renders class certification unnecessary.65
V. CONCLUSION
62 See 6/7/13 Memorandum of Law of Defendant New York City [Housing] Authority in Opposition to Plaintiffs’ Motion for Class Certification at 2–5. For plaintiffs’ USHA claims against NYCHA, see generally Davis II, 2013 WL 1288176, at *24–26. Of course, NYCHA directs its arguments against plaintiffs’ proposed Resident Subclass rather than the Court’s amended Resident Class as defined in the previous section. But for the purposes of plaintiffs’ USHA claims, the difference between the two classes is immaterial.
63 Berger, 771 F.2d at 1566 (citing Galvan, 490 F.2d at 1261). 64 See Pl. Reply at 8. 65 Casale, 257 F.R.D. at 406 (quoting Blecher v. Department of Hous. Pres. & Dev., No. 92 Civ. 8760, 1994 WL 144376, at *4–5 (S.D.N.Y. Apr. 19, 1994)).
21

For the foregoing reasons, the Stopped Class and Resident Class are certified under Rule 23(b)(2).

Dated:

New York, New York August 29,2013

22 


Appearances

For Plaintiffs:

Matthew Moses, Esq. Daniel J. Leffell, Esq. Katharine E. Brooker, Esq. Jason L. Meizlish, Esq. James E. Stanley, Esq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000

Steven Banks, Esq. William Gibney, Esq. Steven Wasserman, Esq. Nancy Rosenbloom, Esq. Marlen S. Bodden, Esq. The Legal Aid Society 199 Water Street, 6th Floor New York, New York 10038 (212) 577-3300

Christina Swarns, Esq. Johanna B. Steinberg, Esq. Jin Hee Lee, Esq. Johnathan J. Smith, Esq. Ria Tabacco Mar, Esq. NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 1600 New York, New York 10013 (212) 965-2200

For Defendant City of New York:

For Defendant NYCHA:

Brenda E. Cooke Judson Vickers Wesley Bauman Lisa Richardson Pernell Telfort Assistant Corporation Counsel New York City Law Department 100 Church Street, 3-174 New York, New York 10007 (212) 513-0462

Steven J. Rappaport, Esq. New York City Housing Authority 250 Broadway, 9th Floor New York, New York 10007 (212) 776-5152

23

 
 Case 1:10-cv-00699-AT-HBP Document 330 Filed 02/04/15 Page 1 of 20
Case 1:10-cv-00699-SAS-HBP Document 322-1 Filed 01/07/15 Page 1 of 20

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KELTON DAVIS, et al., individually and on behalf ofa class of all others similarly situated;
Plaintiffs,
- against -
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY;
Defendants.

10 Civ. 0699 (SAS) ECF Case

STIPULATION OF SETTLEMENT AND ORDER
WHEREAS, on January 28, 2010, Plaintiffs in the above-captioned action filed a Complaint pursuant to 42 U.S.C. § 1983; 42 U.S.C. § 1981; the Fourth and Fourteenth Amendments to the United States Constitution; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d); Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. ("Fair Housing Act"); the United States Housing Act, 42 U.S.C. § 1437, et seq.; the Constitution and laws of the State of New York; and the New York City Human Rights Law; and
WHEREAS, the Amended Complaint, filed on May 27, 2011, alleges that Defendant City of New York ("City") has violated, and continues to violate, the federal and state constitutional and statutory rights of public housing residents and their guests due to its alleged policy and practice of stopping, questioning, detaining, and arresting persons in residences owned and operated by the New York City Housing Authority ("NYCHA")-the vast majority of whom are African American or Latino--on suspicion of criminal trespass without sufficient

Case 1:10-cv-00699-AT-HBP Document 330 Filed 02/04/15 Page 2 of 20
Case 1:10-cv-00699-SAS-HBP Document 322-1 Filed 01/07/15 Page 2 of 20
legal basis and on a racially discriminatory basis, resulting in the interference of residents' ability to enjoy their homes and receive police protection, a municipal service, like other New York City residents on the basis of their race and/or ethnicity; and
WHEREAS, the A.mended Complaint further alleges that Defendant NYCHA issued "Highlights of House Rules, Lease Terms and Policy" ("House Rules"), which contains allegedly unreasonable terms and conditions-specifically, (a) the alleged requirement that NYCHA residents and their guests cooperate with inquiries from officers of the New York City Police Department ("NYPD") and (b) the prohibition against an allegedly vague, undefined activity called "lingering"-that allegedly deny NYCHA residents the rights to exclusive use and occupancy of their leased units and the right to entertain guests in their homes by facilitating unlawful trespass enforcement practices; and
WHEREAS, on August 29, 2013, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Court certified two overlapping classes defined as follows:
Stopped Class: All African-American and Latino NYCHA residents and/or family members, authorized guests or visitors of NYCHA residents, who, since January 28, 2007, have been or will be unlawfully stopped, seized, questioned, frisked, searched, and/or arrested for trespass by New York City Police Department (''NYPD") officers in or around NYCHA residences, including on the basis ofrace and/or ethnicity.
Resident Class: All authorized NYCHA residents who belong to the Stopped Class or whose family members, authorized guests or visitors, since January 28, 2007, have been or will be unlawfully stopped, seized, questioned, frisked, searched, and/or arrested for trespass by NYPD officers in or around NYCHA residences, including on the basis of race and/or ethnicity; and
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WHEREAS, the Parties have engaged in extensive discovery relating to Defendants' policies and practices with respect to police services, including without limitation trespass enforcement policies and practices in and around NYCHA residences; and
WHEREAS, the Parties have engaged in three rounds of summary judgment briefing, resulting in three published decisions of this Court: Davis v. City ofNew York, 812 F. Supp. 2d 333 (S.D.N.Y. 2011); Davis v. City ofNew York, 902 F. Supp. 2d 405 (S.D.N.Y. 2012); Davis v. City ofNew York, 959 F. Supp. 2d 324 (S.D.N.Y. 2013); and
WHEREAS, the terms of this Stipulation of Settlement and Order ("Stipulation") were extensively and vigorously negotiated in good faith over a period of several months; and
WHEREAS, the negotiations have resulted in this Stipulation, which, subject to the approval of the Court, settles this action in the manner and upon the terms set forth below,
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows:
A. INTRODUCTION 1. The Parties enter into this Stipulation after arm's length, good faith negotiations for the purpose of avoiding the burdens of further litigation, and to mutually support vigorous, lawful, and nondiscriminatory enforcement of the law. Settlement of this action under the terms stated in this Stipulation is in the public interest as it avoids further diversion of private, City, and NYCHA resources to adversarial action by the Parties. 2. Defendants deny any and all liability and deny that they had or have a policy, or engaged in or currently engage in a pattern or practice of conduct, that deprived persons of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.
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3. This Stipulation does not, and shall not be deemed to, constitute an admission by Defendants as to the validity or accuracy of any of the allegations, assertions, or claims made by Plaintiffs. This Stipulation does not constitute an admission, adjudication, or finding on the merits of the above-captioned action.
4. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391.
B. DEFINITIONS 1. "Class Members" shall mean all members of both classes as defined by the Court, cited in the Preamble above. 2. "Class Representatives" shall mean all "Named Plaintiffs" in the abovecaptioned action, as defined in Paragraph 12 below. 3. "Class Counsel" shall mean Plaintiffs' attorneys of record in the abovecaptioned action. 4. "City" shall mean the City of New York. 5. "Court-Ordered Monitoring" shall mean the remedies, including without limitation, the appointment of a Monitor to oversee reforms of the NYPD and the joint remedial process for developing supplemental reforms, ordered by the Court in the Floyd Remedies Opinion, defined in Paragraph 10 below. 6. "Defendants" shall mean Defendant City of New York and Defendant New York City Housing Authority. 7. "Dismissal Date" shall mean the date on or shortly after the Final Approval Date, defined below, on which the District Court dismisses the case with prejudice.
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8. "Effective Date" is thirty (30) days after the "Dismissal Date," following the "Final Approval Date," defined below, and shall also be the date upon which this Stipulation enters into effect, subject to Paragraph 22 below.
9. "Final Approval Date" shall mean the date on which this Court approves this Stipulation, following a fairness hearing.
10. "Floyd Remedies Opinion" shall mean the Opinion and Order in Floyd v. City of New York, 08 Civ. 1034 (SAS), dated August 12, 2013 (Doc. No. 372), as modified by the Order Modifying Remedial Order, dated July 30, 2014 (Doc. No. 466), attached as Exhibits A and B, respectively, to this Stipulation.
11. "House Rules" shall mean NYCHA's "Highlights of House Rules, Lease Terms and Policy."
12. ''Named Plaintiffs" shall mean Plaintiffs Shawne Jones, Hector Suarez, Eleanor Britt, Roman Jackson, Kristin Johnson, Lashaun Smith, Andrew Washington, Patrick Littlejohn, Raymond Osorio, Vaughn Frederick, and Rikia Evans.
13. "Named Resident Plaintiffs" shall mean Shawne Jones, Hector Suarez, Eleanor Britt, Patrick Littlejohn, and Rikia Evans.
14. "NYCHA" shall mean the New York City Housing Authority. 15. "NYPD" shall mean the New York City Police Department. 16. "Parties" shall mean Plaintiffs, Defendant City of New York, and Defendant New York City Housing Authority. 17. "PG 212-60" shall mean NYPD Patrol Guide 212-60 "Interior Patrol of Housing Authority Buildings," which instructs NYPD officers on the proper performance of interior patrols in NYCHA residences.
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18. "Plaintiffs" shall mean the Named Plaintiffs and Class Members. 19. "Preliminary Approval Date" shall mean the date on which this Court endorses this Stipulation. 20. "Stipulation" shall mean this Stipulation of Settlement and Order executed by the Parties in the above-captioned action. 21. "Substantial Compliance" shall mean both compliance with all material aspects of the reforms pertaining to the above-captioned action arising from the recommendations of the Court-Ordered Monitoring, and the reforms required by this Stipulation. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, will not constitute a failure of Substantial Compliance. However, temporary compliance during a period of otherwise sustained non-compliance shall not constitute Substantial Compliance. Substantial Compliance shall be measured using milestones to be set in the Court-Ordered Monitoring. 22. Notwithstanding the foregoing in Paragraphs B.7-B.9, in the event that any appeals or petitions are taken or filed regarding the Court's approval of this Stipulation or entry of a final judgment in this action, any and all obligations required to be undertaken pursuant to this Stipulation by Defendants are stayed pending the final determination of any such appeals or petitions. The Stipulation shall not become effective nor shall the Defendants be required to undertake any obligations in the event that the final determination of any such appeals or petitions results in a rejection of the settlement as set forth in this Stipulation or a reversal of the order dismissing the action with prejudice.
C. MUTUAL AGREEMENT OF PRINCIPLES 1. The Parties agree that NYCHA residents and their authorized visitors have the same legal rights as the residents and authorized visitors of any other residential building in
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New York City, and deserve the utmost courtesy and respect during their interactions with

NYPD officers. 2.

The Parties agree that further development of cooperative and trusting

relationships between NYPD officers and NYCHA residents facilitates effective policing, and

that negative interactions between NYPD officers and NYCHA residents and their authorized

visitors can have a long-lasting, harmful impact on those relationships.

3. The Parties agree that the secured access of building entryways and

effective policing within the building are important to maintain the safety and security of

NYCHA residences. 4. The Parties agree that in performing patrols in or around NYCHA

residences, the NYPD's primary role is to provide a safe and secure living environment for

NYCHA residents and their guests. 5. The Parties agree that the proper enforcement of New York State trespass

law is an important component of the maintenance and security ofNYCHA residences.

6. The Parties agree that the enforcement of New York State trespass law

must, at all times, comply with the United States Constitution and all other relevant state and federal laws.

(a) Plaintiffs and the City agree that NYPD officers must have at least

an "objective credible reason" in order to approach any person in

or around a NYCHA residence, and that simply entering, being in, or exiting a NYCHA residence does not constitute an "objective credible reason."

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(b) Plaintiffs and the City agree that NYPD officers who request information from any person in or around a NYCHA residence, based on an "objective credible reason," as defined in People v. De Bour, 40 N.Y.2d 210 (1976) and its progeny, cannot question that person in an accusatory manner.
(c) Plaintiffs and the City agree that NYPD officers must have a "founded suspicion" of criminal activity, as defined in People v. De Bour, 40 N.Y.2d 210 (1976) and its progeny, in order to ask any person in or around a NYCHA residence pointed or accusatory questions that would cause a person to reasonably believe that he or she is suspected of a crime, but officers may not ask such questions in a manner that would cause a reasonable person to believe that he or she cannot terminate the encounter and walk away.
(d) Plaintiffs and the City agree that NYPD officers must have a "reasonable suspicion" of criminal activity in order to stop and/or detain any person in or around a NYCHA residence such that a reasonable person would believe that he or she cannot terminate the encounter and walk away.
(e) Plaintiffs and the City agree that NYPD officers must have "probable cause" of criminal activity in order to arrest any person in or around a NYCHA residence.
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7. The Parties agree that it is imperative to have rules, policies, and procedures to prevent NYCHA residents and their authorized guests from being subjected to a request for information without objective credible reasons, accusatory questions without founded suspicion that criminal activity is afoot, stops or detentions without reasonable suspicion, or arrests without probable cause.
8. The Parties agree that proper and sufficient training, supervision, monitoring, and disciplining of NYPD officers are necessary to prevent unlawful stops and arrests in or around NYCHA residences.
D. REVISIONS TO NYPD PATROL GUIDE 1. Plaintiffs and the City have extensively negotiated the terms of PG 212-60 and have agreed to revisions that will promote constitutional interactions between NYPD officers and persons encountered during interior patrols in NYCHA residences. 2. The revised version of PG 212-60, to which both Plaintiffs and the City agree, is attached as Exhibit C to this Stipulation. E. REVISIONS TO CERTAIN NYPD TRAINING MATERIALS 1. Plaintiffs and the City have extensively negotiated the terms of the NYPD training materials regarding trespass enforcement in NYCHA residences and enforcement of NYCHA House Rules and have agreed to revisions that will aid in training NYPD officers to engage in constitutional interactions while in or around NYCHA residences and/or while performing interior patrols in or around NYCHA residences. 2. The revised versions of the "Basic Recruit Course Lesson Plan on Patrol Operations/Interior Patrols" and "NYCHA Rules, Regulations, and Signage Lesson Plan,'' to which both Plaintiffs and the City agree, are attached as Exhibits D and E, respectively, to this Stipulation.
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F. TREPASS CRIME FACT SHEET 1. Plaintiffs and the City agree that the NYPD's Trespass Crime Fact Sheet form (PD 351-144) should be completed by NYPD officers, prior to arraignment, any time they effect an arrest for trespass in or around a NYCHA residence. 2. The revisions to the Trespass Crime Fact Sheet, to which both Plaintiffs and the City agree, are attached as Exhibit F to this Stipulation.
G. REVISIONS TO NYCHA'S HOUSE RULES 1. Plaintiffs and NYCHA have negotiated revisions to the terms of the House Rules regarding cooperation with NYPD inquiries and the prohibition against lingering. 2. The revisions to the House Rules, to which both Plaintiffs and NYCHA agree, are attached as Exhibit G to this Stipulation. H. PARTICIPATION IN COURT-ORDERED MONITORING 1. Plaintiffs and the City stipulate that changes to the NYPD's practices related to trespass enforcement in or around NYCHA residences, including training, supervision, monitoring and discipline of officers, will be addressed as part of the Court-Ordered Monitoring ordered by the Court in the Floyd Remedies Opinion, except with respects to Exhibits C, D, E, F, and G, which were discussed in Sections D, E, F, and G above. 2. Plaintiffs and the City stipulate that the Court-Ordered Monitoring will address arrests for criminal trespass, as well as trespass stops, and any training, supervision, monitoring or discipline issues that relate to trespass enforcement in or around NYCHA residences that would otherwise be a part of the remedies in the above-captioned action. 3. Plaintiffs and the City stipulate that, for purposes of resolving Plaintiffs' claims in the above-captioned action, the Court-Ordered Monitoring related to trespass enforcement in or around NYCHA residences will be identical to the Court Ordered Monitoring
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in the Floyd Remedies Opinion, including the duration of the Court-Ordered Monitoring. The Parties further stipulate that after an additional two years of Court oversight after termination of the Court-Ordered Monitoring, and assuming continued Substantial Compliance, Plaintiffs will not oppose a City Motion to terminate this Stipulation.
4. The Parties stipulate that following the Final Approval Date and the Dismissal Date, the Parties will jointly request that this case be transferred by the Effective Date to the Honorable Analisa Torres for oversight of the remedies set forth in Sections D, E, F, G and Hof this Stipulation pursuant to Paragraph N.3 herein.
5. Plaintiffs and the City stipulate that, after this case has been transferred to the Honorable Analisa Torres, Plaintiffs and the City will jointly request that the Court endorse a Stipulation and Order to incorporate, in full, the terms and provisions of the Floyd Remedies Opinion into the above-captioned case, including the duties of the Monitor, for the purpose of enforcing the Stipulation as it pertains to reforms to the NYPD's practices that relate to trespass enforcement in or around NYCHA residences, including training, supervision, monitoring and discipline of officers.
6. The Parties stipulate that any Orders issued by the Honorable Analisa Torres arising from the recommendations of the Court-Ordered Monitoring pertaining to the above-captioned action will be adopted and have full force in the above-captioned action.
7. Plaintiffs and the City stipulate that the terms of the City's Substantial Compliance with respect to the reforms required by this Stipulation will be pursuant to Paragraphs B.21 and H.3 herein.
I. INDIVIDUAL DAMAGES CLAIMS AGAINST DEFENDANT CITY 1. The City has agreed to pay a total of $270,000 to settle the Named
Plaintiffs' individual damages claims. 11

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2. The Plaintiffs and City agree that each Named Plaintiff will sign and execute a Stipulation of Settlement and Order of Dismissal, a General Release, and an Affidavit Regarding Status of Liens. The failure of an individual plaintiff to execute any of the aforementioned documents will result in non-payment of damages to that Named Plaintiff, but will not otherwise affect the operation of this Stipulation or the rights of any other Named Plaintiff or Class Members.
J. ATTORNEYS' FEES AND COSTS FROM DEFENDANT CITY 1. The City has agreed to pay attorneys' fees totaling $2,487,481.50 and
costs totaling $464,242.64 to Class Counsel for all attorney time and expenses incurred through September 30, 2014.
2. The City shall pay reasonable attorneys' fees and costs to Class Counsel based upon agreed hourly rates for time spent to date from October 1, 2014, until the date of the transfer to the Honorable Analisa Torres. Class Counsel shall submit invoices for their time and costs. Any disputes over fees and costs shall be adjudicated by the Court.
3. Plaintiffs' receipt of attorneys' fees and costs incurred in connection with the Court-Ordered Monitoring will be subject to Court approval. The City reserves its rights to object to any application for such fees and costs.
K. INDIVIDUAL DAMAGES FROM DEFENDANT NYCHA 1. NYCHA has agreed to pay damages to the Named Resident Plaintiffs totaling $25,000.00 to settle their individual claims. 2. The Plaintiffs and NYCHA agree that each Named Resident Plaintiff will sign and execute a Stipulation of Settlement and Order of Dismissal, a General Release, and an Affidavit Regarding Status of Liens. The failure of an individual plaintiff to execute any of the aforementioned documents will result in non-payment of damages to that Named Resident
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Plaintiff, but will not otherwise affect the operation of this Stipulation or the rights of any other Named Resident Plaintiff or the Class Members.
L. NYPD DOCUMENT MAINTENANCE AND DISCLOSURE 1. The NYPD shall maintain, consistent with NYPD procedures and, if applicable, any modifying orders by the Court, all records that document its compliance with the remedies set forth in Sections D, E, F, G, and Hof this Stipulation. 2. The NYPD shall maintain all files regarding any investigation of misconduct relating to any complaint pertaining to a stop and/or arrest for suspicion of trespass on NYCHA property, as well as all disciplinary files maintained in conjunction therewith, as required by current regulations of the City and the NYPD, and, if applicable, any modifying orders by the Court. 3. The City shall disclose to Class Counsel and the Monitor during the CourtOrdered Monitoring any information related to the Court-Ordered Monitoring that the Monitor determines should be disclosed to Class Counsel, and such information shall be disclosed at intervals determined by the Monitor.
M. CLASS NOTICE 1. The Parties shall cause to be published a notice to Class Members in the form attached hereto as Exhibit H. Such notice shall be published in the New York Daily News, the New York Post, the Amsterdam News, and El Diario three times within the same two-week period, or as otherwise ordered by the Court, and shall be posted conspicuously in central locations in all NYCHA residential buildings. 2. Costs of publication of notice shall be borne by the City.
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N. EFFECT OF THE SETTLEMENT STIPULATION ON THE PENDING ACTION
1. Plaintiffs will take all necessary and appropriate steps to obtain approval of this Stipulation and dismissal of the above-captioned action with prejudice. If the Court approves this Stipulation, and if there is an appeal from such decision, Defendants will join Plaintiffs in defense of the Stipulation.
2. On or after the Final Approval Date, the District Court will dismiss the above-captioned action, with prejudice and without costs, expenses, or fees in excess of the amount authorized by the Court or agreed upon by the Parties in accordance with Paragraphs B. 7 and Section J herein.
3. Subsequent to dismissal of this action with prejudice, the District Court shall retain jurisdiction for purposes of monitoring and ensuring compliance with Sections D, E, F, G, and H of this Stipulation and pursuant to Paragraph H.4. herein. The District Court shall also retain jurisdiction over this action for the purpose of adopting any orders resulting from the Court-Ordered Monitoring and enforcing compliance with any other terms and provisions of this Stipulation pursuant to Paragraph H.6 herein.
4. The terms of this Stipulation shall be a full, final, and complete resolution of this action.
5. The Parties reserve their right to appellate review of the Court's decisions concerning compliance under the Stipulation, as governed by applicable law.
0. DISPUTE RESOLUTION 1. At any time prior to the expiration of this Stipulation, should the Class Representatives and/or Class Members determine that either and/or both of Defendants failed to comply with any term of the Stipulation, Class Counsel shall forward written notifications of
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such non-compliance to the Deputy Commissioner of Legal Matters of the NYPD, General Counsel ofNYCHA, and to the Office of the Corporation Counsel.
2. Should the Defendant, whom Class Representatives and/or Class Members contend has failed to comply with any term of the Stipulation, agree that it has not complied with the specified term(s), that Defendant shall specifically perform said term(s) within a reasonable period of time, to be mutually agreed upon through the good faith efforts of the Parties and their counsel.
3. Should the Defendant, whom Class Representatives and/or Class Members contend has failed to comply with any term of the Stipulation, dispute the determination of noncompliance by the Class Representatives and/or Class Members, or ifthe Parties cannot agree on a time frame within which that Defendant is to perform an obligation with which it agrees it has not complied, or in the event that Defendant fails to perform an obligation it has agreed to perform in accordance with the provisions of Paragraph 0.2 above, Class Representatives and/or Class Members may apply to the Court for an order directing specific performance of that term or terms. Class Representatives and/or Class Members cannot make such an application before thirty (30) days after the initial notification of non-compliance to the NYPD, NYCHA, and the Office of the Corporation Counsel.
4. In no event shall any of the Defendants be adjudged in contempt for proven non-compliance with any of the terms or provisions of this Stipulation, unless and until the Defendants fail to comply with an order from the Court directing specific performance of such terms or provisions, obtained by the Class Representatives and/or Class Members in compliance with the provisions of Section 0 herein.
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P. RELEASE 1. The Stipulation, as of the Effective Date, resolves in full any and all claims or rights of action against the Defendants and their predecessors, successors, or assignees together with past, present and future officials, employees, representatives, and agents of the NYPD, NYCHA, and the City of New York (the "Released Persons"), by any Plaintiffs and/or Class Members, including Class Representatives, contained in and/or arising from the Complaint and Amended Complaint in this action, and any other claims or rights of action that Plaintiffs and/or Class Members, including Class Representatives, may have based upon or arising from any alleged policy, pattern, or practice of unconstitutionality in the trespass stop, question, frisk, and arrest practices of the NYPD, and the alleged unreasonable terms and conditions of NYCHA's House Rules, that could have been raised at this time in this action and for which the Class Representatives had standing to raise when filing the Complaint and Amended Complaint, with the exception of individual damages claims for which separate Stipulations will be required pursuant to Paragraphs 1.2 and K.2 herein. 2. As of the Effective Date, Plaintiffs and/or Class Members, including the Class Representatives, hereby release and waive any and all claims and rights to pursue, initiate, prosecute or commence any and all causes of action, claims, damages, awards, equitable, legal and administrative relief, interest, demands or rights, before any court, administrative agency or other tribunal, or to file any complaint with regard to acts of commission or omission by the Released Persons related to, connected with, arising out of, or based upon, the allegations contained in, or arising from, the Complaint and Amended Complaint in this action for which the Class Representatives had standing to raise when filing the Complaint and Amended Complaint, with the exceptions of individual damages claims, for which separate Stipulations will be required pursuant to Paragraphs 1.2 and K.2 herein.
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3. This Stipulation does not affect the rights of an individual Class Member to bring individual damages claims against Defendants for what they believe is a violation of their rights, including any claims related to, connected with, arising out of, or based upon the allegations contained in or arising from the Complaint and Amended Complaint in this action.
4. This release will be, and may be, raised as a complete defense to and will preclude any action or proceeding encompassed by the release of the Released Persons subject to Paragraph P.3 above.
Q. APPLICATION AND PARTIES BOUND 1. Each Plaintiff and/or Class Member, including the Class Representatives, shall be deemed to have submitted to the jurisdiction of this Court. 2. This Stipulation applies to, and is binding upon, the Plaintiffs and/or Class Members, including the Class Representatives, Defendants, and their officers, agents, employees, successors, and assigns: This Stipulation is enforceable only by the Plaintiffs and/or Class Members, including the Class Representatives, and Defendants. The undersigned representatives of the Plaintiffs and/or Class Members, including the Class Representatives, certify that they are authorized to enter into and consent to the terms and conditions of the Stipulation and to execute and legally bind the Plaintiffs and/or Class Members, including the Class Representatives, to the Stipulation. R. MODIFICATION OF THE SETTLEMENT STIPULATION AND ORDER 1. This Stipulation represents the entire agreement among the Parties, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, or to determine the meaning of any provisions herein. This Stipulation can be modified only on the written consent of all the Parties.
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S. NOTIFICATION OF PARTIES UNDER
THE SETTLEMENT STIPULATION AND ORDER
1. All notices contemplated by this Stipulation, other than notice to the class

pursuant to Section M, shall be delivered by hand and by email as follows:

Jin Hee Lee NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 Tel: (212) 965-3702 j lee@naacpldf.org

Muriel Goode-Trufant Chief, Special Federal Litigation New York City Law Department Office of the Corporation Counsel 100 Church Street New York, NY 10007 Tel. (212) 356-3500 mgoodetr@law.nyc.gov

Elana R. Beale Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel: (212) 373-3740 ebeale@paulweiss.com

David Farber General Counsel New York City Housing Authority 250 Broadway, 9th Floor New York, NY 10007 Tel. (212) 776-5184 david.farber@nycha.nyc.gov

William Gibney The Legal Aid Society of New York 199 Water Street, 6th Floor New York, NY 10038 Tel: (212) 577-3419 WDGibney@legal-aid.org

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T. NULLIFICATION l. This Stipulation is null and void in the event that any of the following do

not occur:

a. Preliminary Approval of this Stipulation by the Court; or

h. Final Approval by the Court; or

c. Dismissal of this action with prejudice after Final Approval by the

or

d. Transfer of the above-captioned action to the Honorable Analisa

Torres for purposes described in Parugraph N.3 herein; or

e. Failure to secure the Honorable Analisa Torres's approval and

endorsement of the Proposed Stipulation and Order, attached as

Exhibit I to this Stipulation, or a Stipulation and Order that is

substantially and materially the same as Exhibit I.

Dated:

New York, NY

January 7, 2015
She.

Director Counsel Janai Nelson Christina Swarns Jin Hee Lee Rachel Kleinman NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 Tel: (212) 965-2200 Fax: (212) 226-7592

Zachary W. Carter Corporation Counsel of the City of New York Brenda E. Cooke Muriel Goode-Trufant NEW YORK CITY LAW DEPARTMENT I00 Church Street New York, New York 10007
Tel: (212) 356-2344 Fax: (2 l 2) 35 6-3509
Allorneys for Defendant City ofNew York

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CCaassee11::1100--ccvv--0000669999-S-AATS--HHBBPP DDooccuummeenntt 330 Filed 02/04/15 Page 20 of 20

( f.!, >4-r- -11J2j
Seymour James
Attorney-in-Chief
William Gibney
Steven W assetn1Bn
Tiffi LEGAL AID SOCIETY OF NEW YORK
l 99 Water Street, 6th Floor
New York. NY 10038
Tel: (212) 577-3419
Fax: (212) 509-81

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Da'id Farber

NEW YORK CITY HOllSlNU

250

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New Yost. NY \000'1

Tet (212) 776-Sll-4

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Awltorily

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Michele Hirshman
Erin E. Elmouji Elana R. Beale
PAUL, WEISS, RIFKIND. WHARTON & GARRISON LLP l 285 Avenue of the Americas New York. NY 10019-6064 Tel: C212) 373-3000 Fax: (212) 492-0740
Attorneys/or the Plain1ijfClass and lndMdual PlaintiffClass Representatives

I
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------

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Case 1:10-cv-00699-SAATS-H-HBBPP DDocoucmumenetn3t 302-21-2 FiFleilded020/10/40/71/515 PPagaege11ofo1f 440
EXHIBIT A

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UNITED STATES DISTRlCT COURT SOUTHERN DISTRICT OF NEW YORK
,------------------------------------------------------- 
DAVID FLOYD, et al., Plaintiffs,
- against CITY OF NEW YORK,
Defendant.
-------------------------------------------------------- 

OPINION AND ORDER 08 Civ. 1034 (SAS)

JAENEAN LIGON, et al., Plaintiffs,
- against CITY OF NEW YORK, et al.,
Defendants.
-------------------------------------------------------- 

12 Civ. 2274 (SAS)

$HIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION
In an Opinion issued today 1 found the City of New York liable in the Floyd case for violating the Fourth and Fourteenth Amendment rights of the plaintiff class because of the way the New York City Police Department ("NYPD") has conducted stops and frisks over the past decade (the " Liability Opinion"). In an Opinion issued in January 2013 , I found that the Ligon plaintiffs, representing a putative class of people stopped outside buildings participating in
1

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the Trespass Affidavit Program (“TAP”) in the Bronx, were entitled to preliminary injunctive relief based on violations of their Fourth Amendment rights.
The purpose of this Opinion (the “Remedies Opinion”) is to determine what remedies are appropriate in these cases. I address both cases in one Opinion because the remedies necessarily overlap. Each requires that the NYPD reform practices and policies related to stop and frisk to conform with the requirements of the United States Constitution. I stress, at the outset, that the remedies imposed in this Opinion are as narrow and targeted as possible. To be very clear: I am not ordering an end to the practice of stop and frisk. The purpose of the remedies addressed in this Opinion is to ensure that the practice is carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much needed police protection. II. REMEDIES IN FLOYD
A. The Court Has the Power to Order Broad Equitable Relief 1. Plaintiffs Satisfied the Requirements for a Permanent Injunction Plaintiffs seeking a permanent injunction must demonstrate: (1) that they have
suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiffs and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.1 Plaintiffs may satisfy the first two factors by demonstrating that they are likely to be deprived of their constitutional rights in the future by the

1

See World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155,

160–61 (2d Cir. 2012) (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

2

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acts they seek to have enjoined.2 The evidence discussed in the Liability Opinion shows that
plaintiffs have suffered violations of their Fourth and Fourteenth Amendment rights, and that the
prevalence of the practices leading to those violations creates a likelihood of future injury.3
Thus, plaintiffs have satisfied the first two requirements for obtaining permanent injunctive
relief.
The balance of hardships tilts strongly in favor of granting a permanent injunction
in Floyd. That is, the burden on the plaintiff class of continued unconstitutional stops and frisks
far outweighs the administrative hardships that the NYPD will face in correcting its
unconstitutional practices.4
The right to physical liberty has long been at the core of our nation’s commitment to respecting the autonomy and dignity of each person: “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”5

2

See New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir.

1989) (deprivation of constitutional rights “cannot be compensated by money damages”); New

York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 127 (2d Cir. 1998) (the “‘loss of

First Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))).

3

See Liability Opinion at Part V (conclusions of law); Floyd v. City of New York,

283 F.R.D. 153, 170 (S.D.N.Y. 2012) (citing National Cong. for Puerto Rican Rights, by Perez

v. City of New York, 75 F. Supp. 2d 154, 161 (S.D.N.Y. 1999) (later renamed Daniels)). See also

Floyd, 283 F.R.D. at 160, 178 (certifying plaintiffs’ class).

4

See Association of Surrogates & Supreme Court Reporters Within City of New

York v. State of New York, 966 F.2d 75, 79, modified on reh’g, 969 F.2d 1416 (2d Cir. 1992)

(noting that “state budgetary processes may not trump court-ordered measures necessary to undo

a federal constitutional violation,” provided that the equitable relief is proportional to the

constitutional infraction).

5

Floyd, 283 F.R.D. at 158–59 (quoting Union Pac. R. Co. v. Botsford, 141 U.S.

250, 251 (1891)).

3

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Ensuring that people are not seized and searched by the police on the streets of New York City without a legal basis is an important interest meriting judicial protection.
Eliminating the threat that blacks and Hispanics will be targeted for stops and frisks is also an important interest. In addition to the significant intrusion on liberty that results from any stop, increased contact with the police leads to increased opportunities for arrest, even when the reason for the arrest was not the reason for the stop. As a result, targeting racially defined groups for stops — even when there is reasonable suspicion — perpetuates the stubborn racial disparities in our criminal justice system.6 Although the costs of complying with the permanent injunction in Floyd will be significant, they are clearly outweighed by the urgent need to curb the constitutional abuses described in the Liability Opinion.
With regard to the public interest, the City has expressed concern that interference in the NYPD’s stop and frisk practices may have a detrimental effect on crime control.7 However, as previously noted, I am not ordering an end to stop and frisk. Moreover, it has been widely reported that as the number of recorded stops has decreased over the past year, the crime

6

See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW 6–7 (2010) (“No other

country in the world imprisons so many of its racial or ethnic minorities. . . . In Washington,

D.C., . . . it is estimated that three out of four young black men (and nearly all those in the

poorest neighborhoods) can expect to serve time in prison.”). Another collateral consequence of

stops was highlighted in the recently settled case of Lino v. City of New York, No. 106579/10,

2011 WL 2610501 (Sup. Ct. N.Y. Co. June 24, 2011), in which the NYPD agreed to purge

personal information from its stop database. Plaintiffs — including named plaintiff Clive Lino

— had alleged that the NYPD was using personal information from the stop database to conduct

criminal investigations. See John Caher, NYPD Agrees to Purge Stop-Frisk Databank, N.Y. L.J.,

August 8, 2013.

7

See 4/11/13 Defendant[’s] Memorandum of Law in Opposition to Plaintiffs’

Requested Injunctive Relief (“Def. Inj. Mem.”) at 17–18.

4

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rate has continued to fall.8 The United States Department of Justice (“DOJ”) has pointed out that “there is significant evidence that unlawfully aggressive police tactics are not only unnecessary for effective policing, but are in fact detrimental to the mission of crime reduction.”9 By strictly adhering to the rule of law, the NYPD will achieve greater cooperation between police officers and the communities they serve. Fostering trust in the police will “promote, rather than hinder, [the] NYPD’s mission of safely and effectively fighting crime.”10
Furthermore, as in Ligon, it is “‘clear and plain’” that the public interest in liberty and dignity under the Fourth Amendment, and the public interest in equality under the Fourteenth Amendment, trumps whatever modicum of added safety might theoretically be gained by the NYPD making unconstitutional stops and frisks.11 This Opinion does not call for the NYPD to abandon proactive policing and return to an earlier era of less effective police practices. Rather, the relief ordered below requires the NYPD to be even more proactive:

8

See, e.g., Tamer El-Ghobashy & Michael Howard Saul, New York Police Use of

Stop-and-Frisk Drops: Plummet in Disputed Tactic Tracks Overall Decrease in Crime, WALL

ST. J., May 6, 2013 (noting that UF-250s fell 51% in the first three months of 2013 compared to

2012, while crime fell 2.7% and murders fell 30% through April 28 compared to 2012). I note,

however, that the number of unrecorded stops may have increased over the same period as a

result of misleading training at the NYPD’s new stop and frisk refresher course at Rodman’s

Neck. See Liability Opinion at Part IV.C.5 (citing, inter alia, 4/25 Trial Transcript (“Tr.”) at

5119–5124 (Shea)); Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 628534, at *38

(S.D.N.Y. Feb. 14, 2013).

9

6/12/13 Statement of Interest of the United States (“DOJ Inj. Mem.”) at 10. See

id. at 10–11 (collecting sources).

10 Id. at 10. Even NYPD Commissioner Raymond Kelly has recognized that the misuse of stop and frisk can contribute to community mistrust. In 2000, he criticized “dubious stop-and-frisk tactics” instituted after his first period as Police Commissioner that had “sowed new seeds of community mistrust.” Kevin Flynn, Ex-Police Head Criticizes Strategies, N.Y. TIMES, Apr. 5, 2000.

11 Cf. Ligon, 2013 WL 628534, at *40–41.

5

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proactive not only about crime control and prevention, but also about protecting the constitutional rights of the people the NYPD serves. The public interest will not be harmed by a permanent injunction requiring the NYPD to conform its practices to the Constitution.
2. The Court’s Broad Authority to Enter Injunctive Relief “[T]he scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”12 At the same time, it is “‘the essence of equity jurisdiction’ that a court is only empowered ‘to grant relief no broader than necessary to cure the effects of the harm caused by the violation.’”13 “Discretion to frame equitable relief is limited by considerations of federalism, and remedies that intrude unnecessarily on a state’s governance of its own affairs should be avoided.”14 Nevertheless, as the DOJ notes, “courts have long recognized — across a wide range of institutional settings — that equity often requires the implementation of injunctive relief to correct unconstitutional conduct, even where that relief relates to a state’s administrative practices.”15 “Courts . . . must not shrink from their obligation to enforce the constitutional
12 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971). Accord Association of Surrogates, 966 F.2d at 79 (“[F]ederal courts have broad discretion in fashioning equitable remedies for . . . constitutional violations.”).
13 City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 144 (2d Cir. 2011) (quoting Forschner Grp., Inc. v. Arrow Trading Co., 124 F.3d 402, 406 (2d Cir. 1997)).
14 Association of Surrogates, 966 F.2d at 79. 15 DOJ Inj. Mem. at 7 (citing Brown v. Plata, 131 S. Ct. 1910 (2011); Brown v. Board of Educ., 349 U.S. 294 (1955)). See also id. at 7 n.3 (criticizing the City’s citation of inapposite cases “for the proposition that federal courts should decline to enter injunctive relief that requires operational changes to a State’s institutions”).
6

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rights of all persons.”16 This duty is not curtailed when constitutional violations arise in the context of law enforcement. Rather, where “there is a persistent pattern of police misconduct, injunctive relief is appropriate.”17
I have always recognized the need for caution in ordering remedies that affect the internal operations of the NYPD,18 the nation’s largest municipal police force and an organization with over 35,000 members.19 I would have preferred that the City cooperate in a joint undertaking to develop some of the remedies ordered in this Opinion.20 Instead, the City declined to participate, and argued that “the NYPD systems already in place” — perhaps with unspecified “minor adjustments” — would suffice to address any constitutional wrongs that

16 Plata, 131 S. Ct. at 1928 (citing Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam)) (quotation marks omitted). Accord Todaro v. Ward, 565 F.2d 48, 53–54 (2d Cir. 1977) (“‘[A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution.’” (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974))).

17 Allee v. Medrano, 416 U.S. 802, 815 (1974). Accord DOJ Inj. Mem. at 8–9 (collecting cases and noting that pursuant to statutory authorities “the United States has itself sought and secured the implementation of remedial measures to reform police misconduct in dozens of law enforcement agencies,” including measures that “directly address systemic deficiencies in the way officers conduct stops and searches”).

18 See, e.g., Patrolmen’s Benevolent Ass’n of City of New York, Inc. v. City of New York, No. 97 Civ. 7895 (SAS), 2000 WL 1538608, at *3–4 (S.D.N.Y. Oct. 18, 2000) (declining to impose injunction on the NYPD where doing so would have been “an undue intrusion into a matter of state sovereignty”).

19

See Def. Inj. Mem. at 1.

20 See 1/31 Tr. at 101; 1/28/13 Letter from Jonathan C. Moore et al., Counsel for Plaintiffs, to the Court (proposing collaborative procedure involving all the parties in Floyd, Ligon, and Davis, a court-appointed facilitator, and the views of major stakeholders). The City rejected this proposal. See 1/31 Tr. at 9–10.

7

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might be found.21 I note that the City’s refusal to engage in a joint attempt to craft remedies contrasts with the many municipalities that have reached settlement agreements or consent decrees when confronted with evidence of police misconduct.22
B. Equitable Relief Federal Rule of Civil Procedure 65(d) requires that “[e]very order granting an
injunction . . . must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required.”23 These specificity provisions are “‘no mere technical requirements,’” but were “‘designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a

21 6/12/13 Defendant’s Post-Trial Memorandum of Law (“Def. Mem.”) at 24–25. Accord Def. Inj. Mem. at 7–18. The City also argues that no remedy is required because improper stops can be addressed by individual suits for damages. See Def. Inj. Mem. at 6. The DOJ counters that if individual suits were an effective remedy for police misconduct, courts would not have found it necessary to impose injunctive relief in so many police misconduct cases. See DOJ Inj. Mem. at 9 & n.5 (also citing arguments from Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 354–57 (2000)). I note that individual suits for damages are particularly ineffective as a remedy for unconstitutional stops, where individuals often do not know what the basis for their stop was, and thus cannot know whether the stop lacked a legal basis or was influenced improperly by race. In addition, while the indignity of an unconstitutional stop is a serious harm, few of those stopped will be motivated to dedicate their time and resources to filing a lawsuit — especially where the standard for recovery may require proof of Monell liability.

22 See, e.g., Bailey v. City of Philadelphia, No. 10 Civ. 5952 (E.D. Pa. June 21, 2011) (consent decree in class action alleging unconstitutional stops and frisks of black and Hispanic men); DOJ Inj. Mem. at 9 (noting DOJ settlement agreements and consent decrees with dozens of law enforcement agencies nationwide). The City’s resistance to reform in this case may reflect a more general skepticism toward judicial interpretation of the Constitution and the limits it imposes on municipalities. See, e.g., Jill Colvin, Bloomberg Says Interpretation of Constitution Will “Have to Change” After Boston Bombing, POLITICKER (Apr. 22, 2013).

23

Fed. R. Civ. P. 65(d)(1).

8

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decree too vague to be understood.’”24 The specificity provisions also ensure “‘that the appellate court knows precisely what it is reviewing.’”25
Compliance with the prohibition on the incorporation of extrinsic documents is “‘essential,’ unless the enjoined party acquiesces to the extrinsic reference.”26 The City has not acquiesced to any extrinsic reference. Thus, while the sections below refer to NYPD documents that must be revised, the ordered relief is contained entirely within the four corners of this Opinion.27
1. Appointment of a Monitor to Oversee Reforms Because of the complexity of the reforms that will be required to bring the NYPD’s stop and frisk practices into compliance with the Constitution, it would be impractical for this Court to engage in direct oversight of the reforms. As a more effective and flexible alternative, I am appointing an independent monitor (the “Monitor”) to oversee the reform process. I have chosen Peter L. Zimroth to serve as Monitor. Mr. Zimroth, a partner in the New York office of Arnold & Porter, LLP, is a

24 Mickalis Pawn Shop, 645 F.3d at 143 (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974)).

25 Id. at 144 (quoting S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 241 (2d Cir. 2001)).

26 Eyewonder, Inc. v. Abraham, 293 Fed. App’x 818, 820 (2d Cir. 2008) (quoting Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000), and citing Perfect Fit Indus., Inc. v. Acme Quilting Co., 646 F.2d 800, 809 (2d Cir. 1981)). Accord Petrello v. White, 533 F.3d 110, 114 (2d Cir. 2008) (“Rule 65(d) ‘is satisfied only if the enjoined party can ascertain from the four corners of the order precisely what acts are forbidden’ or required.” (quoting Fonar Corp. v. Deccaid Servs., Inc., 983 F.2d 427, 430 (2d Cir. 1993))).

27
the DOJ.

The remedies ordered below are largely drawn from submissions by plaintiffs and

9

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former Corporation Counsel of the City of New York, and the former Chief Assistant District Attorney of New York County. In both of these roles, Mr. Zimroth worked closely with the NYPD. A graduate of Columbia University and Yale Law School — where he served as Editor in Chief of the Yale Law Journal — he also served as a law clerk on the Supreme Court of the United States and a federal prosecutor. He taught criminal law and criminal procedure as a tenured professor at the New York University School of Law.
Mr. Zimroth has also been appointed to many positions in public service. The Chief Judge of the New York Court of Appeals appointed him as one of three directors of New York’s Capital Defender Office. He has also served on the Mayor’s Committee on the Judiciary, and on the boards of two schools for children with special needs. He has been a member of the House of Delegates of the American Bar Association, the Executive Committee of the New York City Bar Association, and the Board of Directors of the Legal Aid Society.
It is within the power of a district court to order the appointment of a monitor to oversee judicially ordered reforms.28 The DOJ recommended the appointment of a monitor in this case, in the event that the Court found the City liable. Based on “decades of police reform efforts across the country,” the DOJ concluded that “the appointment of a monitor to guide implementation of . . . injunctive relief may provide substantial assistance to the Court and the parties and can reduce unnecessary delays and litigation over disputes regarding compliance.”29 In addition, the DOJ noted:
28 See, e.g., United States v. City of New York, 717 F.3d 72, 97 (2d Cir. 2013). 29 DOJ Inj. Mem. at 11. Accord 5/15 Tr. at 7435 (plaintiffs’ remedies expert Professor Samuel Walker testifying that if liability is found, the appointment of an independent monitor is “necessary”).
10

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[T]he experience of the United States in enforcing police reform injunctions teaches that the appointment of an independent monitor is a critically important asset to the court, the parties, and the community in cases involving patterns or practices of unlawful conduct by law enforcement officials. A court-appointed monitor in this case would help the Court ensure that . . . any pattern or practice . . . is effectively and sustainably remedied.30
The appointment of a monitor will serve the interests of all stakeholders, including the City, by
facilitating the early and unbiased detection of non-compliance or barriers to compliance. By
identifying problems promptly, the Monitor will save the City time and resources.31
I also note that the Monitor will have a distinct function from the other oversight
entities identified by the City, such as the NYPD’s Internal Affairs Bureau, federal prosecutors,
the Civilian Complaint Review Board, and “the public electorate.”32 The Monitor will be
specifically and narrowly focused on the City’s compliance with reforming the NYPD’s use of
stop and frisk — although this will inevitably touch on issues of training, supervision,
monitoring, and discipline. Finally, the Monitor will operate in close coordination with this

30

DOJ Inj. Mem. at 5.

31 See id. at 16 (“Without an independent monitor, the Court will be forced to depend on motions practice between the parties to assess progress; a costly, contentious, inefficient, and time-consuming process.”).

32 Id. at 18 (citing Def. Inj. Mem. at 13). In particular, as the DOJ notes, “it is not realistic to ask ‘the public electorate’ to monitor the police department to ensure that the department’s stop-and-frisk practices are consistent with the Constitution.” Id. at 20 (citing United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)). If it is true that 76% percent of black voters in New York City disapprove of stop and frisk, as found in a recent Quinnipiac University poll, then the persistence of this policy in heavily black communities might indicate the failure “of those political processes ordinarily to be relied upon to protect minorities,” and thus might justify “more searching judicial inquiry.” Carolene Prods., 304 U.S. at 152 n.4; Quinnipiac University, New Yorkers Back Ban on Take-Out Foam More Than 2-1, at 8 (Feb. 28, 2013), http://www.quinnipiac.edu/images/polling/nyc/nyc02282013.pdf/ (19% of blacks approve and 76% disapprove of “a police practice known as stop and frisk, where police stop and question a person they suspect of wrongdoing and, if necessary, search that person”).

11

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Court, which retains jurisdiction to issue orders as necessary to remedy the constitutional violations described in the Liability Opinion.33
I now specify the Monitor’s role and functions: 1. The Monitor will be subject to the supervision and orders of the Court. 2. The Monitor will not, and is not intended to, replace or assume the role or duties of any
City or NYPD staff or officials, including the Commissioner. The Monitor’s duties, responsibilities, and authority will be no broader than necessary to end the constitutional violations in the NYPD’s stop and frisk practices described in the Liability Opinion. 3. The Monitor’s initial responsibility will be to develop, based on consultation with the parties, a set of reforms of the NYPD’s policies, training, supervision, monitoring, and discipline regarding stop and frisk. These reforms (the “Immediate Reforms”) are outlined below in Part II.A.2. They will be developed as soon as practicable and implemented when they are approved by the Court. 4. After the completion of the Joint Remedial Process, described below in Part II.A.4, the Monitor will work with the Facilitator and the parties to develop any further reforms necessary to ending the constitutional violations described in the Liability Opinion. These reforms (“Joint Process Reforms”) will be implemented upon approval by the Court. 5. The Monitor will inform the City of the milestones the City must achieve in order to demonstrate compliance and bring the monitoring process to an end. 6. The Monitor will regularly conduct compliance and progress reviews to assess the extent
33 The Monitor’s role will also be distinct from the broad advisory role of the NYPD Inspector General envisioned in N.Y. City Council Introductory No. 1079 of 2013.
12

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to which the NYPD has implemented and complied with the Immediate and Joint Process Reforms. 7. The Monitor will issue public reports every six months detailing the NYPD’s compliance with the Immediate and Joint Process Reforms. The Monitor will also file these reports with the Court. 8. The Monitor will work with the parties to address any barriers to compliance. To the extent possible, the Monitor should strive to develop a collaborative rather than adversarial relationship with the City. 9. The Monitor may request the Court to modify the Immediate and Joint Process Reforms, if evidence shows that such modifications are warranted. 10. The Monitor may request technical assistance from outside experts. He may also employ staff assistance as he finds reasonable and necessary. 11. The City will be responsible for the reasonable costs and fees of the Monitor, his staff, and any experts he retains. 12. The Monitor’s position will come to an end when the City has achieved compliance with the Immediate and Joint Process Reforms.
2. Immediate Reforms Regarding Stop and Frisk Ending the constitutional violations inherent in the NYPD’s current use of stop and frisk will require reforms to a number of NYPD policies and practices. It would be unwise and impractical for this Court to impose such reforms at this time, prior to input from the Monitor and the participants in the Joint Remedial Process ordered below.34 Instead, as noted
34 In particular, the City has not yet provided input regarding specific reforms. See Def. Inj. Mem. at 18 (declining to offer a remedy “other than to respectfully direct the Court to
13

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above, the development of reforms will take place in two stages. First, the Monitor will develop, in consultation with the parties, an initial set of reforms to the NYPD’s policies, training, supervision, monitoring, and discipline regarding stop and frisk (the “Immediate Reforms”). These reforms will be developed and submitted to the Court as soon as practicable, and implemented when they are approved. Second, the Facilitator will work with the parties and other stakeholders to develop, through the Joint Remedial Process, a more thorough set of reforms (the “Joint Process Reforms”) to supplement, as necessary, the Immediate Reforms. The development of the Joint Process Reforms is discussed below in Part II.A.4.
If the parties, together with the Monitor, are unable to develop agreed-upon Immediate Reforms, the Court will order the parties to draft proposed revisions to specific policies and training materials, as the parties have already done quite effectively in Ligon.35 Indeed, the remedies proposed in Ligon may provide a useful model for some aspects of the Immediate Reforms.36
Based on the liability and remedies evidence presented at trial, the Immediate Reforms must include the following elements:
a. Revisions to Policies and Training Materials Relating to Stop and Frisk and to Racial Profiling
First, the NYPD should revise its policies and training regarding stop and frisk to adhere to constitutional standards as well as New York state law. The constitutional standards
the trial record for an assessment of the remedies evidence”); 6/12/13 Defendant’s Post-Trial Memorandum of Law at 24–25 (declining to propose remedies).
35 See 7/8/13 Defendants’ Proposed Remedial Relief (“Ligon Def. Rem.”). 36 See Ligon, 2013 WL 628534, at *41–44.
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include the standards for: what constitutes a stop, when a stop may be conducted, when a frisk
may be conducted, and when a search into clothing or into any object found during a search may
be conducted.37 Although the standards may sometimes require the informed use of discretion,
they are not complicated and should be stated in policies and training as clearly and simply as
possible.
To summarize: an encounter between a police officer and a civilian constitutes a
stop whenever a reasonable person would not feel free to disregard the officer and walk away.
The threat or use of force is not a necessary or even typical element of stops. Encounters
involving nothing more than commands or accusatory questions can and routinely do rise to the
level of stops, provided that the commands and questions would lead a reasonable person to
conclude that he was not free to terminate the encounter.38
In order to conduct a stop, an officer must have individualized, reasonable
suspicion that the person stopped has committed, is committing, or is about to commit a crime.
The officer must be able to articulate facts establishing a minimal level of objective justification
37 See Liability Opinion at Part III.B; Ligon, 2013 WL 628534, at *41–42. 38 There could be a simple way to ensure that officers do not unintentionally violate the Fourth Amendment rights of pedestrians by approaching them without reasonable suspicion and then inadvertently treating them in such a way that a reasonable person would not feel free to leave. Officers could, for example, begin De Bour Level 1 and 2 encounters by informing the person that he or she is free to leave. There is no constitutional requirement for officers to inform people that they are free to leave. Cf. Ohio v. Robinette, 519 U.S. 33, 35 (1996) (holding that the Fourth Amendment does not require “that a lawfully seized defendant must be advised that he is ‘free to go’ before his consent to search will be recognized as voluntary”); Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (“While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.”). Nevertheless, the Constitution does not prohibit a police department from adopting this policy or a court from ordering it as a means of avoiding unconstitutional stops, where — as here — officers have been incorrectly trained on the definition of a stop.
15

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for making the stop, which means more than an inchoate and unparticularized suspicion or hunch. “Furtive movements” are an insufficient basis for a stop or frisk if the officer cannot articulate anything more specific about the suspicious nature of the movement. The same is true of merely being present in a “high crime area.” Moreover, no person may be stopped solely because he matches a vague or generalized description — such as young black male 18 to 24 — without further detail or indicia of reliability.
To proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous. The purpose of a frisk is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. Thus, the frisk must be strictly limited to whatever is necessary to uncover weapons that could harm the officer or others nearby. When an officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity as contraband immediately apparent, the officer may seize the contraband. If an officer reasonably suspects that a felt object in the clothing of a suspect is a weapon, then the officer may take whatever action is necessary to examine the object and protect himself, including removing the object from the clothing of the stopped person.
The erroneous or misleading training materials identified in the Liability Opinion must be corrected, including the Police Student Guide’s overbroad definition of “furtive behavior;” the misleading training on “unusual firearms” implying that the presence of a wallet, cell phone, or pen could justify a frisk, or search; the complete lack of training on the constitutional standard for a frisk — reasonable suspicion that a stopped person is “armed and dangerous;” and the failure to include self-initiated stops (which make up 78% of street stops) in
16

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the role-playing at Rodman’s Neck.39 These training reforms will be in addition to those discussed below in the section of this Opinion relating to Ligon.40
Second, the NYPD should revise its policies and training regarding racial profiling to make clear that targeting “the right people” for stops, as described in the Liability Opinion, is a form of racial profiling and violates the Constitution.41 Racially defined groups may not be targeted for stops in general simply because they appear more frequently in local crime suspect data. Race may only be considered where the stop is based on a specific and reliable suspect description. When an officer carries out a stop based on reasonable suspicion that a person fits such a description, the officer may consider the race of the suspect, just as the officer may consider the suspect’s height or hair color. When a stop is not based on a specific suspect description, however, race may not be either a motivation or a justification for the stop. In particular, officers must cease the targeting of young black and Hispanic males for stops based on the appearance of these groups in crime complaints. It may also be appropriate to conduct training for officers on the effect of unconscious racial bias.
Third, it is unclear at this stage whether Operations Order 52 (“OO 52”), which describes the use of performance objectives to motivate officers, requires revision in order to bring the NYPD’s use of stop and frisk into compliance with the Fourth and Fourteenth Amendments. The evidence at trial showed that OO 52’s use of “performance goals” created pressure to carry out stops, without any system for monitoring the constitutionality of those

39 See Liability Opinion at Part IV.C.5.

40

See infra Part III.

41 See Liability Opinion at Parts IV.C.3, V.B.1.

17

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stops. However, the use of performance goals in relation to stops may be appropriate, once an effective system for ensuring constitutionality is in place.42 Because the perspective of police officers and police organizations will be particularly valuable to clarifying the role of performance goals in the reform of stop and frisk, these issues should be addressed as part of the Joint Remedial Process rather than the Immediate Reforms.
Finally, I note that where legitimate uncertainty exists regarding the most efficient means of reform, and the parties have differing views, it may be feasible for the Monitor to test the alternatives by applying them in different precincts and studying the results. In some contexts, the size of the NYPD makes it possible, and desirable, to resolve practical disagreements through the rigorous testing and analysis of alternatives at the precinct level before applying these reforms to the department as a whole.
b. Changes to Stop and Frisk Documentation Both the trial record and the Liability Opinion document, in detail, the inadequacy of the NYPD’s methods of recording Terry stops. The UF-250, used by officers in the field to
42 Plaintiffs’ policing expert Lou Reiter testified that “there are circumstances where productivity goals are consistent with generally accepted [police] practices.” 4/24 Tr. at 4917. The City’s policing expert, James K. Stewart, testified that performance goals are a necessary part of monitoring and supervision:
In policing, there are disincentives to engaging in some activities, because they are dangerous, they are in unsterile conditions and chaotic conditions, and the officers may not engage in that but yet spend their time on random patrol. They are not out there doing what the department wants them to do, but they do show up and they show up in uniform. The reason that . . . you have to count the activities is to ensure that those officers do respond . . . to the calls for assistance of help, they do address the community issues . . . . 5/17 Tr. at 7756.
18

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record the basis for stops, is flawed and must be revised.43 Officers are also required to record stop and frisk activity in memo books, otherwise known as activity logs. Quarterly audits of these memo book entries have revealed significant deficiencies in record keeping practices in virtually every precinct throughout the City.44 The proper use of activity logs to record stop and frisk activity must be emphasized in training, as well as enforced through supervision and discipline. I first address the UF-250 and then the activity logs.
i. UF-250 As described in the Liability Opinion, the current UF-250 consists mainly of checkboxes that officers can and often do check by rote,45 thus facilitating post-hoc justifications for stops where none may have existed at the time of the stop. The UF-250 must be revised to include a narrative section where the officer must record, in her own words, the basis for the stop. The narrative will enable meaningful supervisory oversight of the officer’s decision to conduct the stop, as well as create a record for a later review of constitutionality. As an independent monitor of the New Orleans Police Department (“NOPD”) recently noted, “the overwhelming belief of experts [is] that a narrative field in which the officers describe the circumstances for each stop would be the best way to gather information that will be used to analyze reasonable suspicion” and, relatedly, “prevent[] racially biased
43 See 5/16 Tr. at 7457 (Walker). 44 See Pl. Findings ¶ 197 (citing Plaintiffs’ Trial Exhibit (“PX”) 450; Defendant’s Trial Exhibit (“DX”) G6). 45 See, e.g., Liability Opinion at Part IV.B.2.
19

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policing.”46 The NOPD monitor noted that the City of Oakland recently revised its data collection system to include “a narrative field in which officers are required to state, in their own words, their basis for having reasonable suspicion for a stop.”47 The Oakland Police Department added this narrative field “because it was the best way to evaluate whether individual officers possessed the requisite reasonable suspicion for a Terry stop.”48 The Philadelphia Police Department has also included a narrative field in its stop form.49 Similarly, Professor Walker, a nationally recognized authority on police accountability, opined that a form for recording stops must contain a sufficiently detailed narrative that a reviewer can determine from the narrative alone whether the stop was based on reasonable suspicion.50
The UF-250 should also be revised to require a separate explanation of why a patdown, frisk, or search was performed. The evidence at trial revealed that people were routinely subjected to these intrusions when no objective facts supported reasonable suspicion that they were armed and dangerous. It is apparent that some officers consider frisks to be a routine part of a stop. Because this misconception is contrary to law, the revised UF-250 should include a separate section requiring officers to explain why the stopped person was suspected of being

46

SUSAN HUTSON, INDEPENDENT POLICE MONITOR, REVIEW OF THE NEW ORLEANS

POLICE DEPARTMENT’S FIELD INTERVIEW POLICIES, PRACTICES, AND DATA: FINAL REPORT 45

(Mar. 12, 2013) (footnote omitted).

47

Id. at 46.

48

Id.

49

See id.

50 See 5/16 Tr. at 7456–7458 (Walker). Professor Walker testified that a description of reasonable suspicion for a stop will generally require no more than three lines of text. See id. at 7458.

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armed and dangerous. Furthermore, both the DOJ and plaintiffs recommend that the UF-250 contain a
tear-off portion stating the reason for the stop, which can be given to each stopped person at the end of the encounter.51 A 2007 RAND report, commissioned by the NYPD, similarly recommended that “[f]or a trial period in select precincts, the NYPD could require that officers give an information card to those stopped pedestrians who are neither arrested nor issued a summons.”52 Any form or card given to stopped persons should provide the stated reasons for the stop, the badge numbers of the stopping officers, and information on how to file a complaint.
Finally, the UF-250 should be revised to simplify and improve the checkbox system used to indicate common stop justifications. It may also be necessary to reduce the number of “stop factor” boxes in order to permit easier analyses of patterns in the constitutionality of stops.53
In addition to changing the UF-250, officers should be further trained in its use. As discussed in the Liability Opinion, some officers check certain boxes (or combinations of boxes) reflexively as part of “scripts,” including “Furtive Movements” and “Area Has High

51 See Pl. Rem. Br. at 19 (citing Deborah Ramirez, Jack McDevitt & Amy Farrell, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned 38 (United States Department of Justice 2000), and noting that a tear-off form has been used in Great Britain for more than a decade).

52

GREG RIDGEWAY, RAND, ANALYSIS OF RACIAL DISPARITIES IN THE NEW YORK

POLICE DEPARTMENT’S STOP, QUESTION, AND FRISK PRACTICES 44 (2007), DX K6.

53 See Report of Jeffrey Fagan, Ph.D. (Oct. 15, 2010), PX 411 (“Fagan Rpt.”) at 49 (describing the analytical difficulties created by the number of possible combinations of stop factors and suspected crimes).

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Incidence of Reported Offense of Type Under Investigation.”54 Officers must understand that if
a stop is based on these factors, the officer must provide additional detail in the narrative field —
for example, what was the specific nature of the furtive movement, and why was it suspicious?
What was the geographic scope of the “high crime area,” and what was the officer’s specific
basis for believing it has a high incidence of the suspected crime?
ii. Activity Logs
All uniformed officers are required to provide narrative descriptions of stops in
their activity logs whenever a UF-250 is prepared.55 In practice, this does not take place.
Evidence at trial showed that throughout the class period, officers consistently failed to record
stops in their logs, or provided insufficient detail for a supervisor to meaningfully review the
constitutionality of the stop. This problem is best addressed through training, supervision, and
monitoring.56
54 Suspicious Bulge is another factor — albeit less often used than Furtive Movements and High Crime Area — that should require greater specificity or a narrative description.
55 See Operations Order 44 (9/11/08), PX 96. In addition, the Chief of Patrol recently directed all officers in the patrol borough to include nine categories of information in every activity log entry for a stop. The categories include: the date, time and location of the stop; the name and pedigree of the person stopped; the suspected felony or penal law misdemeanor; an explanation of the suspicion that led to the stop (such as “looking into windows,” or “pulling on doorknobs”); whether the suspect was frisked; the sprint or job number, if applicable; and the disposition of the stop. The Chief of Patrol’s memo also requires officers to elaborate the basis for a stop in the “Additional Circumstances/Factors” section of the UF-250, to photocopy every activity log entry for a stop, and to attach the photocopy to the UF250 before submitting it to a supervisor. See DX J13.
56 See infra Part II.B.2.c. I recognize the risk of inefficiency if officers record the same information on UF-250s and in their activity logs. Professor Walker argued in favor of requiring both, but also expressed concerns regarding inefficiencies. See 5/16 Tr. at 7458, 7480. If the parties can agree upon an improved procedure during the Joint Remedial Process described below, those improvements can be included in the Joint Process Reforms.
22

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iii. Specific Relief Ordered The NYPD, with the assistance of the Monitor, is directed to revise the UF-250 to address the criticisms expressed in the Liability Opinion and the direction given in this Opinion, and to provide training with respect to the new form. The NYPD is further ordered, again with the assistance of the Monitor, to ensure that activity logs are completed with the required specificity, and to implement measures to adequately discipline officers who fail to comply with these requirements.
c. Changes to Supervision, Monitoring, and Discipline An essential aspect of the Joint Process Reforms will be the development of an improved system for monitoring, supervision, and discipline. Professor Walker testified that comprehensive reforms may be necessary to ensure the constitutionality of stops, including revisions to written policies and training materials, improved documentation of stops and frisks, direct supervision and review of stop documentation by sergeants, indirect supervision and review by more senior supervisors and managers, improved citizen complaint procedures, improved disciplinary procedures, department-wide audits, and perhaps even an early intervention system based on a centralized source of information regarding officer misconduct. According to Professor Walker, “[a] comprehensive approach is absolutely essential, because if any one of the components is absent or weak and ineffective, the entire accountability system begins to collapse.”57
57 5/15 Tr. at 7440. The National Institute of Justice, which the City’s policing expert, James K. Stewart, directed from 1982 to 1990, notes that “the management and culture of a department are the most important factors influencing police behavior.” National Institute of Justice, Police Integrity, available at http://www.nij.gov/topics/lawenforcement/legitimacy/integrity.htm#note2. Ultimately, ending unconstitutionality in stop and frisk may require changing the culture of the NYPD so that officials and officers view their
23

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In light of the complexity of the supervision, monitoring, and disciplinary reforms that will be required to bring the NYPD’s use of stop and frisk into compliance with the Fourth and Fourteenth Amendments, it may be appropriate to incorporate these reforms into the Joint Remedial Process negotiations described below. However, to the extent that the Monitor can work with the parties to develop reforms that can be implemented immediately, the Monitor is encouraged to include those reforms in the proposed Immediate Reforms.
For example, based on the findings in the Liability Opinion, there is an urgent need for the NYPD to institute policies specifically requiring sergeants who witness, review, or discuss stops to address not only the effectiveness but also the constitutionality of those stops, and to do so in a thorough and comprehensive manner.58 To the extent that Integrity Control Officers witness or review stops, they too must be instructed to review for constitutionality.59 The Department Advocate’s Office must improve its procedures for imposing discipline in response to the Civilian Complaint Review Board’s (“CCRB”) findings of substantiated misconduct during stops. This improvement must include increased deference to credibility determinations by the CCRB, an evidentiary standard that is neutral between the claims of complainants and officers, and no general requirement of corroborating physical evidence. Finally, the Office of the Chief of Department must begin tracking and investigating complaints

purpose not only as policing effectively, but policing constitutionally as well. If so, the NIJ’s first recommendation for improving the integrity of a department is to “[a]ddress and discipline minor offenses so officers learn that major offenses will be disciplined too.” Id.

58 See Liability Opinion at Part IV.C.4.b.

59

See id.

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it receives related to racial profiling.60
d. FINEST Message
As soon as practicable, the NYPD should transmit a FINEST message explaining
the outcome of the Floyd litigation and the need for the reforms described above.61 The FINEST
message should summarize in simple and clear terms the basic constitutional standards
governing stop and frisk, the constitutional standard prohibiting racial profiling, and the relation
between these standards and New York state law. The message should order all NYPD
personnel to comply immediately with those standards.
3. Body-Worn Cameras
The subject of police officers wearing “body-worn cameras” was inadvertently
raised during the testimony of the City’s policing expert, James K. Stewart. The following
discussion took place:
A. . . . But what happens is the departments a lot of times may not have . . . expertise and they may need some technical assistance like body worn cameras is an example and how much technology and where you store the information and stuff like that. They may not have it. And there may be other issues like psychological ideas about — THE COURT: What do you think of body worn cameras? THE WITNESS: I think it’s a good idea. We recommended it in Las Vegas. And we’re doing it in Phoenix as well. THE COURT: Thank you. . . . A. But I have no opinion in this case with respect to body worn cameras.62

60

See id. at Part IV.C.6.

61 The NYPD’s “FINEST” messaging system allows the transmission of legal directives to the NYPD’s commands. See, e.g., 5/10/12 Finest Message Regarding Taxi/Livery Robbery Inspection Program, Ex. 1 to 7/24/13 Plaintiffs’ Brief Concerning Defendants’ Remedial Proposals (“Ligon Pl. Rem.”).

62

5/17 Tr. at 7817–7818.

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The use of body-worn cameras by NYPD officers would address a number of the issues raised in the Liability Opinion. In evaluating the constitutionality of individual stops, I explained the difficulty of judging in hindsight what happened during an encounter between a civilian and the police.63 The only contemporaneous records of the stops in this case were UF250s and short memo book entries — which were sometimes not prepared directly after a stop, and which are inherently one-sided. Thus, I was forced to analyze the constitutionality of the stops based on testimony given years after the encounter, at a time when the participants’ memories were likely colored by their interest in the outcome of the case and the passage of time. The NYPD’s duty to monitor stop and frisk activity is similarly hamstrung by supervisors’ inability to review an objective representation of what occurred.64
Video recordings will serve a variety of useful functions. First, they will provide a contemporaneous, objective record of stops and frisks, allowing for the review of officer conduct by supervisors and the courts. The recordings may either confirm or refute the belief of some minorities that they have been stopped simply as a result of their race, or based on the clothes they wore, such as baggy pants or a hoodie.65 Second, the knowledge that an exchange is being recorded will encourage lawful and respectful interactions on the part of both parties.66 Third, the recordings will diminish the sense on the part of those who file complaints that it is

63 See Liability Opinion at Part IV.D.

64

See id. at Part IV.C.4.

65 By creating an irrefutable record of what occurred during stops, video recordings may help lay to rest disagreements that would otherwise remain unresolved.

66 If, in fact, the police do, on occasion, use offensive language — including racial slurs — or act with more force than necessary, the use of body-worn cameras will inevitably reduce such behavior.

26

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their word against the police, and that the authorities are more likely to believe the police.67 Thus, the recordings should also alleviate some of the mistrust that has developed between the police and the black and Hispanic communities, based on the belief that stops and frisks are overwhelmingly and unjustifiably directed at members of these communities. Video recordings will be equally helpful to members of the NYPD who are wrongly accused of inappropriate behavior.
Because body-worn cameras are uniquely suited to addressing the constitutional harms at issue in this case, I am ordering the NYPD to institute a pilot project in which bodyworn cameras will be worn for a one-year period by officers on patrol in one precinct per borough — specifically the precinct with the highest number of stops during 2012. The Monitor will establish procedures for the review of stop recordings by supervisors and, as appropriate, more senior managers. The Monitor will also establish procedures for the preservation of stop recordings for use in verifying complaints in a manner that protects the privacy of those stopped. Finally, the Monitor will establish procedures for measuring the effectiveness of body-worn cameras in reducing unconstitutional stops and frisks. At the end of the year, the Monitor will work with the parties to determine whether the benefits of the cameras outweigh their financial, administrative, and other costs, and whether the program should be terminated or expanded. The City will be responsible for the costs of the pilot project.
It would have been preferable for this remedy to have originated with the NYPD, which has been a leader and innovator in the application of technology to policing, as Compstat illustrates. Nevertheless, there is reason to hope that not only civilians but also officers will
67 See Liability Opinion at Part IV.C.6. 27

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benefit from the use of cameras. When a small police department in Rialto, California introduced body-worn cameras, “[t]he results from the first 12 months [were] striking. Even with only half of the 54 uniformed patrol officers wearing cameras at any given time, the department over all had an 88 percent decline in the number of complaints filed against officers, compared with the 12 months before the study.”68 While the logistical difficulties of using bodyworn cameras will be greater in a larger police force, the potential for avoiding constitutional violations will be greater as well.
4. Joint Remedial Process for Developing Supplemental Reforms A community input component is increasingly common in consent decrees and settlements directed at police reform.69 The DOJ has recognized the importance of community input in its recent consent decrees and other agreements with police departments.70 The landmark Collaborative Agreement approved in 2002 by Judge Susan J. Dlott of the Southern District of Ohio as the settlement of class claims against the Cincinnati Police Department has been widely recognized as a successful model for other police reform.71 Although the remedies in this Opinion are not issued on consent and do not arise
68 Randall Stross, Wearing a Badge, and a Video Camera, N.Y. TIMES, Apr. 7, 2013, at BU4.
69 See 5/16 Tr. at 7521 (Walker). 70 See Memorandum of Law in Support of Plaintiffs’ Request for Injunctive Relief (“Pl. Inj. Mem.”) at 15 (collecting agreements). 71 See In re Cincinnati Policing, 209 F.R.D. 395, 397 (S.D. Ohio 2002) (discussing development of Collaborative Agreement through a collaborative procedure); Tyehimba v. City of Cincinnati, No. C-1-99-317, 2001 WL 1842470 (S.D. Ohio May 3, 2001) (“Order Establishing Collaborative Procedure”); Pl. Inj. Mem. at 14; GREG RIDGEWAY ET AL., POLICECOMMUNITY RELATIONS IN CINCINNATI (2009).
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from a settlement, community input is perhaps an even more vital part of a sustainable remedy in this case. The communities most affected by the NYPD’s use of stop and frisk have a distinct perspective that is highly relevant to crafting effective reforms. No amount of legal or policing expertise can replace a community’s understanding of the likely practical consequences of reforms in terms of both liberty and safety.
It is important that a wide array of stakeholders be offered the opportunity to be heard in the reform process: members of the communities where stops most often take place; representatives of religious, advocacy, and grassroots organizations; NYPD personnel and representatives of police organizations; the District Attorneys’ offices; the CCRB; representatives of groups concerned with public schooling, public housing, and other local institutions; local elected officials and community leaders; representatives of the parties, such as the Mayor’s office, the NYPD, and the lawyers in this case; and the non-parties that submitted briefs: the Civil Rights Division of the DOJ, Communities United for Police Reform, and the Black, Latino, and Asian Caucus of the New York City Council.
If the reforms to stop and frisk are not perceived as legitimate by those most affected, the reforms are unlikely to be successful.72 Neither an independent Monitor, nor a municipal administration, nor this Court can speak for those who have been and will be most affected by the NYPD’s use of stop and frisk.73 The 2007 RAND report, relied on by the City at
72 Cf. 5/16 Tr. at 7522 (Professor Walker discussing the legitimacy of reforms). As a general matter, police departments “depend upon public confidence, public trust, and public cooperation.” Id. at 7520. This principle applies no less in the context of stop and frisk.
73 Cf. United States v. City of Los Angeles, 288 F.3d 391, 404 (9th Cir. 2002) (remanding to the district court for a hearing on the permissive intervention of community groups in a DOJ lawsuit against the Los Angeles Police Department, and emphasizing the importance of not “marginalizing those . . . who have some of the strongest interests in the
29

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trial, recognized the importance of “ongoing communication and negotiation with the community about [stop and frisk] activities” to “maintaining good police-community relations.”74 It is surely in everyone’s interest to prevent another round of protests, litigation, and divisive public conflicts over stop and frisk.
Drawing on this Court’s broad equitable powers to remedy the wrongs in this case,75 I am ordering that all parties participate in a joint remedial process, under the guidance of a Facilitator to be named by the Court. I hereby order the following specific relief: 1. All parties shall participate in the Joint Remedial Process for a period of six to nine
months to develop proposed remedial measures (the “Joint Process Reforms”) that will supplement the Immediate Reforms discussed above. The Joint Process Reforms must be no broader than necessary to bring the NYPD’s use of stop and frisk into compliance with the Fourth and Fourteenth Amendments. 2. The Joint Remedial Process will be guided by the Facilitator, with such assistance as the Facilitator deems necessary and in consultation with the Monitor. 3. The initial responsibility of the Facilitator will be to work with the parties to develop a time line, ground rules, and concrete milestones for the Joint Remedial Process. The Cincinnati Collaborative Procedure and subsequent DOJ consent decrees and letters of

outcome”).

74

RAND Report at 44.

75 The equitable power of district courts to order processes involving community input is well-established. See, e.g., United States v. Yonkers Bd. of Educ., 635 F. Supp. 1538, 1545 (S.D.N.Y. 1986), aff’d, 837 F.2d 1181 (2d Cir. 1987) (ordering the Yonkers public school system to organize “community meetings with minority groups and organizations to solicit support and assistance in the dissemination of magnet program availability”); Pl. Inj. Mem. at 11–13 (collecting cases and scholarship).

30

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intent may be used as models.76 4. At the center of the Joint Remedial Process will be input from those who are most
affected by the NYPD’s use of stop and frisk, including but not limited to the people and organizations noted above. Input from academic and other experts in police practices may also be requested. 5. The Facilitator will convene “town hall” type meetings in each of the five boroughs in order to provide a forum in which all stakeholders may be heard. It may be necessary to hold multiple meetings in the larger boroughs in order to ensure that everyone will have an opportunity to participate. The Facilitator will endeavor to prepare an agenda for such meetings, through consultation with the various interested groups prior to the meeting. The Monitor will also attend these meetings to the extent possible. 6. The NYPD will appoint a representative or representatives to serve as a liaison to the Facilitator during the Joint Remedial Process. 7. The Facilitator may receive anonymous information from NYPD officers or officials, subject to procedures to be determined by the parties. 8. When the parties and the Facilitator have finished drafting the Joint Process Reforms, they will be submitted to the Court and the Monitor. The Monitor will recommend that the Court consider those Reforms he deems appropriate, and will then oversee their implementation once approved by the Court.
76 See Tyehimba, 2001 WL 1842470; Pl. Inj. Mem. at 15. In the interests of conserving resources and speeding the development of the Joint Process Reforms, the Joint Remedial Process will not involve the development of an independent analysis by a panel of paid experts, as proposed by plaintiffs in Pl. Inj. Mem. at 10. The participants in the Joint Remedial Process may rely on any sources of facts deemed useful by the Facilitator, including this Court’s findings in the Liability Opinion.
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9. In the event that the parties are unable to agree on Joint Process Reforms, the Facilitator will prepare a report stating the Facilitator’s findings and recommendations based on the Joint Remedial Process, to be submitted to the parties, the Monitor, and the Court. The parties will have the opportunity to comment on the report and recommendations.
10. The City will be responsible for the reasonable costs and fees of the Facilitator and the Joint Remedial Process.
III. REMEDIES IN LIGON In a January 8, 2013 Opinion and Order, amended on February 14, 2013, I
granted the Ligon plaintiffs’ motion for a preliminary injunction, and proposed entering several forms of preliminary relief.77 I postponed ordering that relief until after a consolidated remedies hearing could be held in Ligon and Floyd.78 That hearing has now concluded. The defendants in Ligon have submitted drafts of the documents discussed in the proposed relief section of the February 14 Opinion, the Ligon plaintiffs have proposed revisions to those drafts, and the defendants have responded to the proposed revisions.79
Having reviewed the parties’ submissions, I am now imposing the final order of preliminary injunctive relief in Ligon. The reasons for the ordered relief, which must be stated pursuant to Federal Rule of Civil Procedure 65(d)(1)(A), are the reasons stated in the February
77 See Ligon, 2013 WL 628534, at *41–44; Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 227654 (S.D.N.Y. Jan. 22, 2013) (staying the sole immediate relief ordered in the January 8 Opinion).
78 See Ligon, 2013 WL 628534, at *42. 79 See 7/8/13 Defendants’ Proposed Remedial Relief (“Ligon Def. Rem.”); Ligon Pl. Rem.; 8/2/13 Defendants’ Reply Memorandum of Proposed Remedial Relief (“Ligon Def. Reply”).
32

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14 Opinion. As set forth in the February 14 Opinion, the relief falls into four categories:
policies and procedures; supervision; training; and attorney’s fees. Attorney’s fees and costs will be rewarded as appropriate on application. With regard to policies and procedures, I am ordering the proposed relief from the February 14 Opinion as elaborated below.
With regard to the remaining two categories of relief — supervision and training — I am ordering the proposed relief from the February 14 Opinion, as restated below, and I am also appointing the Monitor from Floyd, Mr. Zimroth, to oversee the detailed implementation of these orders. I am delegating the oversight of the Ligon remedies regarding supervision and training to the Monitor because there is substantial overlap between these remedies and the injunctive relief concerning supervision and training in Floyd. For example, both sets of remedies will require alterations to supervisory procedures for reviewing stops, as well as the revision of the NYPD Legal Bureau’s slide show at Rodman’s Neck.
The purpose of consolidating the remedies hearings in Ligon and Floyd was to avoid inefficiencies, redundancies, and inconsistencies in the remedies process.80 This purpose can best be fulfilled by placing both the preliminary injunctive relief in Ligon and the permanent injunctive relief in Floyd under the direction and supervision of the Monitor.
For the foregoing reasons, the Monitor is directed to oversee the City’s compliance with the following orders.
A. Policies and Procedures First, as proposed in the February 14 Opinion, the NYPD is ordered to adopt a
80 Ligon, 2013 WL 227654, at *4. 33

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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. Specifically, the NYPD is
ordered to amend Interim Order 22 of 2012 (“IO 22”) by deleting the paragraph labeled “NOTE”
on page 2 of IO 22,81 and inserting the following paragraphs in its place:
A uniformed member of the service may approach and ask questions of a person (that is, conduct a Level 1 request for information under DeBour) if the uniformed member has an objective credible reason to do so. However, mere presence in or outside a building enrolled in the Trespass Affidavit Program is not an “objective credible reason” to approach. A uniformed member of the service may not approach a person merely because the person has entered or exited or is present near a building enrolled in the Trespass Affidavit Program.
Under the Fourth Amendment to the United States Constitution, a person is stopped (temporarily detained) if under the circumstances a reasonable person would not feel free to disregard the police and walk away. A uniformed member of the service may not stop a person on suspicion of trespass unless the uniformed member reasonably suspects that the person was in or is in the building without authorization.
Mere presence near, entry into, or exit out of a building enrolled in the Trespass Affidavit Program, without more, is not sufficient to establish reasonable suspicion for a stop on suspicion of trespass.
The NYPD is ordered to draft a FINEST message explaining the revisions to IO
22 and the need for those revisions. The FINEST message attached as Exhibit 1 to the Ligon
Plaintiffs’ Brief Concerning Defendants’ Remedial Proposals will serve as a model. The draft
will be provided to the Monitor and then to the Court for approval prior to transmission, with a
copy to plaintiffs’ counsel.
B. Remaining Relief
The Monitor is directed to oversee the City’s compliance with the remaining
81 See Exhibit A to Ligon Def. Rem. 34

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orders discussed below. Plaintiffs do not object to many of the draft revisions submitted by the City in response to the proposed orders.82 Where the parties disagree, the Monitor is authorized to resolve the dispute by submitting a proposed order for the Court’s approval.
As a model for resolving the parties’ disputes, the Monitor may use this Court’s revision of IO 22, as presented above.83 In arriving at a compromise between the parties’ proposed language, I aimed to articulate the relevant legal standards as simply and clearly as possible. The goal must be to communicate the law to officers in a way that will be understood, remembered, and followed. In general, plaintiffs’ proposed revisions to the City’s draft materials make the achievement of this goal more likely.84 I note that the Monitor may depart from the City’s draft materials even when they do not contain legally erroneous language, if doing so would decrease the likelihood of constitutional violations.
1. Supervision First, the City is ordered to develop procedures for ensuring that UF-250s are completed for every trespass stop outside a TAP building in the Bronx. A “stop” 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 develop and implement a system for reviewing the constitutionality of stops outside TAP buildings in the Bronx. Needless to say, any system
82 See Ligon Def. Rem. at Exs. B–F; Ligon Pl. Rem. at 4–16. 83 For the materials used in drafting the Court’s revision, see Ligon Def. Rem. at Ex. A; Ligon Pl. Rem. at 1–4; Ligon Def. Reply at 2–4. 84 See, e.g., Ligon Pl. Rem. at 7–8 (proposing revisions to the City’s draft slide show for officer training at Rodman’s Neck to emphasize the “free to leave” standard, where confusion might otherwise arise).
35

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developed must not conflict with the supervisory reforms ordered in Floyd. To the extent that supervisory review reveals that a stop has not conformed with the revised version of IO 22 described above, the supervisor will ensure that the officer has a proper understanding of what constitutes a stop and when it is legitimate to make a stop. Copies of all reviewed UF-250s shall be provided to plaintiffs’ counsel.
2. Training The City is ordered to revise the NYPD’s training materials and training programs to conform with the law as set forth in the February 14 Opinion. The instruction must be sufficient to uproot the longstanding misconceptions that have affected stops outside of TAP buildings in the Bronx. It must include, but need not be limited to, the following reforms: (1) The revised version of IO 22 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. Training regarding stops outside TAP buildings must also be provided to new recruits, as well as any 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 set forth in the February 14 Opinion and must be coordinated with the relief ordered in Floyd. The revised video must state that the information contained in the earlier video was incorrect and explain why it was incorrect.
36

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IV. CONCLUSION
The defendant in Floyd and the defendants in Ligon are ordered to comply with the remedial orders described above. The Clerk of the Court is directed to close the Ligon defendants' motion regarding proposed remedies. [No. 12 Civ. 2274, Dkt. No. 112]

Dated:

August 12,2013 New York, New York

37

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For Ligon Plaintiffs:
Christopher Dunn, Esq. Alexis Karteron, Esq. Taylor Pendergrass, Esq. Daniel Mullkoff, Esq. New York Civil Liberties Union 125 Broad Street, 19th floor New York, NY 10004 (212) 607-3300
Mariana Kovel, Esq. The Bronx Defenders 860 Courtlandt Avenue Bronx, NY 10451 (718) 508-3421
Juan Cartagena, Esq. Foster Maer, Esq. Roberto Concepcion, Jr., Esq. LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 (212) 219-3360
John A. Nathanson, Esq. Tiana Peterson, Esq. Mayer Grashin, Esq. Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 (212) 848-5222

- Appearances -
For Floyd Plaintiffs:
Darius Charney, Esq. Sunita Patel, Esq. Baher Azmy, Esq. Rachel Lopez, Esq. Ghita Schwarz, Esq. Chauniqua Young, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (212) 614-6439
Philip I. Irwin, Esq. Eric Hellerman, Esq. Gretchen Hoff Varner, Esq. Kasey Martini, Esq. Bruce Corey, Jr., Esq. Covington & Burling LLP 620 Eighth Avenue New York, NY 10018 (212) 841-1000
Jonathan Moore, Esq. Jenn Rolnick Borchetta, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, NY 10016 (212) 490-0900

38

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For Ligon and Floyd Defendants: Brenda Cooke Linda Donahue Heidi Grossman Morgan Kunz Joseph Marutollo Suzanna Publicker Lisa Richardson Cecilia Silver Judson Vickers Richard Weingarten Mark Zuckerman Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 788-1300
39

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REVISED EXHIBIT C

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PATROL GUIDE
Section: Command Operations

Procedure No: 212-60

INTERIOR PATROL OF HOUSING AUTHORITY BUILDINGS

DATE ISSUED:

DATE EFFECTIVE:

REVISION NUMBER:

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PURPOSE

To assist the Housing Authority in enforcing its rules, limiting criminal activity, providing a safe and secure environment and ensuring the habitability of its residential buildings by performing interior patrols (also sometimes referred to as “vertical patrols”) in a manner that respects the rights of Housing Authority residents and guests.

PROCEDURE

Uniformed members of the service shall frequently inspect the interior of Housing Authority buildings on assigned posts as follows:

UNIFORMED 1. Notify Communications Section, utilizing radio code 10-75I, and make an

MEMBER OF

ACTIVITY LOG (PD112-145) entry of the time and street address upon

THE SERVICE

entering the building.

2. Notify Video Interactive Patrol Enhanced Response (VIPER) unit by radio,

if VIPER cameras present.

VIPER UNIT MEMBER

3. Advise uniformed member of conditions that: a. Require attention. b. Significantly affect safety.
4. Provide ongoing assistance to uniformed member of the service performing interior patrol.

UNIFORMED 5. Inspect front, rear and other exterior doors, mailboxes and the interior of the

MEMBER OF

lobby.

THE SERVICE

a. Prepare a FIELD REPORT (PD313-1511) and notify the Housing

Authority, in accordance with the procedure set forth in P.G. 207-29,

“Field Reports,” regarding any damaged or defective lobby door or

door lock that compromises the security of the building, damaged or

defective intercom system, or any other condition that potentially

compromises the safety or security of the building, its residents or

other authorized visitors.

6. Inspect elevators and ascertain if they are operable.

a. Notify Housing Authority Emergency Service Department

maintenance personnel of inoperable elevators.

7. Proceed to top floor of building by elevator, if operable, otherwise by using

the stairs.

a. Use staircase to gain access to the roof of the building.

8. Conduct inspection of roof, roof landing, elevator rooms, and any other

installations.

a. Prepare a FIELD REPORT (PD313-1511) regarding any missing or

defective signs that designate restricted areas and prohibit entry in

those restricted areas, and/or any missing alarms to restricted areas.

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9. Patrol each floor, staircase and hallway within the building from the top floor to the ground floor.
10. Inspect elevator doors on each floor, taking immediate action when necessary. a. Notify Housing Authority Emergency Service Department or NYPD Emergency Service Unit personnel immediately and remain at scene and secure location until unsafe condition has been corrected if: (1) Elevator door glass is missing (2) Outer elevator door opens when elevator is not present (3) Any other dangerous condition concerning elevators exists.
11. Inspect all accessible basement areas. 12. Prepare a FIELD REPORT (PD313-1511) for any defective building
conditions or missing or defective signs. 13. Be alert for persons who may be violating Housing Authority rules and
regulations, including potentially unauthorized persons within NYCHA property. 14. Upon encountering persons who are violating a Housing Authority rules, take appropriate police action pursuant to P.G. 207-29, “Field Reports,” unless there is a basis for criminal enforcement. a. Officers may not conduct a reasonable suspicion stop pursuant to P.G.
212-11 “Stop and Frisk” or arrest any person for a violation of Housing Authority rules, unless the rule violation is also a criminal offense. Mere lingering in a common area, without more, is not a criminal offense for which a person may be stopped or arrested. However, an officer’s observation of a violation of any Housing Authority rule, regardless of whether it is also a criminal offense, may, at a minimum, provide an officer with a credible reason to approach the person to inquire further and thereafter complete a Field Report. b. A person is stopped, or temporarily detained, if a reasonable person under the facts and circumstances presented would feel that he or she is not free to disregard the police and continue on their way.

NOTE

All officer inquiries, interactions, and enforcement activities in Housing Authority buildings must be conducted with the courtesy, professionalism, and respect to which all persons are entitled in their own homes.

15. Be alert for persons who may be engaged in criminal activity (including potential trespassers), based on observed behavior or other credible information, and upon encountering such persons: a. Approach the person(s) and ask: (1) If he or she lives in the building (2) If he or she is visiting someone in the building (3) If he or she has business in the building. b. Take reasonable measures to verify the person’s authorization to be in

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the building, including but not limited to: (1) Inspecting, and returning, identification; and/or (2) Requesting a key to the building entrance doors or apartment door; and/or (3) Requesting the apartment number where the person resides; and/or (4) Requesting the name or apartment number of the person being visited.

c. Reasonable suspicion is required to detain a person. The person questioned is under no legal obligation to answer the officer’s questions and is free to leave the building unless the officer has reasonable suspicion to believe that the person has committed, is committing, or is about to commit a Penal Law felony or misdemeanor.

d. Probable cause is required to make an arrest for trespass. If unable to determine whether the person is authorized to be in the building, the officer may instruct the person that he or she must leave the building, and that a refusal to comply may result in an arrest for trespass. If the officer remains unable to determine whether the person is authorized to be in the building, and the person refuses to exit the building, the officer may arrest the person for trespass.

NOTE

Mere presence near, entry into or exit out of a Housing Authority building, without more, is not sufficient to establish reasonable suspicion for a stop on suspicion of trespass nor is it an objective credible reason to approach and question any person.

A person’s silence or refusal to provide information or identification when questioned by the police does not support reasonable suspicion to stop or probable cause to arrest.

16. Restricted Areas: a. Restricted areas are limited to those areas specifically designated as restricted by Housing Authority Rules and Regulations.
b. Do not arrest a person on the basis of trespassing in a restricted area of a building – including the roof, roof landing or boiler room – in the absence of conspicuously posted rules, unless the officer knows or has other credible information that the person knows that their presence in the restricted area is prohibited (e.g. the officer knows that the person has been previously found in that same type of restricted area of a Housing Authority development, notwithstanding the fact it may have been a different Housing Authority development, based on the officer’s prior experiences with the person or
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information communicated to the officer). c. In the absence of such conspicuously posted rules or regulations, a
person found on a roof or roof landing or in a boiler room, or any other restricted area, should be: (1) instructed to leave such area if he or she is a resident or authorized visitor and there is no other basis to arrest such person, or (2) instructed to leave the building if he or she is an unauthorized visitor and there is no other basis to arrest such person. (1) Prepare a FIELD REPORT (PD313-1511) d. Any person may be arrested for trespassing on a roof or roof landing or in a boiler room or in any other restricted area if he or she refuses to leave after instructed.

17. An officer may not take police action pursuant to P.G. 212-11, “Stop and Frisk” unless there is reasonable suspicion to believe that a person has committed, is committing or is about to commit a Penal Law felony or misdemeanor.
a. If a person is stopped, a STOP, QUESTION AND FRISK REPORT WORKSHEET (PD344-151A) shall be prepared pursuant to P.G. 212-11, “Stop and Frisk” and an ACTIVITY LOG entry shall be made in order to document the encounter.
b. If a person is stopped on suspicion of trespass, take reasonable measures to investigate, including but not limited to: (1) Inspecting, and returning, identification; and/or (2) Requesting a key to the building entrance doors or apartment door; and/or (3) Communicating with a building resident with whom the person claims to be visiting through the intercom system or in person; and/or (4) Allowing the person stopped to call a resident to appear and verify his or her presence in the building; and/or (5) Consulting with a Housing Authority employee who is familiar with residents.

NOTE

Merely passing through a door that has a broken lock or that has been propped open does not, alone, constitute reasonable suspicion of criminal activity.

18. An officer may not take police action pursuant to P.G. 208-01, “Law of Arrest” unless there is probable cause to believe that a person has committed or is committing a Penal Law felony or misdemeanor. a. Upon making an arrest for criminal trespass, prepare COMPLAINT REPORT (PD313-152), and TRESPASS CRIMES – FACT SHEET (PD351-144) and make an ACTIVITY LOG entry in order to document the arrest. Prepare STOP, QUESTION AND FRISK REPORT WORKSHEET (PD344-151A), if appropriate.

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NOTE

Even if there is probable cause to arrest a person for trespassing, officers may exercise their discretion to refrain from arresting that person, and instead instruct that person to leave under appropriate circumstances.

19.

20.

21.

MEMBERS

22.

ASSIGNED TO

RMP DUTIES

PSA/PRECINCT 23.

COMMANDING

OFFICER

24.

Notify Communications Section upon exiting building and make an ACTIVITY LOG entry indicating time building inspection was completed and any condition noted. Alternate between outside area patrol and interior patrol of Housing Authority grounds and buildings, unless otherwise directed. Inspect each building on assigned post.
Comply with above requirements, if not on an assignment, when available to perform interior patrol.
Review available sources and identify buildings which are in need of increased interior patrols. Assign and direct members to perform patrols at directed locations.

PLATOON

25.

COMMANDER/

PATROL

SUPERVISOR/

ASSIGNED

SUPERVISOR

Assign at least two uniformed members of the service to conduct directed interior patrols.

NOTE

During the course of conducting directed interior patrols, officers shall be instructed that, absent exigent circumstances, two or more uniformed members of the service must remain together.

26. Ensure all interior patrols are performed in a satisfactory manner with specific attention to: a. Effectiveness of patrols, including proper tactics b. Compliance with all state and federal laws during civilian encounters c. Radio transmissions d. Proper documentation (e.g., ACTIVITY LOG entries, FIELD REPORTS, STOP, QUESTION AND FRISK REPORT WORKSHEETS, etc.).

RELATED PROCEDURES

Complaint Reporting System (P.G. 207-01) Field Reports (P.G. 207-29) Law of Arrest (P.G. 208-01) Stop and Frisk (P.G. 212-11) Vertical Patrol (P.G. 212-59)

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FORMS AND REPORTS

ACTIVITY LOG (PD112-145) COMPLAINT REPORT (PD313-152) FIELD REPORT (PD313-1511) STOP, QUESTION AND FRISK REPORT WORKSHEET (PD344-151A) TRESPASS CRIMES – FACT SHEET (PD351-144)

NEW y YORK y CITY y POLICE y DEPARTMENT

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REVISED EXHIBIT D

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LESSON PLAN COVER SHEET

COURSE: BASIC RECRUIT COURSE
LESSON: PATROL OPERATIONS / INTERIOR PATROL

TRAINEE LEVEL: RECRUIT OFFICER
TIME REQUIRED: APPROXIMATELY 9 HOURS

PREPARED BY: NEW YORK CITY POLICE ACADEMY, CURRICULUM AND EVALUATION UNIT

DATE PREPARED: SEPTEMBER 2003

REVISED BY: SGT AARON LAI, NEW YORK CITY POLICE ACADEMY, CURRICULUM AND EVALUATION UNIT, SPECIALIZED TRAINING SECTION AND OFFICE OF DEPUTY COMMISSIONER OF LEGAL MATTERS REVIEWED BY: LT CHRISTINE SEPPA, NEW YORK CITY POLICE ACADEMY, CURRICULUM AND EVALUATION UNIT APPROVED BY: : LT CHRISTINE SEPPA, NEW YORK CITY POLICE ACADEMY, CURRICULUM AND EVALUATION UNIT TRAINING NEED: ENTRY LEVEL POLICE OFFICER TRAINING

DATE REVISED: DECEMBER 2014
DATE REVIEWED: DECEMBER 2014
DATE APPROVED: DECEMBER 2014

INSTRUCTIONAL GOAL: The recruit officer will be able to understand the manner in which the Department provides protection and service to the public is mainly through the work of the patrol force. The recruit officer will also learn to conduct encounters with public housing residents and guests with courtesy and respect and in compliance with all state and federal laws.

CITY OF NEW YORK POLICE DEPARTMENT

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LESSON: PATROL OPERATIONS

INSTRUCTOR CUES:

LEARNING OBJECTIVES: At the completion of this lesson the student will be able to:
A. Describe the events which occur at roll call.
B. Identify and discuss Precinct and Transit Patrol.
C. Explain the proper procedure for interior patrol and its legal implications.
D. Describe the purpose and rationale for conducting interior patrols within Housing Authority property.
E. Describe the importance of proper interactions between police officers and Housing Authority residents and guests.
F. Explain the revision to Patrol Guide section 212-60, “Interior Patrol of Housing Authority Buildings.”
G. Identify situations when an officer (a) may legally approach or stop someone on NYCHA property, and (b) when an officer should prepare a “Field Report.”
H. Identify situations when an officer may legally stop someone for trespass-related crimes on NYCHA property and complete a UF-250 form.
I. Identify situations when an officer may legally arrest someone for trespass-related crimes on NYCHA property and complete a Trespass Crimes – Fact Sheet.
J. Identify situations when an officer encounters someone in a restricted area of NYCHA property and the proper actions to take in those situations.
K. Explain the consequences of failing to adhere to the law in regard to stopping or arresting persons on NYCHA property.
L. Explain the procedures to take when confronted with a disabled elevator, defective door lock or intercom, or missing or defective signs.
M. Identify the circumstance when a Field Report will be prepared.
N. Explain the NYCHA Trespass Notice Program.
O. Discuss Supplementary procedures involving patrol operations.
P. List the required Activity Log entries at the beginning and end of tour.

CITY OF NEW YORK POLICE DEPARTMENT

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LESSON: PATROL OPERATIONS

INSTRUCTOR CUES:

METHOD OF PRESENTATION: Lecture, Question & Answer, Group Discussion METHOD OF EVALUATION: Quizzes

CLASSROOM REQUIREMENTS: Formal Classroom Seating

STUDENT MATERIAL: Notebook And Pen, Student Guide, Patrol Guide, Penal Law
TRAINING AIDS, SUPPLIES, EQUIPMENT: Computer and Monitor, PowerPoint, DVD “Preventing Friendly Fire, Prod# 09-035”

BIBLIOGRAPHY: NYPD Police Student’s Guide NYPD Patrol Guide NYS Penal Law

CITY OF NEW YORK POLICE DEPARTMENT

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LESSON: PATROL OPERATIONS

INSTRUCTOR CUES:

INTRODUCTION
Imagine it is 1:30 a.m. and a person is riding the subway home from a ballgame that went into extra innings. They feel a little nervous about being in the enclosed subway car all by themself. At the far end of the car they hear the doors open and in walks a police officer patrolling the train. All of a sudden they feel their anxiety disappear and they start to relax. This experience is shared by thousands of New York’s citizens every day. Whether it’s in the subway, on a jogging path in central park, or on a street corner in Queens, the NYPD’s patrol force makes New Yorkers feel safe.
Over the past fifteen years we have seen a historic drop in crime in New York City. Many factors have contributed to this, but one fact cannot be disputed, the men and women who walk a foot post or cruise a patrol sector are no doubt the root cause of this drop in crime. A key element in crime prevention is police officers’ relationships with community members, who are valuable sources of information and assistance. It is, therefore, imperative to maintain good relations with Housing Authority residents and guests. All officer inquiries, interactions, and enforcement activities in Housing Authority buildings must be conducted with the courtesy, professionalism, and respect all persons are entitled to in their own homes.
At the conclusion of this lesson, the student will be able to:
x Describe the events which occur at roll call.
x Identify and discuss Precinct and Transit patrol.
x Explain the proper procedure for interior patrol and its legal implications:
A. Describe the purpose and rationale for conducting interior patrols within Housing Authority property.
B. Describe the importance of proper interactions between police officers and Housing Authority residents.
C. Explain the revision to Patrol Guide section 212-60, “Interior Patrol of Housing Authority Buildings.”
D. Identify situations when an officer (a) may legally approach or stop someone on NYCHA property, and (b) when an officer should prepare a “Field Report.”
E. Identify situations when an officer may legally stop someone for trespass-related crimes on NYCHA property and complete a UF-250 form.
F. Identify situations when an officer may legally arrest someone for trespass-related crimes on NYCHA property and complete a Trespass Crimes – Fact Sheet.
CITY OF NEW YORK POLICE DEPARTMENT

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LESSON: PATROL OPERATIONS

INSTRUCTOR CUES:

G. Identify situations when an officer encounters someone in a restricted area of NYCHA property and the proper actions to take in those situations.
H. Explain the consequences of failing to adhere to the law in regard to stopping or arresting persons on NYCHA property.
I. Explain the procedures to take when confronted with a disabled elevator, defective door lock or intercom, or missing or defective signs.
J. Identify the circumstance when a Field Report will be prepared.
K. Explain the NYCHA Trespass Notice Program.
x Discuss Supplementary procedures involving patrol operations.
x List the required Activity Log entries at the beginning and end of tour.

BODY

I. EVENTS THAT OCCUR AT ROLL CALL A. Patrol

Learning Objective #1

1. Patrol is the first stage of police work that challenges a newly graduated officer from the police academy. Your primary function when on patrol is to be a visible presence in the community and at the same time be available to respond to requests for assistance.
B. Roll Call

P.G. 212-01, Roll Call

1. Before leaving your command your tour starts with a roll call.
Note: Roll Call starts five minutes after the start of the tour of duty.

Muster or sitting room at the discretion of commanding officer

2. Takes place in all commands which provide patrol services. (Pct, PSA, Transit District…)

3. Conducted by a supervisor

4. In a designated area of the command

5. Purpose is to conduct roll call for UMOS five minutes after

the start of tour.

Review purpose of

Command

CITY OF NEW YORK POLICE DEPARTMENT

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LESSON: PATROL OPERATIONS

INSTRUCTOR CUES:

a) Reading of daily assignments b) Briefing of special conditions / crime trends c) Inspecting officers readiness for patrol
(1) Protective vest (2) List deficiencies/Reprimand and instruct/Follow
up d) May include precinct level training
C. Expiration of Tour
1. Members assigned to a particular command must return to that command at the completion of their tour in order to:
a) Hand in completed forms prepared during the tour (PAR, aided, summonses…)
b) Return department equipment (RMP, AED, etc.) c) Sign the return roll call d) If on a post which requires relief the officer must notify
the desk officer one hour prior to the end of tour e) If performing duty which will cause overtime the officer
must notify the desk officer of such condition.

Conditions Report, two primary conditions to be addressed, correct Activity Log entries to be made at start of tour including two primary conditions to be addressed.
Refer to Patrol Guide # 212- 03 Expiration of Tour

D. Interrupted Patrol

1. A member of the service while on patrol has the need to return a command (could be his / her command but doesn’t have to be) for a specific reason.

2. The officer must report to the desk officer and state the reason for such interruption. Upon completion the officer must inform the desk officer of their departure.

3. Some common reasons to interrupt patrol:

a) On meal b) Vouchering property c) Personal necessity
II. PRECINCT AND TRANSIT PATROL

Learning Objective #2

A. Patrol Precinct

1. The majority of police officers are assigned to patrol precincts.
Example: A foot post in the 46th precinct, sector 19 Boy

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patrolling the east side of Manhattan.
2. Patrol serves three functions: a) To deter crime b) To enhance feelings of public safety c) To make officers available for service
3. Patrol within a precinct typically involves two (2) areas: a) Foot Patrol b) RMP Patrol.
B. Foot Post
1. Usual post for probationary police officers. a) Heavy public contact. b) Become familiar with conditions on your post. c) Some specific duties of officers on a foot post. d) Report any unusual crimes or occurrences to the patrol supervisor and platoon commander. e) Report conditions not requiring immediate attention to the command clerk. f) Must signal or ring the command each hour if not issued a radio. g) Other rings:
(1) On 1st platoon between 0200 – 0700 (2) If assigned to school or church crossing post (3) Ring before and after condition. (4) Do not signal if assigned to a traffic post
h) Don’t leave post except for meal and then return to post upon completion.
i) Notify radio dispatcher:
(1) Of the beginning of meal (2) Of the location of where meal will be taken. (3) Make Activity Log entries prior to leaving post. (4) Keep the T/S operator updated as to service
rendered when given assignments from the command.
C. Sector Car Patrol (Radio Motor Patrol)
1. A sector car covers a defined area within a command.
a) A sector car consists of two officers working together in the role of an operator and a recorder.

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Note: In accordance with Patrol Guide procedures the officers must switch duties at the fourth hour of the tour.

b) Radio Motor Patrol (RMP) Operator

(1) Driver of the RMP.

(2) Must inspect the RMP before starting patrol.

(3) The operator must make Activity Log entries of

conditions of the RMP, odometer reading and

amount of gasoline in the tank as registered by

the indicator, in addition to all other entries

required by P.G. 212-08 Activity Logs.

(4)

Make minor repairs as warranted

(5) Notify the desk officer if the RMP requires any

major repair work.

c) Radio Motor Patrol (RMP) Recorder

(1) In charge of all radio communications with central and land line communications with the command.
(2) The recorder will document in Activity Log radio messages directed to car, including time, location of call and type of case, in addition to all other required entries as per patrol guide 212-08 Activity Logs.
(3) Responsible for preparing all reports. (4) Will coordinate security when transporting
prisoners or EDP’s (5) Will inform central when transporting a non –
member of the service ( prisoner , EDP’s, victim…) - (Activity Log entry: time entered, gender, mileage) (6) Upon completion of the transport notify central as to the time exited and the closing mileage.

Note: Together the operator and recorder make up a sector team.

D. A Sector Team

1. Do not leave your assigned sector unless instructed by competent authority or in response to an emergency situation.
2. Respond to messages of serious police emergencies within

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five (5) blocks even if not directed to you. 3. Upon leaving the RMP lock the doors, take the keys. Do
not leave the radio in the RMP. 4. Notify the radio dispatcher when taking assigned meal.
E. Police Attendant
1. Maintain the cell area and tend to prisoners;
2. Remove and safeguard firearms prior to entering the detention cell area;
3. Assume control of, search and inspect prisoners;
4. Ensure that property that is dangerous to life, may facilitate escape or may damage or deface other property is removed from prisoner;
5. Document inspection of prisoners on the Prisoner Roster, and notify desk officer of inspection results immediately after reporting for duty;
6. Remain inside cell block at all times while prisoners are confined therein, and be alert to conditions and needs of such prisoners;
7. Document results of inspection of prisoners on Prisoner Roster every thirty (30) minutes;
8. Report to desk officer any physical condition or unusual need of prisoner in custody or in the detention area and report necessary command/detention area repairs to the Commanding Officer.
F. Patrolling the Transit System
1. Procedures to follow when patrolling the transit system include:
a) Inspect concession stands, toilets, stairways and all booths.
b) Confer with the booth clerk regarding police conditions at the station.
c) Visit each station comprising your post at least ounce during the tour.
d) Investigate suspicious conditions in the station. e) Make Activity Log entries concerning any conditions

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informed of. f) Prevent persons from entering the system who are
unable to care for themselves. (request assistance for such people as needed) g) Know the hours of operation for concessions stands in the station.
2. Train Patrol
When assigned to conduct train patrol, the uniformed member of the service will do the following:
a) Record lead car number of train in Activity Log when boarding.
b) Be aware of location at all times including the previous stop, next stop, train line, direction of travel and location on train. (i.e., third car from front)
c) Exercise extreme caution when taking police action on board a train, especially when patrolling alone.

Train Patrol, Ride Throughs, Train Order Maintenance Sweeps and NYC Student’s MetroCard material extracted from Transit Bureau Orientation Training Manual – March 2012

Note: Officer safety is of paramount concern, violator should be detrained when taking police action. Officer should interview subjects in the vicinity of Station Agents or request additional units if necessary.

d) Inspect each car of train. e) Patrol separate from other UMOS unless assignment
directs otherwise. f) Avoid remaining in a single car for more than three
stops unless conditions warrant. g) Ensure all unoccupied conductor and train operator
cabs are secured. h) Pay special attention to the rear car of train. i) Visually inspect station platforms when train has
stopped by leaning or stepping out of train car. j) Make Activity Log entry when de-training. k) Minimize time spent at terminal points unless
engaged in police activity, meal or personal necessity.

3. Conducting “Ride-Throughs” in Subway Cars with Full Width Train Operator Cabs

a) Uniformed members of the service assigned to the Transit Bureau are often called upon to conduct “ridethrough”. A ride-through is performed by riding in the front of the lead car of a train and instructing the Train

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Operator to proceed at a low rate of speed, visually searching the tunnel and track area for any unauthorized persons or suspicious items. A ridethrough is conducted for a variety of reasons including searching a tunnel area for perpetrators, and performing “sweeps” for suspicious persons or packages, particularly in under water tubes.
b) To properly conduct a ride-through the member of the service must have a clear and unobstructed view of the track area. On the new subway cars, this view is obstructed by train operator’s cab which occupies the entire width of the subway car. Members of the service cannot effectively conduct a ride-through by looking through the Train Operator’s cab on these train cars. In train cars with this design, the uniformed member of the service must enter the Train Operator’s cab to conduct a ride through. The Transit Bureau has reached an agreement with New York City Transit to allow officers this access. However, before a Train Operator will allow a UMOS into the cab, the following must be taken:
(1) The UMOS conducting the ride-through MUST be in uniform.
(2) The UMOS MUST identify him/herself to the Train Operator and provide a shield number before entry into the Train Operator’s cab.
c) When conducting a ride-through safety is paramount. UMOS should exercise good judgment and sound tactics at all times. UMOS should also avoid placing New York City Transit personnel at risk unnecessarily.
4. Train Order Maintenance Sweep (T.O.M.S.)
a) Train Order Maintenance Sweep is a patrol tactic involving the deployment of optimally one (1) supervisor and eight (8) police officers to a subway platform, where they will conduct aggressive train inspections. During a T.O.M.S., the officers are spread along the platform so that the entire train may be quickly inspected. For instance, one (1) officer at each of the first four cars and one (1) officer at each of the last four cars, with the supervisor at the center

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two cars and conductor position. The supervisor will usually request the conductor to announce to passengers, “The train will be momentarily delayed for a police inspection.” This provides omnipresence to passengers and permits observations and corrections of disorder and unlawful behavior. In addition, T.O.M.S. is an effective counterterrorism tool.
5. New York City Transit Student MetroCard
a) All students eligible for transportation passes are issued a Student MetroCard. The following are specifics on the use of a Student MetroCard:
(1) Student MetroCard activates a yellow light on the turnstiles.
(2) It is valid from 0530 to 2030, Monday through Friday.
Note: A “Valid on Sundays Pass” is valid from 0530 to 2030, Sunday through Friday, for Private School students who attend school on Sundays.
Note: A “Night High School Pass” is valid from 1300 to 0100, Monday through Thursday and from 0800 to 2000 on Sunday for night school students.
(3) It is valid for three (3) rides per day (not limited to home/school stations).
(4) Some Student MetroCards are valid for four (4) rides per day (at the discretion of School Principal).
(5) May be used on both subways and buses. (6) May be used by students who are pregnant or
accompanied by children attending schools established by the Department of Education in each borough. (7) May be used by persons up to twenty-one (21) years of age attending Department of Education District 75 to and from school or work sites. These students may be experience learning or developmental disabilities and should be treated with proper tact. These students must carry NYC Department of Education Identification to be presented to police upon

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request.
b) A Student MetroCard is to be used by the person whose name appears on the pass, for transportation to and from school ONLY on days when school is in session. A Student MetroCard is to be confiscated if:
(1) Offered for use by any other person (2) Altered (3) Misused (4) Cardholder commits any felony or misdemeanor
against a transit employee, passenger or property
c) In all cases of confiscation, comply with P.G. 215-15, Confiscation of New York City Transit Student MetroCards and prepare a School Transportation Pass Confiscation Report (PD516-170). In addition to confiscation, if the MetroCard is also illegally possessed, further summary police action, i.e., arrest should be taken as appropriate.
d) If a Student MetroCard is unlawfully used by a nonnamed student (including adults) or used by a named student during non-school days or non-school hours:
(1) Determine valid identity, and conduct warrant/ recidivist check.
(2) Issue TAB/NOV (Transit Adjudication Bureau Summons / Notice of Violation) for fare evasion if eligible.
(3) Effect arrest for fare evasion if violator is ineligible for TAB/NOV (e.g., active warrant, transit recidivist, no identification, etc.).
(4) MUST arrest if violator is a Department of Education employee unlawfully using a Student MetroCard.
(5) Prepare a Juvenile Report System Worksheet if violator is under sixteen (16) years old.
e) If a Student MetroCard is lawfully used by named student cardholder, but not all captions are filled out:
(1) Direct student to fill-out captions. (2) Return Student MetroCard to student if no other
violation has been committed. (3) Take no further enforcement action if the only

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violation is that a Student MetroCard has not been completely filled out.
f) If a person is arrested for a felony or misdemeanor against New York City Transit, its property or its customers/employees and upon search incident to a lawful arrest is found to be in possession of a Student MetroCard, the Student MetroCard will be confiscated.
6. Subway train signaling for police assistance
a) A train operator and or conductor may utilize a horn or whistle to request police assistance. The signal consist of a long horn, follow by a short horn, then another long horn follow by a short horn.
b) UMOS upon hearing the signal shall proceed tactically in a safe manner to the subway conductor or operator to investigate the police condition.
7. Removal of power in the subway
a) Removal of power in the subway can be extremely hazardous, dangerous and disruptive to police personnel, passengers and New York City Transit employees; this request should only be made in extreme emergencies involving life-threatening situations. Before requesting the removal of power, consider the wide-scale ramifications of this action. Some of the factors to be considered, but not limited to, are:
(1) The time of day (rush hour/non-rush hour);
(2) Weather conditions (extreme heat);
(3) Type of station (elevated or below ground);
(4) Location of trains;
(5) Extent of injuries in aided cases;
(6) Risk to the riding public, if a crime is involved.
b) When it becomes necessary to request the removal of power in the subway: Notify the radio dispatcher in Transit Officers will the usual manner and provide complete details of the receive Track

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situation. Then request the response of the Patrol Services Bureau and Transit Bureau patrol supervisors, and additional units necessary to secure the platform area and points of entry to the tunnel. DO NOT ENTER THE TRACK AREA, EXCEPT IN EXTREME EMERGENCIES!

Certification Training upon assignment to the Transit Bureau

c) When it is necessary to immediately remove power from track area due to imminent danger: Open the emergency alarm box (located in subway tunnels, spaced about 400 to 600 feet apart, beneath the blue light) and pull lever down as far as it will go and release the lever. Power on all tracks in the vicinity will be immediately turned off. Use the telephone (located at the alarm box), immediately after removing power, to notify the Rapid Transit Operations Command Center Desk Superintendent of the situation. Notify the radio dispatcher via radio, if telephone notification cannot be made, and request that immediate notification be made to the Desk Superintendent concerned.

Note: New York City Transit will automatically restore the power if notification is not made immediately.

8. Ejecting passengers from the system

a) A person on the transit system may be ejected (removed to the street) for a specified reason (violating any portion of NYCRR Part 1050)

(1) Advise the passenger of the reason (2) Give the passenger an opportunity to leave
without interference (3) If unwilling to leave voluntarily, use no more
force than is necessary to effect the ejection (4) Make Activity Log entries and prepare a Transit
System Ejection Report if a TAB summons was not issued in conjunction with the ejection.

Note: If a TAB summons was issued and an ejection is effected, check off the “Ejection” box on the front of the TAB summons.

(5) Submit this report to the desk officer upon completion of your tour.

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9. Photography in the New York City Transit System
a) When UMOS observes a person engaging in photography in the transit system:
(1) Take no action if person is not using ancillary equipment or interfering with safe operation of transit operations.
(2) Ascertain whether person has valid press identification issued by the New York City Police Department if person is using ancillary equipment such as tripods, lights, or reflectors.
b) If person using ancillary equipment does not have Learning Objective valid identification or is creating a hazard to the public: #3
(1) Warn person he/she is in violation of New York City Transit rules and ask person to cease.
(2) Issue NOV/TAB or Criminal Court Summons, eject from system or arrest as appropriate if person does not desist.

III. EXPLAIN THE PROPER PROCEDURE FOR INTERIOR PATROL AND ITS LEGAL IMPLICATIONS
A. Describe the purpose and rationale for conducting interior patrols within Housing Authority property.
1. NYCHA and the New York City Police Department collaborate to provide residents with decent and affordable housing in a safe and secure living environment throughout the five boroughs. The NYC Police Department inherited responsibility for NYCHA property from the Housing Authority police. Although NYC Police Department Members of the Service are not employees of NYCHA, they act on behalf of NYCHA in providing security for NYCHA buildings and grounds.
2. In performing interior patrols (also sometimes referred to as “vertical patrols”), the New York City Police Department’s primary role is providing a safe and secure living environment for NYCHA residents by ensuring the habitability of NYCHA buildings, enforcing NYCHA rules, providing access control for NYCHA buildings, and deterring criminal behavior. The proper performance of these functions will create a safe and secure environment to protect residents from crime and
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respect the rights they possess as residents.
3. In order for the NYC Police Department to be effective in achieving such goals, it is important that all members of the department understand the legal boundaries that accompany their role. Understanding these legal boundaries, and conducting all interactions in a courteous, professional and respectful manner, are critical parts of building a positive relationship with NYCHA residents. As with any residential area, there are residents who abide by rules and laws under which they are bound and there are those who do not. Our job is to fairly and impartially enforce laws and regulations to create a safe and orderly residential environment.
4. The main purpose of this lesson is to demonstrate a methodical procedure for officers to: a) Identify problems with NYCHA buildings that need to be brought to the attention of NYCHA management, including hazardous conditions, conditions in need of repair, and improper signage. b) Identify potential NYCHA rule violations, and provide access control for NYCHA buildings. c) Identify when to prepare Field Reports to document unsafe conditions and rule violations, so as to apprise NYCHA management of their existence. d) Identify potential criminal behavior, and approach, forcibly stop, and arrest individuals when appropriate. e) Perform these functions in a residential setting without exceeding their legal authority, and in a respectful, courteous and professional manner.
B. Describe the importance of proper interactions between police officers and Housing Authority residents and guests.
1. It is often the goal of the police officer to gain voluntary compliance amongst the public in regard to sets of laws and rules and regulations. This is especially true in relation to this lesson. Officers enforcing the regulations that will be discussed in this lesson must ensure that their inquiries, interactions, and enforcement activities are conducted in a courteous, professional and respectful manner. The importance of tactical communication is preeminent in these situations because these interactions routinely take place in the common areas of resident’s homes, and successful policing of NYCHA buildings depends upon consistently positive interactions with residents.

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2. Why are positive interactions important? a) The public trusts (or should trust) us to come into their lives when conditions require it to help them. b) Oftentimes a resident may become an ally and offer information on residents who are creating negative impacts on the development by their actions. c) A single negative interaction can make a lasting impression on individuals that may cause them to distrust police in all future interactions. d) The incidence of CCRB complaints and resultant disciplinary actions in founded cases may be reduced by the use of Courtesy, Professionalism, and Respect and Tactical Communication processes.
3. How may officers have the best chance that their interactions with the public will be positive? a) Use professional language. b) Be sharp, neat, well spoken….not sloppy, belligerent or hostile. c) Look and sound professional to attain respect from the public. d) Improve communication skills and tone of voice (lose the attitude). e) Do not fall into the trap of considering all interactions to be with the criminal element. This is especially true when officers approach persons to determine their justification for being in a NYCHA building. The vast majority of persons present in public housing are law abiding residents and their guests. These persons want to live in or visit an orderly, crime free environment and they should not be subject to accusatory questions in their own homes unless an officer has an articulable reason for believing that criminal activity is afoot. f) Remember that by de-escalating a situation, you are helping yourself stay in control of the interaction.
NOTE: In all cases, remember that proper, professional and tactically sound interactions reduce needless complaints and enhance the Police Department’s ability to work with residents to control crime, reduce disorder and trespassing in housing developments and enhance their quality of life.
C. Explain Patrol Guide section 212-60, “Interior Patrol of Housing Authority Buildings.”
1. The purpose for conducting interior patrols in NYCHA

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buildings is to assist the Housing Authority in enforcing its rules, to limit criminal activity, to provide a safe and secure environment, and to ensure the habitability of its residential buildings for Housing Authority residents and their guests.
2. Uniformed members of the service shall frequently inspect the interior of Housing Authority buildings on their assigned posts as follows:
a) Notify the Communications Section, utilizing radio code 10-75I, and make Activity Log entries of the time and street address upon entering the building.
b) Inspect front, rear, and other exterior doors for any damaged or defective door locks or doors that are propped open, which may compromise the security of the building. If locks are damaged or defective, prepare a Field Report.
c) Inspect intercom systems to ensure they are working properly. If intercom system is damaged or defective prepare a Field Report, and notify Housing Authority in accordance with the procedure set forth in P.G. 207-79, “Field Reports”.
d) Inspect mailboxes, and the interior of the lobby.
Ascertain if NYCHA “No Trespassing” signs are posted and legible. For any missing, damaged or defective signs, prepare a Field Report.
NOTE: The absence of a sign does not preclude effecting a trespass arrest except possibly for an arrest based on an individual’s presence in a restricted area of the Housing Authority building.
e) Inspect elevators and ascertain if they are operable. Notify the Housing Authority Emergency Service Department maintenance personnel of inoperable elevators by calling (718) 707-5900.
f) Proceed to the top floor by elevator, if operable, otherwise by using the stairs. Use the staircase to gain access to the roof of the building.
g) Conduct an inspection of the roof, roof landing, elevator rooms, and any other installations.

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Ascertain if NYCHA “Restricted Roof Access” signs and “Restricted Roof Landing Access” signs are posted and legible. For any missing, damaged or defective signs, prepare a Field Report.

Ascertain if alarms to the roof are functioning. For any missing, damaged or defective alarms, prepared a Field Report.

h) Patrol each floor, staircase and hallway within the building from the top floor to the ground floor.

i) Inspect elevator doors on each floor, taking immediate action when necessary.

(1) Notify the Housing Authority Emergency Service Department at (718) 707-5900 or the NYPD Emergency Service Unit immediately and remain at the scene and secure location until unsafe condition has been corrected if:

(a) Elevator door glass is missing, (b) Outer elevator door opens when elevator
is not present, (c) Any other dangerous condition
concerning elevators.
(2) Prepare a Field Report.
j) Inspect all accessible basement areas.
k) Be alert for persons who may be violating Housing Authority rules and regulations, including potentially unauthorized persons within NYCHA property.
l) Be alert for persons who may be engaged in criminal activity (including potential trespassers) based on observed behavior and other credible information, and upon encountering such persons:
(1) Approach the person(s) and ask:
(a) If he or she lives in the building. (b) If he or she is visiting someone in the
building. (c) If he or she has business in the building.

Upon encountering persons who are violating Housing Authority rules, take appropriate police action pursuant to P.G. 207-29 (“Field Reports”) unless there is a basis for criminal enforcement. Officers may not conduct a reasonable suspicion stop pursuant to P.G. 21211 (“Stop and Frisk”) or arrest any person for a violation of Housing Authority rules, unless the rule violation is also a criminal offense.
A officer’s observation of a

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(2) Take reasonable measures to verify the person’s authorization to be in the building, including but not limited to:
(a) Inspecting and returning identification; and/or
(b) Requesting a key to the building entrance doors or apartment door; and/or
(c) Requesting the apartment number where the person resides; and/or
(d) Requesting the name or apartment number of the person being visited.

violation of any Housing Authority rule, regardless of whether it is also a criminal offense, may, at a minimum, provide an officer with a credible reason to approach the person to inquire further and thereafter complete a Field Report.

(3) Mere presence near, entry into or exit out of a Housing Authority building, without more, is not an objective credible reason to approach and question any person.
NOTE: Requests for information must be made in a polite, non-threatening manner. Questions should not be asked in a manner whereby a reasonable person would believe, under facts and circumstances presented, that he or she is not free to disregard the questions and continue on their way. Although an officer may ask further clarifying questions such as, “What apartment do you live in?” or “Who are you visiting?” the person’s refusal to answer these questions or comply with requests, such as requests for identification, may not raise the level of suspicion.
Police officers can be intimidating to many individuals. The manner of an officer’s questioning may cause a reasonable person to feel like he or she cannot terminate the encounter and walk away. Examples include the use of language or tone indicating that compliance with the officer was compulsory; the display of a weapon; obstructing a person’s path; holding onto identification. In such circumstances, the officer needs reasonable suspicion that the person is engaged in criminal activity.
Factors that may raise the level of suspicion include: a person’s contradictory or inconsistent statements, the smell of marihuana or other evidence of drug use, the officer has patrolled the building for a long period of time knows most of the building’s residents and has never seen the person before, the officer has previously arrested that person for trespass in that building, or the person’s presence in area that has a high

An officer should have, and be able to articulate, an objective credible reason for making this approach if the officer is merely requesting information.
If the officer’s questions become pointed and accusatory and more extended, the officer should have, and be able to articulate, a founded suspicion that criminal activity is afoot.
The key question is whether a reasonable person under the circumstances would feel able to walk away from the officers.
This list is not exhaustive; remember

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incidence of reported criminal activity.
When a person establishes his or her residency or other lawful purpose for being in the building, make an Activity Log entry.
(4) If a person who may be engaged in criminal activity, based on observed behavior or other credible information, refuses to explain or is unable to explain his or her presence in the building, the officer may instruct the person that he or she must leave the building or be subject to arrest for trespass.

Reasonable Suspicion and Probable Cause are fact specific. The key is to be able to articulate the factors.

(5) If at any time during an interaction an officer develops probable cause to believe a person is trespassing, the officer may arrest the person for criminal trespass without asking the person to leave the building. A person’s refusal to explain his or her presence in a building, however, will not by itself raise reasonable suspicion or probable cause.

(6) The officer may arrest a person for trespass if the person, who may be engaged in criminal activity, based on observed behavior or other credible information, does not promptly establish a right to be in the building and refuses to exit the building.

(7) An officer may not immediately arrest a person solely for failure to answer the officer’s questions. The officer must permit the person to promptly establish a right to be in the building, for example, by providing credible information leading the officer to believe the person has business in the building.

m) If reasonable suspicion develops that a person has committed, is committing, or is about to commit a felony or a Penal Law misdemeanor, take appropriate police action (P.G. 212-11, “Stop and Frisk.”)

(1) A UMOS may NOT stop (temporarily detain) a suspected trespasser unless the officer reasonably suspects that the person is in the building without valid justification.

You must complete a Stop, Question and Frisk Report

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INSTRUCTOR CUES:

(2) A Stop, Question, and Frisk Report Worksheet Worksheet every

shall be prepared every time a person has been time you have

stopped or, in other words, whenever a

stopped a person,

reasonable person would not have felt able to even if the stop did

terminate the encounter and walk away.

not lead to an arrest.

(3) The following are factors which may contribute to Be mindful that

reasonable suspicion:

people can make

honest mistakes and

(a) Contradictory assertions made to justify

may reasonably not

presence in the building (e.g., person

know certain

expresses that they live in the building and information, such as

then recants by stating they are just visiting a the resident’s last

resident).

name or the

resident’s specific

(b) Assertions lacking credibility made to justify apartment number.

presence in the building (e.g., person claims they live in apartment 9B on the 9th floor

when the actual building is only 7 stories tall).

(4) If you have reasonable suspicion that the person

is trespassing, you may stop that person and

You must complete a

take reasonable measures to conduct further

UF-250 for any stop

investigation, such as:

and articulate the

basis of your

(a) Inspecting and returning identification;

reasonable

suspicion. You must

(b) Requesting a key to the building entrance also make an Activity

doors or apartment door;

Log entry.

(c) Communicating with a building resident whom the person claims to be visiting through the intercom system or in person; Must articulate investigative steps
(d) Allowing the person stopped to call a resident to appear and verify their authority to be in the building; and/or

(e) Consulting with a Housing Authority employee who is familiar with residents.

(5) Be mindful that people can be alarmed or intimidated when a police officer questions them in their homes, especially when an officer goes to their apartment. Thus, when verifying a person’s authority to be in the building, take reasonable measures to avoid such alarm or

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INSTRUCTOR CUES:

intimidation by first using the intercom system to contact the resident or permitting the stopped person to call the resident by phone. n) If probable cause develops that a person has committed or is committing an offense or crime, take appropriate action pursuant to P.G. 208-01, “Law of Arrest.”

An officer may arrest a person for criminal trespass when, after reasonable investigation, he or she has probable cause to believe that a person is not a resident of the building nor an invited guest of a resident, nor otherwise authorized to be in the building.

Upon making an arrest for criminal trespass, prepare Complaint Report and Trespass Crimes – Fact Sheet. If the arrest arose out of a stop, prepare a Stop, Question and Frisk Report Worksheet. Also make an Activity Log entry.

Even if an officer has probable cause to arrest a person for trespassing, officers may exercise their discretion to refrain from arresting that person and instead instruct that person to leave under appropriate circumstances.

NOTE: An officer always has the discretion not to arrest this person, but instead instruct the person to leave, given the appropriate circumstances.

o) If a person is found to be violating a Housing Authority rule or regulation, take appropriate police action pursuant to P.G. 207-29, “Field Reports,” unless criminal enforcement is appropriate.

Whenever an officer instructs a person to leave the building, and they comply, a Field Report should be prepared and an Activity Log entry should be made.

p) Notify Communication Section upon exiting the building and make Activity Log entries indicating time building inspection was completed and any conditions noted. Prepare Field Report, Stop Question & Frisk Report Worksheet or Complaint Report, or Trespass Crimes – Fact Sheet if necessary.

Members assigned to

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q) Alternate between outside area patrol and interior patrol of Housing Authority grounds and buildings, unless otherwise directed.
r) Inspect each building on assigned post.

RMP duties will comply with this procedure when not on an assignment.

s) The platoon commander/patrol supervisor/assigned supervisor shall:
(1) Assign at least two (2) officers to conduct directed interior patrols. During the course of conducting directed interior patrols, officers shall be instructed that, absent exigent circumstances, two (2) or more officers must remain together.
t) Ensure all interior patrols are performed in a satisfactory manner with specific attention to:

Stress that a recent QAD audit found deficiencies in Activity Log entries in connection with Stop, Question &Frisk Report Worksheet preparation. Activity Log entries should be complete and are required.

(1) Effectiveness of patrols, including proper tactics;

(2) Compliance with all state and federal laws regarding encounters with civilians;

(3) Radio transmissions;

(4) Proper documentation (e.g., Activity Log entries; Field Reports; Stop Question and Frisk Report Worksheets).

D. Identify situations when an officer (a) may legally approach or stop someone on NYCHA property, and (b) when an officer should prepare a “Field Report.”

1. The following are sample scenarios describing the types of action an officer should take when on NYCHA property. See Appendix “A” for a review of Levels of Suspicion.

THE APPROACH

a) During an interior patrol, an officer notices someone standing near the elevators. The officer has been assigned to this development fairly regularly over the past several months and has gotten to know many of the residents of the building. The officer has never seen this person before. When requested, the person voluntarily shows valid identification establishing a right

Level 1: Request for Information

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to be in the building. An Activity Log entry was made and no further action is required. Neither a Field Report nor a Stop, Question and Frisk Report Worksheet was prepared.

Why is this action appropriate? The officer had an objective credible reason to approach the person at the Request for Information level because the officer was familiar with the residents. If the officer was not familiar with the residents, there would be no objective credible reason to approach the person.

Same facts as above, except the officer questions the person in an accusatory manner, as if the person is suspected of doing something wrong. The officer demands identification and holds onto it while he/she asks additional questions about the person’s authority to be in the building.

Level 1: Request for Information

Why is this action inappropriate? Given the circumstances, the officer had only an objective, credible reason to make a Request for Information, which means questions must be asked in a non-accusatory manner. While the officer was allowed to request identification, she was not permitted to demand identification at this level of inquiry. Additionally, a reasonable person would not have felt free to leave when the officer held onto the identification during the continued questioning, requiring at least reasonable suspicion of criminal activity.

THE APPROACH - Requesting individuals, who have not established a right to be in the building, to leave

b) While conducting an interior patrol in a NYCHA building an officer notices someone sitting with no reasonable purpose in a staircase that is known to be a popular area for illegal drug use in the building. The officer approaches the person and asks if he is either a resident or visiting someone in the building. The person tells the officer to “take a hike.” The officer tells the person he must either establish his reason for being in the building or leave the location. He complies by leaving the location. A Field Report was prepared, an Activity Log entry was made and no further action was needed (i.e., No Stop, Question and Frisk Report Worksheet, etc.).

Level 1: Request for Information

Why is this action appropriate?

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INSTRUCTOR CUES:

The officer’s approach at Request for Information was reasonable given the circumstances; the officer had an objective credible reason for requesting information from the person.

THE APPROACH – Handling situations without articulable evidence of criminal activity

c) While on interior patrol an officer observes a person standing for more than ten minutes in the lobby of a building where robberies have occurred in the lobby and other common areas of the building in the recent past. The officer approaches the person and, in a nonaccusatory manner, asks if he lives in the building. The person says, “No, I was visiting my friend John in apartment 3B.” The officer explains that residents are concerned about unauthorized people being in the building and asks the person if he would come with him to 3B. The person says he is waiting for a cab and he would rather not leave the lobby. Although the officer is unable to determine if the person is authorized to be in the building and may therefore instruct the person that he must leave the building and that a refusal to comply may result in an arrest for trespass, the officer elects to wait with the man. Shortly thereafter a cab comes and the man leaves the building. An Activity Log entry was made and no further action was needed.

Level 1: Request for Information

Why is this action appropriate? The officer initially had an objective credible reason to approach the person at the Request for Information level.

THE APPROACH – Confirming individual’s assertions, leading into uncooperative individual – no articulable evidence of criminal activity

d) Upon entry into a NYCHA building to conduct an interior patrol, an officer becomes aware that the front door lock is broken and she stops in the lobby for several minutes to prepare a Field Report. While in the lobby, the officer observes through the lobby windows that a person, a male, has approached the front door of the NYCHA building, but has not attempted to enter the building. As the officer prepares the Field Report, she continues to observe the man standing outside near the front door of the building with no apparent purpose. After the officer has completed the Field Report, she observes a second

Level 1: Request for Information

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person, also male, approach the building with a key in hand. As the male begins to insert his key into the front door, he realizes that no key is required because the lock is broken, so he removes his key and enters the lobby. The officer then observes the other male, who had been observed for more than 5 minutes waiting outside near the front door with no apparent purpose, run towards the front door and enter the lobby without attempting to use a key.

The officer approaches the male – who had been waiting outside for some time before running into the building – and explains the concern of unauthorized persons entering the building due to the broken front door lock, and asks in a non-accusatory manner whether he is a resident of the building. The person says he lives in Apartment 6C. The officer politely asks the person if he has identification or a key to the front door and reiterates the concern of unauthorized persons in the building given the broken lock. He says that he left both in his apartment. The officer then asks the man if he would mind coming with her up to 6C. The man complies, and the officer accompanies him to his apartment where the man’s wife confirms he is a resident of the building. An Activity Log entry was made, and no further action was needed.

Why is this action appropriate? The officer had an objective credible reason to approach the person at the Request for Information level.

Same facts as above, except when the officer asked the man if he would mind coming with her up to 6C, the man refuses. The officer advises the man he must establish a right to be in the building or leave the location. The man refuses to exit the building and informs the officer, “I’m not leaving the building.” The officer arrests the person for criminal trespass. A Stop Question and Frisk Report Worksheet was completed following this stop, in addition to all required arrest paperwork. An Activity Log entry was made, detailing the encounter.

Level 1: Request for Information & Level 4: Probable Cause

Why is this action appropriate? The officer had Probable Cause to arrest the man for criminal trespass because the person refused to exit the building and did not promptly establish a right to be in the

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building.

Same facts as above, except when the officer returns to the stationhouse she notices that the man’s identification shows that he was in fact a resident of the building. The officer should follow appropriate police procedures to void the arrest pursuant to P.G. 210-13 (“Release of Prisoners”).

Same facts as above, except the officer’s questions are not polite, but accusatory with no context as to the officer’s legitimate concerns about unauthorized persons getting into the building through the broken lock. The man gets upset when asked for identification or a key and states that, as a resident, he shouldn’t have to prove anything to anybody. The officer calmly and politely states that he did not intend to accuse the man of doing anything wrong, but instead wanted to make sure that residents, like himself, are safe from unlawful trespassers since the lock is broken. The officer then explains that he has no way of knowing whether or not the man is actually a resident, which is why he is asking for identification or a key. The man voluntarily shows his identification, indicating that he is a resident. An Activity Log entry was made, and no further action was needed.

Level 1: Request for Information

Why is this action appropriate? The officer recognized that he escalated the situation by questioning the man in an aggressive, accusatory manner. In order to achieve the primary goal of confirming the man’s residency, the officer changed his tone to speak more politely and carefully explained the purpose of his questions and his overall concerns for the man’s safety as a resident.

e) An officer on an interior patrol in a NYCHA building observes a woman approach the front door with a set of keys in her hand. The woman uses her key to enter the door and walks towards the elevators. As the door is closing, another woman walks up, catches the door, and props it open with a brick before entering the building.

Level 1: Request for Information

The officer approaches the second woman and asks whether she is a resident of the building. The woman responds by saying she doesn’t think she needs to answer that question. The officer politely explains that he is just trying to make sure that everyone in the

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INSTRUCTOR CUES:

building is safe and explains the concern of unauthorized persons in the building. The officer then asks whether the woman has identification or a key to the front door. The woman produces her identification which shows her as a resident of the building. The officer thanks the woman, removes the brick from the door, and reminds her that propping the door open could leave the building vulnerable to trespassers. An Activity Log entry was made, and no further action was needed.

Why is this action appropriate? The officer had an objective credible reason to approach the second woman at a Request for Information level. The woman entered the building without using her key and then was observed propping the door open with a brick. Further, the officer correctly did not approach the first woman due to the lack of an objective credible reason to approach, as that individual was observed using her key to enter the building and did not prop the door open with a brick.

f) Upon entry into a NYCHA building to conduct an interior patrol, an officer becomes aware that the front door lock is broken and she stops in the lobby for several minutes to prepare a Field Report. While in the lobby, the officer observes through the lobby windows a man sitting on a bench near the front door with no apparent purpose. The officer then sees an elderly woman approaching the building carrying several shopping bags filled with groceries. The man the officer previously observed sitting on the bench stands up as the elderly woman walks past him and catches the door behind her, following her into the building.

Level 1: Request for Information

The officer approaches the man, explains the concern of unauthorized persons entering the building, and asks in a non-accusatory manner whether he is a resident of the building. The man says he lives in Apartment 5D. The officer politely asks the person if he has identification or a key to the front door and reiterates the concern of unauthorized persons in the building given the broken lock. The man says that he left both in his apartment. The officer then asks the man if he would mind coming up with him to 5D. The man complies, and the officer accompanies him to his apartment where the man retrieves his identification showing that he resides in the building. An Activity Log entry was made, and no further action was needed.

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INSTRUCTOR CUES:

Why is this action appropriate? The officer had an objective credible reason to approach the man at a Request for Information level. The man only attempted to enter the building after catching the door when it had been opened by an elderly woman who was clearly a resident of the building.

Level 1 STOPS – which upon investigation lead to reasonable suspicion or probable cause

g) While conducting an interior patrol, two officers observe a group of 9-10 persons congregating in the lobby of a building. As the officers approach, one person abruptly leaves the group and begins walking in the opposite direction. The officers approach the person and ask her whether she lives in the building. She responds that she lives there. The officer asks her what apartment she lives in. She changes her answer and says she was visiting her friend Barbara in apartment 7B. One officer detains her while the other officer investigates and learns that no one named Barbara lives in 7B. The residents of 7B state they did not have a visitor. The person is arrested for criminal trespass. A Stop Question and Frisk Report Worksheet was completed following this stop in addition all required arrest paperwork. An Activity Log entry was made noting the presence of “No Trespassing” signs in the lobby and functioning door locks.

Level 1: Request for Information & Level 3: Reasonable Suspicion & Level 4: Probable Cause

Why is this action appropriate? The officers initially had an objective credible reason to approach the person at the Request for Information level. When she abruptly changed her story the officer developed Reasonable Suspicion to temporarily detain her to conduct an investigation. When subsequent investigation revealed that the person’s story was false, the officer had Probable Cause to arrest for trespass.

NOTE: Inability to immediately verify a person’s explanation does not necessarily mean that the person is trespassing. Individuals may honestly be mistaken as to the specific apartment number or may know only certain individuals, but not others, residing in an apartment. Officers should take into consideration these possibilities when conducting investigations and prior to making a decision to

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arrest.

Same facts as above, except Barbara does reside in apartment 7B and recently had a visitor, but does not recognize the name you provided of the person being detained. The officer asks Barbara the name of her visitor and she admits not knowing her full name, but rather just her nickname. The officer returns to the person and asks if she has a nickname. The nickname provided is the same nickname provided by Barbara. The officer instructs the person to leave since she is no longer visiting Barbara, and she complies. A Stop, Question and Frisk Report Worksheet was completed following this stop, as well as an Activity Log entry, and no further action was needed.

Level 1: Request for Information & Level 3: Reasonable Suspicion

Situations where reasonable suspicion of criminal activity is present – leading to probable cause

h) While conducting an interior patrol at 23:30 an officer observes two persons he does not recognize talking in the lobby of a building for an unreasonably long period of time. The officer is aware that the building lobby has recently been afflicted by trespassing and drug activity. The officer approaches the persons and asks one of the persons if he lives in the building. The person says he does not. The officer then asks the person if he is visiting, or has just recently visited, a resident of the building. He says he is not. The officer then asks what he is doing in the building and he replies, “Hanging out.” The suspect is arrested for criminal trespass. A Stop, Question and Frisk Report Worksheet was prepared for this stop in addition to all required arrest paperwork. An Activity Log entry was made noting the presence of “No Trespassing” signs in the lobby and functioning door locks.

Level 1: Request for Information & Level 4: Probable Cause

Why is this action appropriate? The officer initially had an objective credible reason to approach the person at the Request for Information level. When the suspect admitted that he had no legitimate reason to be in the building, the officer had Probable Cause to arrest for trespass.

NOTE: An officer always has the discretion not to arrest this person, but instead instruct that person to leave, given the appropriate circumstances

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Situations where probable cause for an arrest is present
i) An officer on an interior patrol observes a person on the roof landing in violation of conspicuously posted signs forbidding access to the roof landing, including for residents. The sign additionally explains what the roof landing is. The officer asks the person if he is a resident. The person says he is not. The officer then asks why he is on the roof landing and the person is unable to give any valid justification for his presence. The officer arrests the person for trespass and makes an Activity Log entry noting the presence of the sign. A Stop, Question and Frisk Report Worksheet was prepared for this stop in addition to all required arrest paperwork.

Level 3: Reasonable Suspicion & Level 4: Probable Cause

Why is this action appropriate? There was Probable Cause to believe the person was trespassing.

NOTE: It is important that the content of the sign gives sufficient notice that being on the roof landing is prohibited, including a clear explanation as to what the roof landing is. In some circumstances, a non-English speaker may not be able to read a sign that is not written in his or her native language. If there is uncertainty as to the sufficiency of the sign, give the person an opportunity to leave before making an arrest for trespass.
Same facts as above, but the person observed on the roof landing identifies as a resident, who states that she did not know that it was illegal to be on the roof landing. The officer asks the person if she has identification or a key to the building, and she shows him an identification stating that she resides in apartment 7C. The officer has never encountered this person before, and has no reason to believe she is lying about not knowing that her presence on the roof landing is prohibited. Although there may be probable cause for a trespass arrest, the officer should exercise the discretion to instruct the resident to leave the roof landing rather than make an arrest.

Level 3: Reasonable Suspicion & Level 4: Probable Cause

Situations where reasonable suspicion of criminal activity is present – leading to probable cause

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j) A sector team receives an assignment of a man selling Level 3:

drugs inside the lobby of a NYCHA building. The caller Reasonable

provides the 911 operator with his name and phone

Suspicion

number and gives a detailed description of the suspect. &

Upon entering the building the officers see the suspect Level 4:

in the lobby and forcibly stop the person. Investigation Probable Cause

based on Reasonable Suspicion reveals that the

person did not live in the building nor was he there for

any legitimate reason. The suspect is arrested for

criminal trespass. A Stop, Question and Frisk Report

Worksheet was prepared for this stop in addition to all

required arrest paperwork. An Activity Log entry noted

“No Trespassing” signs in the lobby and functioning door

locks.

Why is this action appropriate? There was Probable Cause to believe the person was trespassing.

NOTE: In the above example, if the scenario were changed to state that the complainant was anonymous, the officers would NOT automatically be at Reasonable Suspicion. In order to rise to the level of Reasonable Suspicion, a more thorough investigation (observations) would need to be conducted.

Situations where reasonable suspicion of criminal activity is present – leading to probable cause
k) Two officers are on patrol and enter the lobby of NYCHA building to conduct an interior patrol. While in the lobby, which has a functioning magnetic lock door, the officers observe an individual force open the door without a key. Having Reasonable Suspicion of Criminal Trespass, they stop the individual. Investigation reveals the individual is not a resident, and claims to be visiting a friend in apartment 3C. The individual appears nervous and is holding his hands over his waist area. The officers see a suspicious bulge in his waist area, and a frisk reveals a loaded firearm. With Probable Cause, the individual is placed under arrest for Criminal Possession of a Weapon. Later investigation reveals that no one in apartment 3C knows the individual, and the charge of Criminal Trespass (Felony) is added to the charges. The officers prepare a Stop and Frisk Report, all applicable arrest paperwork, and a comprehensive Activity Log entry is made, including a notation regarding the functional door lock.

Level 3: Reasonable Suspicion & Level 4: Probable Cause

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Why is this action appropriate? Seeing an individual force their way into a lobby through a locked entrance door provides Reasonable Suspicion of Criminal Trespass. This permits a forcible stop and in this case the officers would be able to articulate a clear reason to frisk. An arrest based on Probable Cause is effected.
E. Explain the consequences of failing to adhere to the law in regard to stopping persons on NYCHA property.
1. Police officers in public housing developments must remember that the basic principles outlined in the prior Terminal Learning Objective provide examples of legally valid encounters, under varying levels of suspicion of criminal activity. Members conducting approaches, forcible stops, or arrests without the appropriate legal authority may face the possibility of the suppression of any evidence obtained during such stop and subject themselves to Departmental disciplinary consequences, including founded CCRB allegations of Abuse of Authority, prosecution by the Department Advocate’s Office, and appropriate penalties.
2. Unjustifiable interactions also contribute to community distrust of the police, and poor relations with the very community we are trying to serve and protect. A single negative interaction can make a lasting impression on a community member that will taint future interactions with police officers.
Consider the examples below:
¾ While patrolling a part of NYCHA property known for its drug activity at 23:30, an officer sees a person exit a NYCHA building. The officer approaches the person and asks if he is a resident of the building he just visited.
What was wrong with the above scenario? The person had already left a NYCHA building, and when the purpose of an approach is to verify a person’s justification for being in a NYCHA building, officers should not approach a person if the person has already exited the building unless there are other indications of criminality, or an independent objective and credible reason for the approach.
_________________________________________________________________

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¾ While conducting an interior patrol of a NYCHA building, an officer notices someone enter the building using a key. The officer approaches the person and asks him if he is a resident.
What was wrong with the above scenario? The person had established their right to be in the building by using a key. Absent any other objective and credible reason, the officer was not authorized to approach the person. ____________________________________________________________
¾ While conducting an interior patrol in a NYCHA building, police officers observe a group of five teenage boys entering the building together. One of the teenagers uses a key to enter the building, and it is clear from their interactions that all of the teenagers are friends. The officers approach the teenagers and ask if they are residents of the building.
What was wrong with the above scenario? One of the teenagers had established a right to be in the building, and it was clear that the other teenagers were authorized guests (if not residents themselves). Absent any other objective and credible reason, the officer was not authorized to approach any of them.
¾ A sector team observes two individuals exiting the elevators in the lobby of a NYCHA building. The officers note the smell of marihuana in the elevator. The officers approach the two individuals and ask them their reason for being in the building. The individuals mention that their aunt lives in the building. The police officers forced the two individuals to take them to their aunt’s apartment, to verify that they belonged in the building before they let them leave.
What was wrong with the above scenario? The level had never risen to Reasonable Suspicion – therefore a forcible stop was not authorized.
What would have made the scenario acceptable? If the brothers voluntarily agreed to stop and voluntarily agreed to accompany the officers to the apartment to verify the legitimacy of their presence in the building. _____________________________________________________________
¾ An officer on an interior patrol observes a person standing

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in the lobby for several minutes. Upon seeing the officer the person looks nervous and evasive. The officer approaches the person and asks if he is a resident of the building. The person replies, “I’m just passing through.” The officer then arrests the person for criminal trespass.
What was wrong with the above scenario? According to the N.Y. Appellate Division in People v. Sanders (1991), the person’s comments did not establish Probable Cause, and, therefore, an arrest was not authorized. An officer can only arrest when the officer has Probable Cause to believe that the person is neither a resident, nor visiting someone in the building, nor otherwise authorized to be in the building.
What would have made the scenario acceptable? The officer should have asked the person if he was visiting someone in the building or otherwise authorized to be in the building. If the person said he was not visiting someone in the building or otherwise authorized to be in the building there would have been Probable Cause to arrest.
Same facts as above, but the person says that he is visiting a resident in the building. The officer accompanies the person to the apartment, but no one is home. The officer then arrests the person for criminal trespass
What was wrong with the above scenario? The fact that a resident is not home does not necessarily mean that the person was not authorized to be in the building. An authorized visitor should not be arrested for trespassing simply because the resident happens not to be at home when the person is trying to visit.
What would have made the scenario acceptable? Since the person’s stated purpose for being in the building was to visit a resident, and that resident was not home, the officer should have asked the person to leave the building. If, after giving the person the opportunity to leave the building, the person still refused to leave, the officer may have arrested the person for criminal trespass
F. Explain the procedures to take when confronted with a disabled elevator.
Unoccupied Disabled Elevator
1. If, during interior patrol, you come across an

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UNOCCUPIED disabled elevator, your obligation would be to notify Housing Authority Emergency Service Department maintenance personnel by calling (718) 707-5900. You must also inspect elevator doors on each floor and notify Housing Authority Emergency Service Department maintenance personnel or NYPD Emergency Service Unit immediately and remain at scene and secure location until unsafe condition has been corrected if:

a) The elevator door glass is missing, or if the outer elevator door opens when elevator is not present;

b) There are any other dangerous conditions concerning elevators.
Occupied Disabled Elevator

P.G. 212-28, Disable Housing Authority Elevator Car with Passengers

1. If, during interior patrol, you come across an OCCUPIED disabled elevator, your obligation would be to notify the radio dispatcher and request the response of Housing Authority Emergency Service Department maintenance personnel. Also notify the NYPD Emergency Service Unit and ambulance, if the situation requires the immediate removal of passengers in cases involving, but not limited to a cardiac condition, or a seriously ill passenger, etc.

Note: If a delay in the response of Housing Authority Emergency Service personnel is expected, a request for N.Y.P.D. Emergency Service Unit personnel will be made even in situations deemed to be of a nonemergency nature.

Note: Members of the service shall NOT attempt to remove passengers from a disabled elevator car without the assistance of Housing Authority and/or N.Y.P.D. Emergency Service Unit personnel who are trained in the removal of passengers from disabled elevators.

2. The officer must prepare a Field Report and Aided Report Worksheet, if necessary, upon completion of assignment. Include names and addresses of passengers and names and shield numbers of responding Emergency Service personnel.

G. Identify the circumstance when a Field Report will be prepared.

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1. Used to record corrective action taken on non – criminal conditions which occur on the property of NYCHA. Such conditions include: a) Disabled elevators b) Noise complaints c) Breach of housing authority rules and regulations d) Follow – up dispositions e) Damage, accidental f) Damage, non – criminal g) Damage, cause unknown h) Abandoned and derelict vehicles i) Resident disputes j) Fire, non – suspicious k) Other conditions as specified by appropriate patrol guide procedures
Note: A Complaint Report Worksheet is prepared for CRIMES occurring on NYCHA property.
H. Explain the NYCHA Trespass Notice Program
1. Under this program, any individual who is arrested for felony sale of controlled substance or marihuana on a Queens, Manhattan and Brooklyn NYCHA development is permanently excluded from entering all NYCHA property.
2. NYCHA “On-Development” (defined) a) All NYCHA buildings, apartments, offices, maintenance areas, etc. b) All walkways, streets, grounds, and parking areas located within NYCHA Developments. c) All stores, laundries, community centers, childcare centers, senior centers, health stations, etc. within NYCHA Developments. d) From the center line of the street inward towards NYCHA buildings. e) All NYC parks and all NYC school playgrounds within or immediately adjacent to NYCHA grounds. f) Piers or bulkheads immediately adjacent to NYCHA Grounds.
3. When effecting the arrest of an individual “On-
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Development” for felony sale of controlled substance or marihuana, in addition to normal arrest procedures:

a) Prepare a NYCHA Trespass Notice (1) Enter the Notice log number, obtained by calling the Housing Bureau wheel
b) Have the defendant sign and date the notice (2) If defendant refuses, so state on signature line and initial and date
c) Make four copies of the Notice (1) Personally serve the defendant with one copy of the notice (2) The remaining three copies are for the Desk Officer
d) Fax a copy of the notice to the Housing Bureau Wheel and call to confirm receipt
e) Prepare a “Trespass Notice Package” containing: (1) Original signed Trespass Notice (2) Computer copy of OLBS and Complaint Report (3) Copy of PCI and Request for Laboratory Analysis (if prepared) (4) Copy of Search Warrant when applicable
f) Deliver the package and 3 copies of Notice to the Desk Officer

Note: If the defendant claims that he or she is a NYCHA resident, confirm that the address given by the defendant is a NYCHA location by contacting any PSA or Housing Bureau Wheel. A NYCHA resident will still be served with the Notice and will not be allowed in any NYCHA area other than their resident building and common areas of that development.

Note: Common areas include most areas within the resident’s development. It does not include apartments other than their own or areas where residents are not normally allowed (e.g., rooftops).

Learning Objective #4

IV. SUPPLEMENTARY PROCEDURES FOR PATROL OPERATIONS P.G. 212-59, Interior

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Patrol

A. Interior Patrol

This procedure

applies to privately

1. Patrolling multiple dwelling private buildings for owned buildings,

criminal activity including trespassing under the NOT NYCHA.

Trespass Affidavit Program is a valuable problem

solving tool, as well as an important component of the

Department’s crime control strategy. Authorization for

interior patrol, the tactically planned patrol of the

interior hallways, stairways, lobbies, basements,

rooftops and other common areas of multiple dwelling

buildings that are not owned by the New York City

Housing Authority is obtained through the

Department’s Trespass Affidavit Program.

2. To conduct interior patrol in a residential multiple dwelling private building in the Department’s Trespass Affidavit Program, uniformed members of the service will:

a) Respond in teams of two to location at designated time and coordinate activities with other assigned uniformed members.
b) Notify Communication Section dispatcher utilizing radio code 10-75I and make Activity Log entry of the time and street address upon entering the building.
c) Inspect front, rear and other exterior door and interior of lobby.
d) Document in Activity Log that signs stating “NO TRESPASSING, TENANTS AND THEIR GUEST ONLY” are prominently displayed and legible.

(1) Signs should be prominently displayed in areas where persons entering the building can readily observe them (e.g., vestibule entrance, vestibule, above the elevator, courtyard, roof, etc.)

e) Proceed to top floor of building by elevator, if operable and conduct inspection of roof, roof landing, elevator rooms and any other installations.
f) Patrol each floor, staircase and hallway

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within the building from the top floor to the ground floor. g) Inspect all accessible basement areas. h) Be alert for persons who may be engaged in criminal activity including potential trespassers and upon encountering such persons:
(1) Approach the person(s) and ask: (a) If he or she lives in the building (b) If he or she is visiting someone in the building (c) If he or she has business in the building
Note: A uniformed member of the service may approach and question persons if they have an objective credible reason (Level 1 - Request for Information) to do so. However, a uniformed member may not stop (temporarily detain) a suspected trespasser unless the uniformed member reasonably suspects (Level 3 – Reasonable Suspicion) that the person is in the building without authorization.
(2) Take reasonable measures to verify a person’s authority to be present in the building when such authority is in question (e.g., asking for identification, keys to the building entrance doors, etc.)
(3) When a person refuses to explain or is unable to explain his/her presence in the building the uniformed member may instruct the person that he or she must leave the building or be subject to arrest for trespass. The uniformed member may then arrest the person for trespass if: (a) The person refuses to exit the building and does not promptly establish a right to be in the building.
(4) When reasonable suspicion develops that a person has committed, is committing or is about

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to commit a felony or a Penal Law misdemeanor, conduct a stop question and possibly frisk.

(5) If probable cause develops that a person has committed or is committing an offense, effect an arrest.

(6) When a trespass arrest is made, prepare “Trespass Crimes - Fact Sheet (PD351-144)”.

(7) Copies of the “Trespass Crimes – Fact Sheet (PD351-144)” and “Trespass Crimes – Owner’s Affidavit (PD651-051)” or New York County District Attorney’s supporting affidavit, as appropriate for the building must be included in arrest package.

i) Notify Communications Section Dispatcher upon exiting building and make Activity Log entry indicating time building inspection was completed and any conditions noted.

3. The “Trespass Crimes – Owner’s Affidavit (PD651051)”, will be utilized for Department Trespass Affidavit Program buildings in the Bronx, Brooklyn, Staten Island and Queens. The New York Count District Attorney’s Office manages a Trespass Affidavit Program in Manhattan and utilizes its own supporting affidavits. The “Trespass Crimes – Fact Sheet (PD351-144”), will be prepared in every instance, including Manhattan where a uniformed member of the service effects a trespass arrest in a building participating in a Trespass Affidavit Program.

P.G. 212-58, Fire Scenes

B. Fire scenes

1. Primary duty is to protect life and property.

2. Upon arrival at the scene insure that an alarm has been sent, if not send one.

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3. Make sure the RMP is not parked in a way to impede FDNY response.
4. If you begin to assist in the evacuation of the building leave a responsible person outside to direct responding personnel
5. When establishing police lines at a fire scene only the following persons or vehicles will be permitted to enter:
a) Police and Fire Dept. vehicles b) Ambulances c) City agency vehicles for duty in connection with
the fire d) Public service corporation vehicles for duty in
connection with the fire e) Persons holding valid working press cards or fire
line cards f) Employees of public service corporations in
performance of emergency duties g) Members of governmental agencies in
performance of duty h) The Mayor i) The Mayor’s car j) U.S. mail vehicles k) Prison vans transporting prisoners
C. Response to Fires by Uniformed Members of the Service
1. Uniformed members of the service assigned to a fire will notify the radio dispatcher when they arrive on scene. In addition, they will inform the dispatcher of any pertinent details regarding the fire.
2. The radio dispatcher will immediately, whether requested or not, call the originating caller and ascertain an update on the fire condition.
3. The radio dispatcher will communicate immediately to UMOS on the scene any new information, including the number of individual calls received for that particular assignment and will also notify the patrol supervisor and any other responding supervisor of all available information.
4. The on-scene UMOS will communicate, prior to

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entering the building, all observations made in connection with the fire to the radio dispatcher for transmittal to the responding supervisor and other UMOS.
5. The radio dispatcher will notify the patrol supervisor for all building fire assignments whether received through 911 or as a pick-up assignment and the supervisor assigned must respond to all fires.
Building Entry/Elevator Use:
6. Upon entering the building, note the distance of the stairwell to the elevator and note the locations of all exits in the event of an evacuation or tactical retreat becomes necessary.
7. If multiple UMOS are entering the building at the same time, UMOS should utilize separate stairwells/elevators.
8. Whenever possible UMOS will utilize stairs and walk up to the floor reported to be affected by fire.
9. Prior to deciding to use the elevator to ascend to the fire, UMOS will inspect the elevator shaft for signs of smoke by directing their flashlights through any visible space between the elevator and the open shaft.
10. If smoke is detected in the elevator shaft DO NOT use the elevator as a method of ascent.
11. UMOS should stop the elevator on every 5th floor on the way up to the reported fire to repeat the visual inspection of the shaft.
12. If there is no smoke detected in the elevator shaft , the UMOS may elect to use the elevator, but must exit the elevator at least 2 floors below the affected floor and proceed cautiously via the stairs to the affected floor.
13. UMOS should transmit the chosen method of ascent, either stairs or elevator, to the communications dispatcher prior to advancing to the affected floor.
NOTE: UMOS must be aware that fires can spread rapidly and

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expand to other floors. In addition, smoke in these fires may contain poisons and carcinogens. UMOS should proceed cautiously at all times; maintain communication with the radio dispatcher to relay their locations and to ascertain the estimated time of arrival of the Fire Department.

14. Upon arrival to the floor of the reported fire, UMOS must first conduct a visual inspection of the hallway through the window of the stairwell door, if possible. Next, touch the stairwell door to detect the presence of heat in the hallway.

15. If heat is detected, adjust tactics accordingly prior to entering the hallway, including but not limited to retreating to a floor below the reported fire.

NOTE: An unusually warm door or the presence of smoke are indicators that there is a fire in the hallway or in an apartment where a door has been left open. This can be an extremely dangerous condition. Therefore, whether or not UMOS decide to enter the hallway, ensure that the door between the stairwell and the hallway remains closed to reduce the risk of the chimney effect which can draw fire to the stairwell and cause the fire to spread.

16. If UMOS suddenly encounter smoke and heat, drop to your

knees, move

closer to the wall and retreat to a

predetermined exit.

D. Natural Gas Hazards

1. It is important that a UMOS know how to recognize a gas leak and what to do if you encounter a suspected gas leak while responding to a call for service. Signs of a gas leak includes:

a) Smell – A distinctive strong odor similar to rotten eggs.
b) See – White cloud, mist, fog, bubbles in standing water, blowing dust or vegetation that appears to be dead or dying for no reason.
c) Hear – Roaring, hissing, or whistling.

2. If you detect a gas leak:

a) If the odor is strong, evacuate immediately and take others with you. Establish a minimum safe distance in accordance with P.G. 212-37,

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Hazardous Materials. b) If the odor is faint, and is consistence with
personal safety, open windows before leaving. c) If you are outside, establish a frozen zone and
evacuate civilians from the source of the leak if known. d) Do not light a match or smoke, turn appliances or lights on or off (including flashlights) use the portable radio, cell phone, landline phone or start a car. Doing so can produce sparks that might cause the gas to explode. e) Notify FDNY to respond through communications.

P.G. 212-43, Vacate Orders

E. Vacate Orders

1. An order generated after a representative of the department of buildings, housing department or fire department has deemed a premise hazardous.

2. Can be a residential or non - residential building.

3. Upon being assigned to assist in the execution of a vacate order of a residential building a member of the service will:

a) Verify the credentials and authority of the agency representative.
b) Obtain facts concerning the reason for the vacate order being issued.
c) Assist in the evacuation when there is an immediate danger that the building will collapse or any existing dangerous condition to human life.
d) Notify operations if conditions call for an immediate evacuation.
e) Request a patrol supervisor to respond when:

(1) Persons are actually being evacuated. (2) Premises are to be sealed. (3) For any other appropriate reason.

f) Remain with the agency representative until service or evacuation is complete, if requested.
g) Check with agency representative to ensure that the vacated premise will be safeguarded.
h) Make Activity Log entries

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i) Report facts to the desk officer upon P.G. 216-09, Animal

completion of assignment.

Bites

F. Animal Bites
1. The NYC Health Code section 11.64 requires that all animal bites be reported in addition to animal diseases that are communicable to humans that are of public health concern is reported to Bureau of Communicable Diseases.
2. Exposure to rabies is characterized as either a bite or non-bite exposure; each carries the highest risk of rabies infection.
3. Bite: (higher risk) Any penetration of skin by animal’s teeth. Bites to the face and hand carry the highest risk of rabies infection.
4. Non-bite: (lower risk) Scratches or abrasions received from an animal, or the contamination of open cuts, mucous membranes, or wounds with an animal’s saliva (or brain and other neural tissue.) Non-bite transmission of rabies is extremely rare.
5. The Department form “Dangerous Animal Bite/ Report (PD311-152) will be prepared in every instance regardless of whether a person was injured by the animal or not. This rule will be followed even if the animal is gone upon arrival at the scene. The officer must include the I/CAD Event number on the form. Upon completion deliver Dangerous Animal/Bite Report and Aided Report Worksheet if applicable to desk officer.

G. Confrontation Situations - Encountering Other Law Enforcement Officers

P.G. 212-33, Confrontation Situations

1. While on patrol a member of the service may encounter a person from another law enforcement agency.

2. This other person may be on – duty or off – duty, may be an active member or a retired member. The person may belong to a city, state, or federal agency.

3. Remember the On Duty / Uniform Officer is in

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charge.

4. Challenging Officer - For the purposes of this procedure the uniformed member of the service who comes upon the scene where an unidentified person states he/she is a police officer or whose actions may indicate he/she is taking police action.(i.e. on duty or off duty uniformed member of the service or an enforcement officer from an outside criminal justice agency)

Show video “Preventing Friendly Fire, Prod# 09-035”

5. Confronted Officer -The uniformed member of the service (usually civilian clothed) either on or off duty, who may be armed and taking police action and whose identity and objectives are not immediately apparent to the challenging officer.

Note: Members of the service are reminded to immediately take cover to the rear, not to the side of the person being challenged, if possible. A challenge from the rear allows more time for the challenging officer to evaluate the subject’s reaction and also gives the challenging officer a tactical advantage. A challenge from the side reduces response time.

6. Challenging Officer

a) Immediately take cover to the rear, not to the side of the person being challenged, if possible Identify self (Police! Don’t move!)
b) Utilize any cover available (e.g., car, garbage can, lamppost, mailbox, etc.)
c) Any object is a form of protection, even though its value might be only of a concealment nature.
d) Identify yourself in a loud, clear voice, stating “Police! Don’t Move”;
e) Avoid using slang terms such as “Freeze” or Hold It.”
f) Avoid using directives which are contradictory and can cause confusion such as, “Don’t move and raise your hands.”
g) Do not use stereotypes which are based on a person’s race, color, ethnicity, hairstyle, clothing or physical appearance.
h) Members of the service are reminded that the Department is multicultural and stereotypes

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based on the above WILL NOT BE USED TO JUSTIFY YOUR ACTIONS. i) Members of the service are reminded that racial and ethnic profiling is a violation of the Fourth Amendment to the United States Constitution, Article 1 Section 12 of the New York State Constitution, New York City Administrative Code Section 14-151 and other applicable laws. j) Request person to give exact location of identification and to produce identification slowly, in a controlled manner, if person states he or she is a police officer; k) Examine credentials to ensure validity and photo or description (if any) fits individual. l) Remain alert until you are completely satisfied as to person’s identity. m) Return credentials, if satisfied with identification; n) Make Activity Log entry; o) Request the response of the patrol supervisor, precinct of occurrence and supervisory officer of on duty member of the service confronted.
7. Confronted Officer
a) Remain motionless even if it means a fleeing suspect may escape. DO NOT turn body especially if holding a firearm.
b) Obey all directions from the officer making the challenge.
c) Inform challenging officer exact location of identification before moving.
d) If requested to do so, remove identification card from wallet, holder, etc. and hand it to the challenging officer.
e) Civilian clothed uniformed members of the service should make it a practice to carry their shields in a pocket opposite their shooting hands.
f) Members of the service performing duty in civilian clothes should ensure that they are aware of the “color of the day” and that it is displayed in a conspicuous manner.
g) Department Policy – The identification card is the primary form of identification for uniformed members of the Department and must always

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be carried. However, uniformed members of the service do not have to carry their shields when unarmed.

H. Tactical Considerations

1. When challenged; DO NOT simultaneously reach for your identification and tell the challenging officer who you are. DO NOT turn and face the challenging officer with a firearm in hand. DO NOT move your hands in any manner that can be interpreted as a hostile or menacing movement. It is a natural reaction to turn when challenged from behind, you should resist this urge.

2. The on duty and/or uniformed officer must ensure that they are aware of important information that may prove vital during a confrontation situation. One such piece of information is the COLOR OF THE DAY. All officers must be made aware of the color of the day upon turnout by the supervisor. The color of the day is transmitted via the FINEST terminal on a daily basis. Non-uniformed members of the service are required to wear the color of the day when performing enforcement duty so that it is visible to all patrol officers in the event of a confrontation with uniformed members of the service. The colors of the day may be: Green, White, Yellow, Red, or Orange rotated on a daily basis.

Stress that Color of the Day is not to be given over the radio.

3. Use extreme caution in judging the challenged

officer's response to commands. Do not fall victim

to the "Symbolic Opponent Syndrome” -

Preconceived notion that places a suspect into a

"criminal" category because of race, nationality,

grooming, or mode of dress. Looks can be

deceiving and should not form the basis for action

to be taken. Do not reach any definite

conclusions that may lead to irreversible police

action, because of a suspect's appearance.

P.G. 212-31, Threats

Against Members of

I. Threats to Members of the Service

the Service

1. When assigned to the station house as the telephone Switchboard operator, the command clerk, the cell attendant, or stationhouse

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security you may receive a threat against a member of the service.
2. Via telephone, record the following:
a) The telephone number of the telephone on which the call is received
b) The exact time of the call c) Name of the threatened officer d) Motive or reason for the threat e) Manner in which the threat will be carried
out f) Identity of the caller g) Location from which the call is being made h) Inquire if the threat stems from a prior
arrest made by the threatened officer.
3. If threat is received in writing:
a) Avoid unnecessary handling of the envelope or document
b) Place document into a plastic security envelope
c) Make note if document was received by U.S. mail or other means
d) Identify the postal employee who delivered the document
e) If delivered by a delivery service, interview private individual as to circumstances of how he / she receive the document.
4. Threat received by fax:
a) Record the time of receipt b) Record the telephone number of
receiving fax machine c) Obtain a transmission report, if the fax
machine is so equipped.
5. Threat made in person:
a) Ascertain all available information from the individual making the threat
b) Identify of the member of the service being threatened
c) Motivation of the threat

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d) Pedigree of the person making the threat Learning Objective #5
V. LIST THE REQUIRED ACTIVITY LOG ENTRIES AT THE BEGINNING AND END OF TOUR.
A. The following entries must be included in the Activity Log:
1. At the start of your tour
a) Day/Date/Tour b) Assignment c) Meal Period d) Name of Supervisor Conducting Roll Call e) Name of Operator / Recorder (If
Applicable) f) Results of Vehicle Inspection (RMP
Operator); Amount of Gas, Odometer Reading and Overall Condition of Vehicle
2. At the end of your tour
a) Time EOT b) Odometer Reading (If Applicable) c) Signature d) Shield Number

CONCLUSION

Whether an officer is in a precinct, Transit District, or a Housing Police Service Area (PSA), the basic premise is the same: to provide safety and security to citizens, riders and residents. For many citizens, security is knowing the cop on patrol. The objective is to establish ties and relations with the public. Police Officers should feel, and be perceived as, part of the community that they serve. The citizens’ concerns should be their concerns. The Police officer’s job is to protect life and property, and to actively pursue violators of the law. Police department cannot accomplish this task without the support of the citizens of this city; it is through daily vigilant patrol that police officer gain that support.

MANDATORY PATROL GUIDE READING

x P.G. 202-21 x P.G. 202-22
x P.G. 202-23

Police Officer – Duties and Responsibilities Radio Motor Patrol Operator – Duties and Responsibilities Radio Motor Patrol Recorder – Duties and

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LESSON: PATROL OPERATIONS

INSTRUCTOR CUES:

x P.G. 202-40 x P.G. 207-29 x P.G. 212-01 x P.G. 212-03 x P.G. 212-10 x P.G. 212-16 x P.G. 212-17
x P.G. 212-18
x P.G. 212-19 x P.G. 212-20 x P.G. 212-21 x P.G. 212-23 x P.G. 212-24 x P.G. 212-25 x P.G. 212-26
x P.G. 212-28
x P.G. 212-31 x P.G. 212-33 x P.G. 212-43 x P.G. 212-58 x P.G. 215-15
x P.G. 212-59 x P.G. 212-60 x P.G. 212-76
x P.G. 212-77
x P.G. 216-09 x P.G. 219-01

Responsibilities Police Attendant – Duties and Responsibilities Field Reports Roll Call Formations Expiration of Tour Interrupted Patrol Evacuations of New York City Transit Trains Procedures at Scenes of Critical Situations on New York City Transit Searches for Armed/Dangerous Persons on New York City Transit Tracks Animals on New York City Public Transportation Ejection from New York City Transit Property Photography in New York City Transit Property Inspection of Rapid Transit Station on Post Removal of Power in the Subway Revenue Escorts Inspection of New York City Housing Authority Facilities Disabled Housing Authority Elevator Car With Passengers Threats Against Members of the Service Confrontation Situations Vacate Orders for Residential Buildings Fire Confiscation of New York City Transit Student MetroCards Interior Patrol of Trespass Affidavit Buildings Interior Patrol of Housing Authority Buildings New York City Housing Authority Trespass Notice Program Processing Arrests Made Pursuant to the New York city Housing Authority Trespass Notice Program Animal Bites Inspection of Department Vehicles Each Tour by Operator

At the conclusion of this lesson, the student will be able to:

x Describe the events which occur at roll call.

x Identify and discuss Precinct and Transit patrol.

x Explain the proper procedure for interior patrol and its legal

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implications:
A. Describe the purpose and rationale for conducting interior patrols within Housing Authority property.
B. Describe the importance of proper interactions between police officers and Housing Authority residents,
C. Explain the revision to Patrol Guide section 212-60, “Interior Patrol of Housing Authority Buildings”.
D. Identify situations when an officer (a) may legally approach or stop someone on NYCHA property, and (b) when an officer should prepare a “Field Report”.
E. Explain the consequences of failing to adhere to the law in regard to stopping persons on NYCHA property.
F. Explain the procedures to take when confronted with a disabled elevator.
G. Identify the circumstance when a Field Report will be prepared.
H. Explain the NYCHA Trespass Notice Program.
x Discuss Supplementary procedures involving patrol operations.
x List the required Activity Log entries at the beginning and end of tour.

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REVISED EXHIBIT E

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LESSON PLAN COVER SHEET

COURSE: NYCHA Rules, Regulations & Signage LESSON: NYCHA Rules & Regulations (Related to Patrol Guide 212-60, “Interior Patrol of Housing Authority Buildings” and “Field Reports, Patrol Guide 207-29)
PREPARED BY: NYPD Police Academy

TRAINEE LEVEL: In-Service TIME REQUIRED: 45 Minutes
DATE PREPARED: 12/2014

APPROVED BY: NYPD Legal Bureau

DATE APPROVED:

REVISED BY: NYPD Legal, In-Service Tactical Training DATE REVIEWED/REVISED:

TRAINING NEED: To ensure that UMOS are familiar with the posted Rules & Regulations, which are restrictions put on NYCHA property, and the proper manner of performing interior patrols (also sometimes referred to as “vertical patrols”) that respects the rights of NYCHA residents and guests.
INSTRUCTIONAL GOAL: At the conclusion of this lesson, the student will possess essential information regarding posted Rules & Regulations which are restrictions put on NYCHA property and the proper performance of interior patrols that may result in civilian encounters so that the rights of NYCHA residents and guests are respected and that police-community relationships can be improved. PERFORMANCE OBJECTIVES:
At the completion of this lesson the student will be able to:
I. Identify the persons to which NYCHA Rules & Regulations apply and locations of where these Rules & Regulations are disseminated.
II. Conduct all encounters with NYCHA residents and their guests with courtesy and respect and in compliance with all state and federal laws.
III. List and define the POSTED Rules & Regulations and related signage that applies to both NYCHA residents and non-residents and locations for where they are enforced.
IV. Discuss the range of options for enforcing the NYCHA Rules & Regulations.
V. Review Patrol Guide 212-60, “Interior Patrol of Housing Authority Buildings.”

METHOD OF PRESENTATION: Lecture
METHOD OF EVALUATION:

CLASSROOM REQUIREMENTS: Traditional Classroom Seating

STUDENT MATERIAL: Notebook & Pen

TRAINING AIDS, SUPPLIES, EQUIPMENT: PowerPoint presentation

BIBLIOGRAPHY: Patrol Guide 212-60, Patrol Guide 207-29, NYCHA posted “No Trespassing” signage

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Introduction
Patrol Guide procedure number 212-60 outlines proper interior patrol procedures within Housing Authority property. In addition to interior patrol, there are additional Rules & Regulations that are set to govern NYCHA property.
It is essential for members of the service to be aware of, and understand, these Rules & Regulations as they are intended and to interact with NYCHA residents and their guests with courtesy and respect and in compliance with all state and federal laws
At the end of this lesson the student will be able to:
I. Identify the persons to which NYCHA Rules & Regulations apply and locations of where these Rules & Regulations are disseminated.
II. Conduct all encounters with NYCHA residents and their guests with courtesy and respect and in compliance with all state and federal laws.
III. List and define the POSTED Rules & Regulations signage that applies to both NYCHA residents and non-residents and locations for where they are enforced.
IV. Discuss the range of options for violating the NYCHA Rules & Regulations.
V. Review Patrol Guide 212-60, “Interior Patrol of Housing Authority Buildings.”

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LESSON: NYCHA Rules & Regulations

INSTRUCTOR CUES:

Body

Learning

Objective #1

I. Identify the persons to which NYCHA Rules & Regulations apply

and locations of where these Rules & Regulations are

disseminated.

A. Persons to which NYCHA Rules & Regulations apply:

1. All NYCHA tenants, any member of the household, guests, or any other person under the tenant’s control are obligated to obey the NYCHA Rules & Regulations.

2. Non-residents and visitors to NYCHA developments are also required to obey posted rules.

B. All NYCHA residents are notified of the Rules & Regulations in three ways.

1. “NYCHA Resident Lease Agreement” / “Highlights of House Rules, Lease Term and Policy”

a. All tenants and authorized household members, age 18 and older, are directed to review and sign, therefore agreeing to follow, all NYCHA Rules & Regulations.

2. “The NYCHA Resident Handbook”

a. Portions of the Handbook give an abbreviated list of the Rules & Regulations as well as current pet policies.

3. Notice:

a. Signs conspicuously posted at the NYCHA buildings and developments. A sign is conspicuously posted when it identifies who is excluded and what is prohibited, and is posted strategically enough to afford adequate notice of the prohibited conduct, for example posted at the building entrances or elsewhere where the resident has to pass or posted adjacent to an area that has been designated as restricted.

b. Non-English speakers may not be able to read conspicuously posted signs if they are not written in their native language.

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c. In the absence of such conspicuously posted signs, officers may instruct a resident or authorized guest found in an area designated as restricted by Housing Authority rules and regulations to leave the area.
d. Officers may complete a FIELD REPORT (PD313-1511) upon encountering persons who are violating Housing Authority rules, even if the sign is missing or defaced. In such a circumstance, officers should also prepare a FIELD REPORT regarding the missing or defaced sign itself.
e. Verbal communication by UMOS or NYCHA representative.
C. Non-residents are made aware of such Rules & Regulations with relevant signage on development grounds.
1. Notice:
a. Signs conspicuously posted at the NYCHA buildings and developments. Signs are conspicuously posted and identify who is excluded and what is prohibited. These signs are posted frequently enough to afford adequate notice of prohibited conduct; for example, they are posted at the building entrances or elsewhere where the non-resident has to pass or adjacent to an area that has been designated as restricted.
b. Non-English speakers may not be able to read conspicuously posted signs if they are not written in their native language.
c. In the absence of such conspicuously posted signs, officers may instruct an unauthorized visitor found in an area designated as restricted by Housing Authority rules and regulations to leave the building.
d. Officers may complete a FIELD REPORT (PD313-1511) upon encountering persons who are violating Housing Authority rules, even if the sign is missing or defaced. In such a circumstance, officers should also prepare a FIELD REPORT regarding the missing or defaced sign itself.
e. Verbal communication by UMOS or NYCHA representative.

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II. Conduct all encounters with NYCHA residents and their guests with courtesy and respect and in compliance with all state and federal laws.

Learning Objective #2

It is always the goal of the police officer to gain voluntary compliance amongst the public in regard to sets of laws and rules and regulations. This is especially true in relation to this lesson. Officers enforcing the regulations that will be discussed in this lesson must ensure that their inquiries, interactions, and enforcement activities are conducted in a courteous, professional and respectful manner. The importance of tactical communication is preeminent in these situations because these interactions routinely take place in the common areas of residents’ homes, and successful policing of NYCHA buildings depends upon consistently positive interactions with residents.

Why are positive interactions important? A) The public trusts (or should trust) us to come into their lives when conditions require it to help them. B) Oftentimes a resident may become an ally and offer information on residents who are violating NYCHA rules or committing other crimes. C) Exhibiting Courtesy, Professionalism and Respect during encounters and employing Tactical Communications when interacting with NYCHA residents will reduce the incidence of CCRB complaints and the discipline that sometimes results.

How can officers ensure positive interactions? A) Use professional language. B) Be sharp, neat, well spoken….not sloppy, belligerent or hostile. C) Look and sound professional to attain respect from the public. D) Improve communication skills and tone of voice (lose the attitude). E) Do not fall into the trap of considering all interactions to be with the criminal element. This is especially true when officers approach persons to determine their justification for being in a NYCHA building. The vast majority of persons present in public housing are law abiding residents and their guests. These persons want to live in or visit an orderly, crime free environment.

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F) Remember that by de-escalating a situation, you are helping yourself stay in control of the interaction.

NOTE: In all cases, remember that proper, professional and tactically sound interactions reduce needless complaints and enhance the Police Department’s ability to work with residents to control crime, reduce disorder and trespassing in housing developments and enhance their quality of life.

Learning Objective #3

III. List and define the Rules & Regulations contained on the posted signs that applies to both NYCHA residents and non-residents and locations for where the rules are enforced.
A. Trespassing is prohibited. NYCHA premises are for the use of residents, invited guests, and persons with legitimate business. For the purpose of this training program, residents include individuals residing in the household even if not registered with NYCHA. All such persons are asked to cooperate with inquiries from NYCHA Management, Security Guards, Resident Watch, and the NYC Police Department regarding their presence or conduct in any building or on development grounds. All such persons are not, however, required to cooperate with inquiries from the NYC Police Department. Mere failure to answer questions or cooperate on its own does not give rise to reasonable suspicion or probable cause of trespassing. Unless a person is stopped based on reasonable suspicion of criminal activity, that person is free to walk away when questioned.

**NOTE: DEVELOPMENT GROUNDS are

1. All NYCHA buildings, apartments, manager’s offices, maintenance areas, storage rooms, etc.
2. All walkways, grounds, parking areas and development driveways located within NYCHA developments.
3. Laundries, community centers, childcare centers, senior citizen centers, etc. which operate within NYCHA buildings.

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B. As indicated on posted signs, the below listed activities are prohibited on NYCHA property. NYCHA property includes lobbies, corridors, stairs, elevators, terraces, balconies and development grounds.
1. Alcohol Consumption and Possessing Open Containers of Alcohol
2. Barbecuing except by permit
3. Bicycle Riding / Skateboarding / Rollerblading except in designated areas
4. Creating a Disturbance / Engaging in Dangerous Activity
5. Defacing NYCHA Property by graffiti or other means
6. Dogs:
x Failing to curb your dog or pick up solid dog waste
x Possessing dogs not registered with NYCHA
x Possessing unleashed dogs
7. Drug Sale, Use, or Possession
8. Entering restricted areas, including a building roof or roof landing (area at the top of the stairwell)
9. Lingering in common areas of building (Lingering occurs when, based on objective facts and circumstances, an individual is observed in a vestibule, lobby, stairwell, hallway or other similar common area of a NYCHA residential building for an unreasonable period of time in light of the area’s intended purpose. The primary purpose of these locations is to enable entrance to and exit from the building as well as movement within the building. Activities associated with the primary purpose of such locations are permissible, including but not limited to: standing and talking for a reasonable period of time; waiting for food deliveries, visitors, and transportation; meeting and greeting neighbors and friends; picking up and dropping off children; checking mailboxes, and any similar activity that occurs in the ordinary course of entrance, exit and movement within the building.).
10. Littering
11. Playing loud music or creating unreasonable noise
12. Smoking in common areas of building
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13. Riding / Driving unauthorized vehicles on development grounds.

C. It is prohibited for any person to obstruct, damage or deface any common area, including playgrounds, picnic or barbecue areas, gardens, trees, shrubs, grass or groundcover, or to violate any of the aforementioned posted Rules & Regulations.

Learning Objective #4

IV. Discuss the range of options for enforcing the NYCHA Rules & Regulations.
A. The observation of the violation of any of the posted Rules & Regulations allows the officer, at the very least, an objective credible reason to approach the violator and may prompt the preparation of a Field Report (Patrol Guide 207-29) and accompanying Activity Log entry. ** NOTE - Officers are to be aware that some, but not all, violations of NYCHA rules warrant concurrent criminal enforcement. **NOTE – Non-English speakers may not be able to read the posted Rules & Regulations if the signs are not written in their native language.
B. Signs posted at NYCHA buildings and developments, with the following restrictions, may be reported and/or enforced in ways listed below.
1. Alcohol Consumption and Possessing Open Containers of Alcohol (also prohibited in community centers)
a. Field Report & Activity Log entry
b. C Summons
x Drinking in Public Admin Code 10-125(b)
2. Barbecuing except by NYCHA permit
a. Field Report & Activity Log entry
b. C Summons x NYC Fire Code 307.1
** NOTE
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x Take no action NYCHA Permit and a garden hose or fire extinguisher is nearby
x Issue Field Report NO Permit and a garden hose or fire extinguisher is nearby
x Issue C Summons NO Permit and NO garden hose or fire extinguisher is nearby
3. Bicycle Riding / Skateboarding / Rollerblading (except in designated areas)
a. Field Report & Activity Log entry b. May eject (non-resident only) if condition is not corrected c. C Summons
x Bicycle on Sidewalk - NYC Traffic Rules 4 07(c)(3)(i) x Recklessly Operating a Skateboard or Rollerblading - NYC
Traffic Rules 19-176.1
4. Creating a Nuisance or Disturbance / Engaging in Dangerous Activity
a. Field Report & Activity Log entry b. May eject (non-resident only) if condition is not corrected c. C Summons
x Disorderly Conduct PL 240.20 (appropriate subsection)
5. Defacing NYCHA Property by graffiti or other means
a. Field Report & Activity Log entry
b. C Summons / Arrest
x Criminal Mischief PL 145.00 (as appropriate based on dollar amount)
x Making Graffiti PL 145.60
6. Dogs: x Possessing a dog not registered with NYCHA (must wear valid NYCHA tag) - this INCLUDES service dogs
a. Field Report & Activity Log entry b. Ejection (non-resident only) Dogs: (does not apply to service dogs)

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LESSON: NYCHA Rules & Regulations

INSTRUCTOR CUES:

x Failing to curb your dog / Failing to pick up solid dog waste or

x Possessing an unleashed dog (leash must be six feet or less in length)

a. Field Report & Activity Log entry

b. Ejection (non-resident only)

c. C Summons

x Failing to curb / Fail to pick up solid waste NY State Public Health Law 1310

x Possessing unleashed dog NYC Health Code 161.05

7. Drug Sale, Use, or Possession
a. C Summons / Arrest
x Penal Law Articles 220 and 221 (as appropriate)
8. Entering restricted areas, including a building roof, roof landing (area at the top of the stairwell), maintenance rooms except for authorized and emergency personnel)
a. If there is a conspicuously posted sign: arrest (and prepare Field Report)

A police officer’s primary job is to protect life, and every decision a police officer makes should give highest priority to the preservation of life.

x Criminal Trespass PL 140.10(e) is defined as knowingly entering or remaining unlawfully in a NYCHA building in violation of conspicuously posted rules or regulations governing entry and use thereof.

x A conspicuously posted sign must identify who is excluded and what is prohibited, and must be posted strategically enough to afford adequate advance notice of the prohibited conduct. The signs will be posted at the building entrances or elsewhere where the resident has to pass or posted adjacent to an area that has been designated as restricted. Even if there is probable cause to arrest a person for trespassing in a restricted area, officers may exercise their discretion to refrain from arresting that person.

x Discretion is the authority to decide how to resolve situations in different ways. A police officer cannot take action or refrain from taking action because of a person’s gender, race, class, ethnicity, sexual orientation, or religion. Instead, a police officer must base his or her actions only on such objective considerations as the individual’s actions and/or information the officer may have received from sources such as members of the

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public, other officers, and the radio dispatcher.

x When an officer encounters a person trespassing in a restricted area, the officer may exercise discretion given the circumstances and not arrest that person and instead instruct that person to leave the restricted area, or the building, under appropriate circumstances.
x For example, a non-English speaker may not have been able to read a conspicuously posted sign that was not written in his or her native language and, thus, may not have known the area was restricted.
x If an officer encounters a building resident in a restricted area, such as the roof or roof landing, and there is no other basis to arrest such person, the officer should exercise such discretion and ask the resident to leave the restricted area. Such discretion need not be exercised if the officer knows that the resident had previously been instructed to leave that particular restricted area.
b. If there are no conspicuously posted signs, but the area is designated as restricted by Housing Authority Rules and Regulations, the following applies. If the person is a resident or authorized visitor, ask them to leave the area. If the person is an unauthorized visitor and there is no other basis to arrest such person, ask him or her to leave the building. x Any person may be arrested for trespassing in a restricted area if he or she refused to leave after instructed.
** NOTE MOS should:
x Take note of posted, missing or defective signs.
x Document defendant’s statements.
x Document any other relevant information.
9. Lingering in common areas of building
a. Field Report & Activity Log entry
LINGERING IS NOT A VIOLATION OF THE LAW – IT IS ONLY A VIOLATION OF THE RULES
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**Definition of “Lingering”: Lingering occurs when, based on objective facts and circumstances, an individual is observed in a vestibule, lobby, stairwell, hallway or other similar common area of a NYCHA residential building for an unreasonable period of time in light of the area’s intended purpose. The primary purpose of these locations is to enable entrance to and exit from the building as well as movement within the building. Activities associated with the primary purpose of such locations are permissible, including but not limited to: standing and talking for a reasonable period of time; waiting for food deliveries, visitors, and transportation; meeting and greeting neighbors and friends; picking up and dropping off children; checking mailboxes, and any similar activity that occurs in the ordinary course of entrance, exit and movement within the building.

** Members of the Service are directed to use common sense and good judgment when addressing this NYCHA Rule violation. Officers are further reminded that Lingering in and of itself is NOT a violation of law.
Example of “Lingering” is:
x (Stairway) Three people are sitting on the stairs in a stairwell.
** Since the purpose of the stairs is to allow people to walk from one floor to another, a group of people sitting in the stairwell would be “Lingering” and subject to a Field Report.
** NOTE A person cannot be arrested for mere lingering in a stairwell.
The following examples would NOT be “Lingering”:
x (Lobby) - Someone is standing in the lobby engaging in a brief conversation with another person while getting their mail from the mail box.
** This is not lingering. One of the functions of the lobby is to provide a place for residents to retrieve mail. Furthermore, it is also a place where residents will most likely meet each other and engage in conversation.
x (Lobby) A resident waiting in the lobby for a cab or for a delivery
10. Littering
Inside building
a. Field Report & Activity Log entry
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Outside building
b. Field Report & Activity Log entry
c. C Summons Littering Admin Code 16-118(1)
11. Playing loud music (with sound reproductive device, e.g. portable stereo device) a. Field Report & Activity Log entry b. C Summons for Admin Code 24-244(a)

** NOTE: In certain circumstances NYPD Permits can be issued for sound reproductive devices, e.g., Family Day, National Night Out. Creating unreasonable noise (WITHOUT sound reproductive device)
a. Field Report & Activity Log entry b. ECB Summons
• Admin Code 24-218
12. Smoking • In elevator
a. C Summons • NYC Health Code 181.17(a) • In common areas of building (other than elevator)
b. Field Report & Activity Log entry

13. Riding / driving unauthorized vehicles on development grounds (stopping / standing / parking on sidewalks / internal roadways / walkways, except emergency vehicles, authorized maintenance and repair trucks, and authorized NYCHA vehicles)
a. Field Report & Activity Log entry
b. A or B Summons
• Obedience to required Traffic Control Devices - VTL 1110 (a) Learning

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**Only if a sign is posted which limits driving on

Objective #5

development grounds to official and specifically authorized

vehicles.

• Driving on Sidewalk - VTL 1225 (a)

** NOTE NYC Traffic Regulations apply on NYCHA property.

V. Review P.G. 212-60, “Interior Patrol of Housing Authority Buildings.”
A. The four (4) levels of DeBour apply to NYCHA buildings.
x Request for Information (objective credible reason to approach) x Common Law Right of Inquiry (founded suspicion that criminal
activity is afoot) x Reasonable Suspicion x Probable Cause
B. UMOS must perform interior patrols and engage citizens in a manner that respects the rights of NYCHA residents and guests. C. Reminder: UMOS need an objective credible reason to approach a person inside a NYCHA building. D. Violations of NYCHA rules are an objective credible reason to approach a person. E. NOTE: Mere presence near, entering or exiting a NYCHA building, without more, is not sufficient to establish reasonable suspicion for a stop on suspicion of trespass nor is it an objective credible reason to approach and question any person. F. Arrest for Criminal Trespass if you reach probable cause that the person knowingly entered or remained unlawfully in a NYCHA apartment building. G. When encountering persons who may be engaged in criminal activity (including potential trespassers), based on observed behavior or other credible information, you may:
1. Approach the person and ask if he or she lives in the building, is visiting someone in the building, or has business in the building.
2. Take reasonable measures to verify the person’s
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authorization to be in the building (ask if they have I.D., keys, other resident can verify, apartment number of residence, name or apartment number of resident being visited etc…)

H. Questions about a person’s authority to be in a NYCHA residence can escalate to the level of a stop if a reasonable person under the facts and circumstances presented would feel that he or she is not free to disregard the police and continue on their way.
1. If you stop any person, you must complete a STOP, QUESTION AND FRISK REPORT WORKSHEET (PD344-151A) and make an ACTIVITY LOG entry.
2. A UMOS may NOT stop (temporarily detain) a suspected trespasser unless the officer reasonably suspects that the person is in the building without valid justification.
3. If a person is stopped on suspicion of trespass, take reasonable measures to investigate (ask for keys, verify with resident, allow person to call resident for verification, consult with NYCHA employee)
4. NOTE: Be mindful that residents may be alarmed or intimidated when a police officer questions them in their homes, especially when an officer goes to their apartment. Thus, when verifying a person’s authority to be in the building, take reasonable measures to avoid such intimidation by first using the intercom system to contact the resident or permitting the stopped person to call the resident by phone.
5. NOTE: Individuals may honestly be mistaken as to the specific apartment number or may know only certain individuals, but not others, residing in an apartment. Officers should take into consideration these possibilities.
6. NOTE: Merely passing through a door that has a defective lock or that has been propped open does not, alone, constitute reasonable suspicion
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INSTRUCTOR CUES:

of criminal activity.
7. NOTE: Upon encountering persons who are violating Housing Authority rules, take appropriate police action pursuant to P.G. 207-29 (“Field Reports”) unless there is a basis for criminal enforcement. Officers may not conduct a reasonable suspicion stop pursuant to P.G. 21211 (“Stop and Frisk”) or arrest any person for a violation of Housing Authority rules, unless the rule violation is also a criminal offense. An officer’s observation of a violation of any Housing Authority rule, regardless of whether it is also a criminal offense, may, at a minimum, provide an officer with a credible reason to approach the person to inquire further and thereafter complete a Field Report.
I. NOTE - Probable cause is required to make an arrest for trespass. If unable to determine whether the person is authorized to be in the building, the officer may instruct the person that he or she must leave the building, and that a refusal to comply may result in an arrest for trespass. If the officer remains unable to determine whether the person is authorized to be in the building, and the person refuses to exit the building, the officer may arrest the person for trespass.
J. You may arrest for Criminal Trespass if you reach probable cause that the person knowingly entered or remained unlawfully in a NYCHA apartment building.
1. Make an ACTIVITY LOG entry
2. Prepare Trespass Criminal Fact Sheet
3. Do not arrest anyone for trespassing in a restricted area of the building, including the roof or roof landing, in the absence of adequate notice provided by a “conspicuously posted sign”
4. In the absence of a “conspicuously posted sign,” instruct a resident or authorized visitor to leave the restricted area and instruct an unauthorized visitor to leave the building. If, after being instructed to leave, the person refuses to do so, you may arrest for Criminal Trespass.
5. Even if there is probable cause to arrest a person for trespassing, officers may exercise

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LESSON: NYCHA Rules & Regulations

INSTRUCTOR CUES:

their discretion to refrain from arresting that person, and instead instruct that person to leave the building or the restricted area under appropriate circumstances.
6. For example, a non-English speaker may not have been able to read a conspicuously posted sign that was not written in his or her native language and, thus, may not have known the area was restricted.

7. If an officer has probable cause to arrest a building resident for being in a restricted area, such as the roof or roof landing, and the officer has not seen the resident in that area before and has no other reason to believe that the resident has actual knowledge that the area is restricted, the officer should exercise discretion and ask the resident to leave the restricted area as long as there is no other basis to arrest such a person.
8. You cannot arrest someone for trespassing based solely on the fact that the person is visiting a resident who is not home. Inability to immediately verify a person’s status as a resident or visitor does not alone provide probable cause to arrest for trespassing.
9. A person’s silence when questioned, alone, does not support reasonable suspicion to stop or probable cause to arrest.
Conclusion
Police officers must be aware of the specific procedures for policing NYC Housing Authority developments, including the non-criminal Rules & Regulations.
In enforcing these Rules & Regulations, the New York City Police Department’s primary role is providing a safe and secure living environment for NYCHA residents.
Successful policing of NYCHA buildings requires positive interactions between police officers and residents. This can only be achieved by conducting all interactions in NYCHA buildings with the courtesy, professionalism and respect all persons are entitled to in their own

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INSTRUCTOR CUES:

homes.
By properly conducting police activity on NYCHA property, officers will assist the NYC Housing Authority in enforcing its rules, limiting criminal activity, and ultimately providing a safe and secure environment for residents and their guests.

At the end of this lesson the student will be able to:
I. Identify the persons to which NYCHA Rules & Regulations apply and locations of where these Rules & Regulations are disseminated.
II. Conduct all encounters with NYCHA residents and their guests with courtesy and respect and in compliance with all state and federal laws.
III. List and define the POSTED Rules & Regulations signage that applies to both NYCHA residents and non-residents and locations for where they are enforced.
IV. Discuss the range of options for enforcing the NYCHA Rules & Regulations.
V. Review P.G. 212-60, “Interior Patrol of Housing Authority Buildings.”

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EXHIBIT F

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TRESPASS CRIMES – FACT SHEET
PD 351-144 (Rev. 01-15) — DRAFT

Defendant’s Name

Complete all Captions on BOTH Sides of This Form
Arrest No.

Date of Arrest

Time of Arrest

Location

Arresting Ofﬁcer’s Name Observing Ofﬁcer’s Name

Shield No. Shield No.

Tax No. Tax No.

Command Command

1. Were there “No Trespassing” and/or “Tenants and Guests Only” signs conspicuously posted at the location?

 Yes  No

IF YES, Where? ________________________________________________________________________________

For NYCHA arrests ONLY: If the defendant was arrested for presence in a restricted area, were there conspicuously posted signs at the location that prohibit entry in that speciﬁc restricted area?  Yes  No

IF YES, where were those signs? ___________________________________________________________________

2. Was defendant seen entering the location?  Yes  No

IF YES, how did the defendant gain access to the building? _______________________________________________

3. How long did you observe the defendant in the building before you approached? ______________________________

4. Where was the defendant when he was stopped? ______________________________________________________

5. Describe the factors that led to the decision to approach and question the defendant:

______________________________________________________________________________________________

______________________________________________________________________________________________

______________________________________________________________________________________________

______________________________________________________________________________________________

______________________________________________________________________________________________

6. Did you approach the defendant and ask:

a) Do you live in the building?  Yes  No If Yes, (response) ________________________________________

b) Are you visiting someone in the building?  Yes  No If Yes, (response) ______________________________

c) Do you have business in the building?  Yes  No If Yes, (response) ________________________________

OVER

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7. How was it determined that the defendant was not a tenant, guest or on business in the building, prior to arrest? ______________________________________________________________________________________________ ______________________________________________________________________________________________ a) Did defendant provide an apartment number?  Yes  No IF YES, Apt No.______________________________ b) Did defendant provide a name of an alleged tenant he/she was visiting?  Yes  No Name Provided _______________________________________________________________________________ c) Did you go to apartment defendant indicated?  Yes  No
8. Did defendant make any statements?  Yes  No IF YES, defendant stated in sum and substance: ______________________________________________________________________________________________ ______________________________________________________________________________________________ ______________________________________________________________________________________________
Statement made to ______________________________________ Shield No. ______________ Tax No. _____________ at approximately ___________(time) at _________________________________________________________(location) on ________________(date)
9. Was evidence recovered from the defendant?  Yes  No a) IF YES, describe the evidence and EXACTLY where the evidence was recovered from ______________________ ______________________________________________________________________________________________ b) Did you recover the evidence?  Yes  No IF NO, did you observe the recovery of the evidence?  Yes  No c) Indicate ofﬁcer who recovered evidence: Rank/Name _____________________________________________ Shield No. __________ Tax No. __________

Reporting Ofﬁcer’s Signature

Date

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EXHIBIT G

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New York City Housing Authority (NYCHA) Highlights of House Rules, Lease Terms and Policy
This document contains highlights of NYCHA lease requirements, “house rules and regulations,” general provisions of law and NYCHA policy. The document is intended to remind NYCHA residents of these important requirements.
Note that this document is NOT a lease and NOT a lease addendum. The act of signing this document will not grant any rights of tenancy or authorized occupancy. This document does not waive any lease provision, rule or policy not included here. All provisions of other NYCHA
rules, policy or lease clauses not mentioned here remain in full force and effect. Contact your development housing assistant for more details.
FINANCIAL INFORMATION 1 Annual Review: Every household must submit to NYCHA every year the Annual Review booklet.
This lists both the tenants (person(s) who signed the lease) and family members who did not sign the lease but are authorized by NYCHA to reside in the household. Include in the booklet income information for ALL household members. Examples of income include: employment wages, Social Security benefits, Supplemental Security Income (SSI), pension, public assistance, unemployment benefits and income from a business. NYCHA verifies the accuracy of the information reported through US Department of Housing and Urban Development (HUD) databases and other sources. 2 Rent: Rent is based on the income of all household members. Rent is based on 30% of household income (less allowable deductions) or the welfare rent, and cannot go higher than any rent ceiling in effect. 3 Rent Due: Rent for the entire month is due the first day of the month and must be paid entirely, unless the family pays by automatic rent payment (see #5 below), where rent can be paid twice a month. 4 Rent Payment Options: Rent is paid once a month, due on the first of the month: x by mail: mail your check or money order along with the monthly rent bill, x by phone: call (866) 942-3104, x with cash at a bank, or x with cash at a check cashing store: At Pay-O-Matic. 5 Automatic Rent Payment Options – rent is paid twice a month: x Payroll Rent Deduction: available to most New York City municipal employees, including NYCHA
employees x Automatic Rent set up by computer: available to any resident whose source of income (for example:
wages, pension, Social Security) is directly deposited to their bank account and the resident signs up for automatic rent payment (go to www.nyc.gov/nycha and select “Online Rent payment”). x Public Assistance: PA recipients whose rent is paid by the Department of Social Services twice monthly.
APARTMENT INFORMATION 6 Repairs and Inspection: Report needed repairs and emergencies to the Customer Contact Center (CCC) at
(718) 707-7771. Residents must help facilitate repairs and inspections by providing access to their apartment as needed. 7 Window Guards: Every window in every apartment must have a window guard, even if you don’t have children living in your apartment. If you remove a window guard to install an air conditioner (A/C), you must call the development office because NYCHA must inspect the window to see that the A/C is securely installed. 8 Major Appliances: If you want to get a major appliance (air conditioner, freezer, dishwasher or clothes washing machine) you must contact the development office and sign a special appliance agreement. There may be a small electricity or water usage fee involved. Clothes dryers are prohibited. 9 Occupancy: Only the tenant(s) and people authorized by NYCHA may reside in your apartment. Unauthorized occupants are not permitted. If an authorized member of your household leaves, you must notify NYCHA and verify that the person moved out.
A translation of this document is available in your management office and online at nyc.gov/nycha. La traducción de este documento está disponible en su oficina de administración y en Internet en nyc.gov/nycha.
ᩥ௳㆞ᮏྍ฿ᒇ㑦⟶⌮㎨஦⹦ᡈୖ⥙ᆎ nyc.gov/nycha ⣴ྲྀࠋ ɉɟɪɟɜɨɞɷɬɨɝɨɞɨɤɭɦɟɧɬɚɧɚɯɨɞɢɬɫɹɜȼɚɲɟɦɞɨɦɨɭɩɪɚɜɥɟɧɢɢɢɧɚɢɧɬɟɪɧɟɬɟnyc.gov/nycha. Please call the Language Services Unit at 212-306-4443 for an oral interpretation of this document in other
languages

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New York City Housing Authority (NYCHA) Highlights of House Rules, Lease Terms and Policy

10 Additions to Your Household: Tenants may request permission from NYCHA for another person to reside with them in their apartments. NYCHA may grant permission for an additional person(s), upon certain conditions, including: the tenant is in occupancy and in good standing, and if the additional person is one of the acceptable relationship categories (such as child, sibling, parent, grandparent, spouse or registered domestic partner), meets the occupancy standards and passes a criminal background check.
11 Transfers: A tenant may request a transfer to another apartment. NYCHA may grant the transfer if the tenant is in good standing and the reason for transfer falls within one of the allowable transfer categories. If a family is allowed to transfer, the entire family must move and no one is allowed to remain in the old apartment. NYCHA may require a family to transfer if the family underoccupies the apartment or NYCHA needs the apartment for some NYCHA purpose.
12 Emergency Transfers: NYCHA has an emergency transfer program for Victims of Domestic Violence (VDV), Intimidated Witnesses (IW), Intimidated Victims (IV) or Child Sexual Victims (CSV) who meet certain requirements, including submitting documents to prove their status, and who are willing to move to a development selected by NYCHA within their borough of choice. If a family is allowed to transfer, the entire family must move and no one is allowed to remain in the old apartment. The abuser does not transfer and must be excluded from the old apartment.
13 Violence Against Women Act (VAWA): NYCHA will not consider an incident of domestic violence, dating violence or stalking as grounds to terminate the tenancy or occupancy rights of the victim of abuse. A victim of abuse may request an Emergency Transfer if the victim is the tenant and meets the requirements of the Emergency Transfer Program (see #12 above). NYCHA may proceed to terminate the tenancy or occupancy rights of the abuser.
14 Apartment Condition: The apartment must be maintained in a good, clean and sanitary condition. Residents and their guests may not damage, deface or destroy the apartment or any NYCHA property. The tenant will take every reasonable precaution to prevent fires and will not store gasoline or other hazardous flammable substances in the apartment.
15 Waste: The tenant must dispose of all waste and trash properly. Kitty litter shall be placed in the compactor chute with other household garbage and not flushed down the toilet. Large items such as mattresses and other furniture must be disposed of properly and may not be left in common areas.
16 Smoke Alarm / CO Detector: The tenant must keep in good condition all smoke or Carbon Monoxide (CO) detectors. The tenant is responsible for changing the batteries so that they function properly.
17 Moving: x Moving is permitted by permit only. Residents must obtain a moving permit from the management office prior to moving. x Moving is permitted only on weekdays, Monday through Friday, between 9:00 AM to 5:00 PM. x Special moving situations must be approved by development management.

BUILDING AND DEVELOPMENT INFORMATION 18 Trespassing Prohibited: NYCHA premises are for the exclusive use of residents, invited guests, and persons
with legitimate business. All persons are asked to cooperate with inquiries from NYCHA management, contract security hired by NYCHA, Resident Watch, and the police performing interior patrols (also sometimes referred to as “vertical patrols”) regarding their presence or conduct in any building or on development grounds. 19 Restricted Areas: No persons (including residents) are permitted in restricted areas, for example: roofs, roof landings and maintenance rooms, except for authorized and emergency personnel. 20 TV Antenna / Cable TV Dish Antenna: A resident is prohibited from installing a TV antenna or cable dish antenna either on the roof or on the exterior of the building outside an apartment. 21 Lobby / Stairwell / Elevator: The lobby or stairwell is meant for resident use to either go in or out of the building or to walk from floor to floor.
x Unlawful activity, lingering, smoking, the consumption of alcohol, and the possession of an open container of alcohol, are prohibited in the lobby, corridors, and stairwell. Lingering occurs when, based on objective facts and circumstances, an individual is observed in a vestibule, lobby, stairwell, hallway or other similar common area of a NYCHA residential building for an unreasonable period of time in light of the area’s intended purpose. The primary purpose of these locations is to enable entrance to and exit from the building as well as movement within the building. Activities associated with the primary purpose of such locations are permissible, including but not limited to: standing and

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New York City Housing Authority (NYCHA) Highlights of House Rules, Lease Terms and Policy

talking for a reasonable period of time; waiting for food deliveries, visitors, and transportation;
meeting and greeting neighbors and friends; picking up and dropping off children; checking
mailboxes; and any similar activity that occurs in the ordinary course of entrance, exit and movement
within the building. x Tampering with an elevator or riding on top of an elevator cab is prohibited. x Leaving an entrance or exit door propped open or unlocked is prohibited.

22 Parking: NYCHA maintains parking lots as part of its residential developments and permits parking by both residents and non-residents. No one may park in a parking lot without a current year parking registration sticker displayed in the windshield. A sticker is valid for one year beginning May 1st. NYCHA charges different parking rates depending on whether the parking applicant is a resident or non-resident, or if the lot desired is a reserved or non-reserved lot. NYCHA also provides parking for persons with disabilities. Vehicle repair other than the changing of tires is NOT permitted in parking areas. Vehicles in violation of these provisions may be subject to summons and/or tow at the owner’s expense.
23 Closed Circuit TV: NYCHA installs closed circuit television cameras in various development locations, such as lobby and mail box areas, building entrances and exits, elevators, shops, community centers and other development rooms and ground locations. The cameras are intended to deter objectionable conduct and consequently improve the safety and security of residents, employees and property. Persons may not damage or destroy cameras or obstruct camera views.
24 Common Areas, Development Grounds and Recreational Areas: NYCHA common areas are for the benefit of all residents. It is prohibited for any person to obstruct, damage or deface any common area, including playgrounds, picnic or barbecue areas, gardens, trees, shrubs, grass or groundcover, or to violate any of the following: x Creating a nuisance or disturbance is prohibited. x Rollerblading, bicycle riding and skateboarding are prohibited. x The consumption of alcohol and possession of an open container of alcohol are prohibited, including in community centers. x Drug Sale, Use or Possession x Barbecues without a NYCHA permit are prohibited. x Basketball courts close at 10:00PM. All other parks close at dusk, unless otherwise indicated. x Sound amplification devices are prohibited except by NYPD permit. x Littering and illegal dumping are prohibited. x The use of vehicles on sidewalks, internal roadways, and walkways is prohibited except for emergency vehicles and NYCHA authorized vehicles. All persons must comply with specific signs posted throughout the development regarding their use of or conduct in any area.
GENERAL INFORMATION
25 Pets: x A family may maintain one dog or one cat, provided that it is registered with the development office. Dogs registered after February 1, 2010 may not weigh more than 25 pounds when full grown. Doberman Pinchers, Pit Bulls and Rottweilers are not permitted. x Dogs or cats NOT registered with NYCHA are prohibited from common areas and development grounds. x All dogs (including dogs that are Service Animals) in common areas and on development grounds must wear a currently valid metal tag issued by NYCHA and must also have a Department of Health and Mental Hygiene metal tag with license number displayed on a collar about its neck at all times. x A family may obtain a Service Animal if a doctor verifies that the animal assists, supports or provides service to a resident with disabilities. Service Animals must be registered with the development office. x Small caged animals, birds or fish (for example: parakeets, canaries, goldfish, hamsters and gerbils - this does NOT include dogs or cats) reasonably maintained are permitted, provided they are not prohibited by law. These animals do not have to be registered with NYCHA. x Dogs in common areas must be restrained by a leash 6 feet or less. Pets are prohibited from roofs. x Dogs must be curbed. Solid dog waste must be picked up.
26 Reasonable Accommodation: NYCHA provides reasonable accommodation to meet the needs of persons with disabilities. To request a reasonable accommodation, contact your development manager or the NYCHA Department of Equal Opportunity, Services for the Disabled.

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New York City Housing Authority (NYCHA) Highlights of House Rules, Lease Terms and Policy
27 Community Service: Every resident must perform 8 hours every month of Community Service or Economic Self-Sufficiency activities unless he or she is exempt. NYCHA notifies a family every year of Community Service requirements.
28 Termination of Tenancy: NYCHA may start a proceeding to terminate tenancy if a tenant or family member commits a crime, is a source of danger to other residents, causes damage to people or property, creates a nuisance, breaches NYCHA rules or is chronically delinquent in the payment of rent.

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New York City Housing Authority (NYCHA) Highlights of House Rules, Lease Terms and Policy
NOTE: The Lease requires that a tenant (lessee) is responsible for the behavior of his/her family members and guests.
NYCHA requires that the tenants and all authorized household members age 18 and older sign below to indicate they have received and reviewed these highlights of NYCHA’s House Rules, Lease Terms and Policy. If a household member cannot sign because of a physical or mental disability, or because the person is temporarily away from the apartment (such as in an out-of-town school or away in the military), print that person’s name on a line and state the reason that he or she can not sign. Note that you must separately inform your development housing assistant if a household member was permanently removed from the household.
Attach an additional sheet with signature lines if necessary.

Tenant – person who signed the NYCHA lease (print and sign name)

Date

Tenant - person who signed the NYCHA lease (print and sign name)

Date

Authorized Household Member over age 18 (print and sign name)

Date

Authorized Household Member over age 18 (print and sign name)

Date

Authorized Household Member over age 18 (print and sign name)

Date

Authorized Household Member over age 18 (print and sign name)

Date

Authorized Household Member over age 18 (print and sign name)

Date

Authorized Household Member over age 18 (print and sign name)

Date

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REVISED EXHIBIT H

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KELTON DAVIS, et al., individually and on behalf of a class of all others similarly situated;
Plaintiffs,
- against -
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY;
Defendants.

10 Civ. 0699 (SAS) ECF Case

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, and Andrew Washington, individually and on behalf of a class of all others similarly situated (“Plaintiffs”), Defendant City of New York (“City”), and Defendant New York City Housing Authority (“NYCHA”), who are parties to the Davis, et al. v. City of New York, et al. class action now pending in the United States District Court, have reached an agreement, subject to approval of the Court, to settle this case (“Settlement Agreement”). This Notice describes the proposed Settlement Agreement and how it may affect your legal rights. The proposed Settlement Agreement will not go into effect until: (1) individuals whose rights may be affected by the proposed Settlement Agreement have had the chance to object to it; and (2) the Court has a hearing and approves the Settlement Agreement as fair, adequate, and reasonable, and all appeals from that approval have been exhausted.
Your rights as a member of the Plaintiff Class are affected by this Settlement Agreement if you are:
(1) an African-American or Latino resident of a NYCHA apartment—or a family member, authorized guest or visitor of a NYCHA resident—who, since January 28, 2007, has been or would be unlawfully stopped, seized, questioned, frisked, searched and/or arrested for trespass by New York City Police Department (“NYPD”) officers in or around NYCHA residences; and/or
(2) a NYCHA resident whose family member, authorized guest or visitor, since January 28, 2007, has been or would be unlawfully stopped, seized, questioned, frisked, searched, and/or arrested for trespass by NYPD officers in or around NYCHA residences.

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In this lawsuit, the Plaintiff Class alleges that (1) NYPD officers violated federal and state law in their enforcement of New York State trespass laws in public housing residences, and (2) NYCHA violated federal law by creating unreasonable lease terms when issuing its “Highlights of House Rules, Lease Terms and Policy.”
Below is a brief summary of what the Settlement Agreement will address and provide if it is approved by the Court:
x Revisions to the NYPD Patrol Guide that instruct NYPD officers how to conduct interior (or “vertical”) patrols of NYCHA residences in a manner that respects the rights of NYCHA residents and their authorized visitors;
x Revisions to certain NYPD training materials that instruct NYPD officers how to conduct interior (or “vertical”) patrols of NYCHA residences, and how to enforce NYCHA rules when conducting those interior patrols, in a manner that respects the rights of NYCHA residents and their authorized visitors;
x Revisions to a “Trespass Crime Fact Sheet” and a requirement that NYPD officers complete this form after making any arrest for trespass in or around NYCHA residences;
x Revisions to NYCHA’s “Highlights of House Rules, Lease Terms and Policy,” which makes clear that (1) NYCHA residents are asked, but not required, to cooperate with inquiries from NYPD officers, and (2) clarifies the prohibited activity of “lingering” in common areas of NYCHA residences; and
x Full participation in a Court-ordered monitoring process with the parties in the “stop-and-frisk” case, Floyd v. City of New York, 08 Civ. 1034, which will reform the NYPD’s training, supervision, monitoring, and discipline policies and practices with respect to trespass enforcement in or around NYCHA residences, and will provide an opportunity for community members, including NYCHA residents, to voice their opinions and experiences during the development of those reforms. This process will be overseen by the Court.
Upon approval by the Court, the Settlement Agreement will resolve and release pending claims of the Plaintiff Class against Defendant City and Defendant NYCHA relating to trespass enforcement that have been or, could have been, asserted in Davis, et al. v. City of New York, et al. prior to the date that the Settlement Agreement goes into effect. This Notice does not constitute a determination by the Court concerning the merit or lack of merit of the allegations made by Plaintiffs against Defendants in this case. Further, Defendants do not admit to any liability of any kind in the Settlement Agreement.
2

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The entire Settlement Agreement is available on the following websites:
http://www.naacpldf.org/DavisClass
http://www.legal-aid.org/en/criminal/criminalpractice/davissettlement.aspx
In addition, the Settlement Agreement is available for review at the Office of the Clerk of the Court, United States District Court for the Southern District of New York, 500 Pearl Street, New York, NY 10007-1312.
If you have questions about the proposed Settlement Agreement, or wish to receive a copy of the Settlement Agreement but do not have access to the Internet to download a copy online, you may contact the following civil rights organization, which serves as counsel for the Plaintiff Class, by telephone or email:
Jin Hee Lee or Rachel Kleinman NAACP Legal Defense & Educational Fund, Inc. (877) 301-2201 DavisClass@naacpldf.org
You may, of course, seek the advice and guidance of your own attorney if you desire. The Court cannot respond to any questions regarding this Notice, the lawsuit, or the proposed Settlement Agreement.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, a hearing (“the Fairness Hearing”) will be held before the Honorable Shira A. Scheindlin, U.S. District Judge, to determine whether a proposed settlement of this action, on the terms and conditions set forth in the Settlement Agreement, should be approved as fair, reasonable, and adequate, as recommended by both the attorneys representing the Plaintiff Class and those representing the Defendants. THE FAIRNESS HEARING WILL TAKE PLACE IN COURTROOM 15C OF THE UNITED STATES COURTHOUSE, 500 PEARL STREET, NEW YORK, NEW YORK, ON WEDNESDAY, APRIL 22, 2015, BEGINNING AT 4:00 P.M. Any interested person may attend the Fairness Hearing.
YOU DO NOT NEED TO APPEAR AT THE FAIRNESS HEARING OR TAKE ANY OTHER ACTION TO INDICATE YOUR APPROVAL OF THE SETTLEMENT AGREEMENT. You do not need to take any action in response to this Notice.
If, however, you are a Class Member, you have the right to object to and/or comment on the proposed Settlement Agreement. Your comment may be in favor of the proposed Settlement Agreement, or you may object to any aspect of the proposed Settlement Agreement.
IF YOU HAVE ANY OBJECTIONS OR COMMENTS TO THIS SETTLEMENT AGREEMENT AND/OR WISH TO STATE YOUR OBJECTIONS AT THE FAIRNESS HEARING, YOU MUST FOLLOW THE INSTRUCTIONS SET FORTH BELOW.
3

CaCsaese1:1:01-0c-vc-v0-00609699-9A-TS-AHSB-PHBPDocDuomceunmt e3n3t03-129-F4ileFdil0e2d/042/1054/1P5agPea1g3e95oof f1544
If you wish to submit written objections or comments to the proposed Settlement Agreement, you must complete and deliver (by mail, private delivery service, personal delivery, or email) a Written Objection Submission Form together with your written objections to the NAACP Legal Defense & Educational Fund, Inc. by April 1, 2015.
If you wish to submit written objections or comments to the proposed Settlement Agreement and speak at the Fairness Hearing, you must complete and deliver (by mail, private delivery service, personal delivery, or email) a Request to Speak Form together with your Written Objection Submission Form and your written objections to the NAACP Legal Defense & Educational Fund, Inc. by April 1, 2015.
Written Objection Submission Forms and Request to Speak Forms are available from Plaintiffs’ Counsel by accessing the website addresses or contacting the telephone number and email address listed above. Addresses for Plaintiffs’ Counsel are:
NAACP Legal Defense & Educational Fund, Inc. Attn: Davis Class Settlement 40 Rector Street, 5th Floor New York, NY 10026 DavisClass@naacpldf.org Copies of all objections will be forwarded by Plaintiffs’ Counsel to Counsel for Defendants and provided to the Court before the Fairness Hearing.
4

CCaassee11:1:100-c-cvv-0-0066999-A-STA-HSB-HPBPDoDcuomcuemnte3n3t 03-212-1F0iledFi0le2d/0041/1/057/1P5agPea1g4e01ofo1f 454
EXHIBIT I

CCaassee11:1:100-c-cvv-0-0066999-A-STA-HSB-HPBPDoDcuomcuemnte3n3t 03-212-1F0iledFi0le2d/0041/1/057/1P5agPea1g4e12ofo1f 454

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KELTON DAVIS, et al., individually and on behalf of a class of all others similarly situated;
Plaintiffs,
- against -
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY;
Defendants.

10 Civ. 0699 (SAS) ECF Case

STIPULATION AND [PROPOSED] ORDER
WHEREAS, on _________, the above-captioned class action was dismissed with prejudice after and pursuant to the Final Approval of the Stipulation and Order of Settlement, dated _______ (annexed hereto as Exhibit A) (the “Settlement”);
WHEREAS, pursuant to the Settlement, the district court retained jurisdiction to enforce the Settlement and to issue and enforce orders related to the Settlement in the abovecaptioned action;
WHEREAS, pursuant to the Settlement, the above-captioned action was transferred to this Court after the dismissal with prejudice for the purposes of enforcing the Settlement;
WHEREAS, pending before this Court, is enforcement of the Opinion and Order, dated August 12, 2013, Doc. No. 372, as modified by the Order Modifying Remedial Order, dated July 30, 2014, Doc. No. 466, Order in Floyd v. City of New York, 08-CV-1034, attached as

CCaassee11:1:100-c-cvv-0-0066999-A-STA-HSB-HPBPDoDcuomcuemnte3n3t 03-212-1F0iledFi0le2d/0041/1/057/1P5agPea1g4e23ofo1f 454
Exhibit B and Exhibit C to this Stipulation1 (the “Remedies Order”), which included the courtappointment of a Monitor to develop a set of reforms of the New York Police Department policies, training, supervision, monitoring and discipline regarding stop and frisk practices; and
NOW, THEREFORE, IT IS HEREBY STIPULATED AND ORDERED, by and between the undersigned, as follows:
1. The terms and provisions of the Remedies Order are incorporated in full into the above-captioned case for the purpose of enforcing the Settlement as it pertains to reforms to the NYPD’s policies and practices regarding trespass enforcement in or around NYCHA residences, including training, supervision, monitoring, and discipline of officers.
2. All orders issued by this Court in connection with the Remedies Order will have full force and effect in the above-captioned action.
2. The Monitor’s duties in the Remedies Order are hereby ordered to include implementation of paragraphs D, E, F, G, and H of the Settlement and any related necessary reforms developed by the Monitor in consultation with the parties concerning training, supervision, monitoring, and discipline of officers regarding trespass enforcement in or around NYCHA residences, for purposes of ensuring, to the Court’s satisfaction, that trespass enforcement in or around NYCHA residences are conducted in compliance with all applicable law.
1 See also Opinion and Order, dated August 12, 2013, Doc. No. 120, as modified by the Order Modifying Remedial Order, dated July 30, 2014, Doc. No. 198, Order in Ligon v. City of New York, 12-CV-2274 (S.D.N.Y.) (SAS).

CCaassee11:1:100-c-cvv-0-0066999-A-STA-HSB-HPBPDoDcuomcuemnte3n3t 03-212-1F0iledFi0le2d/0041/1/057/1P5agPea1g4e34ofo1f 454

Dated: New York, New York ______________, 2015

Sherrilyn Ifill Director Counsel Janai Nelson Christina Swarns Jin Hee Lee Rachel Kleinman NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 Tel: (212) 965-2200 Fax: (212) 226-7592

Zachary W. Carter Corporation Counsel of the City of New York Brenda E. Cooke Muriel Goode-Trufant NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, New York 10007 Tel: (212) 513-0462 Fax: (212) 356-3509
Attorneys for Defendant City of New York

_______________________________ Seymour James Attorney-in-Chief William Gibney Steven Wasserman THE LEGAL AID SOCIETY OF NEW YORK 199 Water Street, 6th Floor New York, NY 10038 Tel: (212) 577-3419 Fax: (212) 509-8141

_______________________________ Michele Hirshman Erin E. Elmouji Elana R. Beale PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel: (212) 373-3000 Fax: (212) 492-0740

Attorneys for the Plaintiff Class and Individual Plaintiff Class Representatives

CCaassee11:1:100-c-cvv-0-0066999-A-STA-HSB-HPBPDoDcuomcuemnte3n3t 03-212-1F0iledFi0le2d/0041/1/057/1P5agPea1g4e45ofo1f 454 IT IS SO ORDERED: Analisa Torres, United States District Judge

 
 USDCSDNY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)(
KELTON DAVIS, WILLIAM TURNER, EDWIN LARREGUI, ANTHONY

DOCUMENT

\ ELE~ONICALLY FILED I

. DOC#. I\l DATE FILED:

j/z~.~1~~J~l

( . _ _ _ _ _. . . . "·-. ~~~~·~:~.-::::::::::::=====:-_

ANDERSON, SHAWNE JONES, HECTOR

SUAREZ, ADAM COOPER, DAVID

WILSON, GENEVA WILSON, ELEANOR

BRITT, ROMAN JACKSON, KRISTIN

JOHNSON, LASHAUN SMITH, ANDREW

WASHINGTON, PATRICK LITTLEJOHN,

RAYMOND OSORIO, VAUGHN

MEMORANDUM OPINION

FREDERICK, and R.E., by her parent D.E.,

AND ORDER

individually and on behalf of a class of all

others similarly situated,

10 Civ. 0699 (SAS)

Plaintiffs,

- against -
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY,
Defendants.
-------------------------------------------------------~
SHIRA A. SCHEINDLIN, U.S.D.J.: This short Memorandum Opinion and Order accompanies the Final
Order of Approval of Settlement and Dismissal with Prejudice filed together with this Order. I write solely to note that I am ordering the transfer of this case to
Judge Analisa Torres - at the request of all parties - because this case is undoubtedly related to two other cases now pending before her - Floyd v. City of New York, and Ligon v. City ofNew York.

1

A brief history is in order. Daniels v. City ofNew York was filed in 1999. 1 That ca:se re:sulted ln the entry of' a Stlpubtlon of' Settlement, ln whlch the City agreed to maintain a written anti-racial profiling policy that complies with the U.S. and New York State Constitutions, to audit officers who engage in stop and frisks, and to provide the results of these audits to plaintiffs' attorneys. This Court retained jurisdiction over the performance of the Stipulation for four years. Near the end of that period, the Daniels plaintiffs alleged that the City was not complying with the Stipulation. Their complaint could have been heard as a contempt proceeding or as a new and related lawsuit challenging the City's compliance with this Court's order in Daniels. The latter course was chosen and Floyd was filed in 2008.2 Davis was filed two years later in 2010,3 and Ligon two years after that in 2012.4 All three cases challenged the City's allegedly unconstitutional implementation of stop and frisk policies by the New York City Police Department. Floyd and Ligon were resolved after a trial and a preliminary injunction hearing respectively, in which certain remedies were ordered. These
No. 99 Civ. 1695 (filed March 8, 1999). 2 No. 08 Civ. 1034 (filed January 31, 2008). 3 No. 10 Civ. 699 (filed January 28, 2010). 4 No. 12 Civ. 2274 (filed March 28, 2012).
2

remedies are now known as the "Joint Remedial Process." The City initially
ordered the cases reassigned to a new judge.5 While the appellate court suggested that the cases were improperly accepted as related to Daniels,6 it nonetheless reassigned the two cases in tandem. 7 The City announced its intent to withdraw its appeals when a new administration took office in January 2014. When the
withdrawal of the appeals was finalized, the Joint Remedial Process began.
Now that the Davis case has been settled, and this Court has found
that the settlement is fair, reasonable, and adequate, the parties have jointly requested that the Davis case be transferred to Judge Torres as it is related to Floyd and Ligon and all parties believe that the three related cases should be part of one remedial process. 8 I, too, believe that there should be one remedial process as the
5 Ligon v. City ofNew York, 736 F.3d 118 (2d Cir. 2013). 6 See id. at 124-26. 7 See id. at 129. 8 See Stipulation of Settlement and Order at 10 [Dkt. 330]. See also Transcript of Fairness Hearing, April 22, 2015, Remarks of Jin Hee Lee, counsel for Plaintiffs, at 7-8 ("And, perhaps most importantly, this settlement calls for the plaintiffs' participation as equal parties in the court monitoring process that was ordered in the related case of Floyd v. City ofNew York.") (emphasis added). See also id. at 8 ("And through this court monitoring process plaintiffs will work in collaboration with the City, the court monitor and the plaintiffs in both Floyd and also the other related case, L[i}gon v. City ofNew York, to implement systemic
3

cases all challenged the same conduct and the remedies imposed by this Court will benefit the p1airnLL'i's ln a11 three cases.
I am transferring the Davis case with regret as it would have been most appropriate for the judge that supervised this case - and the related cases for more than five years to supervise the implementation of the remedies imposed by the Court or agreed to by the parties. Nonetheless, I do so because it is most important that the parties work together in one Joint Remedial Process to repair the damage that was done during the years that the defendants in these cases violated the plaintiffs' constitutional rights. The Joint Remedial Process is underway and like all New Yorkers I have the highest hopes for its success.
SO ORDERED:

Dated:

New York, New York April 28, 2015

reform of the NYPD.") (emphasis added).
4

Appearances

For Plaintiffs:

Elana R. Beale, Esq. Erin E. Elmouji, Esq. Jason L. Meizlish, Esq. Julia Tarver-Mason Wood, Esq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000

William Gibney, Esq. Marlen S. Bodden, Esq. Amanda C. Moretti, Esq. The Legal Aid Society 199 Water Street, 6th Floor New York, New York 10038 (212) 577-3300

Christina Swarns, Esq. Jin Hee Lee, Esq. Rachel M. Kleinman, Esq. NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 1600 New York, New York 10013 (212) 965-2200

For Defendant City of New York:

For Defendant NYCHA:

Judson K. Vickers Lisa M. Richardson Linda Donahue Assistant Corporation Counsel New York City Law Department 100 Church Street, 3-174 New York, New York 10007 (212) 513-0462

Donna M. Murphy, Esq. New York City Housing Authority 250 Broadway, 9th Floor New York, New York 10007 (212) 776-5152

5

 
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 Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DAVID FLOYD, et al.,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 7/8/2020

Plaintiffs, -against-

ORDER

CITY OF NEW YORK,

08 Civ. 1034 (AT)

Defendant.

KELTON DAVIS, et al., Plaintiffs,

-against-

CITY OF NEW YORK, et al.,

10 Civ. 0699 (AT)

Defendants.

JAENEAN LIGON, et al.,

Plaintiffs,

-againstCITY OF NEW YORK, et al.,

12 Civ. 2274 (AT)

Defendants. ANALISA TORRES, District Judge:

Before the Court is a motion by the Floyd and Davis Plaintiffs (“Plaintiffs”) challenging

the legality of the New York City Police Department’s (the “NYPD”) enforcement of rules

promulgated by state and local officials during the COVID-19 pandemic. For the reasons stated

below, the motion is DENIED.

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 2 of 11
BACKGROUND I. Ligon, Floyd, and Davis Cases
This long-running litigation addresses the NYPD’s stop, frisk, search, and trespass enforcement policies and practices.
In Ligon v. City of New York, after a seven-day evidentiary hearing, on January 8, 2013, the Court issued a preliminary injunction against the City of New York (the “City”), finding that the plaintiffs would likely succeed in proving that the City, by its deliberate indifference, had a policy of conducting unconstitutional stops in or near Bronx apartment buildings enrolled in the Trespass Affidavit Program (“TAP”), which permits the NYPD to patrol private buildings with their owners’ consent. 925 F. Supp. 2d 478, 486 (S.D.N.Y. 2013), amending and superseding Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 71800 (S.D.N.Y. Jan. 8, 2013). In Floyd v. City of New York, after years of litigation culminating in a nine-week trial, on August 12, 2013, the Court issued an opinion holding that the City had a policy of conducting race-based stops and frisks that ran afoul of the Fourth and Fourteenth Amendments (the “Liability Opinion”). Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013).
Given the similarities in the City’s constitutional violations in Floyd and Ligon, the Court then directed the NYPD to institute certain reforms to remedy the unconstitutional stop-and-frisk practices in both cases (the “Remedial Order”). Floyd v. City of New York, 959 F. Supp. 2d 668, 671 (S.D.N.Y. 2013). The Court appointed an independent monitor (the “Monitor”) to oversee those reforms, and directed the parties to participate in a community-input process under the guidance of a neutral facilitator (the “Facilitator”) to develop additional reforms. Id. at 686–88.1
1 On July 19, 2017, the parties in Ligon settled the outstanding claims, agreeing to significant reforms to the NYPD’s trespass enforcement practices, documentation, and training, and agreeing to continued participation in the remedial process. See Ligon v. City of New York, No. 12 Civ. 2274 (S.D.N.Y. July 19, 2017), ECF No. 296.
2

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 3 of 11
In Davis v. City of New York, the plaintiffs alleged unlawful, race-based enforcement of trespass laws in New York City Housing Authority (“NYCHA”) developments. The parties settled the case on February 4, 2015, agreeing, among other things, that they would participate in the Floyd and Ligon remedial process, and that orders issued in that process would be incorporated into the settlement. Davis v. City of New York, No. 10 Civ. 699 (S.D.N.Y. Feb. 4, 2015), ECF No. 330 at 9–11.
Since this Court’s issuance of the Liability Opinion and Remedial Order, the Facilitator completed his Final Report and Recommendation, ECF No. 597, and the Monitor has submitted ten reports detailing the progress of the monitorship. See Tenth Report of the Monitor, ECF No. 754.2
II. COVID-19 Pandemic In March of this year, with the advent of the COVID-19 pandemic, government officials
began taking measures to address the rapid spread of the novel coronavirus. After declaring a statewide emergency on March 7, 2020, N.Y. Exec. Order No. 202 (Mar. 7, 2020),3 Governor Andrew M. Cuomo announced a stay-at-home order requiring non-essential businesses to “reduce the in-person workforce . . . by 100%” and banning all public gatherings, N.Y. Exec. Order No. 202.8 (Mar. 20, 2020).4 Mayor Bill de Blasio declared a state of emergency in New York City on March 12, 2020. N.Y.C. Emer. Exec. Order No. 98 (Mar. 12, 2020).5 The Governor ordered all individuals over the age of two to wear a mask when in public, so long as they could “medically tolerate” one. N.Y. Exec. Order No. 202.17 (Apr. 15, 2020).6 Mayor de
2 Except as otherwise noted, ECF citations refer to the docket in Floyd v. City of New York, No. 08 Civ. 1034. 3 Cooper Decl., Ex. D, ECF No. 773-1 at 23–25. 4 Cooper Decl., Ex. E, ECF No. 773-1 at 27–28. 5 Cooper Decl., Ex. H, ECF No. 773-1 at 35–36. 6 Cooper Decl., Ex. F, ECF No. 773-1 at 30.
3

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 4 of 11
Blasio adopted Governor Cuomo’s orders and directed the NYPD and other City agencies to enforce them. N.Y.C. Emer. Exec. Order No. 108 (Apr. 19, 2020).7
On June 1, 2020, the Mayor imposed a City-wide curfew prohibiting all persons from being in public except for police officers, firefighters, emergency medical technicians, and other essential workers. N.Y.C. Emer. Exec. Order No. 117 (June 1, 2020).8 Also excluded were homeless people, and individuals seeking medical treatment or supplies. Id. Mayor de Blasio stated that the curfew was necessary because large gatherings increase potential spread of the virus, and also because peaceful demonstrations in response to the death of George Floyd had been “escalated” by individuals accused of property damage and other crimes. Id. The curfew began on June 1, id., and was set to expire on June 8, 2020, N.Y.C. Emer. Exec. Order No. 119 (June 2, 2020).9 The Mayor, however, terminated the curfew one day early. N.Y.C. Emer. Exec. Order No. 122 (June 7, 2020).10
REQUEST FOR RELIEF On May 26, 2020, Plaintiffs filed an “emergency motion” alleging that the NYPD has engaged in racially discriminatory enforcement of social distancing directives in violation of three of the Court’s prior orders related to unconstitutional, race-based policing. Proposed Order to Show Cause (“OSC”) at 1, ECF No. 759.11 Plaintiffs cite racial disparities in arrests and the issuance of summonses, and allege that the police have used excessive force in enforcing COVID-19 rules.12 Floyd and Davis Pl. Mem. at 1, ECF No. 760. Plaintiffs also express a
7 Cooper Decl., Ex. I, ECF No. 773-1 at 38–39. 8 Cooper Decl., Ex. K, ECF No. 773-1 at 44–45. 9 Cooper Decl., Ex. M, ECF No. 773-1 at 50–51. 10 Cooper Decl., Ex. N, ECF No. 773-1 at 53. 11 See Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (the Liability Opinion); Floyd v. City of New York, 959 F. Supp. 2d 668, 671 (S.D.N.Y. 2013) (the Remedial Order); Floyd v. City of New York, No. 08 Civ. 1034, 517 (S.D.N.Y. Aug. 24, 2015), ECF No. 517 (order approving changes to the NYPD Patrol Guide). 12 The challenged COVID-19 enforcement includes the NYPD’s enforcement of social distancing and mask-wearing requirements and the stay-at-home orders. Floyd and Davis Pl. Mem. at 2 n.1.
4

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 5 of 11
concern that the NYPD’s enforcement of the curfew was “likewise facilitating discrimination against Black and Latinx people.” Floyd and Davis Pls. Supp. Ltr. at 1, 3, ECF No. 768.
Plaintiffs have submitted a statistical analysis prepared by The Legal Aid Society, which indicates that “18 of the 20 precincts with the highest rates of known social distancing arrests or summonses per 10,000 people are in majority Black and Latin[x] precincts,” even though “slightly less than half (46.2%) of [31113 social distancing] complaints concerned violations” in those areas. Day Decl. ¶ 9, ECF No. 761; see also id. (“While four of the five precincts receiving the most social distancing complaints through 311 were in neighborhoods that are majority white, four of the five precincts with the most COVID-19 related arrests and summonses were in neighborhoods that are majority Black and Latinx. In this vein, 78.9% of summonses and 74.1% of arrests for which The Legal Aid Society was able to identify a precinct occurred [in those areas].” (citations omitted)). Plaintiffs also point to information released by the Brooklyn District Attorney’s Office indicating that between March 17 and May 4, 2020, “of [the] 40 people arrested for social distancing violations in Brooklyn . . . [35] were Black, four were Hispanic, and one was white.” Id. ¶ 15. Further, they present reports of encounters between police and Black or Latinx individuals where NYPD officers made allegedly unjustifiable arrests or used excessive force.14 Id. ¶¶ 17–26.
Plaintiffs request four forms of relief. First, they seek a declaration that the NYPD’s enforcement of COVID-19 rules constitutes a violation of the Liability Opinion, Remedial Order, and an order approving changes to the NYPD’s patrol guide.15 Floyd and Davis Pls. Mem. at 1. Second, they ask the Court to direct the Monitor to investigate, and file a report evaluating the
13 “311 serves the public and handles all requests for government and non-emergency services . . . .” NYC 311, New York State (last visited July 8, 2020), https://www.ny.gov/agencies/nyc-311. 14 The City disputes the facts of many of these encounters. See City Opp. at 36–39, ECF No. 771. 15 See ECF No. 517 (approving revisions to Patrol Guide 212.11, regarding “Stop and Frisk,” and Patrol Guide 203.25, regarding “Department Policy Prohibiting Racial Profiling”).
5

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 6 of 11
legality of, the NYPD’s COVID-19 and curfew enforcement practices. Id. at 23. Third, they request an order prohibiting the NYPD from further enforcement pending the Monitor’s report and the Court’s determination on whether enforcement may continue. Id. And fourth, they seek discovery from the City, including officers’ written reports and body-worn camera videos, data on summonses and arrests, and NYPD training and supervisory material related to COVID-19 and curfew enforcement. Id. at 21–22; Floyd and Davis Pls. Supp. Ltr. at 1. The Ligon Plaintiffs join in the second and fourth requests. Ligon Pls. Ltr. at 1–2, No. 12 Civ. 2274, ECF No. 420 (S.D.N.Y. June 2, 2020).
DISCUSSION I. Legal Standards
“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971). “Although a district court has a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct, it is nonetheless the essence of equity jurisdiction that a court is only empowered to grant relief no broader than necessary to cure the effects of the harm caused by the violation.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 144 (2d Cir. 2011) (internal quotation marks and citation omitted). Thus, “[a]n injunction is overbroad when it seeks to restrain the defendants from engaging in legal conduct, or from engaging in illegal conduct that was not fairly the subject of litigation.” Id. at 145. And a court does not have the power to restrain “acts unlike or unrelated to those originally judged unlawful.” Id. (internal quotation marks and citation omitted).16 For subjects that fall within the scope of prior litigation,
16 It is not clear what legal authority Plaintiffs rely upon in their request for relief. They claim to be seeking an order “pursuant to Rule 37 of the Federal Rules of Civil Procedure,” which concerns discovery, and “this Court’s inherent equitable power to enforce its own orders and judgments.” OSC at 1. The Second Circuit has noted that neither the
6

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 7 of 11
the determination of what measures are necessary and appropriate to enforce its orders is committed to the district court’s sound discretion. See In re Tronox Inc., 855 F.3d 84, 112 (2d Cir. 2017) (“The [d]istrict court plainly had jurisdiction to interpret and enforce its own prior order . . . . The court’s choice of how to enforce the order is reviewed for abuse of discretion.” (internal quotation marks, citation, and alterations omitted)).
“The Court has the relevant authority as part of its inherent power to enforce its judgments, and it is clear that appropriate discovery should be granted where significant questions regarding noncompliance with a court order have been raised.” Abdi v. McAleenan, No. 17 Civ. 721, 2019 WL 1915306, at *2 (W.D.N.Y. Apr. 30, 2019) (internal quotation marks, citation, and alterations omitted) (collecting cases).
II. Analysis A. Request for Declaration, Investigation, and Injunction
Plaintiffs allege that during street encounters related to COVID-19 enforcement, the NYPD engaged in race-based discrimination. Floyd and Davis Pls. Mem. at 2. As examples of this discrimination, they allege (1) racial disparity in the issuance of summonses and arrests in predominantly Black and Latinx neighborhoods as compared to lax enforcement of social distancing in “crowded parks, synagogues, and bars frequented by white persons,” id. at 3–6, 18; (2) racial disparity in social distancing arrests as evidenced by data released by the Brooklyn District Attorney’s Office indicating that between March 17 and May 4, 2020, 35 of 40 people arrested for social distancing violations in Brooklyn were Black, four were Latinx, and one was
Federal Rules of Civil Procedure nor case law permit a freestanding “motion to enforce,” and that although there are various methods for enforcement of a class action settlement (or an injunction), “[e]ach one of these (or other) possibilities, however, carries its own procedures, its own standards for granting relief by the district court, and its own standards of review . . . thus making identification of the precise nature of the motion an essential for [appellate] review (and, we believe, for the district court’s decision in the first instance).” Martens v. Thomann, 273 F.3d 159, 172 (2d Cir. 2001). At a minimum, however, a party requesting an order enforcing prior rulings must show that the conduct complained of falls within the scope of the litigation.
7

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 8 of 11
white, Day Decl. ¶ 15; (3) use of excessive force in enforcement of social distancing against
“Black and Latinx persons only,” Def. Mem. at 14–15; (4) stopping of individuals “with little or
no apparent justification” in “situations [that] frequently started with social distancing and then
escalated to stops and the use of force against bystanders,” id. at 15; and (5) contrast in “posture
of the police toward the community” as evidenced by the tone and language of the public service
announcements broadcast by the NYPD in Queensbridge, a public housing development in
Queens with predominantly Black and Latinx residents, as compared to those used in Nolita, a neighborhood in Manhattan with few Black or Latinx residents, id.17
To be sure, some of the alleged police conduct described by Plaintiffs falls squarely within the ambit of Floyd v. City of New York.18 In that case, the Court determined that the
City’s policy of conducting suspicionless and racially motivated stops and frisks violated the
Constitution, see Liability Opinion, 959 F. Supp. 2d at 658–60; Remedial Order, 959 F. Supp. 2d
at 671, and ordered the NYPD to make changes to its policies, training, supervision, auditing,
performance evaluation system, and disciplinary process. Remedial Order, 959 F. Supp. 2d at
677–78. The Court appointed the Monitor to assist the parties in developing and implementing
reforms, and to report on the NYPD’s progress in complying with the Court’s mandates. Id. at
676–78, 686–87. The Monitor’s work is ongoing and encompasses all suspicionless and race-
17 Approximately 48% and 33% of Queensbridge residents are Black and Latinx, respectively. Census Tract 25, Queens, NY, Census Reporter (last visited June 29, 2020), https://censusreporter.org/profiles/14000US36081002500 -census-tract-25-queens-ny. In Nolita, approximately 80% of residents are white or Asian, and approximately 10% are Black and Latinx. Nolita (North of Little Italy) Neighborhood in New York, New York (NY), 10012 Detailed Profile, City-Data.Com (last visited June 29, 2020), http://www.city-data.com/neighborhood/Nolita-New-YorkNY.html. The Court takes judicial notice of the demographics of these neighborhoods. See Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); see also United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991) (taking judicial notice of population statistics in the Eastern District of New York and accepting them as a proxy for corresponding statistics about venire). 18 Plaintiffs do not allege that the NYPD engaged in racially discriminatory COVID-19 or curfew enforcement with respect to NYCHA or TAP buildings, as would be required to bring their motion within the scope of the Davis and Ligon cases, respectively.
8

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 9 of 11
based stops, including those which may have taken place during the COVID-19 pandemic.19 The Court is not inclined to short-circuit that process.
Much of the police conduct alleged by Plaintiffs, however, extends beyond the suspicionless and racially motivated stops and frisks addressed by the Court in Floyd. For example, Plaintiffs claim that in the course of enforcement related to COVID-19 rules, police officers have disproportionately arrested and employed excessive force against Black and Latinx individuals. Floyd and Davis Pls. Mem. at 14–18, 20–21. Plaintiffs also allege that the City and NYPD leadership have willfully ignored this conduct. Id. at 19. These claims are deeply troubling. But, whatever their merits, they do not fall squarely within the scope of the policies and practices adjudicated in this litigation. Likewise, the request for a blanket injunction barring the NYPD from COVID-19 enforcement, see Floyd and Davis Pls. Mem. at 1, would interfere with a wide range of police conduct that is outside the bounds of this case, and would halt even lawful enforcement. If individuals have been injured by racial bias in the NYPD’s making of arrests or use of force in the context of COVID-19 or curfew enforcement, they have the right to pursue those allegations in a plenary action. But, in its discretion, the Court concludes that Plaintiffs’ motion seeking to apply the Court’s prior orders in the Ligon, Floyd, and Davis cases is not an appropriate vehicle to redress those claims.
Pointing to two cases, Plaintiffs argue that a court can expand on the terms of a previous injunction to address further violations of a similar type. Floyd and Davis Pls. Mem. at 10–12; see Hutto v. Finney, 437 U.S. 678, 684–85 (1978); Handschu v. Police Dep’t of New York, 219 F. Supp. 3d 388, 392–93 (S.D.N.Y. 2016). It is true that “[i]n fashioning a remedy, [the Court
19 The Monitor has already committed to requesting from the City “information necessary to evaluate stops, frisks, searches and trespass enforcement in the course of” COVID-19 and curfew enforcement, and to “assess and report on that information in the ways, and to the extent, consistent with his mandate.” Monitor Ltr. at 23, ECF No. 785. The City has agreed to comply with the Monitor’s requests. Id.
9

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 10 of 11
has] ample authority to go beyond earlier orders and to address each element contributing to the violation.” Hutto, 437 U.S. at 687. And this Court has done so by issuing a number of orders addressing factors that contributed to the constitutional violations identified in the Liability Opinion. See, e.g., ECF No. 662 (directing the NYPD to “implement a program for systematically receiving, assessing, and acting on information regarding adverse findings on the conduct of police officers involving illegal stops or illegal trespass enforcements” (internal quotation marks and citation omitted)); ECF No. 767 (setting out required NYPD procedures for early intervention to correct officer behavior that suggests a risk of engaging in illegal stops or illegal trespass enforcement). But it is not within this Court’s authority to amplify its prior rulings to encompass a different set of potentially unconstitutional practices.
Accordingly, that portion of Plaintiffs’ motion seeking an order declaring that the City and NYPD are in violation of this Court’s earlier orders, directing the Monitor to investigate COVID-19 and curfew enforcement involving police conduct outside the scope of this litigation, and enjoining the NYPD from participating in COVID-19 enforcement is DENIED.
B. Request for Discovery To the extent that Plaintiffs’ request for information is related to alleged police stops, frisks, searches, and trespass enforcement, such requests are already being addressed by the Monitor. See Floyd and Davis Pls. Mem. at 21–22; Ligon Pls. Ltr. at 1–2. Insofar as their requests reach beyond that, however, Plaintiffs have failed to show that ordering such discovery falls within, or would be an appropriate use of, the Court’s inherent power to enforce its judgments. Accordingly, Plaintiffs’ motion to compel discovery is DENIED.
10

Case 1:10-cv-00699-AT-HBP Document 528 Filed 07/08/20 Page 11 of 11 CONCLUSION
For the foregoing reasons, Plaintiffs’ requests for an order (1) declaring that the NYPD’s enforcement of COVID-19 rules violates the Court’s prior orders, (2) directing the Monitor to investigate COVID-19 and curfew enforcement involving police conduct outside the scope of this litigation, (3) enjoining the NYPD from enforcing COVID-19 rules, and (4) compelling discovery are DENIED. See No. 08 Civ. 1034, ECF No. 759; No. 10 Civ. 699, ECF No. 502. The Clerk of Court is directed to terminate the motion at ECF No. 430 in case number 12 Civ. 2274.
SO ORDERED. Dated: July 8, 2020
New York, New York
11

 
 U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:10-cv-00699-AT-HBP

Davis et al v. The City of New York et al Assigned to: Judge Analisa Torres Referred to: Magistrate Judge Henry B. Pitman Related Cases: 1:08-cv-01034-AT
1:12-cv-02274-AT-HBP Cause: 42:1983 Civil Rights Act

Date Filed: 01/28/2010 Date Terminated: 02/04/2015 Jury Demand: Both Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

Plaintiff
Kelton Davis TERMINATED: 02/07/2011

represented by Daniel J. Leffell Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 (212) 373-3218 Fax: (212)492-0218 Email: dleffell@paulweiss.com TERMINATED: 12/14/2018 LEAD ATTORNEY

David George Clunie Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 (212)-373-3000 x3465 Fax: (212)-492-0465 Email: dclunie@paulweiss.com TERMINATED: 09/13/2010 LEAD ATTORNEY

A. Damian Williams Paul, Weiss, Rifkind, Wharton & Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 (212)-373-3000 Fax: (212)-492-0290 Email: adwilliams@paulweiss.com TERMINATED: 02/15/2012

Amanda Carol Moretti The Legal Aid Society (Civil Div. NYC)

199 Water Street 3rd Floor New York, NY 10038 (212)-577-3273 Fax: (212)-509-8753 Email: amoretti@legal-aid.org ATTORNEY TO BE NOTICED
Corey Stoughton Legal Aid Society 199 Water Street New York, NY 10036 646-884-2316 Email: cstoughton@legal-aid.org ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook Legal Aid Society Special Litigation Unit 199 Water Street, 6th fl. New York, NY 10038 212-577-3265 Fax: 646-449-6786 Email: cconti-cook@legal-aid.org ATTORNEY TO BE NOTICED
Jason D. Williamson Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 (212) 373-3224 Fax: (212)-492-0224 Email: jwilliamson@paulweiss.com TERMINATED: 01/14/2011
Jin Hee Lee NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212)965-2200 Fax: (212)219-7592 Email: jlee@naacpldf.org ATTORNEY TO BE NOTICED
Johanna Beth Steinberg

NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212)-965-2200 Fax: (212)-219-2052 Email: jsteinberg@naacpldf.org TERMINATED: 02/04/2014
Johnathan James Smith NAACP Legal Defense & Educational Fund, Inc. 1444 I Street, NW, 10th Floor Washington, DC 20005 (202) 682-1300 Fax: (202)-682-1312 Email: jsmith@naacpldf.org TERMINATED: 09/24/2014
Julia Tarver-Mason Wood Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 212-373-3029 Fax: 212-492-0029 Email: jwood@paulweiss.com TERMINATED: 12/14/2018
Katharine E. G. Brooker Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 (212)-373-3139 Fax: (212)-492-0139 Email: kbrooker@paulweiss.com TERMINATED: 12/14/2018
Matthew Jason Moses Schulte Roth & Zabel LLP (NY) 919 Third Avenue New York, NY 10022 (212) 756-2000 Fax: (212) 593-5955 Email: mmoses@orrick.com TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED

Plaintiff
William Turner TERMINATED: 02/07/2011

Molly Griffard The Legal Aid Society Special Litigation Unit 199 Water Street Ste 6th Floor New York, NY 11216 212-298-3242 Email: mgriffard@legal-aid.org ATTORNEY TO BE NOTICED
Nancy Rosenbloom The Legal Aid Society (Civil Div. NYC) 199 Water Street 3rd Floor New York, NY 10038 212-577-3300 Fax: 212-577-3520 Email: nrosenbloom@legal-aid.org TERMINATED: 02/04/2014
William Donald Gibney , Sr The Legal Aid Society 199 Water Street New York, NY 08816 (212)-577-3419 Fax: (212)-509-8481 Email: wdgibney@legal-aid.org ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012

Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom

Plaintiff
Altagracia Hernandez TERMINATED: 09/23/2010

(See above for address) TERMINATED: 02/04/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 212-373-3000 Email: ebeale@paulweiss.com TERMINATED: 12/14/2018
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014

Plaintiff
Edwin Larregui TERMINATED: 02/07/2011

Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address)

Plaintiff Roman Jackson

TERMINATED: 01/14/2011 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY

David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Aaron Ross Sussman Naacp Legal Defense & Educational Fund, Inc. 40 Rector St. New York, NY 10006 (212)-965-2200 Email: asussman@naacpldf.org ATTORNEY TO BE NOTICED
Alexis Hoag NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Email: ahoag@naacpldf.org TERMINATED: 08/23/2019
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Angel Harris NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York,, NY 10006 (212)-965-2205 Fax: (212)-226-7592 Email: aharris@naacpldf.org TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran NAACP Legal Defense & Educational Fund Inc NAACP Legal Defense &

Educational Fund Inc 40 Rector Street Ste 5th Fl. New York, NY 10006 212-965-2238 Email: achandran@naacpldf.org ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji Woods Oviatt Gilman LLP 1900 Bausch & Lomb Place Rochester, NY 14604 585-987-2837 Fax: 585-445-2337 Email: eelmouji@paulweiss.com TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish Paul, Weiss, Rifkind, Wharton & Garrison 1285 Ave. of The Americas New York, NY 10019 (212)-373-3463 Fax: (212)-492-0463 Email: jason.meizlish@ag.ny.gov TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011

Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
John Spencer Cusick Naacp Legal Defense & Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10005 (917)-858-2870 Email: jcusick@naacpldf.org ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Kevin Eli Jason NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212-965-2221 Email: kjason@naacpldf.org ATTORNEY TO BE NOTICED
Marne Lynn Lenox Naacp Legal Defense Fund 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2256 Email: marne_lenox@fd.org TERMINATED: 09/27/2019

Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY 10004 (212)-859-8814 Fax: (212)-859-4000 Email: nmerle@naacpldf.org TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Email: pokonta@naacpldf.org ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212)-965-2200 Fax: (212) 226-7592 Email: rkleinman@naacpldf.org TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain NAACP Legal Defense &

Plaintiff Kristin Johnson

Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200 Fax: (212) 226-7592 Email: raudain@gslawny.com ATTORNEY TO BE NOTICED
Ria Tabacco Mar NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200 Fax: (212) 226-7592 Email: rtabacco@naacpldf.org TERMINATED: 08/20/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Amanda Carol Moretti

(See above for address) ATTORNEY TO BE NOTICED
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014

ATTORNEY TO BE NOTICED
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Kevin Eli Jason (See above for address) ATTORNEY TO BE NOTICED
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address)

Plaintiff Eleanor Britt

ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED

Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED

Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Kevin Eli Jason (See above for address) ATTORNEY TO BE NOTICED
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018

Plaintiff
Anthony Anderson TERMINATED: 02/07/2011

ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee

Plaintiff Lashaun Smith

(See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY

A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address)

TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Kevin Eli Jason (See above for address) ATTORNEY TO BE NOTICED
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address)

Plaintiff
Shawne Jones TERMINATED: 02/07/2011

ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012

Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018

Plaintiff
Hector Suarez TERMINATED: 02/07/2011

Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED

Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Adam Cooper TERMINATED: 02/07/2011

Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address)

Plaintiff Andrew Washington

TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie

(See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED

Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Kevin Eli Jason (See above for address) ATTORNEY TO BE NOTICED
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED

Plaintiff
P.L. by his parent Lisa Piggott TERMINATED: 05/27/2011

Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY

A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED

Plaintiff
David Wilson TERMINATED: 02/07/2011

Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams (See above for address) TERMINATED: 02/15/2012
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Geneva Wilson Individually and on behalf of a class of all others similarly situated TERMINATED: 02/07/2011

Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel J. Leffell (See above for address) TERMINATED: 12/14/2018 LEAD ATTORNEY
David George Clunie (See above for address) TERMINATED: 09/13/2010 LEAD ATTORNEY
A. Damian Williams

(See above for address) TERMINATED: 02/15/2012
Amanda Carol Moretti (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Jason D. Williamson (See above for address) TERMINATED: 01/14/2011
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Julia Tarver-Mason Wood (See above for address) TERMINATED: 12/14/2018
Katharine E. G. Brooker (See above for address) TERMINATED: 12/14/2018
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address)

Plaintiff Kelton Davis

ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
William Donald Gibney , Sr (See above for address) ATTORNEY TO BE NOTICED
represented by Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Marlen Suyapa Bodden The Legal Aid Society, Civil Division 199 Water Street New York, NY 10038

Plaintiff William Turner

(212)-577-3287 Fax: (212)-509-8761 Email: mbodden@legal-aid.org TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
represented by Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Molly Griffard

Plaintiff Edwin Larregui
Plaintiff Anthony Anderson

(See above for address) ATTORNEY TO BE NOTICED
represented by Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
represented by Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shawne Jones

Elana Rose Beale (See above for address) TERMINATED: 12/14/2018
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address)

ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Adam Cooper

Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014 ATTORNEY TO BE NOTICED
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
represented by Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED

Plaintiff David Wilson

Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
represented by Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014

Plaintiff Geneva Wilson
Plaintiff Patrick Littlejohn

Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
represented by Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag

(See above for address) TERMINATED: 08/23/2019
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014 ATTORNEY TO BE NOTICED
John Spencer Cusick (See above for address)

ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Kevin Eli Jason (See above for address) ATTORNEY TO BE NOTICED
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar

Plaintiff Raymond Osorio

(See above for address) TERMINATED: 08/20/2014
represented by Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address)

ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Kevin Eli Jason (See above for address) ATTORNEY TO BE NOTICED
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014 ATTORNEY TO BE NOTICED
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman

Plaintiff Vaughn Frederick

(See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
represented by Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018

ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Kevin Eli Jason (See above for address) ATTORNEY TO BE NOTICED
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address)

Plaintiff
R.E. by her parents D.E. individually and on behalf of a class of all others similarly situated

TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
represented by Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Jason Lowell Meizlish (See above for address) TERMINATED: 04/12/2016 ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014

Plaintiff Rikia Evans

Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Johanna Beth Steinberg

(See above for address) TERMINATED: 02/04/2014
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith NAACP Legal Defense & Educational Fund, Inc. 1444 Eye St., N.W., 10th Floor Washington, DC 20005 (202) 682-1300 Fax: (202)-682-1312 Email: jsmith@naacpldf.org TERMINATED: 09/24/2014
Kevin Eli Jason (See above for address) ATTORNEY TO BE NOTICED
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Hector Suarez

Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
represented by Aaron Ross Sussman (See above for address) ATTORNEY TO BE NOTICED
Alexis Hoag (See above for address) TERMINATED: 08/23/2019
Angel Harris (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) ATTORNEY TO BE NOTICED
Corey Stoughton (See above for address) ATTORNEY TO BE NOTICED
Cynthia Helen Conti-Cook (See above for address) ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Erin Elizabeth Elmouji

(See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 02/04/2014
John Spencer Cusick (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 09/24/2014
Marne Lynn Lenox (See above for address) TERMINATED: 09/27/2019
Matthew Jason Moses (See above for address) TERMINATED: 06/27/2013 ATTORNEY TO BE NOTICED
Molly Griffard (See above for address) ATTORNEY TO BE NOTICED
Nancy Rosenbloom (See above for address) TERMINATED: 02/04/2014
Natasha Clarise Merle (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED

V. Defendant The City of New York

Ria Tabacco Mar (See above for address) TERMINATED: 08/20/2014
represented by Amatullah Khaliha Booth Office of the Corporation Counsel, NYC Law Department 100 Church Street New York, NY 10007 212-356-3534 Email: abooth@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradford Collins Patrick New York City Law Department 100 Church Street New York, NY 10007 (212)-788-1575 Fax: (212)-788-9776 Email: bpatrick@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke New York City Law Department 100 Church Street New York, NY 10007 (212) 513-0462 Fax: (212) 788-0367 Email: bcooke@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Allen Cooper New York City Law Department 100 Church Street New York, NY 10007 (212) 356-3535 Email: dcooper@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David M. Hazan New York City Law Department 100 Church Street Rm. 2-303B New York, NY 10007 (212) 788-8084 Fax: (212) 788-9776 Email: dhazan@jacobshazan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joy Tolulope Anakhu New York City Law Department 100 Church Street New York, NY 10007 (212) 356-2323 Email: janakhu@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy McAloon & Friedman, P.C. 123 William Steet New York, NY 10038 (212)-788-0963 Fax: (212)-788-9776 Email: prathyushareddy@mcfesq.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tonya Jenerette Corporation Counsel, Special Federal Litigation Division 100 Church Street New York, NY 10007 (212)-788-0993 Fax: (212)-788-0367 Email: tjeneret@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Thomas Soterakis Winston & Strawn LLP (NY) 200 Park Avenue

New York, NY 10166 (212)603-2000 x2125 Fax: (212)603-2066 Email: gsoterak@law.nyc.gov ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo New York City Law Department 100 Church Street New York, NY 10007 (212)-788-1300 Fax: (212)-788-0367 Email: jmarutol@law.nyc.gov TERMINATED: 04/08/2015
Judson Krebbs Vickers New York City Law Depart. Office of the Corporation Counsel 100 Church Street New York, NY 10007 (212) 788-0891 Fax: (212) 571-4600 Email: jvickers@law.nyc.gov TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Lisa Marie Richardson New York City Department of Corrections 75-20 Astoria Boulevard East Elmhurst, NY 11370 718-546-0817 Email: lisa.richardson@doc.nyc.gov ATTORNEY TO BE NOTICED
Morgan David Kunz NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212) 356-2357 Fax: (212) 788-9776 Email: Morgan.Kunz@gmail.com ATTORNEY TO BE NOTICED
Raju Sundaran

Defendant New York City Housing Authority TERMINATED: 05/21/2015
ADR Provider Ariel E. Belen Monitor Peter L. Zimroth

New York City Law Department 100 Church Street Room 6-188 New York, NY 10007 (212)-788-0467 Fax: (212)-788-9776 Email: rsundara@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Steven Jay Rappaport New York City Housing Authority, Law Department 250 Broadway, 9th Floor New York, NY 10007 (212) 776-5152 Fax: (212) 776-5401 Email: rappapos@nycha.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tonya Jenerette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Marie Murphy New York City Housing Authority 250 Broadway, 9th Floor New York, NY 10007 (212) 776-5244 Fax: (212)-776-5404 Email: murphyd@nycha.nyc.gov ATTORNEY TO BE NOTICED
represented by Peter L. Zimroth Arnold & Porter Kaye Scholer LLP (NYC) 250 West 55th Street New York, NY 10019 212-836-7316 Fax: (212)-715-1399 Email:

Peter.Zimroth@arnoldporter.com ATTORNEY TO BE NOTICED

Date Filed 01/28/2010
01/28/2010 01/28/2010 01/28/2010 02/04/2010
02/04/2010
02/08/2010 02/08/2010 02/08/2010 02/19/2010

# Docket Text
1 COMPLAINT against The City of New York, New York City Housing Authority. (Filing Fee $ 350.00, Receipt Number 893284)Document filed by Edwin Larregui, Roman Jackson, Kelton Davis, Kristin Johnson, Eleanor Britt, Anthony Anderson, Lashaun Smith, Shawne Jones, Hector Suarez, Adam Cooper, Andrew Washington, P.L., David Wilson, William Turner, Geneva Wilson, Altagracia Hernandez.(ama) (ama). (Entered: 01/29/2010)
SUMMONS ISSUED as to The City of New York, New York City Housing Authority. (ama) (Entered: 01/29/2010)
CASE REFERRED TO Judge Shira A. Scheindlin as possibly Related to 1:08-cv-1034. (ama) (Entered: 01/29/2010)
Case Designated ECF. (ama) (Entered: 01/29/2010)
2 SUMMONS RETURNED EXECUTED Summons and Complaint, served. The City of New York served on 1/29/2010, answer due 2/19/2010. Service was accepted by Dmitriv Aronov. Document filed by Edwin Larregui; Roman Jackson; Kelton Davis; Kristin Johnson; Eleanor Britt; Anthony Anderson; Lashaun Smith; Shawne Jones; Hector Suarez; Adam Cooper; Andrew Washington; P.L.; David Wilson; William Turner; Geneva Wilson; Altagracia Hernandez. (Clunie, David) (Entered: 02/04/2010)
3 SUMMONS RETURNED EXECUTED Summons and Complaint, served. New York City Housing Authority served on 1/29/2010, answer due 2/19/2010. Service was accepted by Nancy Medina. Document filed by Edwin Larregui; Roman Jackson; Kelton Davis; Kristin Johnson; Eleanor Britt; Anthony Anderson; Lashaun Smith; Shawne Jones; Hector Suarez; Adam Cooper; Andrew Washington; P.L.; David Wilson; William Turner; Geneva Wilson; Altagracia Hernandez. (Clunie, David) (Entered: 02/04/2010)
CASE ACCEPTED AS RELATED. Create association to 1:08-cv-01034SAS. Notice of Assignment to follow. (rdz) (Entered: 02/11/2010)
4 NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. (rdz) (Entered: 02/11/2010)
Magistrate Judge Henry Pitman is so designated. (rdz) (Entered: 02/11/2010)
5 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Prathyusha Reddy dated 2/18/2010 re: Counsel respectfully request that

03/08/2010 03/22/2010 04/05/2010
04/05/2010
04/05/2010 04/05/2010
04/05/2010 04/06/2010

the Court grant defendant City and defendant NYCHA's application to extend their time to answer or otherwise respond to the complaint by 45 day until 4/5/2010. ENDORSEMENT: Defendant's request for an extension of time to respond to the complaint is hereby granted. Defendants' response is due April 5, 2010. No further extensions will be granted. So Ordered. (Signed by Judge Shira A. Scheindlin on 2/18/2010) (jfe) (Entered: 02/19/2010)
6 ORDER FOR INITIAL PRETRIAL CONFERENCE: Counsel are directed to appear for an initial pretrial conference set for 4/6/2010 at 04:30 PM in Courtroom 15C, 500 Pearl Street, New York, NY 10007 before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 3/5/10) (dle) (Entered: 03/08/2010)
7 NOTICE OF APPEARANCE by David M. Hazan on behalf of The City of New York (Hazan, David) (Entered: 03/22/2010)
8 NOTICE OF APPEARANCE by Daniel J. Leffell on behalf of Edwin Larregui, Roman Jackson, Kelton Davis, Kristin Johnson, Eleanor Britt, Anthony Anderson, Lashaun Smith, Shawne Jones, Hector Suarez, Adam Cooper, Andrew Washington, P.L., David Wilson, William Turner, Geneva Wilson, Altagracia Hernandez (Leffell, Daniel) (Entered: 04/05/2010)
9 NOTICE OF APPEARANCE by Johanna Beth Steinberg on behalf of Edwin Larregui, Roman Jackson, Kelton Davis, Kristin Johnson, Eleanor Britt, Anthony Anderson, Lashaun Smith, Shawne Jones, Hector Suarez, Adam Cooper, Andrew Washington, P.L., David Wilson, William Turner, Geneva Wilson, Altagracia Hernandez (Steinberg, Johanna) (Entered: 04/05/2010)
10 ANSWER to Complaint with JURY DEMAND. Document filed by The City of New York. (Attachments: # 1 Exhibit "A")(Hazan, David) (Entered: 04/05/2010)
11 NOTICE OF APPEARANCE by William Donald Gibney, Sr on behalf of Edwin Larregui, Roman Jackson, Kelton Davis, Kristin Johnson, Eleanor Britt, Anthony Anderson, Lashaun Smith, Shawne Jones, Hector Suarez, Adam Cooper, Andrew Washington, P.L., David Wilson, William Turner, Geneva Wilson, Altagracia Hernandez (Gibney, William) (Entered: 04/05/2010)
12 ANSWER to Complaint. Document filed by New York City Housing Authority.(Rappaport, Steven) (Entered: 04/05/2010)
13 NOTICE OF APPEARANCE by Amanda Carol Moretti on behalf of Edwin Larregui, Roman Jackson, Kelton Davis, Kristin Johnson, Eleanor Britt, Anthony Anderson, Lashaun Smith, Shawne Jones, Hector Suarez, Adam Cooper, Andrew Washington, P.L., David Wilson, William Turner,

04/06/2010
04/06/2010 04/06/2010 08/05/2010 08/16/2010 08/30/2010

Geneva Wilson, Altagracia Hernandez (Moretti, Amanda) (Entered: 04/06/2010)
14 SCHEDULING ORDER: The parties have agreed to provide initial disclosures pursuant to F.R.C.P. 26(a)(1) no later than 4/19/2010. The parties further agree to serve their respective initial requests for the production of documents within (30) days of the initial conference, which shall be on or before 5/6/2010. Response June 7. Depositions June, Jul, Aug. Class Certification- Plaintiff: 9/10; 10/11; 11/1. Plaintiffs shall serve their expert report(s) within thirty (30) days of the close of factual discovery, which shall be on or before 11/5/2010. Expert depositions for both parties shall be completed by 1/5/2011. The parties shall complete factual discovery by 10/6/2010. The date by which Plaintiff will supply its pre-trial order matters to Defendants to be determined. The date by which the parties will submit a pre-trial order in a form conforming with the Court's instructions together with trial briefs and either (1) proposed findings of fact or conclusions of law for a non-jury trial, or (2) proposed voir dire questions and proposed jury instructions, for a jury trial to be determined. Final Pretrial Conference set for 11/16/2010 at 04:30 PM before Judge Shira A. Scheindlin. The parties shall have until 6/7/2010 to amend the pleadings and add parties. The parties shall file dispositive motions within 30 days of the close of expert discovery, which shall be on or before 2/7/2011. A settlement conference will be scheduled within sixty (60) days of the initial conference, which shall be on or before 6/7/2010. The parties anticipate that trial in this matter will take approximately four (4) weeks for jury trial. (Signed by Judge Shira A. Scheindlin on 4/6/2010) (tro) (Entered: 04/07/2010)
15 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Shira A. Scheindlin on 4/6/2010) (tro) (Entered: 04/07/2010)
Set Deadlines/Hearings: Joinder of Parties due by 6/7/2010. (tro) (Entered: 04/08/2010)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Settlement Conference held on 8/5/2010; settlement unsuccessful. (mro) (Entered: 08/09/2010)
***DELETED DOCUMENT. Deleted document number 16 Endorsed Letter. The document was incorrectly filed in this case. (db) (Entered: 08/25/2010)
16 ORDER EXTENDING DEADLINE FOR MOTION FOR CLASS CERTIFICATION: It is hereby ordered that the deadlines for briefing the Court on class certification are extended to the following dates: 12/10/2010 for the Class Certification Motion; 1/10/2010 for the Class

09/01/2010 09/01/2010 09/13/2010
09/20/2010 09/21/2010 09/23/2010

Certification Response; and 1/31/2010 for the Class Certification Reply; and a status conference will be held on November 16th at 4:30 pm and on September 2nd, 2010 at 3:30pm. No further extensions. (Signed by Judge Shira A. Scheindlin on 8/30/2010) (jpo) (Main Document 16 replaced on 8/30/2010) (jpo). (Entered: 08/30/2010)
17 ENDORSED LETTER: addressed to Judge Shira A. Scheindlin from David G. Clunie dated 8/31/2010 re: Plaintiffs request an adjournment of this Thursday's status conference. ENDORSEMENT: Plaintiffs' request to adjourn the conference currently scheduled for September 2, 2010 is hereby granted. The conference will be held on Wednesday, Sept. 8, 2010 at 10:00 a.m. So Ordered. (Signed by Judge Shira A. Scheindlin on 8/31/2010) (js) (Entered: 09/01/2010)
18 NOTICE OF APPEARANCE by Prathyusha Bandi Reddy on behalf of The City of New York (Reddy, Prathyusha) (Entered: 09/01/2010)
19 ORDER that David Clunie hereby withdraws as counsel for plaintiff(s) Kelton Davis, William Turner, Altagracia Hernandez, Edwin Larregui, Roman Jackson, Kristin Johnson, Eleanor Britt, Anthony Anderson, LaShaun Smith, Shawne Jones, Hector Suarez, Adam Cooper, Andrew Washington, P.L. by his parent Usa Piggott, David Wilson and Geneva Wilson in the above-captioned action. After September 7, 2010, I will no longer be associated with Paul, Weiss, Rifkind, Wharton & Garrison LLP. Attached is my affidavit, in accordance with Rule 1.4 of the Local Civil Rules of the United States District Court for the Southern District of New York. Jason Williamson and Daniel Leffell of Paul, Weiss, Rifkind, Wharton & Garrison LLP, Johanna Steinberg of the NAACP Legal Defense and Educational Fund, Inc. and William Gibney and Amanda Moretti of The Legal Aid Society, all ofwhom are counsel of record for plaintiff(s), will continue to represent plaintiff(s) in this action. Attorney David George Clunie terminated. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 9/13/2010) (jmi) (Entered: 09/14/2010)
20 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Prathyusha Reddy dated 9/20/10 re: counsel requests a three-week extension of the deadline to submit part of the NYPD stop, question and frisk database, as well as part of the Omniform Arrest database to plaintiffs. ENDORSEMENT: Request granted. The City must produce the specified databases by October 29, 2010. This extension does not affect any other scheduled dates in this case. So Ordered. (Signed by Judge Shira A. Scheindlin on 9/20/10) (djc) (Entered: 09/20/2010)
21 NOTICE OF APPEARANCE by Bradford Collins Patrick on behalf of The City of New York (Patrick, Bradford) (Entered: 09/21/2010)
22 STIPULATION TO VOLUNTARILY DISMISS ALL CLAIMS OF PLAINTIFF ALTAGRACIA HERNANDEZ: It is hereby sitpulated and agreed by and between the parties that Plaintiff Altagracia Hernandez

10/04/2010 10/21/2010 11/01/2010 11/08/2010 11/22/2010
12/01/2010 12/08/2010
12/17/2010 12/17/2010 12/17/2010 12/17/2010

hereby voluntarily dismisses all of her claims against Defendants without prejudice and is no longer a party to this action. (Signed by Judge Shira A. Scheindlin on 9/23/2010) (jpo) (Entered: 09/23/2010)
23 TRANSCRIPT of proceedings held on 9/8/2010 before Judge Shira A. Scheindlin. (jn) (Entered: 10/06/2010)
24 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential information... (Signed by Judge Shira A. Scheindlin on 10/21/10) (pl) (Entered: 10/22/2010)
25 NOTICE OF APPEARANCE by Tonya Jenerette on behalf of New York City Housing Authority, The City of New York (Jenerette, Tonya) (Entered: 11/01/2010)
26 ORDER, that deadlines listed in the April 6, 2010 Scheduling Order are stayed pending the outcome of the parties' status conference before the Court on November 16, 2010. (Signed by Judge Shira A. Scheindlin on 11/8/2010) (lnl) (Entered: 11/09/2010)
27 NOTICE OF APPEARANCE by Johnathan James Smith on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson (Smith, Johnathan) (Entered: 11/22/2010)
28 TRANSCRIPT of proceedings held on 11/16/10, 4:40 p.m. before Judge Shira A. Scheindlin. (rjm) (Entered: 12/01/2010)
29 NOTICE OF APPEARANCE by Nancy Rosenbloom on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson (Rosenbloom, Nancy) (Entered: 12/08/2010)
30 NOTICE of Motion for Summary Judgment. Document filed by The City of New York. (Jenerette, Tonya) (Entered: 12/17/2010)
31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief. Document filed by The City of New York. Responses due by 12/24/2010(Jenerette, Tonya) (Entered: 12/17/2010)
32 MONTHLY MEMORANDUM OF LAW in Opposition re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by The City of New York. (Jenerette, Tonya) (Entered: 12/17/2010)
33 DECLARATION of Edward Delatorre in Support re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive

12/17/2010 12/23/2010 12/23/2010 12/23/2010
12/23/2010 12/23/2010 12/23/2010

relief.. Document filed by The City of New York. (Jenerette, Tonya) (Entered: 12/17/2010)
34 RULE 56.1 STATEMENT. Document filed by The City of New York. (Jenerette, Tonya) (Entered: 12/17/2010)
35 DECLARATION of Steven J. Rappaport in Support re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 12/23/2010)
36 MEMORANDUM OF LAW in Opposition re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Steinberg, Johanna) (Entered: 12/23/2010)
37 DECLARATION of Katharine E.G. Brooker in Opposition re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Brooker, Katharine) (Entered: 12/23/2010)
38 DECLARATION of Daniel Barber in Opposition re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Brooker, Katharine) (Entered: 12/23/2010)
39 DECLARATION of Erik Crawford in Opposition re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Brooker, Katharine) (Entered: 12/23/2010)
40 DECLARATION of Anthony Elitcher in Opposition re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner,

12/23/2010
12/23/2010 01/05/2011 01/07/2011 01/07/2011 01/07/2011 01/07/2011 01/07/2011 01/10/2011

Andrew Washington, David Wilson, Geneva Wilson. (Brooker, Katharine) (Entered: 12/23/2010)
41 DECLARATION of Johnathan J. Smith in Opposition re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Brooker, Katharine) (Entered: 12/23/2010)
42 RULE 56.1 STATEMENT. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Steinberg, Johanna) (Entered: 12/23/2010)
43 ORDER Deposition due by 8/2/2011. Fact Discovery due by 5/2/2011, see document for expert reports information. Class certification Motions due by 6/2/2011. Responses due by 7/2/2011, Replies due by 7/23/2011. (Signed by Judge Shira A. Scheindlin on 1/4/11) (cd) (Entered: 01/05/2011)
44 ORDER: Deposition due by 8/2/2011. Discovery due by 5/2/2011. Motions due by 6/2/2011. Responses due by 7/2/2011, Replies due by 7/23/2011. (Signed by Judge Shira A. Scheindlin on 1/4/2011) (jpo) (Entered: 01/07/2011)
45 REPLY MEMORANDUM OF LAW in Support re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by The City of New York. (Patrick, Bradford) (Entered: 01/07/2011)
46 REPLY AFFIDAVIT of Edward Delatorre in Support re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by The City of New York. (Patrick, Bradford) (Entered: 01/07/2011)
47 REPLY AFFIRMATION of Bradford C. Patrick in Support re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Patrick, Bradford) (Entered: 01/07/2011)
48 COUNTER STATEMENT TO 42 Rule 56.1 Statement,. Document filed by The City of New York. (Patrick, Bradford) (Entered: 01/07/2011)
49 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Tonya Jenerette dated 1/7/2011 re: The City respectfully that the Court accept the City's reply brief even though it is 2 pages over the Court's tenpage limit for reply briefs. ENDORSEMENT: Request granted. The City

01/12/2011 01/12/2011 01/13/2011 01/14/2011 01/18/2011
01/26/2011 01/26/2011

may submit a 10 page reply. So Ordered. (Signed by Judge Shira A. Scheindlin on 1/7/2011) (jfe) (Entered: 01/10/2011)
50 NOTICE OF APPEARANCE by Katharine Elizabeth Gord Brooker on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson (Brooker, Katharine) (Entered: 01/12/2011)
51 NOTICE OF APPEARANCE by Matthew Jason Moses on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson (Moses, Matthew) (Entered: 01/12/2011)
52 NOTICE OF APPEARANCE by Andre Damian Williams on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson (Williams, Andre) (Entered: 01/13/2011)
53 NOTICE OF WITHDRAWAL OF COUNSEL, that Jason D. Williamson hereby withdraws as counsel for Plaintiffs in the above-captioned action. Attorney Jason D. Williamson terminated. (Signed by Judge Shira A. Scheindlin on 1/13/11) (pl) Modified on 1/14/2011 (pl). (Entered: 01/14/2011)
54 ORDER that Plaintiffs may submit a five page double space reply to the Rappaport declaration. No reply to that submission will be permitted; and (2)plaintiffs may submit a five page double-spaced sur reply to any new facts presented in the City's reply 56.1 statement or the Supplemental Declaration of Edward Delatorre or the Declaration of Bradford C. Patrick. Any response that does not address new facts is strictly prohibited, will be disregarded, and will be subject to sanctions. No reply to that submission will be permitted. (Signed by Judge Shira A. Scheindlin on 1/18/11) (cd) (Entered: 01/18/2011)
55 REPLY re: 48 Counter Statement to Rule 56.1 / Plaintiffs' Sur-Reply to Defendant City of New York's Response to Plaintiffs' Counter Statement Pursuant to Local Civil Rule 56.1. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Steinberg, Johanna) (Entered: 01/26/2011)
56 REPLY re: 35 Declaration in Support of Motion / Plaintiffs' Reply to Declaration of Steven J. Rapport in Support of Defendant City's Motion for Partial Summary Judgment. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin

01/26/2011 02/07/2011
02/07/2011 02/10/2011 02/15/2011

Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Steinberg, Johanna) (Entered: 01/26/2011)
57 DECLARATION of Johanna B. Steinberg re: 35 Declaration in Support of Motion, 56 Reply,. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Steinberg, Johanna) (Entered: 01/26/2011)
58 JUDGMENT PURSUANT TO RULE 68 #11,0226 in favor of William Turner against The City of New York in the amount of $ 20,001.00; in favor of Edwin Larregui against The City of New York in the amount of $ 12,501.00; in favor of Anthony Anderson against The City of New York in the amount of $ 75,001.00; in favor of Adam Cooper against The City of New York in the amount of $ 25,001.00; in favor of David Wilson against The City of New York in the amount of $ 15,501.00. (Signed by Judge Shira A. Scheindlin on 2/7/11) (Attachments: # 1 Notice of Right to Appeal)(dt) (Additional attachment(s) added on 2/8/2011: # 2 JUDGMENT) (dt). (Entered: 02/08/2011)
59 JUDGMENT PURSUANT TO RULE 68 #11,0227 in favor of Kelton Davis against The City of New York in the amount of $ 7,501.00; in favor of Shawne Jones against The City of New York in the amount of $ 5,001.00; in favor of Geneva Wilson against The City of New York in the amount of $ 5,001.00; in favor of Hector Suarez against The City of New York in the amount of $ 5,001.00. (Signed by Judge Shira A. Scheindlin on 2/7/11) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 02/08/2011)
60 NOTICE OF CHANGE OF ADDRESS by Johnathan James Smith on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. New Address: NAACP Legal defense & Educational Fund, Inc., 99 Hudson Street, Suite 1600, New York, NY, 10013, 212.965.2200. (Smith, Johnathan) (Entered: 02/10/2011)
61 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Tonya Jenerette dated 2/13/2011 re: Requesting that the Court: (1) deny counsel's application to defer the deadline for filing their Rule 54(d)(2)(B) motion for attorneys' fees in connection with the October 2 and December 20 Rule 68s until final adjudication of all claims; (2) direct counsel to serve their fee application, supported by contemporaneous records, on the City no later than February 22, 2011; (3) order that the parties shall have thirty days from the date the City receives plaintiffs' fee application to attempt to resolve the issue without the Courts intervention;

02/28/2011
03/03/2011 03/03/2011 03/18/2011 03/21/2011

and (4) direct the parties to file a briefing schedule with the Court by March 25, 2011 if we are unable to reach agreement. ENDORSEMENT: Plaintiff's counsel must serve their fee application and contemporaneous records in connection with the Oct. 2 and Dec. 20, 2010 Rule 68s on the City by February 22, 2011 - no extensions will be granted. (Signed by Judge Richard J. Holwell on 2/15/2011) (jpo) (Entered: 02/15/2011)
62 ORDER, that the City shall produce the following to Plaintiffs' counsel no later than March 15, 2011: 1. Information in spreadsheet format concerning the location of Vertical Patrols conducted citywide from 2005 to 2008, and 2010 to the present; 2. A list of captions and index numbers of current complaints filed against the City from 2007 to the present, in which the complainant alleged an unlawful stop and/or arrest for trespass, that the City is able to identify through inquiries to (i) Assistant Corporation Counsel in the Special Federal Litigation Division of the Office of the Corporation Counsel stating that the Court directs them to go through their current case files and identify such cases and (ii) Assistant Corporation Counsel in the division of the Office of the Corporation Counsel responsible for handling such complaints in New York State courts stating that the Court directs them to go through their current case files and identify such cases; 3. The most up-to-date lists available for buildings participating in the Trespass Affidavit Program, which the City shall request from the District Attorneys Offices of the Bronx, Brooklyn, Manhattan, Queens, and Staten Island. IT IS FURTHER ORDERED that the City shall serve on Plaintiffs a privilege log for all documents for which it is asserting the deliberative process privilege, the attorney-client privilege, or protection due to the work product doctrine by no later than February 25, 2011; the City shall serve its brief in support of its assertions of the deliberative process privilege by no later than March 11, 2011; Plaintiffs shall file their opposition to the City's brief by no later than March 25, 2011; and the City shall serve its reply by no later than April 1, 2011. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 2/25/2011) (lnl) (Entered: 02/28/2011)
63 TRANSCRIPT of proceedings held on 2/17/2011 before Judge Shira A. Scheindlin. (dnd) (Entered: 03/03/2011)
64 NOTICE OF APPEARANCE by Jin Hee Lee on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, P.L., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson (Lee, Jin Hee) (Entered: 03/03/2011)
66 TRANSCRIPT of proceedings held on 2/25/2011 before Judge Shira A. Scheindlin. (ab) (Entered: 03/25/2011)
65 NOTICE OF APPEARANCE by Morgan David Kunz on behalf of The City of New York (Kunz, Morgan) (Entered: 03/21/2011)

05/05/2011 05/16/2011 05/20/2011 05/23/2011
05/27/2011
06/14/2011

67 OPINION AND ORDER, #100289 that in accordance with the Court's instructions set forth in this Order, the City is ordered to review its assertions of privilege; revise and resubmit its privilege logs by May 20, 2011; and release the requested documents that are not covered by the deliberative process privilege, or any other privilege, in view of the Court's rulings, whether in their entirety or in redacted form as appropriate. (Signed by Judge Shira A. Scheindlin on 5/4/11) (pl) Modified on 5/6/2011 (ajc). (Entered: 05/05/2011)
***DELETED DOCUMENT pursuant to instructions from Chambers on 5/17/2011. Deleted document number 68 ORDER TO PRODUCE DOCUMENTS:. The document was incorrectly filed in this case. (tro) (Entered: 05/17/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 5/20/2011. (js) (Entered: 06/06/2011)
68 CLARIFICATION: This Court held in its May 5, 2011 Opinion and Order that documents "written to train officers in the implementation of I.O. 23 do not constitute a policy, but rather are materials intended to explain an existing policy I.O. 23," and therefore that such documents are not covered by the deliberative process privilege. Because the parties differ in their interpretations of my ruling, I write now to clarify. Documents that pre-date the implementation of I.O. 23 and are predecisional and deliberative as to I.O. 23 itself, are properly privileged. Documents that relate to the development of training materials, whether they predate or post-date the implementation of I.O. 23, and whether they are in draft or final form, are not privileged. Training materials do not constitute an agency policy or decision for the purposes of the deliberative process privilege. (Signed by Judge Shira A. Scheindlin on 5/20/2011) (lnl) (Entered: 05/24/2011)
69 AMENDED COMPLAINT amending 1 Complaint, against All Defendants with JURY DEMAND.Document filed by Lashaun Smith, Kristin Johnson, Kelton Davis, Roman Jackson, Geneva Wilson, Vaughn Frederick, David Wilson, Adam Cooper, Eleanor Britt, Patrick Littlejohn, Raymond Osorio, William Turner, Edwin Larregui, Anthony Anderson, R.E., Andrew Washington, Shawne Jones. Related document: 1 Complaint, filed by Edwin Larregui, Anthony Anderson, Shawne Jones, Andrew Washington, Adam Cooper, Roman Jackson, P.L., William Turner, Altagracia Hernandez, Lashaun Smith, David Wilson, Eleanor Britt, Kelton Davis, Geneva Wilson, Kristin Johnson, Hector Suarez.(mbe) (Entered: 06/01/2011)
70 TRANSCRIPT of Proceedings re: Conference held on 5/20/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Alena Lynch, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained

06/14/2011 06/15/2011 06/15/2011 06/17/2011

through PACER. Redaction Request due 7/8/2011. Redacted Transcript Deadline set for 7/18/2011. Release of Transcript Restriction set for 9/15/2011.(McGuirk, Kelly) (Entered: 06/14/2011)
71 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 5/20/2011 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/14/2011)
72 TRANSCRIPT of Proceedings re: conference held on 4/27/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Thomas Murray, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/11/2011. Redacted Transcript Deadline set for 7/21/2011. Release of Transcript Restriction set for 9/16/2011.(Moya, Goretti) (Entered: 06/15/2011)
73 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/27/11 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Moya, Goretti) (Entered: 06/15/2011)
74 ORDER: All fact discovery is due by 9/30/2011. The City's outstanding electronic discovery is due by 6/30/2011. Class certification motion is due by 10/14/2011. Defendant's opposition is due by 11/4/2011 and plaintiffs reply is due by 11/18/2011. Plaintiffs shall identity all expert witnesses and the subject matter of their testimony on or before September 30,2011. Defendants shall serve Plaintiffs with the identity of all expert witnesses and the subject matter of their testimony on or before October 31, 2011. Plaintiffs shall serve their expert report(s) on or before November 12,2011. Defendants shall serve their rebuttal expert report(s) on or before December 12, 2011. Depositions for all parties shall be completed by January 31, 2012. Plaintiffs' application for fee disputes shall be due July 8,2011. The City's opposition shall be due July 22,2011. Plaintiffs' reply shall be due July 29,2011. (Deposition due by 1/31/2012. Discovery due by 9/30/2011. Motions due by 10/14/2011. Responses due by 11/4/2011, Replies due by 11/18/2011.) (Signed by Judge Shira A. Scheindlin on 6/17/2011) (jar) (Entered: 06/17/2011)

06/17/2011 06/17/2011
06/17/2011 07/02/2011 07/05/2011 07/05/2011 07/05/2011
07/06/2011 07/08/2011
07/08/2011

Minute Entry for proceedings held before Judge Shira A. Scheindlin: Interim Pretrial Conference held on 6/17/2011. Expert Witness List due by 9/30/2011, Expert reports due Plaintiff 11/12/11, Defense 12/12/11, Plaintiff Motion due by 10/14/2011, Opposition papers due 11/4/11, Plaintiff Reply papers due by 11/18/2011. (ft) (Entered: 06/20/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Interim Pretrial Conference held on 6/17/2011, ( Expert Witness List of Plaintiff is due by 9/30/2011, Defense due 10/31/2011, Expert report due Plaintiff 11/12/2011, Defense due 12/12/2011, Plaintiff Motions due by 10/14/2011, Defense Opposition paper due 11/4/2011, Plaintiff reply papers due by 11/18/2011. (mbe) (Entered: 06/23/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 6/17/2011. (ft) (Entered: 06/23/2011)
75 ANSWER to 69 Amended Complaint,,. Document filed by New York City Housing Authority.(Rappaport, Steven) (Entered: 07/02/2011)
76 ANSWER to 69 Amended Complaint,, with JURY DEMAND. Document filed by The City of New York.(Jenerette, Tonya) (Entered: 07/05/2011)
77 NOTICE of motion pursuant to Rule 12(c) or, in the alternative, Rule 56. re: 76 Answer to Amended Complaint. Document filed by The City of New York. (Jenerette, Tonya) (Entered: 07/05/2011)
78 OPINION AND ORDER re: #100491 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief, filed by The City of New York. For the reasons set forth herein, Defendants' motion for summary judgment is denied in its entirety. The Clerk of the Court is directed to close this motion [Docket No. 31]. A conference is scheduled for August 9, 2011 at 5:00 PM. (Status Conference set for 8/9/2011 at 05:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 7/5/2011) (ab) Modified on 7/11/2011 (jab). (Entered: 07/05/2011)
79 NOTICE OF APPEARANCE by Brenda Elaine Cooke on behalf of The City of New York (Cooke, Brenda) (Entered: 07/06/2011)
80 MOTION for Attorney Fees and Costs. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, William Turner, Andrew Washington, David Wilson, Geneva Wilson.(Smith, Johnathan) (Entered: 07/08/2011)
81 MEMORANDUM OF LAW in Support re: 80 MOTION for Attorney Fees and Costs.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond

07/08/2011 07/08/2011 07/11/2011 07/14/2011 07/18/2011 07/18/2011

Osorio, R.E., Lashaun Smith, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Smith, Johnathan) (Entered: 07/08/2011)
82 DECLARATION of William Gibney in Support re: 80 MOTION for Attorney Fees and Costs.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Smith, Johnathan) (Entered: 07/08/2011)
83 DECLARATION of Johanna B. Steinberg in Support re: 80 MOTION for Attorney Fees and Costs.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Smith, Johnathan) (Entered: 07/08/2011)
84 DECLARATION of Johanna B. Steinberg Correcting Clerical Errors in Support re: 80 MOTION for Attorney Fees and Costs.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Attachments: # 1 Exhibit 1)(Steinberg, Johanna) (Entered: 07/11/2011)
85 OPPOSITION BRIEF re: 77 Notice (Other) of Defendant City of New York's Motion for an Order Pursuant to Rule 12(c), or in the Alternative, Rule 56 of the Federal Rules of Civil Procedure. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson.(Smith, Johnathan) (Entered: 07/14/2011)
86 TRANSCRIPT of Proceedings re: Conference held on 4/27/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Jerry Harrison, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/11/2011. Redacted Transcript Deadline set for 8/22/2011. Release of Transcript Restriction set for 10/20/2011.(McGuirk, Kelly) (Entered: 07/18/2011)
87 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 4/27/11 has been filed by the court reporter/transcriber in the above-

07/19/2011 07/19/2011 07/19/2011 07/20/2011 07/26/2011
07/28/2011

captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/18/2011)
88 TRANSCRIPT of Proceedings re: 5/20/11 held on 5/20/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Alena Lynch, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/12/2011. Redacted Transcript Deadline set for 8/22/2011. Release of Transcript Restriction set for 10/20/2011.(McGuirk, Kelly) (Entered: 07/19/2011)
89 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 5/20/11 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/19/2011)
90 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 5/20/11 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/19/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Discovery Hearing held on 7/20/2011. (lmb) (Entered: 08/05/2011)
91 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Morgan D. Katz dated 7/22/11 re: Counsel for defendant City of New York requests an extension of time to submit their opposition to plaintiffs' motion for attorneys fees until 8/3/11. Plaintiffs consent to this request on the condition that their reply is due 8/10/11. ENDORSEMENT: Request granted. Defendants' opposition is due August 3, 2011 and plaintiffs' reply is due August 10, 2011. No further extensions will be granted. So ordered. Set Deadlines/Hearing as to 80 MOTION for Attorney Fees and Costs:( Responses due by 8/3/2011, Replies due by 8/10/2011.) (Signed by Judge Shira A. Scheindlin on 7/25/2011) (mro) (Entered: 07/27/2011)
92 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Mary Jo L. Blanchard dated 7/28/11 re: counsel for Defendant writes to

08/01/2011 08/03/2011 08/03/2011
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08/10/2011
08/10/2011

request additional time for the Office of the District Attorney, Bronx County, to fully comply with your July 20, 2011 order to provide statistics regarding the number of defendants charged with New York Penal Law §§ 140.05, 140.10(a),(e),(f) or 140.15 in 2009 and 2010 that we declined to prosecute ("DP"), prosecuted, or dismissed. ENDORSEMENT: Request granted. The Bronx District Attorney's Office must provide by Friday, July 29, 2011 the statistics that it has indicated it can provide by that date. Its time to compile data for the number of prosecutions, declined prosecutions, and dismissals of trespass cases on NYCHA property is extended to August 2, 2011. (Signed by Judge Shira A. Scheindlin on 7/28/11) (pl) (Entered: 07/28/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Discovery Hearing held on 8/1/2011. (lmb) (Entered: 08/05/2011)
93 MEMORANDUM OF LAW in Opposition re: 80 MOTION for Attorney Fees and Costs.. Document filed by The City of New York. (Kunz, Morgan) (Entered: 08/03/2011)
94 DECLARATION of Morgan D. Kunz in Opposition re: 80 MOTION for Attorney Fees and Costs.. Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Kunz, Morgan) (Entered: 08/03/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 8/9/2011. (ft) (Entered: 08/16/2011)
95 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute - (1) Electronic discovery dispute; (2) Unsealing Order (production fee and confidentiality designation). Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Shira A. Scheindlin on 8/10/2011) (ab) (Entered: 08/10/2011)
96 REPLY AFFIDAVIT of Nancy Rosenbloom in Support re: 80 MOTION for Attorney Fees and Costs.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Rosenbloom, Nancy) (Entered: 08/10/2011)
97 REPLY MEMORANDUM OF LAW in Support re: 80 MOTION for Attorney Fees and Costs.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner,

08/19/2011 08/19/2011 09/06/2011 09/08/2011 09/09/2011 09/09/2011
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Andrew Washington, David Wilson, Geneva Wilson. (Rosenbloom, Nancy) (Entered: 08/10/2011)
98 TRANSCRIPT of Proceedings re: Conference held on 6/17/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Vincent Bologna, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/12/2011. Redacted Transcript Deadline set for 9/22/2011. Release of Transcript Restriction set for 11/21/2011.(McGuirk, Kelly) (Entered: 08/19/2011)
99 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 6/17/11 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/19/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 9/6/2011. (ab) (Entered: 09/13/2011)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 9/8/2011. (ft) (Entered: 09/08/2011)
100 ORDER: that plaintiffs' application to compel defendants to run a second set of search terms against the electronic document files of the custodians previously searched is granted. Defendants shall submit a letter concerning the appropriateness of searching the files of the additional custodians proposed by plaintiffs in their 7/26/2011 letter no later than 9/16/2011; plaintiffs shall submit their response no later than 9/23/2011. (Signed by Magistrate Judge Henry B. Pitman on 9/8/2011) (ft) (Entered: 09/09/2011)
101 ORDER TO UNSEAL AND PRODUCE DOCUMENTS: For the limited purpose of complying with the Court's Order, the District Attorneys' Offices files pertaining to all declinations or deferrals of prosecutions for arrests in August 2009 and August 2010 wherein New York Penal Law §§ 140.05, 140.10(a), (e) or (f), or 140.15 was charged, are unsealed pursuant to New York Criminal Procedure Law § 160.50, as further set forth on this Order. The documents and information provided in satisfaction of this Order shall be deemed CONFIDENTIAL, and may only be used by the parties, their counsel and counsels' agents and consultants for this purposes of this action. (Signed by Magistrate Judge Henry B. Pitman on 9/8/2011) (ab) (Entered: 09/09/2011)
102 TRANSCRIPT of Proceedings re: Conference held on 8/9/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Toni Stanley,

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(212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/10/2011. Redacted Transcript Deadline set for 10/20/2011. Release of Transcript Restriction set for 12/19/2011.(McGuirk, Kelly) (Entered: 09/16/2011)
103 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 8/9/11 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/16/2011)
104 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Tonya Jenerette dated 9/15/2011 re: Under the current schedule, the City's letter is due on September 16, 2011 and the plaintiff's reply on September 23, 2011. The parties request that the City's letter be filed on September 23, 2011 and plaintiff's reply on September 30, 2011. ENDORSEMENT: Application Granted. So Ordered. (Signed by Magistrate Judge Henry B. Pitman on 9/15/2011) (rdz) (Entered: 09/19/2011)
105 TRANSCRIPT of Proceedings re: conference held on 9/8/2011 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Sarah H. Hines. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/13/2011. Redacted Transcript Deadline set for 10/24/2011. Release of Transcript Restriction set for 12/22/2011.(tro) (Entered: 09/19/2011)
106 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 9/8/2011 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(tro) (Entered: 09/19/2011)
107 TRANSCRIPT of Proceedings re: Conference held on 8/1/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Andrew Walker, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/17/2011. Redacted Transcript

09/21/2011 10/11/2011 10/11/2011 10/12/2011 10/12/2011

Deadline set for 10/27/2011. Release of Transcript Restriction set for 12/23/2011.(McGuirk, Kelly) (Entered: 09/21/2011)
108 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 8/1/11 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/21/2011)
109 TRANSCRIPT of Proceedings re: Conference held on 9/6/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Tara Jones, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/4/2011. Redacted Transcript Deadline set for 11/14/2011. Release of Transcript Restriction set for 1/12/2012.(McGuirk, Kelly) (Entered: 10/11/2011)
110 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 9/6/11 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 10/11/2011)
111 TRANSCRIPT of Proceedings re: Conference held on 8/1/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Andrew Walker, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/7/2011. Redacted Transcript Deadline set for 11/17/2011. Release of Transcript Restriction set for 1/13/2012.(McGuirk, Kelly) (Entered: 10/12/2011)
112 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 8/1/11 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 10/12/2011)

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10/18/2011

113 TRANSCRIPT of Proceedings re: Conference held on 8/9/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Toni Stanley, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/7/2011. Redacted Transcript Deadline set for 11/17/2011. Release of Transcript Restriction set for 1/13/2012.(McGuirk, Kelly) (Entered: 10/12/2011)
114 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 8/9/11 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 10/12/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 10/13/2011. (ft) (Entered: 11/08/2011)
115 ORDER: The parties shall complete all fact discovery by November 30, Plaintiffs shall identify all expert witnesses and the subject matter of their testimony on or before November 15, 2011. Defendants shall identify all expert witnesses and the subject matter of their testimony on or before December 1, 2011. Plaintiffs shall serve their expert report(s) on or before January 16, 2012. defendants shall serve their rebuttal expert report(s) on or before February 16, 2012. Any expert depositions shall be completed on or before March 30, 2012. c) Defendants will move for summary judgment with respect to plaintiffs' individual claims on or before December 30, 2011. Plaintiffs' opposition defendants' motions for summary judgment will be due on January 30, 2012. defendants' reply brief will be due on February 15, 2012. d) Defendants will move for summary judgment with respect to plaintiffs' Monell claims on or before April 16, 2012. Plaintiffs' opposition to defendants' motions for summary judgment will be due on May 16, 2012.Defendants' reply brief will be due on May 30, 2012. e) Plaintiffs shall file their motion in support of class certification within thirty days after the Court decides all motions for summary judgment.f) No further extensions will be granted. 2 ( Deposition due by 3/30/2012. Motions due by 4/16/2012. Responses due by 5/16/2012, Replies due by 5/30/2012.) (Signed by Judge Shira A. Scheindlin on 10/17/2011) (js) (Entered: 10/18/2011)
116 OPINION AND ORDER:#100922 For the reasons stated above, the Settling Plaintiffs are awarded $56,360.25 in attorneys' fees ($32,215.25 in litigation fees and $24,145.00 in fees related to the fee application) and zero costs. The Clerk of the Court is directed to close the motion for

10/18/2011 10/18/2011 10/21/2011 10/21/2011 10/22/2011 10/26/2011

attorneys' fees (Docket Entry # 80). (Signed by Judge Shira A. Scheindlin on 10/17/2011) (js) Modified on 10/18/2011 (jab). (Entered: 10/18/2011)
117 ENDORSED LETTER: addressed to Judge Shira A. Scheindlin from Sarah Kines dated 10/14/2011 re: The files in question are sealed, pursuant to New York criminal Procedure Law §160.50. I cannot access these files without a court order unsealing them. They are not covered by Magistrate Judge Pitman's unsealing order dated September 9, 2011. Counsel requests an order from the Court, unsealing these files for purposes of reviewing and reporting on their contents. ENDORSEMENT: So Ordered. (Signed by Judge Shira A. Scheindlin on 10/14/2011) (js) (Entered: 10/18/2011)
118 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katharine E.G. Brooker dated 10/17/2011 re: Plaintiffs respectfully request that the court order that the transcript of the October 13, 2011 court conference be redacted of her name, and that her first and last names be replaced with the initials "R.E" as appropriate. ENDORSEMENT: The October 13, 2011 transcript should be corrected to delete the full name of plaintiff and replace it with "R.E." So ordered. (Signed by Judge Shira A. Scheindlin on 10/18/2011) (lmb) (Entered: 10/18/2011)
119 MOTION to Compel Production of Documents. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson.(Smith, Johnathan) (Entered: 10/21/2011)
120 MEMORANDUM OF LAW in Support re: 119 MOTION to Compel Production of Documents.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Smith, Johnathan) (Entered: 10/22/2011)
121 DECLARATION of Jin Hee Lee in Support re: 119 MOTION to Compel Production of Documents.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Lee, Jin Hee) (Entered: 10/22/2011)
122 DECLARATION of Jin Hee Lee in Support re: 119 MOTION to Compel Production of Documents.. Document filed by Anthony Anderson,

11/01/2011
11/02/2011
11/02/2011 11/02/2011 11/03/2011

Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, William Turner, Andrew Washington, David Wilson, Geneva Wilson, Geneva Wilson(Individually and on behalf of a class of all others similarly situated). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Lee, Jin Hee) (Entered: 10/26/2011)
123 ORDER: I have reviewed camera plaintiff Patrick Littlejohn's PINS file which has been submitted to me by plaintiffs' counsel. Based on that review, I conclude that there is no information in that file that bears on the legality of Littlejohn's arrests on January 4, and June 2009. In addition, there is nothing in the file beyond the information plaintiffs' counsel has already produced that bears on Littlejohn's claim for damages. Accordingly, for all the foregoing reasons, I conclude that there is nothing in Littlejohn's PINS file that should be produced in this matter. (Signed by Magistrate Judge Henry B. Pitman on 11/1/2011) (pl) (Entered: 11/01/2011)
124 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Judson Vickers dated 10/31/2011 re: This letter is in response to plaintiffs' letter dated October 27, 2011. Defendant respectfully requests that the Court strike the Amended Declaration in its entirety. Alternatively, we request that defendant be given until November 15th to serve its response. ENDORSEMENT: The City has not demonstrated a need for an eleven (11) day extension based on the late submission of a single amended declaration. The City may have until Nov. 8 to file its response. (Signed by Judge Shira A. Scheindlin on 11/1/2011) (lmb) (Entered: 11/02/2011)
Set/Reset Deadlines: Responses due by 11/8/2011. (lmb) (Entered: 11/02/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/2/2011. (jfe) (Entered: 11/08/2011)
125 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Tonya Jenerette dated 10/18/11 re: Counsel for the City of New York requests that the cost of collection, attorney review and production of electronic document files from the three new custodians be subject to the Court's 9/8/11 cost-shifting order. ENDORSEMENT: Defendants' application to shift the cost of producing additional ESI is denied without prejudice to renewal after the incremental probative value of the ESI can assessed. Defendants are directed to produce the additional ESI as soon as possible. If defendants are unable to produce the additional ESI in time to be utilized at the upcoming depositions, plaintiffs may move to re-open those depositions to pose questions concerning the additional ESI.

11/09/2011 11/09/2011 11/09/2011 11/14/2011
11/16/2011 11/17/2011

(Signed by Magistrate Judge Henry B. Pitman on 11/2/2011) Copies Transmitted by Chambers. (mro) Modified on 11/3/2011 (mro). (Entered: 11/03/2011)
126 NOTICE OF APPEARANCE by Marlen Suyapa Bodden on behalf of Kelton Davis (Bodden, Marlen) (Entered: 11/09/2011)
127 FIRST MEMORANDUM OF LAW in Opposition re: 119 MOTION to Compel Production of Documents.. Document filed by The City of New York. (Kunz, Morgan) (Entered: 11/09/2011)
128 DECLARATION of Judson Vickers in Opposition re: 119 MOTION to Compel Production of Documents.. Document filed by The City of New York. (Kunz, Morgan) (Entered: 11/09/2011)
129 ORDER: The parties shall complete all fact discovery by January 2, 2012. Plaintiffs shall identity all expert witnesses and the subject matter of their testimony on or before December 16, 2011. Defendants shall serve Plaintiffs with the identity of any all expert witnesses and the subject matter of their testimony on or before January 17, 2012. Plaintiffs shall serve their expert report(s) on or before February 17, 2012. Defendants shall serve their rebuttal expert report(s) on or before March 21, 2012. Any expert depositions shall be completed by May 1, 2012. Defendants will move for summary judgment with respect to Plaintiffs' individual claims on or before February 13, 2012. Plaintiffs' opposition to Defendants' motions for summary judgment will be due on or before March 14, 2012. Defendants' reply brief will be due on or before March 28, 2012. Defendants will move for summary judgment with respect to Plaintiffs' Monell claims on or before May 14, 2012. Plaintiffs' opposition to Defendants' motions for summary judgment will be due on or before June 14, 2012. Defendants' reply brief will be due on or before June 28, 2012. ( Deposition due by 5/1/2012., Discovery due by 1/2/2012., Expert Discovery due by 1/17/2012., Motions due by 5/14/2012., Responses due by 6/14/2012, Replies due by 6/28/2012.) (Signed by Judge Shira A. Scheindlin on 11/14/2011) (jfe) (Entered: 11/14/2011)
130 REPLY MEMORANDUM OF LAW in Support re: 119 MOTION to Compel Production of Documents.. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Smith, Johnathan) (Entered: 11/16/2011)
131 TRANSCRIPT of Proceedings re: Conference held on 10/13/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Martha Drevis, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained

11/17/2011
12/07/2011 12/13/2011 12/15/2011 12/21/2011 12/22/2011
12/28/2011

through PACER. Redaction Request due 12/12/2011. Redacted Transcript Deadline set for 12/22/2011. Release of Transcript Restriction set for 2/18/2012.(McGuirk, Kelly) (Entered: 11/17/2011)
132 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 10/13/11 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/17/2011)
133 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute: Plaintiffs' motion to compel production of documents. Referred to Magistrate Judge Henry B. Pitman. Motions referred to Henry B. Pitman. (Signed by Judge Shira A. Scheindlin on 12/6/2011) (jfe) (Entered: 12/07/2011)
Minute Order Proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/13/2011. (cd) (Entered: 01/06/2012)
134 NOTICE OF APPEARANCE by Jason Lowell Meizlish on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson (Meizlish, Jason) (Entered: 12/15/2011)
Minute Order Proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/21/2011. (cd) (Entered: 01/06/2012)
135 ORDER: By December 29, the District Attorneys shall respond to plaintiffs' most recent letter.c) By December 30, NYCHA shall produce all documents related to the deposition of their 30(b)(6) witnesses. d) By January 15, Reginald Bowman shall be deposed.e) By January 20, NYCHA shall complete production of its electronically stored information. f) The cut-off for fact discovery is extended to February 13. No further extensions will be granted. g) A status conference is scheduled for 3:30 p.m on January 6. The conference shall include the District Attorneys and an attorney from the New York City Law Department who is able to answer the Court's questions regarding juvenile delinquency disposition data. (Signed by Judge Shira A. Scheindlin on 12/22/2011) (js) (Entered: 12/23/2011)
136 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jim Hee Lee, Katharine E.G. Brookier and Nancy Rosenbloom dated 12/28/2011 re: Plaintiffs respectfully request that he deadlines for service of expert reports be extended by six weeks. The current deadline for

12/28/2011
01/05/2012 01/05/2012 01/06/2012 01/09/2012

service of plaintiffs' expert reports is February 17,2012. Because fact discovery now ends on February 13 and plaintiffs are entitled to and expect to receive substantial amounts of outstanding, relevant material (including most of defendant New York City Housing Authority's ESI production, which will not be completed until January 20; as well as additional data from defendant City of New York), we request this corresponding time so that our experts may review all documents and information relevant to their respective areas of testimony. ENDORSEMENT: The parties are ordered to meet and confer and to submit a joint proposed briefing schedule with respect to expert discovery. (Signed by Judge Shira A. Scheindlin on 12/28/2011) (djc) (Entered: 12/28/2011)
137 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Phyllis Mintz dated 12/27/2011 re: Counsel requests that this Court consider scheduling the January 6th conference at a later date. ENDORSEMENT: The District Attorneys may have until January 6 to respond to plaintiffs' December 21 letter. The DAs are not required to appear on January 6 although the conference will proceed as scheduled. The DAs are required to appear on January 13 at 3 pm for a conference with the Court. So Ordered. (Status Conference set for 1/13/2012 at 03:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 12/28/2011) (djc) (Entered: 12/28/2011)
138 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - MOTION for Extension of Time to produce electronic discovery. Document filed by New York City Housing Authority.(Murphy, Donna) Modified on 1/6/2012 (ldi). (Entered: 01/05/2012)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 138 HAS BEEN REJECTED. Note to Attorney Donna Marie Murphy : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (ldi) (Entered: 01/06/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/6/2012. (ft) (Entered: 02/02/2012)
139 ORDER: By January 27, 2012, defendants shall produce to plaintiffs any declarations from New York City Housing Authority ("NYCHA") residents on which they plan to reply. By February 13, 2012, all fact discovery with respect to the City shall be complete. By March 5, 2012, all fact discovery with respect to NYCHA shall be complete. By June 25, 2012, any expert witness depositions shall be complete. By June 25, 2012, any expert witness depositions shall be complete. By July 23,2012, defendants shall file for summary judgment on plaintiffs' Monell claims. By August 20, 2012, plaintiffs shall file their opposition to defendants'

01/11/2012
01/11/2012
01/13/2012 01/17/2012 01/19/2012 01/20/2012

summary judgment motion. By September 4,2012, defendants shall file their reply to plaintiffs' opposition. By July 23,2012, defendants shall file for summary judgment on plaintiffs' Monell claims. By August 20, 2012, plaintiffs shall file their opposition to defendants' summary judgment motion. By September 4,2012, defendants shall file their reply to plaintiffs' opposition. No further adjournments will be granted. Additional relief as set forth in this Order. ( Deposition due by 6/25/2012., Fact Discovery due by 3/5/2012., Motions due by 7/23/2012., Responses due by 8/20/2012, Replies due by 9/4/2012.) (Signed by Judge Shira A. Scheindlin on 1/9/2012) (pl) Modified on 1/9/2012 (pl). (Entered: 01/09/2012)
140 TRANSCRIPT of Proceedings re: Conference held on 11/2/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Thomas Murray, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/6/2012. Redacted Transcript Deadline set for 2/17/2012. Release of Transcript Restriction set for 4/13/2012.(McGuirk, Kelly) (Entered: 01/11/2012)
141 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 11/2/11 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/11/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/13/2012. (ft) (Entered: 02/02/2012)
142 DECLARATION of Edward Delatorre in Support re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief.. Document filed by The City of New York. (Attachments: # 1 Exhibit)(Jenerette, Tonya) (Entered: 01/17/2012)
143 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Mary Jo L. Blanchard dated 1/17/2012 re: I request an Order from the Court unsealing these files for the purpose of reviewing and reporting on their contents. ENDORSEMENT: The 25 files are ordered unsealed for the limited purpose of review and reporting Bronx County District Attorney's Office. (Signed by Judge Shira A. Scheindlin on 1/19/2012) (lmb) (Entered: 01/19/2012)
144 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Tonya Jenerette dated 1/19/12 re: Counsel for the defendant requests that the Court order that, if plaintiffs intend to rely on any person they have

01/20/2012 01/26/2012 01/26/2012 02/02/2012
02/06/2012 02/15/2012

not previously identified, they must produce any declarations from these residents (66 of them) by the 1/27/12 deadline imposed on defendants. ENDORSEMENT: Request granted. If plaintiffs intend to rely on any of these sixty-six residents, they must produce declarations from those residents by Jan. 27, 2012. So ordered. (Signed by Judge Shira A. Scheindlin on 1/20/2012) (mro) (Entered: 01/20/2012)
145 STIPULATION AND PROTECTIVE ORDER FOR ATTORNEYS' AND EXPERTS' EYES ONLY...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Shira A. Scheindlin on 1/20/2012 ***as per Chambers) (mro) (Entered: 01/23/2012)
146 TRANSCRIPT of Proceedings re: Conference held on 12/21/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Rebecca Forman, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2012. Redacted Transcript Deadline set for 3/1/2012. Release of Transcript Restriction set for 4/30/2012.(McGuirk, Kelly) (Entered: 01/26/2012)
147 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 12/21/2011 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/26/2012)
148 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Johnathan J. Smith dated 2/1/2011 re: counsel for plaintiff submit this letter in response to the January 31, 2012 joint submission from Defendants City of New York (the "City") and New York City Housing Authority ("NYCHA"),seeking an additional two-week extension of their expert witness designation, which was due that same day on January 31, 2012. ENDORSEMENT: All defendants must designate all experts by end of business on February 7, 2012. Any proposed expert not designated by that date is hereby precluded. (Signed by Judge Shira A. Scheindlin on 2/1/2012) (pl) Modified on 2/3/2012 (pl). (Entered: 02/03/2012)
149 NOTICE OF APPEARANCE by George Thomas Soterakis on behalf of The City of New York (Soterakis, George) (Entered: 02/06/2012)
150 MEMO ENDORSEMENT on Notice of Withdrawal. PLEASE TAKE NOTICE that Damian Williams will be withdrawing his appearance in the above-captioned action. After February 24, 2012, I will no longer be associated with Paul, Weiss, Ritkind, Wharton & Garrison LLP.

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03/05/2012 03/05/2012

ENDORSEMENT: So ordered. (Signed by Judge Shira A. Scheindlin on 2/15/2012) (mro) (Entered: 02/16/2012)
151 ORDER: By March 9, 2012, the New York County District Attorney shall produce to the parties all DPs resulting from trespass arrests for the following time periods: July 2009; July 2010; July and August 2011; January 1-15 of 2008, 2009, 2010, 2011, and 2012; February 1-14 of 2008, 2009, 2010, 2011, and 2012. By March 9, 2012, the Bronx County District Attorney and the Kings County District Attorney shall produce to the parties all DPs resulting from trespass arrests for the following time periods: January 1-15 of 2008, 2009, 2010, 2011, and 2012; February 114 of 2008, 2009, 2010, 2011, and 2012. The above DPs are ordered unsealed. The production of DPs by the Queens County District Attorney will be addressed in a separate order. (Signed by Judge Shira A. Scheindlin on 2/17/2012) (ft) (Entered: 02/17/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 2/17/2012. (lmb) (Entered: 03/06/2012)
152 NOTICE OF APPEARANCE by Judson Krebbs Vickers on behalf of The City of New York (Vickers, Judson) (Entered: 02/23/2012)
153 MEMORANDUM AND OPINION re: #101479 119 MOTION to Compel Production of Documents filed by Edwin Larregui, Patrick Littlejohn, R.E., Anthony Anderson, Shawne Jones, Andrew Washington, Adam Cooper, Roman Jackson, Vaughn Frederick, William Turner, Lashaun Smith, Raymond Osorio, David Wilson, Eleanor Britt, Kelton Davis, Geneva Wilson, Kristin Johnson, Hector Suarez. Plaintiffs' motion to compel is granted to the extent that it seeks an Order directing the City to produce Documents 16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100{ 101, 102, 103, 104, 122, 123, 124, and 125. In all other respects, plaintiffs' motion to compel is denied. (Signed by Magistrate Judge Henry B. Pitman on 2/27/2012) (jar) Modified on 2/29/2012 (jab). (Entered: 02/27/2012)
154 TRANSCRIPT of Proceedings re: Conference held on 1/6/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: William Richards, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/29/2012. Redacted Transcript Deadline set for 4/9/2012. Release of Transcript Restriction set for 6/7/2012.(McGuirk, Kelly) (Entered: 03/05/2012)
155 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 1/6/12 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice

03/06/2012 03/19/2012 03/21/2012 05/02/2012 05/02/2012

is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/05/2012)
156 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Phyllis Mintz dated 3/5/2012 re: counsel for defendant I respectfully ask that this Court grant the KCDA a one-week extension of time to provide the parties to this matter with the 141 redacted DPs which fully satisfy the order of this Court. ENDORSEMENT: Requests granted. But no furhter extension for any reason. So Ordered. (Signed by Judge Shira A. Scheindlin on 3/6/2012) (pl) (Entered: 03/08/2012)
157 ORDER TO APPEAR AT COURTHOUSE FOR DEPOSITION: IT IS HEREBY ORDERED that Mr. Bowman appear and have his deposition taken by Plaintiffs' counsel at the United States Courthouse, Southern District of New York, at 500 Pearl Street, Courtroom 15C, New York, New York, at 9:30 a.m. on March 28, 2012, and produce all requested documents at that time. IT IS FURTHER ORDERED that, if Mr. Bowman fails to appear for deposition pursuant to this Order, he will be subject to a finding of civil contempt and the Court will impose appropriate remedies to coerce compliance. (Deposition due by 3/28/2012.) (Signed by Judge Shira A. Scheindlin on 3/19/2012) (djc) Modified on 3/19/2012 (djc). (Entered: 03/19/2012)
158 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Johnathan J. Smith dated 3/20/2012 re: The parties are jointly asking this Court to approve a modification to the current scheduling order (Docket No. 139). ENDORSEMENT: The deadlines for the submission of motions in this case have been extended repeatedly, in large part because of complex discovery disputes. Because the parties are still not ready for summary judgment briefing, the schedule is adjourned sine die. The parties are instructed to notify the Court as soon as discovery is complete. A briefing schedule will be set at that time. (Signed by Judge Shira A. Scheindlin on 3/20/2012) (lmb) (Entered: 03/21/2012)
159 TRANSCRIPT of Proceedings re: conference held on 2/17/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Khristine Sellin, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/29/2012. Redacted Transcript Deadline set for 6/7/2012. Release of Transcript Restriction set for 8/3/2012.(McGuirk, Kelly) (Entered: 05/02/2012)
160 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 2/17/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such

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Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/02/2012)
161 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/21/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Rebecca Forman, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/1/2012. Redacted Transcript Deadline set for 6/11/2012. Release of Transcript Restriction set for 8/9/2012.(McGuirk, Kelly) (Entered: 05/08/2012)
162 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/21/11 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/08/2012)
163 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/13/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Jennifer Thun, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/1/2012. Redacted Transcript Deadline set for 6/11/2012. Release of Transcript Restriction set for 8/9/2012.(McGuirk, Kelly) (Entered: 05/08/2012)
164 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/13/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/08/2012)
165 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/6/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: William Richards, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/1/2012. Redacted Transcript Deadline set for 6/11/2012. Release of Transcript Restriction set for 8/9/2012.(McGuirk, Kelly) (Entered: 05/08/2012)

05/08/2012 05/08/2012 05/08/2012 05/16/2012
05/16/2012 05/18/2012 06/04/2012

166 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/6/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/08/2012)
167 TRANSCRIPT of Proceedings re: CONFERENCE held on 2/17/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Khristine Sellin, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/1/2012. Redacted Transcript Deadline set for 6/11/2012. Release of Transcript Restriction set for 8/9/2012.(McGuirk, Kelly) (Entered: 05/08/2012)
168 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 2/17/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/08/2012)
169 ORDER: The scheduling order is amended as follows: Defendants' motions for summary judgment on plaintiffs' individual claims due June 15, 2012. Plaintiffs' opposition due July 20, 2012. Defendants' reply due August 3, 2012. Completion of expert witness depositions due September 14, 2012. Defendants' motions for summary judgment on Monell claims due October 5, 2012. Plaintiffs' opposition due November 2, 2012. Defendants' reply due November 16, 2012. Plaintiffs' motion for class certification due 30 days after Court rules on defendants' motions for summary judgment. Additional relief as set forth in this Order., ( Motions due by 10/5/2012., Responses due by 11/2/2012, Replies due by 11/16/2012.) (Signed by Judge Shira A. Scheindlin on 5/15/2012) (pl) Modified on 5/16/2012 (pl). (Entered: 05/16/2012)
Set/Reset Deadlines: Deposition due by 9/14/2012. (pl) (Entered: 05/16/2012)
170 NOTICE of withdrawal as counsel of record for the City of New York.. Document filed by The City of New York. (Jenerette, Tonya) (Entered: 05/18/2012)
171 OPINION AND ORDER # 101867 : The City's and the plaintiffs' motions for reconsideration are denied in their entirety. (Signed by

06/14/2012
06/16/2012 06/16/2012 06/16/2012 06/16/2012 06/16/2012 06/16/2012

Magistrate Judge Henry B. Pitman on 6/4/2012) Copies Transmitted(js) Modified on 6/5/2012 (ft). (Entered: 06/05/2012)
172 MEMORANDUM OPINION AND ORDER: Because the Reports should have been produced long ago, because the City has been less than forthright with the Court about the content of these Reports and the role of ICOs, and because a deposition of an ICO is likely to lead to the discovery of admissible evidence, plaintiffs' request is granted. Defendants shall make available for deposition an ICO from one of the Police Service Areas that arrested one of the named plaintiffs; the deposition shall be limited to sevenhours, not the one hour that the City suggests; and, given expert report deadlines it shall take place by June 22. The deposition shall not be limited to the topics in the Reports all of the ICOs' duties are appropriate subjects of investigation. The deadlines for the production of expert reports and the submission of summary judgment briefs will not be extended as a result of this Order. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 6/13/2012) (ama) (Entered: 06/14/2012)
173 MOTION for Summary Judgment. Document filed by The City of New York. Responses due by 7/20/2012 Return Date set for 8/3/2012 at 11:59 PM.(Cooke, Brenda) (Entered: 06/16/2012)
174 MEMORANDUM OF LAW in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Cooke, Brenda) (Entered: 06/16/2012)
175 RULE 56.1 STATEMENT. Document filed by The City of New York. (Cooke, Brenda) (Entered: 06/16/2012)
176 DECLARATION of Brenda E. Cooke in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Cooke, Brenda) (Entered: 06/16/2012)
177 DECLARATION of Lisa M. Richardson in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Attachments: # 1 Exhibit P, # 2 Exhibit Q, # 3 Exhibit R, # 4 Exhibit S, # 5 Exhibit T, # 6 Exhibit U, # 7 Exhibit V, # 8 Exhibit W, # 9 Exhibit X, # 10 Exhibit Y, # 11 Exhibit Z, # 12 Exhibit AA, # 13 Exhibit BB, # 14 Exhibit CC, # 15 Exhibit DD)(Cooke, Brenda) (Entered: 06/16/2012)
178 DECLARATION of George T. Soterakis in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Attachments: # 1 Exhibit EE, # 2 Exhibit FF, # 3 Exhibit GG, # 4 Exhibit HH, # 5 Exhibit II, # 6 Exhibit JJ, # 7 Exhibit KK, # 8 Exhibit LL, # 9 Exhibit MM, # 10 Exhibit NN, # 11 Exhibit OO, # 12 Exhibit PP,

06/16/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012
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# 13 Exhibit QQ, # 14 Exhibit RR, # 15 Exhibit SS, # 16 Exhibit TT, # 17 Exhibit UU)(Cooke, Brenda) (Entered: 06/16/2012)
179 FILING ERROR - DEFICIENT DOCKET ENTRY - FIRST MOTION for Summary Judgment. Document filed by New York City Housing Authority. Responses due by 7/20/2012 (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Supplement)(Rappaport, Steven) Modified on 6/18/2012 (db). (Entered: 06/16/2012)
180 FILING ERROR - DEFICIENT DOCKET ENTRY - FIRST MOTION for Summary Judgment. Document filed by New York City Housing Authority. Responses due by 7/20/2012 (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Rappaport, Steven) Modified on 6/19/2012 (db). (Entered: 06/18/2012)
181 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Summary Judgment. Document filed by New York City Housing Authority. Responses due by 7/20/2012(Rappaport, Steven) Modified on 6/19/2012 (db). (Entered: 06/18/2012)
182 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Summary Judgment Memorandum of Law in Support of Motion. Document filed by New York City Housing Authority. Responses due by 7/20/2012(Rappaport, Steven) Modified on 6/19/2012 (db). (Entered: 06/18/2012)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Steven Jay Rappaport to RE-FILE Document 179 FIRST MOTION for Summary Judgment. ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (Memorandum in Support and Affidavits/Affirmations/Declarations in Support are found under the Event Type - Replies, Opposition and Supporting Documents; Rule 56.1 Statement is found under the Event Type Other Answers). (db) (Entered: 06/18/2012)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Steven Jay Rappaport to RE-FILE Document 180 FIRST MOTION for Summary Judgment. ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) (Entered: 06/19/2012)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Steven Jay Rappaport to RE-FILE Document 181 MOTION for Summary Judgment. Use the event type Rule 56.1 Statement found under the event list Other Answers. (db) (Entered: 06/19/2012)

06/19/2012
06/19/2012 06/19/2012 06/19/2012 06/19/2012 06/20/2012 06/20/2012
06/21/2012
06/21/2012

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Steven Jay Rappaport to RE-FILE Document 182 MOTION for Summary Judgment Memorandum of Law in Support of Motion. Use the event type Memorandum in Support of Motion found under the event list Replies, Opposition and Supporting Documents. (db) (Entered: 06/19/2012)
183 FIRST MOTION for Summary Judgment. Document filed by New York City Housing Authority. Responses due by 7/20/2012(Rappaport, Steven) (Entered: 06/19/2012)
184 DECLARATION of Steven J. Rappaport in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Rappaport, Steven) (Entered: 06/19/2012)
185 RULE 56.1 STATEMENT. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 06/19/2012)
186 MEMORANDUM OF LAW in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 06/19/2012)
187 NOTICE OF APPEARANCE by Lisa Marie Richardson on behalf of The City of New York (Richardson, Lisa) (Entered: 06/20/2012)
188 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Brenda E. Cooke dated 6/18/2012 re: Counsel for the City requests that Magistrate Judge Pitman's Opinion and Order be reversed insofar as it ordered the City to produce the Maltz Legal Memos. ENDORSEMENT: The Court hereby remands this issue back to the Magistrate Judge to reconsider. So ordered. (Signed by Judge Shira A. Scheindlin on 6/20/2012) (mro) (Entered: 06/21/2012)
189 TRANSCRIPT of Proceedings re: conference held on 5/15/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Martha Drevis, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/16/2012. Redacted Transcript Deadline set for 7/26/2012. Release of Transcript Restriction set for 9/24/2012.(McGuirk, Kelly) (Entered: 06/21/2012)
190 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 5/15/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically

06/26/2012 07/20/2012 07/20/2012 07/20/2012
07/20/2012 07/20/2012

available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/21/2012)
191 MEMORANDUM OPINION AND ORDER #101989 . Accordingly, on reconsideration, plaintiffs' motion to compel production of documents 17, 21, 51 and 54 is denied. (Signed by Magistrate Judge Henry B. Pitman on 6/26/2012) Copies Sent By Chambers. (rjm) Modified on 6/27/2012 (ft). (Entered: 06/26/2012)
192 MEMORANDUM OF LAW in Opposition re: 173 MOTION for Summary Judgment., 183 FIRST MOTION for Summary Judgment.. Document filed by Eleanor Britt, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Andrew Washington, Rikia Evans, Hector Suarez. (Brooker, Katharine) (Entered: 07/20/2012)
193 COUNTER STATEMENT TO 185 Rule 56.1 Statement, 175 Rule 56.1 Statement. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Brooker, Katharine) (Entered: 07/20/2012)
194 DECLARATION of Katharine E.G. Brooker in Opposition re: 173 MOTION for Summary Judgment., 183 FIRST MOTION for Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38)(Brooker, Katharine) (Entered: 07/20/2012)
195 DECLARATION of Kristin Johnson in Opposition re: 173 MOTION for Summary Judgment., 183 FIRST MOTION for Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Brooker, Katharine) (Entered: 07/20/2012)
196 DECLARATION of Jeffrey Fagan in Opposition re: 173 MOTION for Summary Judgment., 183 FIRST MOTION for Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman

07/20/2012
07/20/2012
07/30/2012
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Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Brooker, Katharine) (Entered: 07/20/2012)
197 DECLARATION of Roman Jackson in Opposition re: 173 MOTION for Summary Judgment., 183 FIRST MOTION for Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Brooker, Katharine) (Entered: 07/20/2012)
198 DECLARATION of Rikia Evans in Opposition re: 173 MOTION for Summary Judgment., 183 FIRST MOTION for Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Brooker, Katharine) (Entered: 07/20/2012)
199 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Brenda E. Cooke dated 7/27/2012 re: Defendant City of New York ("City") writes to respectfully request permission to file, on August 3, 2012, a Reply Memorandum of Law in support of its Motion for Summary Judgment of 12 pages, two pages longer than that permitted by Your Honor's Individual Practices. ENDORSEMENT: The City may file a 12 pages Reply Memorandum. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 7/27/2012) (ama) (Entered: 07/30/2012)
200 REPLY MEMORANDUM OF LAW in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Cooke, Brenda) (Entered: 08/03/2012)
201 DECLARATION of Vincent Patti in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Attachments: # 1 Exhibit A)(Cooke, Brenda) (Entered: 08/03/2012)
202 DECLARATION of Stephen Espinoza in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Cooke, Brenda) (Entered: 08/03/2012)
203 DECLARATION of Erik Hernandez in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Cooke, Brenda) (Entered: 08/03/2012)
204 DECLARATION of Lorenzo Johnson in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Cooke, Brenda) (Entered: 08/03/2012)
205 DECLARATION of Hector Jimenez in Support re: 173 MOTION for Summary Judgment.. Document filed by The City of New York. (Attachments: # 1 Exhibit A)(Cooke, Brenda) (Entered: 08/03/2012)

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10/04/2012
10/09/2012
10/09/2012

206 REPLY MEMORANDUM OF LAW in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 08/04/2012)
207 ORDER: The 5/15/12 scheduling Order is amended as follows: Defendant New York City Housing Authority's time to serve its expert report is extended to 8/24/12. (Signed by Judge Shira A. Scheindlin on 8/15/2012) (jfe) (Entered: 08/15/2012)
208 ORDER: The May 15, 2012 scheduling order is amended as follows: 1. Defendant City of New York's time to serve its expert report of Professor Dennis Smith is extended to August 21, 2012. 2. The date by which expert depositions must be completed is extended to September 21, 2012. ( Deposition due by 9/21/2012.) (Signed by Judge Shira A. Scheindlin on 8/17/2012) (js) (Entered: 08/17/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: PreMotion Conference held on 9/11/2012. (lmb) (Entered: 10/05/2012)
209 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Matthew J. Moses dated 10/1/2012 re: Plaintiff's counsel writes to request a limited extension of three days until October 5, 2012 to serve the rebuttal report and seek an equivalent three-day extension until October 26, 2012 of the current October 23, 2012 deadline to complete any depositions of experts Fagan, Smith and Purtell. ENDORSEMENT: Request granted. The report is due October 5, and all depositions shall be completed by October 26. So Ordered. (Signed by Judge Shira A. Scheindlin on 10/2/2012) (ago) (Entered: 10/02/2012)
210 OPINION AND ORDER # 102466 re: 173 MOTION for Summary Judgment. filed by The City of New York, 183 FIRST MOTION for Summary Judgment. filed by New York City Housing Authority. Defendants' motions for summary judgment are granted in part and denied in part. The Clerk of the Court is directed to close these motions [Docket Nos. 173, 183]. (Signed by Judge Shira A. Scheindlin on 10/4/2012) (djc) Modified on 10/16/2012 (ft). (Entered: 10/04/2012)
211 ORDER: Because there is an error at p. 54 n.151 of the Opinion and Order dated October 4,2012, I am this day issuing an Amended Opinion and Order correcting that single error. The remainder of the Opinion remains unchanged. The Amended Opinion is the accurate version for all purposes. The Clerk is directed to docket this Order and the Amended Opinion and Order. (Signed by Judge Shira A. Scheindlin on 10/9/2012) (ago) Modified on 10/10/2012 (ago). (Entered: 10/10/2012)
212 AMENDED OPINION AND ORDER # 102466 : Defendants' motions for summary judgment are granted in part and denied in part. The Clerk of the Court is directed to close these motions [Docket Nos. 173, 183]. (Signed by Judge Shira A. Scheindlin on 10/9/2012) (ago) Modified on 10/16/2012 (ft). (Entered: 10/10/2012)

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213 TRANSCRIPT of Proceedings re: CONFERENCE held on 9/11/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Michael McDaniel, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/5/2012. Redacted Transcript Deadline set for 11/16/2012. Release of Transcript Restriction set for 1/14/2013.(McGuirk, Kelly) (Entered: 10/11/2012)
214 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 9/11/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 10/11/2012)
215 DECLARATION of Steven J. Rappaport in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Attachments: # 1 Exhibit Deposition Excerpts, # 2 Exhibit Deposition Excerpts)(Rappaport, Steven) (Entered: 10/26/2012)
216 MEMORANDUM OF LAW in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 10/26/2012)
217 DECLARATION of Steven J. Rappaport in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 10/26/2012)
218 MEMORANDUM OF LAW in Opposition re: 183 FIRST MOTION for Summary Judgment.. Document filed by Shawne Jones, Hector Suarez. (Brooker, Katharine) (Entered: 11/14/2012)
219 DECLARATION of Katharine E.G. Brooker in Opposition re: 183 FIRST MOTION for Summary Judgment.. Document filed by Shawne Jones, Hector Suarez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Brooker, Katharine) (Entered: 11/14/2012)
220 COUNTER STATEMENT TO 185 Rule 56.1 Statement. Document filed by Shawne Jones, Hector Suarez. (Brooker, Katharine) (Entered: 11/14/2012)
221 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/12/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Bridget Lombardozzi, (212) 805-0300. Transcript may be viewed at the court

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12/03/2012

public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/17/2012. Redacted Transcript Deadline set for 1/2/2013. Release of Transcript Restriction set for 2/22/2013.(Rodriguez, Somari) (Entered: 11/21/2012)
222 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/12/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 11/21/2012)
223 TRANSCRIPT of Proceedings re: CONFERENCE held on 11/12/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Samuel Mauro, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/17/2012. Redacted Transcript Deadline set for 1/2/2013. Release of Transcript Restriction set for 2/22/2013.(Rodriguez, Somari) (Entered: 11/21/2012)
224 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 11/12/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 11/21/2012)
225 REPLY MEMORANDUM OF LAW in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 11/22/2012)
246 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Brenda R. Cooke dated 11/30/2012 re: Counsel for Defendant respectfully request permission to cite to, rather than resubmit, deposition testimony. documents, declarations and other evidence that is already part of the record before the Court in both this action and in the related matter of Floyd, et al. v. City of New York, et al., 08 Civ. 1034. The City respectfully requests permission to file in excess of 15 exhibits in support of its motion.. ENDORSEMENT: Request granted in all respects. (Signed by Judge Shira A. Scheindlin on 11/30/12) (pl) (Entered: 12/20/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/3/2012. (djc) (Entered: 12/26/2012)

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226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City. Document filed by The City of New York. Responses due by 1/7/2013 Return Date set for 1/18/2013 at 11:59 PM.(Richardson, Lisa) (Entered: 12/04/2012)
227 MEMORANDUM OF LAW in Support re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City.. Document filed by The City of New York. (Richardson, Lisa) (Entered: 12/04/2012)
228 RULE 56.1 STATEMENT. Document filed by The City of New York. (Richardson, Lisa) (Entered: 12/04/2012)
229 DECLARATION of Brenda E. Cooke in Support re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City.. Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Richardson, Lisa) (Entered: 12/04/2012)
230 DECLARATION of Joanne Jaffe in Support re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City.. Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Richardson, Lisa) (Entered: 12/04/2012)
231 DECLARATION of Michele Irizarry in Support re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City.. Document filed by The City of New York. (Attachments: # 1 Exhibit A (Part 1), # 2 Exhibit A (Part 2), # 3 Exhibit B, # 4 Exhibit C)(Richardson, Lisa) (Entered: 12/04/2012)
232 DECLARATION of Celeste Segure in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Attachments: # 1 Exhibit)(Rappaport, Steven) (Entered: 12/05/2012)
233 DECLARATION of Alan Pelikow in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Rappaport, Steven) (Entered: 12/05/2012)
234 DECLARATION of Brian P. Clarke in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Rappaport, Steven) (Entered: 12/05/2012)
235 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - DECLARATION of Steven J. Rappaport in Support

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re: 183 FIRST MOTION for Summary Judgment. Document filed by New York City Housing Authority. (Rappaport, Steven) Modified on 12/5/2012 (db). (Entered: 12/05/2012)
236 MEMORANDUM OF LAW in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 12/05/2012)
237 ORDER: The City's and NYCHA's briefs for summary judgment on plaintiffs' Monell claims, limited to 20 pages each, are due December 4,2012. Plaintiffs' response, limited to 30 pages, is due January 7, 2013. The City's and NYCHA's replies, limited to 8 pages each, are due January 18, 2013. Plaintiffs' cross-motion for summary judgment, limited to 10 pages, is due December 14,2012. NYCHA's response, limited to 10 pages, is due January 7, 2013. Plaintiffs' reply, limited to 5 pages, is due January 18, 2013, ( Cross Motions due by 12/14/2012., Motions due by 12/4/2012., Responses due by 1/7/2013, Replies due by 1/18/2013.) (Signed by Judge Shira A. Scheindlin on 12/3/2012) (ago) (Entered: 12/05/2012)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Steven Jay Rappaport to RE-FILE Document 235 Declaration in Support of Motion. Use the event type Rule 56.1 Statement found under the event list Other Answers. (db) (Entered: 12/05/2012)
238 RULE 56.1 STATEMENT. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 12/05/2012)
239 NOTICE OF APPEARANCE by Ria Anne Tabacco on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington (Tabacco, Ria) (Entered: 12/11/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/12/2012. (pl) (Entered: 12/18/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/12/2012. (djc) (Entered: 12/26/2012)
240 MOTION for Partial Summary Judgment. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. Responses due by 1/7/2013(Steinberg, Johanna) (Entered: 12/15/2012)
241 MEMORANDUM OF LAW in Support re: 240 MOTION for Partial Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones,

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Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Steinberg, Johanna) (Entered: 12/15/2012)
242 RULE 56.1 STATEMENT. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Steinberg, Johanna) (Entered: 12/15/2012)
243 DECLARATION of JOHANNA B. STEINBERG in Support re: 240 MOTION for Partial Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Steinberg, Johanna) (Entered: 12/15/2012)
244 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/3/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Paula Speer, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/11/2013. Redacted Transcript Deadline set for 1/22/2013. Release of Transcript Restriction set for 3/21/2013.(Rodriguez, Somari) (Entered: 12/18/2012)
245 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/3/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 12/18/2012)
247 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/12/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/28/2013. Redacted Transcript Deadline set for 2/7/2013. Release of Transcript Restriction set for 4/8/2013.(Rodriguez, Somari) (Entered: 01/04/2013)
248 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/12/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically

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available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 01/04/2013)
249 MEMORANDUM OF LAW in Opposition re: 240 MOTION for Partial Summary Judgment.. Document filed by The City of New York. (Cooke, Brenda) (Entered: 01/07/2013)
250 COUNTER STATEMENT TO 242 Rule 56.1 Statement. Document filed by The City of New York. (Cooke, Brenda) (Entered: 01/07/2013)
251 MEMORANDUM OF LAW in Opposition re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City. and the New York City Housing Authority. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Lee, Jin Hee) (Entered: 01/07/2013)
252 COUNTER STATEMENT TO 228 Rule 56.1 Statement, 238 Rule 56.1 Statement. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Lee, Jin Hee) (Entered: 01/07/2013)
253 DECLARATION of JIN HEE LEE in Opposition re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58)(Lee, Jin Hee) (Entered: 01/07/2013)
254 DECLARATION of KATHARINE E.G. BROOKER in Opposition re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew

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Washington. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Lee, Jin Hee) (Entered: 01/07/2013)
255 CERTIFICATE OF SERVICE of (i) unredacted version of Plaintiffs' Memorandum of Law in Opposition to Defendants' Motions for Partial Summary Judgment; (ii) unredacted version of Plaintiffs' Responses to Defendant City of New York's and Defendant New York City Housing Authority's Local Rule 56.1 Statements of Undisputed Facts and Plaintiffs' Local Rule 56.1 Statement of Additional Material Facts in Opposition to Defendant City of New York's and Defendant New York City Housing Authority's Motions for Summary Judgment; (iii) the Declaration of Jin Hee Lee and exhibits 1-58, including exhibits filed under seal served on The City of New York and the New York City Housing Authority on 01/07/2013. Service was made by Mail. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Lee, Jin Hee) (Entered: 01/07/2013)
256 SEALED DOCUMENT placed in vault.(mps) (Entered: 01/08/2013)
257 OPINION AND ORDER #102802: NYCHA has not established at this stage of briefing that it is entitled to summary judgment on Jones's and Suarez's section 1981 claims. NYCHA's motion for summary judgment on these claims will be addressed again at the second round of summary judgment briefing. The Clerk of the Court has already closed this motion [Docket No. 183]. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 1/14/2013) (ama) Modified on 1/16/2013 (tro). (Entered: 01/14/2013)
258 REPLY AFFIDAVIT of Reginald H. Bowman in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 01/18/2013)
259 REPLY MEMORANDUM OF LAW in Support re: 183 FIRST MOTION for Summary Judgment.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 01/18/2013)
260 REPLY MEMORANDUM OF LAW in Support re: 240 MOTION for Partial Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Steinberg, Johanna) (Entered: 01/18/2013)
261 DECLARATION of JOHANNA B. STEINBERG in Support re: 240 MOTION for Partial Summary Judgment.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Steinberg, Johanna) (Entered: 01/18/2013)

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262 RESPONSE re: 250 Counter Statement to Rule 56.1 IN FURTHER SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Steinberg, Johanna) (Entered: 01/18/2013)
263 REPLY MEMORANDUM OF LAW in Support re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City.. Document filed by The City of New York. (Cooke, Brenda) (Entered: 01/18/2013)
264 DECLARATION of Brenda E. Cooke in Support re: 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City.. Document filed by The City of New York. (Attachments: # 1 Exhibit A)(Cooke, Brenda) (Entered: 01/18/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/31/2013. (djc) (Entered: 02/07/2013)
265 ORDER: that in a February 6, 2013 letter, plaintiffs raise concerns regarding their participation in the consolidated remedies hearing in Floyd v. City of New York and Ligon v. City of New York. Plaintiffs raise legitimate concerns. In light of plaintiffs' decision to pursue claims for damages, and plaintiffs' and the City's right to a jury trial under the Seventh Amendment, plaintiffs will not be required to participate in the consolidated remedies hearing in Floyd and Ligon. (Signed by Judge Shira A. Scheindlin on 2/11/2013) (pl) (Entered: 02/11/2013)
266 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/31/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Pamela Utter, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/11/2013. Redacted Transcript Deadline set for 3/21/2013. Release of Transcript Restriction set for 5/20/2013.(Rodriguez, Somari) (Entered: 02/14/2013)
267 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/31/13 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 02/14/2013)
268 OPINION & ORDER re: #103061 226 MOTION for Summary Judgment on Plaintiffs' Claims Against the City filed by The City of New York, 240 MOTION for Partial Summary Judgment filed by Rikia Evans, Vaughn Frederick, Patrick Littlejohn, Lashaun Smith, Raymond Osorio,

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Shawne Jones, Andrew Washington, Eleanor Britt, Roman Jackson, Hector Suarez, Kristin Johnson. ORDER on Motion to Vacate, Set Aside or Correct Sentence (28 U.S.C. 2255).The City's, NYCHAs, and plaintiffs motions for summary judgmentare granted in part and denied in part: (1) The City's and plaintiffs' motions for summary judgment on plaintiffs' Fourth Amendment claims are denied, leaving the remaining arrested plaintiffs with viable claims. (2) The City's motion for summary judgment on the remaining arrested plaintiffs' Fourteenth Amendment equal protection claims is denied. (3) The City's motion for summary judgment on resident plaintiffs' Fourteenth Amendment equal protection, Title VI, section 1981, and FHA claims is denied, leaving Evans and Littlejohn with viable claims. (4) The City's motion for summary judgment on plaintiffs' remaining NYSC claims is granted. (5) NYCHA's motion for summary judgment on plaintiffs' remaining race discrimination claims is granted. (6) NYCHA's motion for summary judgment on plaintiffs' USHA claim is denied, leaving all remaining resident plaintiffs (Britt, Evans, Littlejohn, Jones, and Suarez) with viable claims. The Clerk of the Court is directed to close these motions [Docket Nos. 226, 240]. A conference is scheduled for April 5, 2013 at 4:30p.m. (Signed by Judge Shira A. Scheindlin on 3/28/2013) (tro) Modified on 4/1/2013 (jab). (Entered: 03/28/2013)
Set/Reset Hearings: Status Conference set for 4/5/2013 at 04:30 PM before Judge Shira A. Scheindlin. (tro) (Entered: 03/28/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 4/5/2013. (Reily, James) (Entered: 04/05/2013)
269 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/12/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Samuel Mauro, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/13/2013. Redacted Transcript Deadline set for 5/23/2013. Release of Transcript Restriction set for 7/22/2013.(Rodriguez, Somari) (Entered: 04/19/2013)
270 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/12/12 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 04/19/2013)
271 MOTION to Certify Class. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones,

05/03/2013 05/03/2013
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Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Moses, Matthew) (Entered: 05/03/2013)
272 MEMORANDUM OF LAW in Support re: 271 MOTION to Certify Class.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Moses, Matthew) (Entered: 05/03/2013)
273 DECLARATION of MATTHEW MOSES in Support re: 271 MOTION to Certify Class.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Moses, Matthew) (Entered: 05/03/2013)
274 DECLARATION of NANCY ROSENBLOOM in Support re: 271 MOTION to Certify Class.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Moses, Matthew) (Entered: 05/03/2013)
275 OPINION & ORDER: #103248 On March 28, 2013, this Court issued the second part of its ruling on the parties' motions for summary judgment. The March 28 Opinion noted that plaintiffs had offered [a] sample of decline to prosecute forms [DP forms] from various District Attorneys offices in support of "the conclusion that the City has a persistent and widespread practice of performing unconstitutional trespass stops and arrests in NYCHA buildings." Defendant the City of New 2 York argued in a reply brief that the DP forms are inadmissible hearsay. I invited further briefing, which has now been submitted. In Ligon v. City of New York, another case related to the NYPDs stop and frisk practices, I allowed the admission of DP forms describing stops outside TAP buildings as evidence of the NYPDs stop practices. Unlike in this case, however, the City had conceded the admissibility of the records for that limited purpose. I have already ruled in this case that DP forms are admissible for the purpose of showing notice to the City of allegedly unconstitutional practices. Atissue now is plaintiffs request to use the DP forms as evidence in support of their class certification motion. For the reasons set forth below, the DP forms are admissible subject to the limitations described below. For the foregoing reasons, the DP forms are admissible as evidence of the NYPDs trespass enforcement practices in and around NYCHA buildings. Pursuant to the Citys request, plaintiffs are ordered to identify the specific DP forms summarized in plaintiffs

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submission. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 5/24/2013) (rsh) Modified on 6/7/2013 (jab). (Entered: 05/24/2013)
276 MEMORANDUM OF LAW in Opposition re: 271 MOTION to Certify Class.. Document filed by The City of New York. (Richardson, Lisa) (Entered: 06/07/2013)
277 DECLARATION of Brenda E. Cooke in Opposition re: 271 MOTION to Certify Class.. Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Richardson, Lisa) (Entered: 06/07/2013)
278 MEMORANDUM OF LAW in Opposition re: 271 MOTION to Certify Class.. Document filed by New York City Housing Authority. (Rappaport, Steven) (Entered: 06/07/2013)
279 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/5/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Karen Gorlaski, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/11/2013. Redacted Transcript Deadline set for 7/18/2013. Release of Transcript Restriction set for 9/16/2013.(Rodriguez, Somari) (Entered: 06/13/2013)
280 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/5/13 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 06/13/2013)
281 REPLY MEMORANDUM OF LAW in Support re: 271 MOTION to Certify Class.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Brooker, Katharine) (Entered: 06/21/2013)
282 NOTICE OF WITHDRAWAL: that Matthew Jason Moses hereby withdraws as counsel in the above-captioned action. After July 5, 2013, I will no longer be associated with Paul, Weiss, Rifkind, Wharton & Garrison LLP. Katherine E.G. Brooker of Paul, Weiss, Rifkind, Wharton & Garrison LLP, along with attorneys from the NAACP Legal Defense

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and Educational Fund, Inc. and The Legal Aid Society of New York will continue to serve as counsel of record for Plaintiffs. (Signed by Judge Shira A. Scheindlin on 6/27/2013) (ja) (Entered: 06/27/2013)
283 NOTICE OF CHANGE OF ADDRESS by Johnathan James Smith on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. New Address: NAACP Legal Defense & Educational Fund, Inc., 1444 Eye Street, N.W., 10th Floor, Washington, DC, USA 20005, (202) 682-1300. (Smith, Johnathan) (Entered: 06/28/2013)
284 NOTICE OF CHANGE OF ADDRESS by Ria Tabacco Mar on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. New Address: NAACP Legal Defense & Educational Fund, Inc., 40 Rector Street, 5th Floor, New York, NY, USA 10006, (212) 965-2200. (Mar, Ria) (Entered: 06/28/2013)
285 NOTICE OF CHANGE OF ADDRESS by Jin Hee Lee on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. New Address: NAACP Legal Defense & Educational Fund, Inc., 40 Rector Street, 5th Floor, New York, NY, USA 10006, (212) 965-2200. (Lee, Jin Hee) (Entered: 06/28/2013)
286 NOTICE OF CHANGE OF ADDRESS by Johanna Beth Steinberg on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. New Address: NAACP Legal Defense & Educational Fund, Inc., 40 Rector Street, 5th Floor, New York, NY, USA 10006, (212) 965-2200. (Steinberg, Johanna) (Entered: 06/28/2013)
287 NOTICE OF APPEARANCE by Joseph Anthony Marutollo on behalf of The City of New York. (Marutollo, Joseph) (Entered: 07/08/2013)
288 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Jin Hee Lee, dated 7/22/2013, re: David Plaintiffs, therefore, ask the Court to confirm the reservation of our rights to challenge any and all of the City's policies, practices, and trainings, which relate to trespass enforcement in NYCHA developments, at trial irrespective of what happens in the Ligon case. ENDORSEMENT: The Court confirms plaintiffs' right to challenge the City's policies, practices, and training related to trespass enforcement in NYCHA developments. If plaintiffs prevail at trial, supplemental remedies relating to trespass enforcement in NYCHA developments may

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be appropriate. (Signed by Judge Shira A. Scheindlin on 7/30/2013) (ja) (Entered: 07/31/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 8/21/2013. (Reily, James) (Entered: 08/22/2013)
289 OPINION AND ORDER: re: # 103556 271 MOTION to Certify Class. For the foregoing reasons, the Stopped Class and Resident Class are certified under Rule 23(b)(2). (Signed by Judge Shira A. Scheindlin on 8/29/2013) (js) Modified on 9/11/2013 (ca). (Entered: 08/30/2013)
290 TRANSCRIPT of Proceedings re: CONFERENCE held on 8/21/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Sonya Ketter Huggins, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/7/2013. Redacted Transcript Deadline set for 10/18/2013. Release of Transcript Restriction set for 12/16/2013.(Rodriguez, Somari) (Entered: 09/12/2013)
291 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 8/21/13 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 09/12/2013)
292 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Brenda E. Cooke dated 11/14/2013 re: Counsel for defendant City of New York respectfully renews its November 4, 2013, request that Your Honor recuse herself from the Davis case. The City further requests that the conference scheduled for November 18, 2013 at 4:30 p.m. be postponed. ENDORSEMENT: The November 18 conference is adjourned sine die. No other action is taken at this time. (Signed by Judge Shira A. Scheindlin on 11/14/2013) (rsh) (Entered: 11/14/2013)
293 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Brenda E. Cooke dated 12/4/2013 re: The City objects to the scheduling of any conference until resolution of the City's pending request that Your Honor recuse herself from all further proceedings in this case. ENDORSEMENT: The date for submission of the Joint Pretrial Order is adjourned sine die. No other action will be taken at this time. (Signed by Judge Shira A. Scheindlin on 12/5/2013) (cd) (Entered: 12/06/2013)
294 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Nancy Rosenbloom to Withdraw as Attorney for Plaintiffs. Document filed by Eleanor Britt, Kelton Davis, Rikia Evans, Vaughn Frederick,

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Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Hector Suarez, Andrew Washington.(Rosenbloom, Nancy) Modified on 12/11/2013 (ldi). (Entered: 12/10/2013)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Nancy Rosenbloom to RE-FILE Document 294 MOTION for Nancy Rosenbloom to Withdraw as Attorney for Plaintiffs. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Declaration in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 12/11/2013)
295 MOTION for Nancy Rosenbloom to Withdraw as Attorney. Document filed by Kelton Davis.(Moretti, Amanda) (Entered: 12/11/2013)
296 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Nancy Rosenbloom to Withdraw as Attorney for Plaintiffs.. Document filed by Kelton Davis.(Moretti, Amanda) Modified on 12/12/2013 (db). (Entered: 12/11/2013)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Amanda Carol Moretti to REFILE Document 296 MOTION for Nancy Rosenbloom to Withdraw as Attorney for Plaintiffs.. Use the event type Declaration in Support of Motion found under the event list Replies, Opposition and Supporting Documents. (db) (Entered: 12/12/2013)
297 DECLARATION of Nancy Rosenbloom in Support re: 295 MOTION for Nancy Rosenbloom to Withdraw as Attorney.. Document filed by Kelton Davis. (Moretti, Amanda) (Entered: 12/12/2013)
298 MOTION for JOHANNA B. STEINBERG to Withdraw as Attorney. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Steinberg, Johanna) (Entered: 02/03/2014)
299 DECLARATION of JOHANNA B. STEINBERG in Support re: 298 MOTION for JOHANNA B. STEINBERG to Withdraw as Attorney.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Steinberg, Johanna) (Entered: 02/03/2014)
300 MEMO ENDORSED granting 298 Motion to Withdraw as Attorney. ENDORSEMENT: Motion granted. Attorney Johanna Beth Steinberg terminated. (Signed by Judge Shira A. Scheindlin on 2/4/2014) (cd) (Entered: 02/04/2014)

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301 MEMO ENDORSED granting 295 Motion to Withdraw as Attorney. Motion granted. The Clerk is directed to close this motion (Docket Entry #295). Attorney Nancy Rosenbloom terminated. (Signed by Judge Shira A. Scheindlin on 2/4/2014) (cd) (Entered: 02/04/2014)
302 ADDENDUM TO STIPULATION AND PROTECTIVE ORDER FOR ATTORNEYS' AND EXPERTS' EYES ONLY...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Shira A. Scheindlin on 6/20/2014) (lmb) (Entered: 06/20/2014)
303 ORDER: A status conference is scheduled in this case for July 17, 2014 at 4:00p.m. (Signed by Judge Shira A. Scheindlin on 7/3/2014) (ajs) (Entered: 07/03/2014)
304 NOTICE OF APPEARANCE by Elana Rose Beale on behalf of Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Beale, Elana) (Entered: 07/08/2014)
305 NOTICE OF APPEARANCE by Rachel Miriam Kleinman on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Kleinman, Rachel) (Entered: 07/10/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 7/17/2014. (Bloomfield, Clifford) (Entered: 07/17/2014)
306 TRANSCRIPT of Proceedings re: conference held on 7/17/2014 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Kristen Carannante, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/2/2014. Redacted Transcript Deadline set for 9/11/2014. Release of Transcript Restriction set for 11/7/2014.(McGuirk, Kelly) (Entered: 08/06/2014)
307 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 7/17/14 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/06/2014)

08/19/2014 08/19/2014 08/20/2014 09/09/2014 09/23/2014 09/23/2014 09/24/2014
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308 MOTION for Ria Tabacco Mar to Withdraw as Attorney . Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Mar, Ria) (Entered: 08/19/2014)
309 DECLARATION of Ria Tabacco Mar in Support re: 308 MOTION for Ria Tabacco Mar to Withdraw as Attorney .. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Mar, Ria) (Entered: 08/19/2014)
310 MEMO ENDORSEMENT granting 308 Motion to Withdraw as Attorney. ENDORSEMENT: Motion granted. Attorney Ria Tabacco Mar terminated. (Signed by Judge Shira A. Scheindlin on 8/19/2014) (lmb) (Entered: 08/20/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 9/9/2014. (Bloomfield, Clifford) (Entered: 09/09/2014)
311 MOTION for Johnathan James Smith to Withdraw as Attorney for Plaintiffs. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Hector Suarez, Andrew Washington.(Smith, Johnathan) (Entered: 09/23/2014)
312 DECLARATION of Johnathan James Smith in Support re: 311 MOTION for Johnathan James Smith to Withdraw as Attorney for Plaintiffs.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Hector Suarez, Andrew Washington. (Smith, Johnathan) (Entered: 09/23/2014)
313 TRANSCRIPT of Proceedings re: conference held on 9/9/2014 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/20/2014. Redacted Transcript Deadline set for 10/30/2014. Release of Transcript Restriction set for 12/29/2014.(McGuirk, Kelly) (Entered: 09/24/2014)
314 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 9/9/2014 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically

09/24/2014 10/10/2014 10/20/2014
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11/10/2014 11/21/2014
11/21/2014

available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/24/2014)
315 MEMO ENDORSEMENT granting 311 Motion to Withdraw as Attorney. ENDORSEMENT: So ordered. Attorney Johnathan James Smith terminated. (Signed by Judge Shira A. Scheindlin on 9/24/2014) (lmb) (Entered: 09/24/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 10/10/2014. (Bloomfield, Clifford) (Entered: 10/10/2014)
316 TRANSCRIPT of Proceedings re: conference held on 10/10/2014 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Khristine Sellin, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/13/2014. Redacted Transcript Deadline set for 11/24/2014. Release of Transcript Restriction set for 1/21/2015.(McGuirk, Kelly) (Entered: 10/20/2014)
317 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 10/10/2014 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 10/20/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/10/2014. (Bloomfield, Clifford) (Entered: 11/13/2014)
318 TRANSCRIPT of Proceedings re: conference held on 11/10/2014 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Linda Fisher, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/15/2014. Redacted Transcript Deadline set for 12/26/2014. Release of Transcript Restriction set for 2/23/2015.(McGuirk, Kelly) (Entered: 11/21/2014)
319 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 11/10/14 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically

12/09/2014 12/22/2014
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01/07/2015
01/09/2015 01/16/2015 01/16/2015

available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/21/2014)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/9/2014. (Bloomfield, Clifford) (Entered: 12/09/2014)
320 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/9/2014 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Raquel Robles, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/15/2015. Redacted Transcript Deadline set for 1/26/2015. Release of Transcript Restriction set for 3/26/2015.(Rodriguez, Somari) (Entered: 12/22/2014)
321 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/9/14 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 12/22/2014)
322 JOINT LETTER addressed to Judge Shira A. Scheindlin from Jin Hee Lee, William Gibney, Elana R. Beale, Brenda E. Cooke, Donna Murphy dated January 7, 2015 re: Stipulation of Settlement and Exhibits. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, New York City Housing Authority, Raymond Osorio, Lashaun Smith, Hector Suarez, The City of New York, Andrew Washington. (Attachments: # 1 Stipulation of Settlement, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Beale, Elana) (Entered: 01/07/2015)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/9/2015. (Bloomfield, Clifford) (Entered: 01/15/2015)
323 NOTICE of Notice of Proposed Class Action Settlement as required by the Class Action Fairness Act, 28 U.S.C. 1715(b). Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Richardson, Lisa) (Entered: 01/16/2015)
324 NOTICE of Notice of Proposed Class Action Settlement (Part 2 of 2) as Required by the Class Action Fairness Act, 28 U.S.C. 1715(b). Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit

01/26/2015 01/26/2015 01/29/2015
01/29/2015
02/04/2015
02/04/2015

B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Richardson, Lisa) (Entered: 01/16/2015)
325 MOTION for Brenda Elaine Cooke to Withdraw as Attorney . Document filed by The City of New York.(Cooke, Brenda) (Entered: 01/26/2015)
326 DECLARATION of Brenda Elaine Cooke in Support re: 325 MOTION for Brenda Elaine Cooke to Withdraw as Attorney .. Document filed by The City of New York. (Cooke, Brenda) (Entered: 01/26/2015)
327 TRANSCRIPT of Proceedings re: conference held on 1/9/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Lisa Picciano Fellis, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/23/2015. Redacted Transcript Deadline set for 3/5/2015. Release of Transcript Restriction set for 5/4/2015.(McGuirk, Kelly) (Entered: 01/29/2015)
328 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 1/9/2015 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/29/2015)
329 JOINT LETTER addressed to Judge Shira A. Scheindlin from Elana R. Beale, Jin Hee Lee, Lisa Richardson, William Gibney, Donna Murphy dated February 4, 2015 re: Revised Versions of Exhibits to the Stipulation of Settlement and Order. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, New York City Housing Authority, Raymond Osorio, Lashaun Smith, Hector Suarez, The City of New York, Andrew Washington. (Attachments: # 1 Exhibit C (Revised), # 2 Exhibit D (Revised), # 3 Exhibit E (Revised), # 4 Exhibit H (Revised))(Beale, Elana) (Entered: 02/04/2015)
330 STIPULATION OF SETTLEMENT AND ORDER: The Parties enter into this Stipulation after arm's length, good faith negotiations for the purpose of avoiding the burdens of further litigation, and to mutually support vigorous, lawful, and nondiscriminatory enforcement of the law. Settlement of this action under the terms stated in this Stipulation is in the public interest as it avoids further diversion of private, City, and NYCHA resources to adversarial action by the Parties, as set forth within. The City has agreed to pay a total of $270,000 to settle the Named Plaintiffs' individual damages claims. The City has agreed to pay attorneys' fees totaling $2,487,481.50 and costs totaling $464,242.64 to Class Counsel

02/04/2015 03/17/2015 03/17/2015 04/06/2015 04/08/2015 04/09/2015
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for all attorney time and expenses incurred through September 30, 2014. NYCHA has agreed to pay damages to the Named Resident Plaintiffs totaling $25,000.00 to settle their individual claims. This Stipulation represents the entire agreement among the Parties, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, or to determine the meaning of any provisions herein. This Stipulation can be modified only on the written consent of all the Parties. SO ORDERED. (See Order.) (Signed by Judge Shira A. Scheindlin on 2/4/2015) (ajs) (Additional attachment(s) added on 2/26/2015: # 1 Exhibit) (ajs). (Entered: 02/04/2015)
Terminate Transcript Deadlines (ajs) (Entered: 02/04/2015)
331 MOTION to Withdraw as Attorney . Document filed by The City of New York.(Marutollo, Joseph) (Entered: 03/17/2015)
332 DECLARATION of Joseph A. Marutollo in Support re: 331 MOTION to Withdraw as Attorney .. Document filed by The City of New York. (Marutollo, Joseph) (Entered: 03/17/2015)
333 NOTICE OF APPEARANCE by Erin Elizabeth Elmouji on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Elmouji, Erin) (Entered: 04/06/2015)
334 MEMO ENDORSED ORDER on MOTION TO WITHDRAW granting 331 Motion to Withdraw as Attorney. ENDORSEMENT: Motion granted. So Ordered. Attorney Joseph Anthony Marutollo terminated. (Signed by Judge Shira A. Scheindlin on 4/8/2015) (ajs) Modified on 4/9/2015 (ajs). (Entered: 04/09/2015)
335 JOINT LETTER addressed to Judge Shira A. Scheindlin from Lisa M. Richardson, Donna M. Murphy, Jin Hee Lee, William Gibney, and Elana R. Beale dated April 9, 2015 re: Revised versions of Exhibits C and G to the Stipulation of Settlement and Order, which was preliminarily approved on February 4, 2015. Document filed by The City of New York. (Attachments: # 1 Exhibit C (corrected) (redlined version, # 2 Exhibit C (corrected) (clean version), # 3 Exhibit G (corrected) (redlined version), # 4 Exhibit G (corrected) (clean version))(Richardson, Lisa) (Entered: 04/09/2015)
336 JOINT MOTION to Approve Class Settlement and Dismiss with Prejudice. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, New York City Housing Authority, Raymond Osorio, Lashaun Smith, Hector Suarez, The City of New York, Andrew Washington.(Elmouji, Erin) (Entered: 04/15/2015)

04/15/2015 04/15/2015 04/22/2015 04/28/2015
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337 MEMORANDUM OF LAW in Support re: 336 JOINT MOTION to Approve Class Settlement and Dismiss with Prejudice. . Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, New York City Housing Authority, Raymond Osorio, Lashaun Smith, Hector Suarez, The City of New York, Andrew Washington. (Elmouji, Erin) (Entered: 04/15/2015)
338 DECLARATION of Erin E. Elmouji in Support re: 336 JOINT MOTION to Approve Class Settlement and Dismiss with Prejudice.. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, New York City Housing Authority, Raymond Osorio, Lashaun Smith, Hector Suarez, The City of New York, Andrew Washington. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Elmouji, Erin) (Entered: 04/15/2015)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Fairness Hearing held on 4/22/2015. (Bloomfield, Clifford) (Entered: 04/23/2015)
339 ORDER OF APPROVAL OF SETTLEMENT AND ORDER OF DISMISSAL: IT IS HEREBY ORDERED: 1. Defined Terms: For purposes of this Final Order of Approval of Settlement and Dismissal with Prejudice, the Court holds that any capitalized terms used herein and not defined should be construed consistently with the definitions set forth in the Settlement Agreement. 2. Approval of Settlement: Pursuant to Rule 23, the Court approves the settlement set forth in the Settlement Agreement, and finds that the Settlement Agreement is, in all respects, fair, reasonable, and adequate. 3. Retention of Jurisdiction and Transfer of Case: In accordance with the terms of the Settlement Agreement, the Court hereby transfers this action to the Honorable Analisa Torres, United States District Court for the Southern District of New York. The Court approves the continued jurisdiction of the District Court for the purposes set forth in Section N of the Settlement Agreement. 4. Dismissal with Prejudice: The above-captioned Action is dismissed with prejudice. 5. Release of Claims: Upon the Effective Date of the Settlement Agreement, Named Plaintiffs and each of the members of the Class shall be deemed to have released all claims described in Section P of the Settlement Agreement. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 4/28/2015) (ajs) (Entered: 04/28/2015)
Terminate Transcript Deadlines (ajs) (Entered: 04/28/2015)
NOTICE OF CASE REASSIGNMENT to Judge Analisa Torres. Judge Shira A. Scheindlin is no longer assigned to the case. (pgu) (Entered: 04/28/2015)

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340 MEMORANDUM OPINION AND ORDER #105474: This short Memorandum Opinion and Order accompanies the Final Order of Approval of Settlement and Dismissal with Prejudice filed together with this Order. I write solely to note that I am ordering the transfer of this case to Judge Analisa Torres - at the request of all parties - because this case is undoubtedly related to two other cases now pending before her Floyd v. City of New York, and Ligon v. City of New York. (See Order.) (Signed by Judge Shira A. Scheindlin on 4/28/2015) (ajs) Modified on 4/29/2015 (soh). (Entered: 04/28/2015)
Transmission to Case Assignment Clerk. Transmitted re: 340 Memorandum & Opinion, to the Case Assignment Clerk for preparation of notice of case assignment/reassignment. (ajs) (Entered: 04/28/2015)
341 TRANSCRIPT of Proceedings re: conference held on 4/22/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Samuel Mauro, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/29/2015. Redacted Transcript Deadline set for 6/8/2015. Release of Transcript Restriction set for 8/6/2015.(McGuirk, Kelly) (Entered: 05/04/2015)
342 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 4/22/2015 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/04/2015)
343 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/22/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Samuel Mauro, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/1/2015. Redacted Transcript Deadline set for 6/11/2015. Release of Transcript Restriction set for 8/10/2015.(Grant, Patricia) (Entered: 05/08/2015)
344 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/22/2015 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically

05/21/2015
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available to the public without redaction after 90 calendar days...(Grant, Patricia) (Entered: 05/08/2015)
345 STIPULATION AND ORDER OF DISMISSAL: The plaintiff class representatives' individual damages claims against NYCHA in the abovereferenced action are hereby dismissed with prejudice; and notwithstanding the dismissal of the plaintiff class representatives' individual damages claims in accordance with this individual damages agreement, the District Court shall continue to maintain jurisdiction over this action for the purpose of enforcing the terms of the class settlement agreement reached between the parties and set forth in the Stipulation of Class Settlement executed by the parties in this matter. SO ORDERED. New York City Housing Authority terminated. (Signed by Judge Shira A. Scheindlin on 5/21/2015) (ajs) (Entered: 05/21/2015)
346 STATUS REPORT. First Report of the Independent Monitor Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 07/09/2015)
347 STATUS REPORT. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 08/07/2015)
348 LETTER addressed to Judge Analisa Torres from Jin Hee Lee and Steven Wasserman dated August 10, 2015 re: Davis, et al. v. City of New York, et al., 10 Civ. 0699 (AT). Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Andrew Washington.(Lee, Jin Hee) (Entered: 08/10/2015)
349 MEMO ENDORSEMENT on re: (236 in 1:12-cv-02274-AT-HBP) Status Report filed by Peter L Zimroth, (347 in 1:10-cv-00699-AT-HBP) Status Report filed by Peter L. Zimroth, (514 in 1:08-cv-01034-AT-HBP) Status Report filed by Peter A. Zimroth. Final Recommendations regarding P.G. 212.11 and P.G. 203.25. ENDORSEMENT: APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 8/24/2015) (ama) (Entered: 08/24/2015)
350 NOTICE OF APPEARANCE by Amatullah Khaliha Booth on behalf of The City of New York. (Booth, Amatullah) (Entered: 09/08/2015)
351 STATUS REPORT. Recommendation Regarding Body-Worn Camera Program Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 12/07/2015)
352 ORDER MODIFYING REMEDIAL ORDER (BODY-WORN CAMERA PILOT PROGRAM): It is anticipated that roughly 1,000 officers will be equipped with body-worn cameras. The use of a randomized experimental design for the body-worn camera pilot will ensure that the pilot will provide the parties, the Monitor, the Court, and the public with better information to evaluate the effectiveness of bodyworn cameras in reducing unconstitutional stops-and-frisks and in

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assessing the costs and benefits of the body-worn cameras. Accordingly, on consent of the parties, it is ORDERED that the NYPD use a randomized experimental design for the body-worn camera one-year pilot program. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 12/8/2015) (kko) (Entered: 12/09/2015)
353 STATUS REPORT. Second Status Report Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 02/16/2016)
354 STATUS REPORT. Recommendation Regarding Stop Report Form Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 03/23/2016)
355 MEMO ENDORSEMENT on re: (246 in 1:12-cv-02274-AT-HBP) Status Report filed by Peter L Zimroth, (354 in 1:10-cv-00699-AT-HBP) Status Report filed by Peter L. Zimroth, (526 in 1:08-cv-01034-AT-HBP) Status Report filed by Peter A. Zimroth, re: Recommendation Regarding Stop Report Form. ENDORSEMENT: APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 3/25/2016) (kko) (Entered: 03/25/2016)
356 MEMO ENDORSEMENT on NOTICE OF WITHDRAWAL. ENDORSEMENT: The Clerk of Court is directed to remove Jason L. Meizlish's appearance from the docket and name from the ECF distribution list. Attorney Jason Lowell Meizlish terminated. (Signed by Judge Analisa Torres on 4/12/2016) (tn) (Entered: 04/13/2016)
357 STATUS REPORT. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 05/31/2016)
358 MEMO ENDORSEMENT on re: (248 in 1:12-cv-02274-AT-HBP) Status Report filed by Peter L Zimroth, (357 in 1:10-cv-00699-AT-HBP) Status Report filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 6/2/2016) (mro) (Entered: 06/03/2016)
359 STATUS REPORT. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 08/09/2016)
360 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 12, 2016 re: Consent to Search. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 10/12/2016)
361 STATUS REPORT. re: Recommendation Regarding Electronic Stop Report Form Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 11/10/2016)
362 STATUS REPORT. Fourth Report of the Independent Monitor Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 11/18/2016)
363 MEMO ENDORSEMENT on re: (361 in 1:10-cv-00699-AT-HBP) Status Report filed by Peter L. Zimroth, (535 in 1:08-cv-01034-AT-HBP) Status

02/02/2017 02/14/2017 02/17/2017 02/24/2017 02/24/2017 02/24/2017
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Report filed by Peter A. Zimroth. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 11/22/2016) (cf) (Entered: 11/22/2016)
364 NOTICE OF APPEARANCE by Marne Lynn Lenox on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Lenox, Marne) (Entered: 02/02/2017)
***DELETED DOCUMENT. Deleted document number 365 Letter. The document was incorrectly filed in this case. Document intended for case 12cv2274(AT)(HBP). (db) (Entered: 02/21/2017)
366 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 02/17/2017 re: Monitors Recommendation for Recruit Training. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 02/17/2017)
367 MEMO ENDORSEMENT on re: (541 in 1:08-cv-01034-AT-HBP) Letter filed by Peter A. Zimroth, (274 in 1:12-cv-02274-AT-HBP) Letter filed by Peter L Zimroth, (366 in 1:10-cv-00699-AT-HBP) Letter filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 2/24/2017) (cf) (Entered: 02/24/2017)
368 NOTICE OF APPEARANCE by Natasha Clarise Merle on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Merle, Natasha) (Entered: 02/24/2017)
369 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Angel Harris to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-13354009. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Affidavit Affidavit of Angel Harris, # 3 Exhibit Proposed Order for Admission Pro Hac Vice)(Harris, Angel) Modified on 2/27/2017 (wb). (Entered: 02/24/2017)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 369 MOTION for Angel Harris to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-13354009. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Louisiana;. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the

03/06/2017
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correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (wb) (Entered: 02/27/2017)
370 MOTION for Angel Harris to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit Certificate of Good Standing - Louisiana Supreme Court, # 2 Exhibit Affidavit of Angel Harris, # 3 Exhibit Proposed Order for Admission Pro Hac Vice)(Harris, Angel) (Entered: 03/06/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 370 MOTION for Angel Harris to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (jc) (Entered: 03/06/2017)
371 ORDER granting 370 Motion for Angel Harris to Appear Pro Hac Vice (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (Torres, Analisa) (Entered: 03/08/2017)
372 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated April 11, 2017 re: Memorandum Regarding Approval of Policies for NYPD Body-Worn Camera Pilot Program. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 04/11/2017)
373 Objection re: 372 Letter addressed to Judge Analisa Torres from Peter L. Zimroth dated April 11, 2017 re: Memorandum Regarding Approval of Policies for NYPD Body-Worn Camera Pilot Program. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Harris, Angel) (Entered: 04/20/2017)
374 NOTICE OF APPEARANCE by Joy Tolulope Anakhu on behalf of The City of New York. (Anakhu, Joy) (Entered: 04/21/2017)
375 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated May 8, 2017 re: Recommendation regarding roll call training scripts on policies for stops in NYCHA buildings. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 05/08/2017)
376 MEMO ENDORSEMENT on re: 375 Letter filed by Peter L. Zimroth. ENDORSEMENT: Attachments: (1) P.G. 212-60 Interior Patrol of Housing Authority Buildings Roll Call Video PowerPoint Presentation with Voice-Over Script, 1 of 2 (2) P.G. 212-60 Interior Patrol of Housing Authority Buildings Roll Call Video PowerPoint Presentation with

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Voice-Over Script, 2 of 2. APPROVED. (Signed by Judge Analisa Torres on 5/9/2017) (cf) (Entered: 05/09/2017)
377 STATUS REPORT. Monitors Fifth Report: Analysis of NYPD Stops Reported, 2013-2015 Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 05/30/2017)
378 NOTICE OF APPEARANCE by David Allen Cooper on behalf of The City of New York. (Cooper, David) (Entered: 06/01/2017)
379 STATUS REPORT. Monitors Sixth Report: NYPDs Body-Worn Camera Pilot--Research and Evaluation Plan Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 06/29/2017)
380 LETTER addressed to Judge Analisa Torres from David Cooper dated July 3, 2017 re: Letter in support of the proposed Sharing Order submitted to the Orders and Judgments Clerk earlier today. Document filed by The City of New York. (Attachments: # 1 Exhibit Proposed Sharing Order)(Cooper, David) (Entered: 07/03/2017)
381 SHARING ORDER: NOW, THEREFORE, The City of New York seeks authorization from the Court to share recordings with the Monitor. The Monitor and his team will view and maintain all shared body-worn camera recordings for the purpose of fulfilling his Monitor responsibilities. With the Court's permission, the NYPD will proceed to share recordings with the Monitor and his team in the manner set forth herein, and as further set forth in this order. (Signed by Judge Analisa Torres on 7/17/2017) (ap) (Entered: 07/17/2017)
382 NOTICE OF APPEARANCE by Raymond Audain on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Audain, Raymond) (Entered: 10/18/2017)
383 LETTER addressed to Judge Analisa Torres from Raymond Audain dated Oct. 27, 2017 re: Reserving right to participate in the implementation and evaluation of NYPD Performance Evaluation System. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Audain, Raymond) (Entered: 10/27/2017)
384 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated November 16, 2017 re: Recommendation Regarding In-Service Stop and Frisk Training for Sergeants and Lieutenants. Document filed by Peter L. Zimroth. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5)(Zimroth, Peter) (Entered: 11/16/2017)

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385 MEMO ENDORSEMENT on re: (384 in 1:10-cv-00699-AT-HBP) Letter, filed by Peter L. Zimroth, (301 in 1:12-cv-02274-AT-HBP) Letter, filed by Peter L Zimroth, (571 in 1:08-cv-01034-AT) Letter, filed by Peter L. Zimroth ENDORSEMENT: The Court has reviewed the training materials attached to this letter, and they are hereby APPROVED. In addition, good cause having been shown, the request to file the unredacted training materials and videos under seal is GRANTED. (Signed by Judge Analisa Torres on 12/5/2017) (mro) (Entered: 12/06/2017)
386 STATUS REPORT. Monitor's Seventh Status Report Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 12/13/2017)
387 LETTER MOTION for Conference addressed to Judge Analisa Torres from Angel Harris dated 01/10/2018. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Harris, Angel) (Entered: 01/10/2018)
388 MEMO ENDORSEMENT on re: (577 in 1:08-cv-01034-AT) LETTER MOTION for Conference on the Joint Remedial Process addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated January 10, 2018. filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht, (387 in 1:10-cv-00699-AT-HBP) LETTER MOTION for Conference addressed to Judge Analisa Torres from Angel Harris dated 01/10/2018. filed by Rikia Evans, Vaughn Frederick, Patrick Littlejohn, Lashaun Smith, Raymond Osorio, Shawne Jones, Andrew Washington, Eleanor Britt, Roman Jackson, Hector Suarez, Kristin Johnson. ENDORSEMENT: By January 24, 2018, the City of New York shall respond to this letter. (Responses due by 1/24/2018) (Signed by Judge Analisa Torres on 1/17/2018) (cf) (Entered: 01/17/2018)
389 LETTER RESPONSE to Motion addressed to Judge Analisa Torres from David Cooper dated January 23, 2018 re: 387 LETTER MOTION for Conference addressed to Judge Analisa Torres from Angel Harris dated 01/10/2018. . Document filed by The City of New York. (Cooper, David) (Entered: 01/23/2018)
390 MEMO ENDORSEMENT on re: 389 Response to Motion, filed by The City of New York. ENDORSEMENT: By January 25, 2018, Plaintiffs shall reply to this letter. (Signed by Judge Analisa Torres on 1/25/2018) (cf) (Entered: 01/23/2018)
391 LETTER RESPONSE in Support of Motion addressed to Judge Analisa Torres from Angel Harris dated January 25, 2018 re: 387 LETTER MOTION for Conference addressed to Judge Analisa Torres from Angel Harris dated 01/10/2018. . Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones,

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Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Harris, Angel) (Entered: 01/25/2018)
392 ORDER granting in part and denying in part 387 Letter Motion for Conference. GRANTED in part and DENIED in part. Plaintiffs' request for a date certain for the issuance of the Facilitator's Final Report is GRANTED. Plaintiffs' requests for a status conference, the immediate publication of the input materials, and a scheduling order on motions are DENIED. In order to facilitate a free and open exchange among stakeholders, it is ORDERED that: By March 2, 2018, the Facilitator shall distribute a confidential and private draft of his Final Report to the parties. By March 23, 2018, the parties shall provide the Facilitator with confidential and private written comments, if any, on the draft. By April 13, 2018, the Facilitator and the parties shall conclude discussion on the Joint Process Reforms. By April 30, 2018, the Facilitator shall file on the public docket the Final Report and the input materials, redacted as necessary. (Signed by Judge Analisa Torres on 1/29/2018) (cf) (Entered: 01/29/2018)
393 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated February 22, 2018 re: Recommendation Regarding Training for Newly Promoted Sergeants and Lieutenants. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 02/22/2018)
394 MEMO ENDORSEMENT on re: (585 in 1:08-cv-01034-AT) Letter filed by Peter L. Zimroth, (310 in 1:12-cv-02274-AT-HBP) Letter filed by Peter L Zimroth, (393 in 1:10-cv-00699-AT-HBP) Letter filed by Peter L. Zimroth. ENDORSEMENT: The Court, having reviewed the training materials on Investigative Encounters for Newly Promoted Sergeants and Lieutenants, ECF No. 585, and having received no objections, hereby APPROVES the materials. (Signed by Judge Analisa Torres on 3/27/2018) (cf) (Entered: 03/27/2018)
395 ORDER granting 589 Letter Motion for Extension of Time to File in 08cv-1034-AT. GRANTED. (Signed by Judge Analisa Torres on 4/19/2018) (mro) (Entered: 04/20/2018)
396 ORDER: GRANTED. By June 8, 2018, the parties shall file their comments. By June 22, 2018, amici curae shall file their comments, if any. By June 29, 2018, the parties shall file their replies. Decision on the request for oral argument is held in abeyance. (Signed by Judge Analisa Torres on 5/7/2018) (cf) (Entered: 05/07/2018)
397 MOTION for Judson Krebbs Vickers to Withdraw as Attorney . Document filed by The City of New York.(Vickers, Judson) (Entered: 05/16/2018)
398 ORDER granting 397 Motion to Withdraw as Attorney. Attorney Judson Krebbs Vickers terminated (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (DN) (Entered: 05/16/2018)

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399 NOTICE of New York City Joint Remedial Process Final Report. Document filed by Ariel E. Belen. (Attachments: # 1 Appendix Written submissions from stakeholders, # 2 Appendix Plaintiffs' counsel recommendations, # 3 Appendix NYPD response, # 4 Appendix Leadership meeting materials, # 5 Appendix Focus group materials, # 6 Appendix Community forum materials, # 7 Appendix Police and Community Feedback, # 8 Appendix Data)(Belen, Ariel) (Entered: 05/16/2018)
400 BRIEF re: 399 Notice (Other), Pls. Comments on the Joint Remedial Process Reforms. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Harris, Angel) (Entered: 06/08/2018)
401 BRIEF re: 399 Notice (Other), The Way Forward - The NYPD's Response to the Joint Remedial Process Report. Document filed by The City of New York.(Cooper, David) (Entered: 06/08/2018)
402 BRIEF re: 399 Notice (Other), The New York City Law Department's Comments on Specific Recommendations in the Joint Remedial Process Final Report and Recommendations. Document filed by The City of New York.(Cooper, David) (Entered: 06/08/2018)
403 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated June 25, 2018 re: Recommendation Regarding In-Service Stop and Frisk Training for Patrol Officers. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 06/25/2018)
404 MEMO ENDORSEMENT on re: (403 in 1:10-cv-00699-AT-HBP) Letter filed by Peter L. Zimroth, (609 in 1:08-cv-01034-AT) Letter filed by Peter L. Zimroth, (320 in 1:12-cv-02274-AT-HBP) Letter filed by Peter L Zimroth. ENDORSEMENT: APPROVED. In addition, the Monitor's request to file the unredacted training materials and videos under seal is GRANTED. (Signed by Judge Analisa Torres on 7/10/2018) (cf) (Entered: 07/10/2018)
405 BRIEF re: 402 Brief, 401 Brief Containing Reply in Further Support of the Responses Submitted by the New York City Law Department and the New York City Police Department. Document filed by The City of New York.(Cooper, David) (Entered: 07/16/2018)
406 BRIEF re: 399 Notice (Other), 400 Brief, Plaintiffs' Reply in Further Support of the Joint Remedial Process Reforms. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Appendix A - Letters from Named Plaintiffs)(Harris, Angel) (Entered: 07/16/2018)

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407 ORDER REGARDING DOCUMENTING POLICE-CITIZEN ENCOUNTERS: The Court concludes that further study on this recommendation is necessary. Accordingly, it is hereby ORDERED that: By September 13, 2018, the parties shall submit a joint proposal for a pilot program, to be overseen by the Monitor, to study the electronic recording of first-and second-level police-citizen encounters. The proposal shall consider social science best practices. In developing the proposal, the parties shall consult with experts and the Monitor. (As further set forth in this Order.) After consulting the parties, the Monitor shall report to the Court whether the benefits of recording lower-level encounters outweigh the financial, administrative, and other costs, and whether the program should be expanded or terminated. The City shall bear the cost of the pilot program. (Signed by Judge Analisa Torres on 7/19/2018) (cf) (Main Document 407 replaced on 7/19/2018) (cf). (Entered: 07/19/2018)
408 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 07/25/2018 re: Recommendation Regarding Basic Plainclothes Training for New Plainclothes Officers. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 07/25/2018)
409 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 07/25/2018 re: Recommendation Regarding Recruit Training on Investigative Encounters. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 07/25/2018)
410 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated July 25, 2018 re: Application for Confidentiality Order. Document filed by Peter L. Zimroth. (Attachments: # 1 Text of Proposed Order)(Zimroth, Peter) (Entered: 07/25/2018)
411 ORDER: On July 25, 2018, the Monitor filed an application for a confidentiality order. See Floyd v. City of New York, No. 08 Civ. 1034, ECF No. 622. By August 2, 2018, the parties shall file their objections, if any, to the application. (Signed by Judge Analisa Torres on 7/26/2018) (cf) (Entered: 07/26/2018)
412 STATUS REPORT. Eighth Report of the Independent Monitor: Evaluation of NYPD Body-Worn Camera Implementation in NYCHA Housing Developments Document filed by Peter L. Zimroth. (Attachments: # 1 Report)(Zimroth, Peter) (Entered: 07/27/2018)
413 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated July 31, 2018 re: Amended Proposed Confidentiality Order [410-1]. Document filed by Peter L. Zimroth. (Attachments: # 1 Text of Proposed Order)(Zimroth, Peter) (Entered: 07/31/2018)
414 LETTER addressed to Judge Analisa Torres from David Cooper dated August 2, 2018 re: A Proposed Revision to the Amended Proposed

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Confidentiality Order. Document filed by The City of New York.(Cooper, David) (Entered: 08/02/2018)
415 Objection re: 413 Letter re Amended Proposed Confidentiality Order. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Lee, Jin Hee) (Entered: 08/02/2018)
416 RESPONSE re: 414 Letter dated August 2, 2018 from David Cooper to Judge Torres re Proposed Confidentiality Order. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Lee, Jin Hee) (Entered: 08/03/2018)
417 LETTER MOTION for Leave to File Responses in support of and in opposition to the Monitor's Application for a Confidentiality Order addressed to Judge Analisa Torres from David Cooper dated August 3, 2018. Document filed by The City of New York.(Cooper, David) (Entered: 08/03/2018)
418 ORDER granting 417 Letter Motion for Leave to File Document. It is hereby ORDERED that: 1. CPR's motion for leave to file an amicus brief is GRANTED; 2. By August 16, 2018, Defendant shall file its response to Plaintiffs' objections and CPR's amicus brief; and 3. By August 21, 2018, Plaintiffs shall file their reply, if any. The Clerk of Court is directed to terminate the motions at ECF Nos. 629 and 631 in Floyd v. City of New York, No. 08 Civ. 1034. (Signed by Judge Analisa Torres on 8/9/2018) (kgo) (Entered: 08/09/2018)
Set/Reset Deadlines: Reply to Response to Brief due by 8/21/2018. Responses to Brief due by 8/16/2018 (kgo) (Entered: 08/09/2018)
419 ORDER REGARDING BODY-WORN CAMERAS: that: 1. By October 19, 2018, the parties shall submit a joint proposal for a pilot program, to be overseen by the Monitor, to study requiring patrol officers to activate BWCs during Level 1 encounters under De Bour. The proposal shall consider social science best practices. In developing the proposal, the parties shall consult with experts and the Monitor. After consulting with the parties or their experts, the Monitor shall also consider whether it is feasible to integrate this pilot program into the BWC Pilot, or whether it must be conducted separately. 2. The proposal shall include: a. A timeline for the planning, implementation, and analysis of the data gathered during the implementation of the program; b. A plan for monitoring the program during the implementation stage; c. A plan for assessing whether requiring activation of BWCs during Level 1 encounters enhances the NYPD's ability to capture on BWCs encounters that escalate to Level 2 or Level 3; and d. A plan for considering the privacy implications and effect

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on police-community relations of activating BWCs during Level 1 encounters. 3. After consulting the parties, the Monitor shall report the study's findings to the Court. The City shall bear the cost of the pilot program. (Signed by Judge Analisa Torres on 8/9/2018) (tn) (Entered: 08/09/2018)
420 NOTICE OF APPEARANCE by John Spencer Cusick on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Cusick, John) (Entered: 08/13/2018)
421 MEMO ENDORSEMENT on re: (326 in 1:12-cv-02274-AT-HBP) Letter filed by Peter L Zimroth, (408 in 1:10-cv-00699-AT-HBP) Letter filed by Peter L. Zimroth, (620 in 1:08-cv-01034-AT) Letter filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. In addition, the Monitor's request to file the unredacted training materials and videos under seal is GRANTED. (Signed by Judge Analisa Torres on 8/14/2018) (cf) (Entered: 08/14/2018)
422 MEMO ENDORSEMENT on re: (621 in 1:08-cv-01034-AT) Letter filed by Peter L. Zimroth, (327 in 1:12-cv-02274-AT-HBP) Letter filed by Peter L Zimroth, (409 in 1:10-cv-00699-AT-HBP) Letter filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. In addition, the Monitor's request to file the unredacted training materials and videos under seal is GRANTED. (Signed by Judge Analisa Torres on 8/14/2018) (cf) (Entered: 08/14/2018)
423 LETTER addressed to Judge Analisa Torres from David Cooper dated August 16, 2018 re: Support for the Monitor's Application for a Confidentiality Order. Document filed by The City of New York. (Attachments: # 1 City's Redlined Copy of the Amended Proposed Confidentiality Order)(Cooper, David) (Entered: 08/16/2018)
424 RESPONSE re: 423 Letter, in Further Opposition to Proposed Confidentiality Order. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Harris, Angel) (Entered: 08/21/2018)
425 ORDER granting [641 in 08-cv-1034] Letter Motion to File Amicus Brief. GRANTED. By August 23, 2018, Communities United for Police Reform shall file its amicus curiae in further opposition. (Responses to Brief due by 8/23/2018) (Signed by Judge Analisa Torres on 8/22/2018) (cf) (Entered: 08/22/2018)
426 LETTER addressed to Judge Analisa Torres from Evan Chesler dated October 1, 2018 re: Confidentiality Order. Document filed by Peter L. Zimroth. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3,

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# 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Zimroth, Peter) (Entered: 10/01/2018)
427 ORDER denying (648 in 08cv1034) Letter Motion for Leave to File Document. Plaintiffs now file a request for leave to file more papers. ECF No. 648. As stated, Plaintiffs have already filed two submissions on this issue, ECF Nos. 627 & 639, and in total, the Court has received seven submissions, ECF Nos. 627, 635, 638, 639, 640, 643, 647. The Court, therefore, has sufficient briefing to decide the issue. Accordingly, Plaintiffs' motion for leave to file an additional submission is DENIED. The Clerk of Court is directed to terminate the motion at ECF No. 648 in Floyd v. City of New York, No. 08 Civ. 1034. SO ORDERED. (Signed by Judge Analisa Torres on 10/2/18) (yv) (Entered: 10/02/2018)
428 CONFIDENTIALITY ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (As further set forth in this Order.) (Signed by Judge Analisa Torres on 10/11/2018) (cf) (Entered: 10/11/2018)
429 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 19, 2018 re: Recommendation Regarding Stop and Frisk Procedures and Stop Report. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 10/19/2018)
430 MEMO ENDORSEMENT on re: (350 in 1:12-cv-02274-AT-HBP) LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 19, 2018 re: Recommendation Regarding Stop and Frisk Procedures and Stop Report. Document filed by Peter L. Zimroth., (655 in 1:08-cv-01034-AT) LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 19, 2018 re: Recommendation Regarding Stop and Frisk Procedures and Stop Report. Document filed by Peter L. Zimroth., ( 429 in 1:10-cv-00699-AT-HBP) LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 19, 2018 re: Recommendation Regarding Stop and Frisk Procedures and Stop Report. Document filed by Peter L. Zimroth. ENDORSEMENT: With respect only to matters that are subject to the Court's approval, the Monitor's request is GRANTED. The Court does not address issues arising under the Right to Know Act, as they are not within the scope of the monitorship. SO ORDERED. (Signed by Judge Analisa Torres on 10/26/2018) (rjm) Modified on 10/26/2018 (rjm). (Entered: 10/26/2018)
431 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated November 9, 2018 re: Recommendation Regarding Combined Pilot Study. Document filed by Peter L. Zimroth. (Attachments: # 1 Protocol for Combined Pilot)(Zimroth, Peter) (Entered: 11/09/2018)
432 ORDER REGARDING FACILITATOR'S RECOMMENDATION NO. 1. It is hereby ORDERED that by January 7, 2019, the NYPD shall, after consultation with the Monitor, submit for approval a plan to implement "a

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program for systematically receiving, assessing, and acting on information regarding adverse findings on the conduct of police officers involving illegal stops or illegal trespass enforcements." Final Report at 219. Such information shall include "(a) declinations of prosecutions by the District Attorneys in New York City; (b) suppression decisions by courts precluding evidence as a result of unlawful stops and searches; (c) court findings of incredible testimony by police officers; (d) denials of indemnification and/or representation of police officers by the New York City Law Department; and (e) judgments and settlements against police officers in civil cases where, in the opinion of the New York City Law Department, there exists evidence of police malfeasance." Id. SO ORDERED. (Signed by Judge Analisa Torres on 11/20/18) (yv) (Entered: 11/20/2018)
433 Objection re: 431 Letter and Monitor Final Recommendation re Level 1/2 Documentation and Level 1 Body Worn Camera Recording Pilots. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Appendix 1, # 2 Appendix 2)(Harris, Angel) (Entered: 11/21/2018)
434 LETTER MOTION for Leave to File a Response to Plaintiffs' November 21, 2018 Objection addressed to Judge Analisa Torres from David Cooper dated November 29, 2018. Document filed by The City of New York.(Cooper, David) (Entered: 11/29/2018)
435 ORDER granting 434 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 11/30/2018) (cf) (Entered: 11/30/2018)
436 LETTER addressed to Judge Analisa Torres from David Cooper dated December 5, 2018 re: Response to Plaintiffs' Objection dated November 21, 2018. Document filed by The City of New York.(Cooper, David) (Entered: 12/05/2018)
437 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Anthony Anderson, Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, William Turner, Andrew Washington, David Wilson, Geneva Wilson, Geneva Wilson(Individually and on behalf of a class of all others similarly situated). (Beale, Elana) (Entered: 12/14/2018)
438 NOTICE OF WITHDRAWAL AS ATTORNEY OF RECORD AND ORDER: Accordingly, all Paul, Weiss counsel will be removed from the CM/ECF notification list. (As further set forth in this Order.) The Clerk

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of Court is directed to remove all Paul, Weiss attorneys' appearances from the docket and names from the ECF distribution list. Attorney Marlen Suyapa Bodden; Katharine E. G. Brooker; John Spencer Cusick; Erin Elizabeth Elmouji; William Donald Gibney, Sr; Angel Harris; Rachel Miriam Kleinman; Jin Hee Lee; Daniel J. Leffell; Marne Lynn Lenox; Natasha Clarise Merle; Amanda Carol Moretti; Julia Tarver-Mason Wood; Raymond Audain and Elana Rose Beale terminated. (Signed by Judge Analisa Torres on 12/14/2018) (cf) (Entered: 12/14/2018)
439 STATUS REPORT. Recommendation Regarding IAB Guide and Training on Profiling Investigations Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 12/20/2018)
440 MEMO ENDORSEMENT on re: (439 in 1:10-cv-00699-AT-HBP) Status Report filed by Peter L. Zimroth, (357 in 1:12-cv-02274-AT-HBP) Status Report filed by Peter L Zimroth, (676 in 1:08-cv-01034-AT) Status Report filed by Peter L. Zimroth. ENDORSEMENT: APPROVED (Signed by Judge Analisa Torres on 1/3/2019) (cf) (Entered: 01/03/2019)
441 LETTER MOTION for Extension of Time to File the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated January 7, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 01/07/2019)
442 ORDER granting 441 Letter Motion for Extension of Time to File. GRANTED. (Signed by Judge Analisa Torres on 1/7/2019) (cf) (Entered: 01/07/2019)
443 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated January 11, 2019 re: Ninth Report of the Independent Monitor. Document filed by Peter L. Zimroth. (Attachments: # 1 Ninth Report of the Independent Monitor, # 2 Appendix 1, # 3 Appendix 2)(Zimroth, Peter) (Entered: 01/11/2019)
444 LETTER addressed to Judge Analisa Torres from David Cooper dated January 14, 2019 re: the NYPD's Plan to Implement Facilitator's Recommendation No. 1. Document filed by The City of New York. (Attachments: # 1 Plan to Implement Facilitator's Recommendation No. 1)(Cooper, David) (Entered: 01/14/2019)
445 LETTER addressed to Judge Analisa Torres from Jin Hee Lee dated January 16, 2019 re: Plaintiffs' Response to Defendant City of New York's Plan for Implementation of Facilitator Recommendation # 1. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Lee, Jin Hee) (Entered: 01/16/2019)

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446 MEMO ENDORSEMENT on (682 in 08-CV-1034) LETTER. ENDORSEMENT: GRANTED. (Signed by Judge Analisa Torres on 1/16/2019) (jwh) (Entered: 01/16/2019)
447 LETTER addressed to Judge Analisa Torres from Jin Hee Lee dated January 28, 2019 re: Floyd and Davis Plaintiffs' Response to Defendant City of New York's Plan for Implementation of Facilitator Recommendation # 1. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Lee, Jin Hee) (Entered: 01/28/2019)
448 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated January 29, 2019 re: Recommendation Regarding Combined Pilot Study. Document filed by Peter L. Zimroth. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Zimroth, Peter) (Entered: 01/29/2019)
449 LETTER MOTION for Leave to File a Response to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated January 30, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 01/30/2019)
450 ORDER granting 449 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 1/30/2019) (cf) (Entered: 01/30/2019)
451 NOTICE OF APPEARANCE by Aaron Ross Sussman on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Sussman, Aaron) (Entered: 01/31/2019)
452 ORDER denying [690 in 08-cv-1034] Letter Motion for Leave to File Document. Having reviewed the submissions of the parties and amicus curiae with respect to the proposed pilot program, ECF Nos. 660, 669, 673-75, 687, it is hereby ORDERED that: 1. Plaintiffs' motion for leave to file additional papers, ECF No. 669, is DENIED; and 2. The proposed pilot study, ECF No. 687-1, is APPROVED. The Clerk of Court is directed to terminate the motion at ECF No. 690. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 2/7/2019) (cf) (Entered: 02/07/2019)
453 LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres

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from David Cooper dated February 7, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 02/07/2019)
454 ORDER granting 453 Letter Motion for Extension of Time to File Response/Reply. So Ordered. (Signed by Judge Analisa Torres on 2/7/2019) (js) (Entered: 02/08/2019)
455 NOTICE OF APPEARANCE by Alexis Hoag on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Hoag, Alexis) (Entered: 02/26/2019)
456 SECOND LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated February 28, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 02/28/2019)
457 ORDER granting 456 Letter Motion for Extension of Time to File Response/Reply. GRANTED. (Signed by Judge Analisa Torres on 2/28/2019) (cf) (Entered: 02/28/2019)
458 THIRD LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated March 8, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 03/08/2019)
469 ORDER granting 458 Letter Motion for Extension of Time to File Response/Reply: GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 3/8/2019) (jwh) (Entered: 06/21/2019)
459 FOURTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated March 22, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 03/22/2019)
460 ORDER granting 459 Letter Motion for Extension of Time to File Response/Reply re 459 FOURTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 3/22/2019) Responses due by 4/12/2019. (ks) (Entered: 03/22/2019)
461 FIFTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge

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Analisa Torres from David Cooper dated April 12, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 04/12/2019)
462 ORDER granting 461 Letter Motion for Extension of Time to File Response/Reply. GRANTED. (Signed by Judge Analisa Torres on 4/12/2019) (cf) (Entered: 04/12/2019)
463 NOTICE OF APPEARANCE by Cynthia Helen Conti-Cook on behalf of Anthony Anderson, Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, William Turner, Andrew Washington, David Wilson, Geneva Wilson, Geneva Wilson(Individually and on behalf of a class of all others similarly situated). (Conti-Cook, Cynthia) (Entered: 04/30/2019)
464 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated May 28, 2019 re: Recommendation Regarding Training Materials for Housing Bureau Members. Document filed by Peter L. Zimroth. (Attachments: # 1 Housing One-Day Training Scenarios, # 2 Lobby Trespass Scenario, # 3 Stairwell Trespass Scenario, # 4 Shots Fired Ingterior Patrol Scenario, # 5 Roof Trespass Scenario)(Zimroth, Peter) (Entered: 05/28/2019)
465 MEMO ENDORSEMENT on re: (464 in 1:10-cv-00699-AT-HBP) Letter, filed by Peter L. Zimroth, (380 in 1:12-cv-02274-AT-HBP) Letter, filed by Peter L Zimroth, (706 in 1:08-cv-01034-AT) Letter, filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 5/29/2019) (cf) (Entered: 05/29/2019)
466 SIXTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated June 7, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 06/07/2019)
467 ORDER granting 466 Letter Motion for Extension of Time to File Response/Reply. GRANTED. SO ORDERED. Responses due by 8/2/2019. (Signed by Judge Analisa Torres on 6/7/2019) (jca) (Entered: 06/07/2019)
468 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated June 14, 2019 re: Pilot Study Confidentiality Order. Document filed by Peter L. Zimroth. (Attachments: # 1 Exhibit 1)(Zimroth, Peter) (Entered: 06/14/2019)
470 ENDORSED LETTER addressed to Judge Analisa Torres from "the City Prsecutors" dated 6/28/2019 re: request leave to submit comments by Friday, July 19, 2019, regarding the Monitor's proposed confidentiality

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order and letter in support, which he submitted on June 14, 2019. See Doc. No. 712 (08-CV-1034). ENDORSEMENT: GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 6/28/2019) (kv) (Entered: 06/28/2019)
471 Objection re: 468 Letter Monitor's Proposed Pilot Confidentiality Order. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Hoag, Alexis) (Entered: 06/29/2019)
472 ORDER granting [716 in case 08-cv-1034] Letter Motion for Leave to File Excess Pages. GRANTED. (Signed by Judge Analisa Torres on 7/1/2019) (cf) (Entered: 07/01/2019)
473 LETTER MOTION for Leave to File Comment in Connection with the Proposed Pilot Study Confidentiality Order addressed to Judge Analisa Torres from David Cooper dated July 8, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 07/08/2019)
474 ORDER granting 473 Letter Motion for Leave to File Document. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 7/9/2019) (rro) (Entered: 07/09/2019)
475 LETTER addressed to Judge Analisa Torres from David Cooper dated July 11, 2019 re: Comment on Proposed Pilot Study Confidentiality Order. Document filed by The City of New York.(Cooper, David) (Entered: 07/11/2019)
476 LETTER MOTION for Leave to File Remark Regarding the Proposed Modification Contained in the City Prosecutors' Amicus Brief addressed to Judge Analisa Torres from David Cooper dated July 26, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 07/26/2019)
477 ORDER granting 476 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 7/26/2019) (cf) (Entered: 07/26/2019)
478 NOTICE of relevant Second Circuit order in Brown v. Maxwell, No. 18cv-2868 (vacating district court order and unsealing) re: 471 Objection (non-motion),. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Attachments: # 1 Exhibit July 2, 2019 Second Circuit opinion in Brown v. Maxwell, No. 18-cv-2868)(Cusick, John) (Entered: 07/30/2019)
479 LETTER addressed to Judge Analisa Torres from David Cooper dated August 1, 2019 re: Submission of Proposed Stipulation and Order Incorporating the Terms and Provisions of the Floyd/Ligon Remedial

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Order Into Davis. Document filed by The City of New York.(Cooper, David) (Entered: 08/01/2019)
480 PROPOSED STIPULATION AND ORDER. Document filed by The City of New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Cooper, David) (Entered: 08/01/2019)
481 STIPULATION AND ORDER INCORPORATING THE TERMS AND PROVISIONS OF THE FLOYD/LIGON REMEDIAL ORDER INTO DAVIS: Plaintiffs and the City enter into this Stipulation of Incorporation after arm 's length good faith negotiations, and now jointly request that the Court endorse this Stipulation of Incorporation to incorporate, in full, the terms and provisions of the Floyd/Ligon Remedial Order, as defined below, into the above-captioned case, including without limitation the duties of the Monitor and the Joint Remedial Process, for the purpose of enforcing the Stipulation of Settlement and Order as it pertains to reforms to the NYPD's practices that relate to trespass enforcement in or around NYCHA residences, including training, supervision, monitoring, and discipline of officers. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 8/1/2019) (cf) (Entered: 08/01/2019)
482 LETTER addressed to Judge Analisa Torres from David Cooper dated August 2, 2019 re: Submission of NYPD's Response Addressing Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1. Document filed by The City of New York. (Attachments: # 1 Response to Plaintiffs' Submissions on Department's Response to Court Order Regarding Facilitator's Recommendation No. 1)(Cooper, David) (Entered: 08/02/2019)
483 LETTER addressed to Judge Analisa Torres from David Cooper dated August 2, 2019 re: Remark on the District Attorneys' Amicus Brief. Document filed by The City of New York.(Cooper, David) (Entered: 08/02/2019)
484 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated August 6, 2019 re: Pilot Study Confidentiality Order. Document filed by Peter L. Zimroth. (Attachments: # 1 Exhibit 1)(Zimroth, Peter) (Entered: 08/06/2019)
485 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated August 12, 2019 re: Pilot Study Confidentiality Order. Document filed by Peter L. Zimroth. (Attachments: # 1 Exhibit 1)(Zimroth, Peter) (Entered: 08/12/2019)
486 ORDER: Having reviewed the submissions of the Monitor, the parties, it is hereby ORDERED that the proposed confidentiality order, Floyd, ECF No. 734-1, is APPROVED. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 8/12/2019) (cf) (Entered: 08/12/2019)

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487 CONFIDENTIALITY ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (As further set forth in this Order.) (Signed by Judge Analisa Torres on 8/12/2019) (cf) (Entered: 08/12/2019)
488 MOTION for Alexis Hoag to Withdraw as Attorney . Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Hoag, Alexis) (Entered: 08/23/2019)
489 MEMO ENDORSEMENT granting 488 Motion to Withdraw as Attorney. ENDORSEMENT: The Clerk of Court is directed to remove Alexis J. Hoag's appearance from the docket and name from the ECF distribution list. Attorney Alexis Hoag terminated (Signed by Judge Analisa Torres on 8/23/2019) (cf) (Entered: 08/23/2019)
490 ORDER. It is hereby ORDERED that: 1. By September 17, 2019, Defendants shall file their response to Plaintiffs' Motion for Reconsideration; and 2. By September 24, 2019, Plaintiffs shall file their reply, if any. SO ORDERED. (Responses due by 9/17/2019. Replies due by 9/24/2019.) (Signed by Judge Analisa Torres on 9/3/2019) (rjm) (Entered: 09/03/2019)
491 MOTION for Marne Lynn Lenox to Withdraw as Attorney of Record. Document filed by Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington.(Lenox, Marne) (Entered: 09/27/2019)
492 MEMO ENDORSEMENT granting 491 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Marne Lenox's appearance from the docket and name from the ECF distribution list. Attorney Marne Lynn Lenox terminated (Signed by Judge Analisa Torres on 9/27/2019) (cf) (Entered: 09/27/2019)
493 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated October 10, 2019 re: the City of New York's Filing Concerning the Pilot Study Confidentiality Order. Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 10/10/2019)
494 NOTICE OF APPEARANCE by Kevin Eli Jason on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington. (Jason, Kevin) (Entered: 10/14/2019)
495 ORDER: The Floyd Plaintiffs now move for reconsideration of that order pursuant to Local Civil Rule 6.3. ECF No. 740. (As further set forth in this Order.) For the reasons stated above, the Floyd Plaintiffs' motion for

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reconsideration of the Pilot Confidentiality Order is DENIED. (Signed by Judge Analisa Torres on 10/25/2019) (cf) (Entered: 10/25/2019)
496 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated December 16, 2019 re: The Tenth Report of the Independent Monitor. Document filed by Peter L. Zimroth. (Attachments: # 1 BWC Memorandum of Understanding, # 2 Compliance Metrics)(Zimroth, Peter) (Entered: 12/16/2019)
497 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated January 7, 2020 re: The Corrected Tenth Report of the Independent Monitor. Document filed by Peter L. Zimroth. (Attachments: # 1 BWC Memorandum of Understanding, # 2 Compliance Metrics)(Zimroth, Peter) (Entered: 01/07/2020)
498 ORDER: The Agreement by and between Peter Zimroth (Monitor) and New York City (City) approved by the Court on February 6, 2015, Floyd v. City of New York, Document 478, is amended by adding the following subparagraphs to subparagraph 2.3: 2.3.24 Rob Voigt, $200 per hour 2.3.25 Nick Camp, $200 per hour. This amended Agreement is effective as of the date signed below and, unless sooner terminated, shall terminate upon the termination by the Court of the Monitor's duties. (Signed by Judge Analisa Torres on 5/5/2020) (cf) (Entered: 05/05/2020)
499 NOTICE OF APPEARANCE by Ashok Chandran on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington..(Chandran, Ashok) (Entered: 05/22/2020)
500 NOTICE OF APPEARANCE by Patricia Okonta on behalf of Eleanor Britt, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Hector Suarez, Andrew Washington..(Okonta, Patricia) (Entered: 05/26/2020)
501 NOTICE OF APPEARANCE by Corey Stoughton on behalf of Anthony Anderson, Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, William Turner, Andrew Washington, David Wilson, Geneva Wilson, Geneva Wilson(Individually and on behalf of a class of all others similarly situated)..(Stoughton, Corey) (Entered: 05/26/2020)
502 PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document filed by Anthony Anderson, Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio,

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P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, William Turner, Andrew Washington, David Wilson, Geneva Wilson, Geneva Wilson(Individually and on behalf of a class of all others similarly situated)..(Audain, Raymond) Proposed Order to Show Cause to be reviewed by Clerk's Office staff. (Entered: 05/26/2020)
503 MEMORANDUM OF LAW in Support re: 502 Proposed Order to Show Cause With Emergency Relief,, . Document filed by Anthony Anderson, Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, William Turner, Andrew Washington, David Wilson, Geneva Wilson, Geneva Wilson(Individually and on behalf of a class of all others similarly situated)..(Audain, Raymond) (Entered: 05/26/2020)
504 ORDER: Accordingly, it is hereby ORDERED that: 1. By June 2, 2020, Defendant shall file its response to Plaintiffs' proposed order to show cause. 2. By June 9, 2020, the Monitor shall file a response. The Court will notify the parties if it determines that a hearing is necessary. SO ORDERED., ( Replies due by 6/9/2020., Show Cause Response due by 6/2/2020.) (Signed by Judge Analisa Torres on 5/26/2020) (ama) (Entered: 05/26/2020)
505 DECLARATION of Dominique Day in Support re: 502 Proposed Order to Show Cause With Emergency Relief,,. Document filed by Anthony Anderson, Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, William Turner, Andrew Washington, David Wilson, Geneva Wilson, Geneva Wilson(Individually and on behalf of a class of all others similarly situated). (Attachments: # 1 Exhibit 1 to Day Declaration, # 2 Exhibit 2 to Day Declaration, # 3 Exhibit 3 to Day Declaration, # 4 Exhibit 4 to Day Declaration, # 5 Exhibit 5 to Day Declaration, # 6 Exhibit 6 to Day Declaration, # 7 Exhibit 7 to Day Declaration, # 8 Exhibit 8 to Day Declaration).(Audain, Raymond) (Entered: 05/26/2020)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 502 Proposed Order to Show Cause With Emergency Relief,, was reviewed and approved as to form. (ad) (Entered: 05/26/2020)
506 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated May 28, 2020 re: Joint Brief of The Parties Regarding NYPDs Early Intervention Proposal. Document filed by Peter L. Zimroth..(Zimroth, Peter) (Entered: 05/28/2020)

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507 JOINT BRIEF of The Parties Regarding NYPDs Early Intervention Proposal. Document filed by Peter L. Zimroth. (Attachments: # 1 Appendix A, # 2 Appendix B).(Zimroth, Peter) (Entered: 05/28/2020)
508 LETTER MOTION for Extension of Time to File Response/Reply as to 502 Proposed Order to Show Cause With Emergency Relief,, addressed to Judge Analisa Torres from David Cooper dated May 29, 2020. Document filed by The City of New York..(Cooper, David) (Entered: 05/29/2020)
509 ORDER granting 508 Letter Motion for Extension of Time to File Response/Reply. GRANTED. By June 8, 2020, Defendant shall file it's response to the Floyd, Davis, and Ligon Plaintiff's submissions. It is further ORDERED that the deadline for the Monitor to file a response is EXTENDED to June 15, 2020. Replies due by 6/15/2020. Replies due by 6/15/2020. (Signed by Judge Analisa Torres on 6/1/2020) (cf) (Entered: 06/01/2020)
Set/Reset Deadlines: Show Cause Response due by 6/8/2020. (cf) (Entered: 06/01/2020)
510 ORDER: WHEREAS, the NYPD has consulted with the Monitor and Plaintiffs' counsel and finalized a plan to implement the above program; NOW, THEREFORE, it is hereby ORDERED on this 2nd day of June 2020 that: 1. The NYPD shall make reasonable efforts to systematically obtain the following categories of information in the manner described herein: a. From the District Attorneys Offices of Bronx, Kings, New York, Queens, and Richmond Counties (collectively, "District Attorney's Offices"), data, preferably in digitized, automated form, regarding all declinations of prosecutions falling into any of the following categories: categories: (i) complainant or witness failed to positively identify defendant; as further set forth in this Order. The Committee shall review, and the NYPD shall enter into the computerized database described in paragraph 2 above, all relevant data pertaining to officers identified as lacking in credibility or flagged as ineffective by the District Attorney's Offices. (Signed by Judge Analisa Torres on 6/2/2020) (cf) (Entered: 06/02/2020)
511 NOTICE of PLAINTIFFS SUPPLEMENTAL SUBMISSION IN SUPPORT OF THEIR MOTION FOR EMERGENCY RELIEF re: 502 Proposed Order to Show Cause With Emergency Relief,,. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson..(Lee, Jin Hee) (Entered: 06/03/2020)

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512 LETTER MOTION for Leave to File Excess Pages in connection with the City's Response to the Floyd, Davis, and Ligon Plaintiffs' submissions addressed to Judge Analisa Torres from David Cooper dated June 4, 2020. Document filed by The City of New York..(Cooper, David) (Entered: 06/04/2020)
513 ORDER granting 512 Letter Motion for Leave to File Excess Pages. GRANTED Defendant may file a response not to exceed 50 pages. (Signed by Judge Analisa Torres on 6/5/2020) (cf) (Entered: 06/05/2020)
514 OPPOSITION BRIEF re: 502 Proposed Order to Show Cause With Emergency Relief,, . Document filed by The City of New York..(Cooper, David) (Entered: 06/09/2020)
515 DECLARATION of David Cooper in Support re: 514 Opposition Brief. Document filed by The City of New York. (Attachments: # 1 Exhibit A through O).(Cooper, David) (Entered: 06/09/2020)
516 LETTER MOTION to Seal addressed to Judge Analisa Torres from RAJU SUNDARAN dated JUNE 9, 2020. Document filed by The City of New York..(Sundaran, Raju) (Entered: 06/09/2020)
517 ***EX-PARTE***DECLARATION of RAJU SUNDARAN in Support re: 516 LETTER MOTION to Seal addressed to Judge Analisa Torres from RAJU SUNDARAN dated JUNE 9, 2020.. Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B)Motion or Order to File Under Seal: 516 .(Sundaran, Raju) (Entered: 06/09/2020)
518 ORDER granting 516 Letter Motion to Seal. GRANTED. The redacted information is protected by N.Y. CPL 160.50, and sealing is justified to "lessen the adverse consequences of unsuccessful...criminal prosecutions". Berry v. Newton, 06 Civ. 4086, 2008 WL 2876553 at 3* (S.D.N.Y. July 9 2008). (Signed by Judge Analisa Torres on 6/10/2020) (cf) Modified on 6/10/2020 (cf). (Entered: 06/10/2020)
519 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Analisa Torres from Benjamin Gruenstein dated June 15, 2020. Document filed by Peter L. Zimroth..(Zimroth, Peter) (Entered: 06/15/2020)
520 ORDER granting 519 Letter Motion for Extension of Time to File Response/Reply. GRANTED. By June 18, 2020, the Monitor shall file his response. SO ORDERED. Replies due by 6/18/2020. (Signed by Judge Analisa Torres on 6/15/2020) (kv) (Entered: 06/15/2020)
521 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated June 15, 2020 re: Audit Plan. Document filed by Peter L. Zimroth. (Attachments: # 1 Audit Plan, # 2 Stop Report Audit Appendix, # 3 Trespass Arrest Appendix, # 4 PIE Audit Appendix, # 5 802 Command Stop Report Self Inspection Instructions, # 6 802 Command Stop Report Self Inspection Appendix, # 7 803 PIE Self Inspection QAD

06/15/2020 06/15/2020
06/18/2020
06/18/2020 06/29/2020 07/02/2020 07/08/2020

Review, # 8 803 PIE Self Inspection BWC Appendix Instructions, # 9 803 PIE Self Inspection BWC Appendix).(Zimroth, Peter) (Entered: 06/15/2020)
522 REPLY MEMORANDUM OF LAW in Support re: 502 Proposed Order to Show Cause With Emergency Relief,, . Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson..(Lee, Jin Hee) (Entered: 06/15/2020)
523 DECLARATION of Darius Charney in Support re: 502 Proposed Order to Show Cause With Emergency Relief,,. Document filed by Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, R.E., Lashaun Smith, Hector Suarez, William Turner, Andrew Washington, David Wilson, Geneva Wilson. (Attachments: # 1 Exhibit 1 to Charney Declaration, # 2 Exhibit 2 to Charney Declaration).(Lee, Jin Hee) (Entered: 06/15/2020)
524 ENDORSED LETTER addressed to Judge Analisa Torres from representation on bhalf of the Police Benevolent Association of the City of New York, Inc. dated 6/16/2020 re: We respectfully request leave to submit the below letter as amicus curiae in support of the Defendant City of New York's (the "City") opposition to Plaintiffs' motion for Emergency Relief (Dkt. No. 771, the "Opposition"). ENDORSEMENT: Leave to submit the letter as amicus curiae is GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 6/18/2020) (kv) (Entered: 06/18/2020)
525 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated June 18, 2020 re: Proposed Order to Show Cause With Emergency Relief. Document filed by Peter L. Zimroth..(Zimroth, Peter) (Entered: 06/18/2020)
526 RESPONSE re: 521 Letter,, from Monitor re Audit Plan. Document filed by Eleanor Britt, Adam Cooper, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Shawne Jones, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, Andrew Washington. (Attachments: # 1 Exhibit Exhibit A).(Audain, Raymond) (Entered: 06/29/2020)
527 COUNTER RESPONSE re: 526 Response, . Document filed by The City of New York..(Sundaran, Raju) (Entered: 07/02/2020)
528 ORDER: For the foregoing reasons, Plaintiffs' requests for an order (1) declaring that the NYPD's enforcement of COVID-19 rules violates the Court's prior orders, (2) directing the Monitor to investigate COVID-19 and curfew enforcement involving police conduct outside the scope of this litigation, (3) enjoining the NYPD from enforcing COVID-19 rules,

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and (4) compelling discovery are DENIED. See No. 08 Civ. 1034, ECF No. 759; No. 10 Civ. 699, ECF No. 502. The Clerk of Court is directed to terminate the motion at ECF No. 430 in case number 12 Civ. 2274. SO ORDERED. (Signed by Judge Analisa Torres on 7/8/2020) (mml) (Entered: 07/08/2020)
529 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated July 20, 2020 re: Monitor's Final Recommendation on NYPD QAD Audit Plan and Command Self Inspection. Document filed by Peter L. Zimroth..(Zimroth, Peter) (Entered: 07/20/2020)
530 MEMO ENDORSEMENT on re: (778 in 1:08-cv-01034-AT) Letter,, filed by Peter L. Zimroth, (521 in 1:10-cv-00699-AT-HBP) Letter,, filed by Peter L. Zimroth, (432 in 1:12-cv-02274-AT-HBP) Letter,, filed by Peter L Zimroth. ENDORSEMENT: APPROVED. Plaintiffs' requests for amendments to the Audit Plan, ECF No. 786, are DENIED for the reasons set forth in the Monitor's letter dated July 20, 2020, ECF No. 791. SO ORDERED. (Signed by Judge Analisa Torres on 7/27/2020) (kv) (Entered: 07/27/2020)
531 NOTICE OF APPEARANCE by Molly Griffard on behalf of Anthony Anderson, Anthony Anderson, Eleanor Britt, Adam Cooper, Kelton Davis, Rikia Evans, Vaughn Frederick, Altagracia Hernandez, Roman Jackson, Kristin Johnson, Shawne Jones, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, P.L., R.E., Lashaun Smith, Hector Suarez, William Turner, William Turner, Andrew Washington, David Wilson, Geneva Wilson, Geneva Wilson(Individually and on behalf of a class of all others similarly situated)..(Griffard, Molly) (Entered: 09/08/2020)

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